Milliken v Bradley Vol. 1 Brief Collection

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IN THE SUPREME COURT OF THE UNITED STATES

WILLIAM J. MILLIKEN, Governor of the State of Michigan; FRANK J. 
KELLEY, Attorney General of the State of Michigan; MICHIGAN 
STATE BOARD OF EDUCATION, a constitutional body corporate; 
JOHN W. PORTER, Superintendent of Public Instruction of the State 
of Michigan, and ALLISON GREEN, Treasurer of the State of Michigan,

Petitioners,
-vs-

RONALD BRADLEY and RICHARD BRADLEY, by their Mother and 
Next Friend, VERDA BRADLEY; JEANNE GOINGS, by her Mother 
and Next Friend, BLANCH GOINGS; BEVERLY LOVE, JIMMY LOVE 
and DARRELL LOVE, by their Mother and Next Friend, CLARISSA 
LOVE; CAMILLE BURDEN, PIERRE BURDEN, AVA BURDEN, 
MYRA BURDEN, MARC BURDEN and STEVEN BURDEN, by their 
Father and Next Friend, MARCUS BURDEN; KAREN WILLIAMS 
and KRISTY WILLIAMS, by their Father and Next Friend, C. WIL­
LIAMS; RAY LITT and MRS. WILBUR BLAKE, parents; all parents

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

October Term 1973

(Continued, on Inside Front Cover)

FRANK J. KELLEY 
Attorney General
Robert A. Derengoski 
Solicitor General
Eugene Krasicky 
Gerald F. Young
George L. McCargar
L. Grabam Ward

Assistant Attorneys General
Attorneys for Petitioners 
720 Law Building
525 West Ottawa Street 
Lansing, Michigan 48913

Dated; September 6, 1973.

P R IN T E D  B Y  S F E A K E R -H IN E S  A N D  T H O M A S , IN C .,  L A N S IN G , M IC H IG A N  -----  1 9 7 3



having children attending the public schools of the City of Detroit, 
Michigan, on their own behalf and on behalf of their minor children, 
all on behalf of any person similarly situated; and NATIONAL ASSO­
CIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, DE­
TROIT BRANCH; DETROIT FEDERATION OF TEACHERS, LOCAL 
231, AMERICAN FEDERATION OF TEACHERS, AFL-CIO; BOARD 
OF EDUCATION OF THE CITV OF DETROIT, a school district of 
the first class; PATRICK McDONALD, JAMES HATHAWAY and 
CORNELIUS GOLIGHTLY, members of the Board of Education of 
the City of Detroit; and NORMAN DRACHLER, Superintendent of 
the Detroit Public Schools; ALLEN PARK PUBLIC SCHOOLS, 
SCHOOL DISTRICT OF THE CITY OF BERKLEY, BRANDON 
SCHOOLS, CENTERLINE PUBLIC SCHOOLS, CHERRY HILL 
SCHOOL DISTRICT, CHIPPEWA VALLEY PUBLIC SCHOOLS, 
SCHOOL DISTRICT OF THE CITY OF CLAWSON, CRESTWOOD 
SCHOOL DISTRICT, DEARBORN PUBLIC SCHOOLS, DEARBORN 
HEIGHTS SCHOOL DISTRICT NO. 7, EAST DETROIT PUB­
LIC SCHOOLS, SCHOOL DISTRICT OF THE CITY OF FERNDALE. 
FLAT ROCK COMMUNITY SCHOOLS, GARDEN CITY PUBLIC 
SCHOOLS, GILBRALTAR SCHOOL DISTRICT, SCHOOL DISTRICT 
OF THE CITY OF HARPER WOODS, SCHOOL DISTRICT OF THE 
CITY OF HAZEL PARK, INTERMEDIATE SCHOOL DISTRICT OF 
THE COUNTY OF MACOMB, LAKE SHORE PUBLIC SCHOOLS, 
LAKE VIEW PUBLIC SCHOOLS, THE LAMPHERE SCHOOLS, LIN­
COLN PARK PUBLIC SCHOOLS, MADISON DISTRICT PUBLIC 
SCHOOLS, MELVINDALE-NORTH ALLEN PARK SCHOOL DIS­
TRICT, SCHOOL DISTRICT OF NORTH DEARBORN HEIGHTS, 
NOVI COMMUNITY SCHOOL DISTRICT, OAK PARK SCHOOL DIS­
TRICT, OXFORD AREA COMMUNITY SCHOOLS, BEDFORD UNION 
SCHOOL DISTRICT NO. 1, RICHMOND COMMUNITY SCHOOLS, 
SCHOOL DISTRICT OF THE CITY OF RIVER ROUGE, RIVER- 
VIEW COMMUNITY SCHOOL DISTRICT. ROSEVILLE PUBLIC 
SCHOOLS, SOUTH LAKE SCHOOLS, TAYLOR SCHOOL DISTRICT, 
WARREN CONSOLIDATED SCHOOLS, WARREN WOODS PUBLIC 
SCHOOLS, WAYNE-WESTLAND COMMUNITY SCHOOLS, WOOD- 
HAVEN SCHOOL DISTRICT and WYANDOTTE PUBLIC SCHOOLS, 
KERRY and COLLEEN GREEN, by their Father and Next Friend, 
DONALD G. GREEN, JAMES, JACK and KATHLEEN ROSEMARY, 
by their Mother and Next Friend, EVELYN G. ROSEMARY, TERRI 
DORAN, by her Mother and Next Friend, BEVERLY DORAN, SHER­
RILL, KEITH, JEFFREY and GREGORY COULS, by their Mother 
and Next Friend, SHARON COULS, EDWARD and MICHAEL ROMES- 
BURG, by their Father and Next Friend, EDWARD M. ROMESBURG, 
JR., TRACEY and GREGORY ARLEDGE, by their Mother and Next 
Friend, AILEEN ARLEDGE, SHERYL and RUSSELL PAUL, by their 
Mother and Next Friend, MARY LOU PAUL, TRACY QUIGLEY, by 
her Mother and Next Friend, JANICE QUIGLEY, IAN, STEPHANIE, 
KARL and JAAKO SUNT, by their Mother and Next Friend, SHIRLEY 
SUM , and TRI-COUNTY CITIZENS FOR INTERVENTION IN FED­
ERAL SCHOOL ACTION NO. 35257; DENISE MAGDOWSKI and 
DAVID MAGDOWSKI, by their Mother and Next Friend, JOYCE 
MAGDOWSKI; DAVID VIETTI by his Mother and Next Friend, 
VIOLET VIETTI, and the CITIZENS COMMITTEE FOR BETTER 
EDUCATION OF THE DETROIT METROPOLITAN AREA, a Mich­
igan non-Profit Corporation, SCHOOL DISTRICT OF THE CITY 
OF ROYAL OAK, SOUTHFIELD PUBLIC SCHOOLS, GROSSE 
POINTE PUBLIC SCHOOLS, MICHIGAN EDUCATION ASSOCIA­
TION and PROFESSIONAL PERSONNEL OF VAN DYKE,



INDEX
Page

Opinions and Orders Below___________________ _____  1

Jurisdiction _____________ .________________________ _ 3

Questions Presented _____________ ------------------------ ,v 3

Constitutional and Statutory Provisions Involved ___ 4

Statement of the Case -____________________________  5

Reasons For Granting the Writ

I. THE RULING OF THE SIXTH CIRCUIT 
COURT OF APPEALS THAT THE STATE 
OFFICER DEFENDANTS HAVE COMMIT­
TED ACTS RESULTING IN DE JURE 
SEGREGATION OF PUPILS, BOTH WITH­
IN THE, SCHOOL DISTRICT OF THE CITY 
OF DETROIT AND BETWEEN DETROIT 
AND OTHER SCHOOL DISTRICTS IN THE 
TRI-COUNTY AREA, IS WITHOUT BASIS 
IN LAW OR FACT AND IN CONFLICT 
WITH THE DECISIONS OF BOTH OTHER 
COURTS OF APPEALS AND THIS COURT 12

II. THE RULING OF THE COURT OF AP­
PEALS THAT A “ DETROIT-ONLY”  DE­
SEGREGATION PLAN COULD NOT REM­
EDY THE UNCONSTITUTIONAL SEG­
REGATION FOUND IN THE DETROIT 
SCHOOL DISTRICT IS NOT SUPPORTED 
BY THE RECORD, IS CLEARLY ERRO­
NEOUS AND IN CONFLICT WITH THE



11

Page
DECISIONS OF THIS COURT AND OTHER 
COURTS OF APPEALS __________________  27

III. THE DECISION OF THE COURT OF 
APPEALS THAT A MULTI-SCHOOL DIS­
TRICT REMEDY IS CONSTITUTIONALLY 
PERMISSIBLE HEREIN, IS ERRONEOUS 
AND IN CONFLICT WITH THE- DECI­
SIONS OF OTHER COURTS OF APPEALS 
AND THIS COURT______________ _________ 38

IY. THE QUESTION OF WHETHER A MULTI­
SCHOOL DISTRICT REMEDY IS CONSTI­
TUTIONALLY PERMISSIBLE IN THIS 
CAUSE IS AN IMPORTANT QUESTION 
OF FEDERAL LAW WHICH SHOULD BE 
DEFINITIVELY SETTLED BY THIS COURT 49

Conclusion ________________________________________  53



CITATIONS
Page

Alexander v Holmes County Board of Education,
396 US 19 (1969) ___i __________ ___ .... 27, 28, 32, 33, 37

Attorney General, ex rel Kies v Lowrey, 131 Mich 
639 (1902), a ff ’d 199 US 233 (1905)______________  15

Bradley v Milliken, 433 F2d 897 (CA 6, 1970);
438 F2d 945 (CA 6, 1971) _________jf*?_______25

Bradley v School Board of Richmond, Virginia,
462 F2d 1058 (CA 4, 1972), a ff ’d ____U S ___ A,
93 S Cl 1952 (1973) ______________________ 37, 38,42, 43,

44, 48, 50, 51

Brown v Board of Education, 347 US 483 (1954)   14
Brown v Board of Education, 349 US 294 (1955) —- 33
Goss v Board of Education of the City of Knoxville,

____F 2 d ____ , decided July 18, 1973 _______ A.___  30
Green v School Board of New Kent County,

391 US 430 (1968) _________________ 27, 28, 32, 33, 35, 37

Hiers v Detroit Superintendent of Schools,
376 Mich 225 (1965) _____________________ ...____  23

Higgins v Board of Education of the City of 
Grand Rapids, Michigan, (V D  Mich CA 6386),
Slip Opinion, July 1, 1973, p 77 ___ _l_______ ____ 18,19

Keyes v School District No. 1, Denver, Colorado,
| i  U S ____, 93 S Ct 2686, (1973) _____16,19, 20, 21, 23,

24, 25, 26, 33, 42, 
44, 48, 50, 51

Northcross v Board of Education of Memphis,
420 F2d 546 (1969) _____________ ......______ ______ 35

Pierce v Society of Sisters, 268 US 510 (1925) ______ 47



IV

Raney v Board of Education of Gould School 
District, 391 US 443 (1968) _______ I.______ ...____ 35, 38

San Antonio Independent School District v Rodriguez,
------ US ------, 93 S Ct 1278 (1973) _______  17,19, 24,

26, 45, 46
School District of the City of Lansing v State Board 

of Education, 367 Mich 591 (1962) ____ I__i f  j ___ 15

Senghas v L ’Anse Creuse Public Schools, 368 Mich 
557 (1962) __________ __________ ________________  15

Smith v North Carolina State Board of Education,
444 F2d 6 (CA 4, 1971) ___________ _____ ________23,26

Spencer v Kugler, 326 F Supp 1235 (D NJ, 1971), 
a ff ’d 404 US 1027 (1972) ...____ jr_____ 34,41,42, 48

Sparrow v Gill, 304 F Supp 86 (MD NC 1969) _____ 19

Swann v Charlotte-Meeklenburg Board of Education,
402 US 1 (1971) -------------------------------- 27,28,32,33,34,

35, 37,40, 41
United States v Board of School Commissioners, 

Indianapolis, Indiana, 332 F Supp 655 (1971) ____ 50
United States, et al v Board of School Commissioners 

of the City of Indianapolis, Indiana, et al (SD Ind),
No. IP 68-C-225, Slip Opinion, July 20,1973 ____32, 51, 52

United States v Scotland Neck Board of Education,
407 US 484 (1972) g i ___ ....._________ ..._____35,38

Wisconsin v Yoder, 406 US 205 (1972) ____________  47
Wright v Council of the City of Emporia,

407 US 451 (1972) -------------------------- .....35, 38, 45, 47
Wright v Rockefeller, 376 US 52 (1964) __________ 45
US Const, Amendments, art Y  _________ __________  4

Page



y

US Const, Amendments, art X ---------------------- -----

US Const, Amendments, art XT

4

4

TTSJ (Inn st Amondm an tx. art yCTV.  ̂ 1 5

Micb Const 1963, a.rt 8, & 2 ..... 46

Mi oh Hon»sT 1963, art 8, & 3 6

Mieli Const 1963, a.rt 9,  ̂ 6 and  ̂ 11 _  17,18

28USCA 1254 (1) ______________ 3

] 849. P A 70 _____ ..... 41

1937 PA 306, as amended, MCLA 388.851 et seq. 
MSA 15,1961 el seq

>
..... 22

1949 PA 231___________________________________ __  22

1955 PA 269, as amended, MCLA 340.1 et seq.;
MSA 15.3001 et seq. _________________ 15,22,24,44,46

1962 PA 175 _____________________________________  22
1969 PA 244, as amended by 1970 PA 48, MCLA 

388.171 et seq.; MSA 15.2298(1) et seq--------------7, 24, 25

FR Civ P, 19 ____________________- ____________ -—  40
Michigan Statistical Abstract, 1972 (9th ed.) ---------  5
Statistical Abstract of United States, 1972 (93rd ed.) 5
1971 HEW Enrollment Survey, 118 Cong. Rec.

S 144-148 „ 50



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IN THE SUPREME COURT OF THE 
UNITED STATES

No_______

WILLIAM G. MILLIKEN, et al,

RONALD BRADLEY, et al,

Petitioners,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

Petitioners William (Sr. Milliken, Governor of the State of 
Michigan; Frank J. Kelley, Attorney General of the State 
of Michigan; Michigan State Board of Education, a con­
stitutional body corporate ; John W. Porter, Superintendent 
of Public Instruction of the State of Michigan, and Allison 
Green, Treasurer of the State of Michigan, pray that a writ 
of certiorari be issued to review the judgment and opinion 
of the United States Court of Appeals for the Sixth Circuit 
entered in this proceeding on June 12, 1973.

OPINIONS AND ORDERS BELOW

The opinion of the Court of Appeals, not yet reported, 
appears in the Joint Appendix, pp 110a-240aJ Other 
opinions delivered in the Courts below are:

1
Hereafter references to the Joint Appendix filed herewith will be 

indicated by page numbers enclosed in parentheses.



— 2 —

United States District Court for the Eastern 
District of Michigan, Southern Division

September 27, 1971, Ruling on Issue of Segregation, 338 
F Supp 582. (17a-39a).

November 5, 1971, Order [for submission of Detroit-only 
and metropolitan desegregation plans], not reported. (46a- 
47a).

March 24, 1972, Ruling on Propriety of Considering a 
Metropolitan Remedy to Accomplish Desegregation of the 
Public Schools of the City of Detroit, not reported. (48a- 
52a).

March 28, 1972, Findings of Fact and Conclusions of Law 
on Detroit-Only Plans of Desegregation, not reported. (53a- 
58a).

June 14, 1972, Ruling on Desegregation Area and Order 
for Development of Plan, and Findings of Fact and Conclu­
sions of Law in Support of Ruling on Desegregation Area 
and Development of Plan, 345 F Supp 914. (59a-105a).

July 11, 1972, Order for Acquisition of Transportation, 
not reported. (106a-107a).

United States Court of Appeals for the Sixth Circuit

July 20, 1972, Order [granting leave to appeal], not re­
ported. (108a-109a).

Other opinions of the Court of Appeals rendered at prior 
stages of the present proceedings are reported in 433 F2d 
897, 438 F2d 945 and 468 F2d 902, cert den, 409 US 844 
(1972).



— 3—

JURISDICTION

The judgment of the Court of Appeals for the Sixth 
Circuit was entered on June 12, 1973. This petition for 
certiorari was filed within 90 days of that date. This 
Court’s jurisdiction is invoked under 28 USC 1254(1).

QUESTIONS PRESENTED

I.

Whether, based upon the controlling precedents of this 
Court, the state officer defendants have committed acts 
of de jure segregation with the purpose and present causal 
effect of separating school children by race either within 
the School District of the City of Detroit or between Detroit 
and other school districts in the 1,952 square mile tri­
county area of Wayne, Oakland and Macomb?

II.

Whether the Detroit School District, a 63.8% black 
school district, could operate a unitary system under 
a Detroit-only desegregation plan, thus meeting the re­
medial requirements of the Constitution and the decisions 
of this Court!

III.

Absent any pleaded allegations, any proofs or any find­
ings either that the boundaries of any of the 86 independent 
school districts within the 1,952 square mile tri-county area 
of Wayne, Oakland and Macomb have ever been estab-



4

listed and maintained with the purpose and present causal 
effect of separating children by race, or that any such 
school districts, with the sole exception of Detroit, has 
ever committed any acts of de jure segregation, does the 
Constitution or any decision of this Court permit a multi­
school district remedy?

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

United States Constitution:

Amendments, Article V—“No person shall be held to 
answer for a capital, or otherwise infamous crime, unless 
on a presentment or indictment of a Grand Jury, except in 
cases arising in the land or naval forces, or in the Militia, 
when in actual service in time of War or public danger; nor 
shall any person be subject for the same offence to be twice 
put in jeopardy of life or limb; nor shall be compelled in 
any Criminal Case to be a witness against himself, nor be 
deprived of life, liberty, or property, without due process 
of law; nor shall private property be taken for public use, 
without just compensation.”

Amendments, Article X—“The powers not delegated to 
the United States by the Constitution, nor prohibited by it 
to the States, are reserved to the States respectively, or to 
the people.”

Amendments, Article XI—“The Judicial power of the 
United States shall not be construed to extend to any suit 
in law or equity, commenced or prosecuted against one of 
the United States by Citizens of another State, or by Citi­
zens or Subjects of any Foreign State.”



— 5—

Amendments, Article XIV, 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 im­
munities of citizens 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 jurisdic­
tion the equal protection of the laws.”

STATEMENT OF THE CASE

Introduction

According to the 1970 census, the population of Michigan 
is 8,875,083, almost half of which, 4,199,931, resides in the 
tri-county area of Wayne, Oakland and Macomb. Oakland 
and Macomb Counties abut Wayne County to the north 
and Oakland County abuts Macomb County to the west. 
These counties cover 1,952 square miles.2 The population 
of Wayne, Oakland and Macomb counties is 2,666,751, 
907,871 and 625,309, respectively. The State’s largest city, 
Detroit, with a population of 1,513,601 is located in Wayne 
County.

In the 1970-71 school year, there were 2,157,449 children 
enrolled in the school districts in Michigan. 13.4% of these 
children were black and 84.8% were white. There are 86 
independent, legally distinct school districts within such 
tri-county area, having a total enrollment of approxi­

2

Michigan Statistical Abstract, 1972 (9th ed.). This area is ap­
proximately the size of the state of Delaware (2,057 square miles), 
more than half again the size of the state of Khode Island (1,214 
square miles) and almost 30 times the size of the District of Colum­
bia (67 square miles). Statistical Abstract of United States, 1972 
(93rd ed.).



mately 1,000,000 children, approximately 20% of whom 
are black. (66a). The largest is the School District of the 
City of Detroit with an enrollment (1970-71 school year) 
of 289,743 children (20a). In racial composition, 63.8% of 
these children were black and 34.8% were white. (21a-22a). 
The boundaries of the School District of the City of Detroit 
are coterminous with the boundaries of the City of Detroit 
and have been coterminous for more than 100 years.

The positive law of Michigan has prohibited dual school 
systems since at least 1869. (157a-158a).

Plaintiffs commenced this class action by filing a com­
plaint on August 18, 1970, (2a-16a). The complaint has not 
been amended or supplemented in any regard as of the 
date hereof.

The allegations in plaintiffs’ complaint were limited to 
claims of de jure segregation against the defendants solely 
within the School District of the City of Detroit. Further, 
plaintiffs’ prayer for relief was limited to the establish­
ment of a unitary system of schools within the School Dis­
trict of the City of Detroit. (13a-.15a). In addition, plaintiffs 
challenged the constitutionality of § 12 of 1970 PA 48 on 
the grounds that it interfered with the implementation of 
the Detroit Board of Education’s April 7, 1970 plan in­
volving alterations in attendance areas for 12 of the 21 
Detroit high schools to increase racial balance in those 12 
schools. (13a-15a).

The named defendants were William G. Milliken, Gover­
nor of the State of Michigan and ex officio member (with­
out vote) of the Michigan State Board of Education; Frank
J. Kelley, Attorney General of the State of Michigan; Mich­
igan State Board of Education, a constitutional body created 
by Const 1963, art 8, § 3; John W. Porter, Superintendent



-7—

of Public Instruction of the State of Michigan, ex officio 
chairman of the State Board of Education (without vote) 
and principal executive officer of the Michigan State De­
partment of Education; Board of Education of the School 
District of the City of Detroit, a body corporate under the 
laws of the State of Michigan; the individual members of 
said Board of Education, and the Superintendent of Schools 
of said Board of Education. No school district other than 
the School District of the City of Detroit was named as a 
defendant. On September 3, 1970, Denise Magdowski, et al, 
were permitted to intervene as defendants, as parents and 
representatives of parents of children attending the Detroit 
Public Schools. On November 4, 1970, Detroit Federation 
of Teachers, Local 231, the collective bargaining representa­
tive of the Detroit teachers, was permitted to intervene as a 
party defendant.

At the conclusion of a hearing upon plaintiffs’ applica­
tion for preliminary injunctive relief, the District Court 
denied all relief on the grounds that the existence of racial 
segregation in the School District of the City of Detroit had 
not been established, and the Court dismissed the action as 
to the Governor and the Attorney General. In denying in­
terlocutory relief, the District Court did not rule on the 
constitutionality of 1970 PA 48. Plaintiffs appealed to the 
Court of Appeals for the' Sixth Circuit. The Court of 
Appeals declared 1970 PA 48, § 12 to be unconstitutional and 
ordered reinstatement of the Governor and the Attorney 
General as parties, “at least at the present stage of the 
proceedings,” but affirmed the denial of interlocutory 
relief. 433 F2d 897. Defendants did not seek a review of 
this decision of the Court of Appeals.

Upon remand, plaintiffs moved in the District Court for 
an order requiring immediate implementation of the April 
7,1970 racial balance plan. After receiving additional plans



— 8—

from the Board of Education of the City of Detroit and 
conducting a hearing thereon, the District Court entered 
an order approving an alternative plan. Plaintiffs, claim­
ing the alternative plan to be constitutionally insufficient, 
sought emergency relief in the Court of Appeals. The Court 
of Appeals denied plaintiffs’ claim for relief and ordered 
the District Court to set a hearing on the merits forthwith. 
438 F2d 945.

Trial on the merits, limited to the issue of segregation 
within the School District of the' City of Detroit, began on 
April 6, 1971 and concluded on July 22, 1971, consuming 41 
trial days. On September 27, 1971, the District Court 
rendered its ruling on issue of segregation in which it 
found that “both the State of Michigan and the Detroit 
Board of Education have committed acts which have been 
causal factors in the segregated condition of the public 
schools of the City of Detroit,” [Emphasis added.] (33a). 
The acts, which the District Court found to result in de jure 
segregation, related to pupil assignment solely within the 
School District of the City of Detroit.

At a hearing held on October 4, 1971, the Court orally 
ordered the Detroit Board of Education to submit its plan 
for desegregation of its schools within 60 days and ordered 
the “State defendants” to submit “a metropolitan plan of 
desegregation” within 120 days. (43a). A written order to 
the same effect was entered on November 5,1971. (46a-47a).

The state officer defendants sought to appeal the Ruling 
on Issue of Segregation and the Order of November 5, 1971, 
requiring them to submit a metropolitan plan of desegrega­
tion. The appeal was dismissed for the stated reason that 
the decision and order sought to be appealed were not final. 
468 F2d 902. The state officer defendants sought to review 
the dismissal of the appeal by petitioning for certiorari in 
this Court. The petition was denied. 409 US 844.



— 9

The plans for desegregation were filed within the time 
limits imposed by the Court, that is, not later than February 
4,1972. Between February 9 and 17,1972, 43 school districts 
within the counties of Wayne*, Oakland and Macomb filed 
motions to intervene for the purpose of representing their 
interests and those of the parents and children residing in 
the respective school districts. On March 15, 1972, the 
District Court issued its order granting the school districts’ 
motions to intervene as a matter of right, but imposing- 
conditions designed to limit their participation in the pro­
ceedings. (208a-209a). The intervenor school districts were 
afforded one week, to March 22, 1972, to file their briefs on 
the legal propriety of a metropolitan plan of desegregation. 
(209a-210a). The District Court filed its ruling that such 
a plan was appropriate on March 24, 1972. (48a).

Having concluded that consideration of a metropolitan 
remedy was appropriate, the District Court commenced 
taking testimony on such a plan on March 28, 1972. Later 
that day, the District Court filed its Findings of Fact and 
Conclusions of Law on Detroit-Only Plans of Desegregation. 
(53a). The essence of the Court’s ruling was that no Detroit- 
only plan could result in the desegregation of the School 
District of the City of Detroit, because it has a majority black 
student body.

On June 14, 1972, the District Court filed its Ruling on 
Desegregation Area and Order for Development of Plan of 
Desegregation (97a) and its Findings of Fact and Conclu­
sions of Law in Support of Ruling on Desegregation Area 
and Development of Plan. (59a). The judicially decreed 
“ desegregation area”  included 53 school districts covering 
approximately 700 square miles within a three county area. 
The District Court’s remedial decree involved 780,000 school 
children of which at least 310,000 were required to be 
transported. (72a). The June 14, 1972 order of the District



— 1 0 —

Court requiring pupil reassignment and cross-district trans­
portation of pupils for racial balance purposes constitutes 
the most massive remedial decree entered heretofore in a 
school desegregation case. Further, although the District 
Court had expressly found no de jure segregation as to 
faculty within Detroit, this order required faculty and staff 
reassignment among school districts. (Compare 28a-33a 
with 102a-103a.)

In entering this order, the District Court expressly noted 
that it had taken no proof with respect to the establishment 
of the boundaries of the 86 public school districts in the 
counties of Wayne, Oakland and Macomb, nor on the issue 
of whether, with the exclusion of the Detroit School District, 
such school districts have committed any acts of de jure 
segregation. (59a-60a). Further, 18 of the school districts 
included in the “desegregation area” had never been made 
parties to this litigation.

The Ruling on Desegregation Area also appointed a panel 
of nine persons, later increased to eleven, and charged it 
with the responsibility of preparing and submitting a de­
segregation plan in accordance with the provisions of the 
ruling. (99a).

On July 5,1972, the panel recommended to the Court “ the 
use of state funds for the immediate purchase of at least 
295 additional vehicles to be used in the implementation of 
the interim plan.” On July 11, 1972, the District Court en­
tered an order directing the Board of Education of the City 
of Detroit to acquire 295 buses, the contracts for such 
acquisition to be entered into not later than July 13, 1972. 
(106a-107a). The “state defendants” including added “ state 
defendant state treasurer Allison Green” were ordered to 
bear the cost thereof. By a contemporaneous order, the



11-

Court on its own motion ordered Allison Green, Treasurer 
of the State of Michigan, to be made a party defendant in 
the action.

On July 20, 1972, the District Court, pursuant to oral 
motions made on July 19, 1972, and under the provisions of 
28 DSC 1292(b) certified the issues presented by the 5 
controlling orders or rulings, to-wit, (1) Ruling on Issue of 
Segregation, September 27, 1971, (2) Ruling on Propriety 
of Considering Metropolitan Remedy, March 24, 1972,
(3) Findings of Fact and Conclusions of Law on Detroit- 
Only Plans of Desegregation, March 28, 1972, (4) Ruling 
on Desegregation Area and Order for Development of Plan, 
and Findings of Fact and Conclusions of Law in Support 
thereof, July 14, 1972, and (5) Order for Acquisition of 
Transportation, July 11, 1972. The state officer defendants, 
and others, petitioned the Court of Appeals for permission 
to appeal the controlling orders, which permission was 
granted by the Court of Appeals. (108a). In granting per­
mission, the Court of Appeals said:

“This court concludes that among the substantial 
questions presented there is at least one difficult issue 
of first impression which has never been decided by 
this court or the Supreme Court.” (108a).

In said order, the Court of Appeals stayed the order for 
acquisition of transportation, July 11,1972, and all proceed­
ings with regard to the assignment of children and faculty 
within the desegregation area, except planning. (109a).

On August 21, 1972, the Court of Appeals granted inter­
vention in this cause to the Michigan Education Association, 
and on July 21,1973, the Court of Appeals granted interven­
tion herein to the Professional Personnel of Van Dyke.



— 12—

A panel of the Court of Appeals filed its opinion on 
December 8, 1972. Thereafter, defendants moved for a re­
hearing in banc which was granted. Following rehearing, 
in a 6 to 3 decision the Court of Appeals (in banc) in 
substance affirmed the District Court’s ruling on the issue 
of segregation and its ruling on Detroit-only plan of desegre­
gation. Although vacating or partially vacating the Ruling 
on Propriety of Metropolitan Remedy, Ruling on Desegrega­
tion Area, and Order for Acquisition of Transportation, the 
Court of Appeals affirmed the power of the District Court 
to enter such orders herein. The sole infirmity found on 
appeal was the failure to add as parties the 18 school dis­
tricts within the “ desegregation area” that had never been 
joined as parties in this cause. In substance, the Court of 
Appeals held that a multi-district remedy was not only 
constitutionally permitted, but mandated in this cause.

On August 6, 1973 plaintiffs filed a motion in the District 
Court, seeking to join as parties in this cause all of the 
school districts in the counties of Wayne, Oakland and 
Macomb that have not already been made parties herein, 
with the exception of the Pontiac School District.

REASONS FOR GRANTING THE WRIT

I.

THE RULING OF THE SIXTH CIRCUIT COURT OF 
APPEALS THAT THE STATE OFFICER DEFEND­
ANTS HAVE COMMITTED ACTS RESULTING IN 
DE JURE SEGREGATION OF PUPILS, BOTH WITH­
IN THE SCHOOL DISTRICT OF THE CITY OF DE­
TROIT AND BETWEEN DETROIT AND OTHER 
SCHOOL DISTRICTS IN THE TRI-COUNTY AREA, 
IS WITHOUT BASIS IN LAW OR FACT AND IN 
CONFLICT WITH THE DECISIONS OF BOTH 
OTHER COURTS OF APPEALS AND THIS COURT.



13—

At the outset it is emphasized that the decisions of the 
lower courts herein represent, not a faithful adherence to 
the Constitution and the binding precedents of this Court, 
but rather an attempt to use the law as a lever in attaining 
what the lower courts decided is the desirable social goal 
of multi-school district racial balance throughout a huge 
three county area. This is vividly demonstrated by the trial 
court’s statement in a subsequent remedy pre-trial con­
ference, “ [i]n reality, our courts are called upon, in these 
school cases, to attain a social goal, through the educa­
tional system, by using law as a lever.” (41a).

Moving to the appellate level, the sound dissent of the 
late Circuit Judge Kent sets forth the overriding concern 
of the Sixth Circuit majority for racial balance among 
school districts as follows:

“Through the majority’s opinion runs the thread 
which holds it together. That thread is the unwilling­
ness apparent in the minds of the majority to sanction 
a black school district within a city which it concludes 
will be surrounded by white suburbs. While the major­
ity does not now state that such a demographic pattern 
is inherently unconstitutional, nevertheless, I am per­
suaded that those who subscribe to the majority opinion 
are convinced, as stated in the slip opinion of the origi­
nal panel, ‘big city school systems for blacks surrounded 
by suburban school systems for whites cannot represent 
equal protection of the law.’ While that statement 
has been removed from the opinion of the majority, 
yet the premise upon which the statement was obviously 
based must necessarily form the foundation for the 
conclusions reached in the majority opinion. It may 
be that such will become the law, but such a conclusion 
should not receive our approval on a record such as 
exists in this case.” (224a).



— 14—

Thus, the underlying premise of both lower courts is the 
achievement of what they perceived as the desirable social 
goal of racial balance among school districts, rather than 
the vindication of constitutional rights to attend a school 
free from racial discrimination by public school authorities. 
Brown v Board of Education, 347 US 483 (1954). Viewed 
against this background, the state officer defendants sub­
mit that the de jure findings against them are mere make­
weights designed to provide the legal window dressing for 
the achievement of multi-school district racial balance.

The constitutional violations found to have been com­
mitted by the state officer defendants are set forth 
under the caption of “ State of Michigan” . The majority 
opinion elsewhere declares that the State of Michigan 
is not a party to this cause and that references thereto 
are to be read as references to the state and local offi­
cials through whom the state allegedly acted, thus com­
pelling the conclusion that the findings are directed 
against the state officer defendants. (115a, 151a-152a). The 
following review of these findings, focusing on patent con­
flicts with decisions of both other circuits and this Court, 
demonstrates the compelling need for immediate review 
by this Court.

Finding (1) — Detroit Board of Education 
an Agency of the State of Michigan

If finding (1) means only that the actions of defendant 
Detroit Board of Education constitute state action within 
the scope of the Equal Protection Clause, then it merely 
confirms the obvious and adds nothing to the opinion. 
(151a). If, on the other hand, this finding constitutes a 
determination of vicarious liability against the state officer 
defendants, based on the conduct of the Detroit Board of 
Education, then such finding is erroneous.



— 15-

To the extent finding (1) is based upon an agency theory 
of vicarious liability, it must be stressed that, under settled 
Michigan law, school districts are local state agencies of 
legislative creation exercising plenary discretionary power 
over student assignment within their respective school 
districts. Attorney General, ex rel Kies v Lowrey, 131 Mich 
639, 644 (1902), a ff ’d 199 US 233 (1905). School District 
of the City of Lansing v State Board of Education, 367 
Mich 591, 595 (1962), Senghas v L ’Anse Creuse Public 
Schools, 368 Mich 557, 560 (1962), 1955 PA 269, as amended, 
MCLA 340.1 et seq; MSA 15.3001 et seq, hereinafter re­
ferred to as the school code of 1955. Thus, assuming argu­
endo any vitality to an agency theory of vicarious liability, 
it is clear that the School District of the City of Detroit 
is not an agent, under Michigan law, of any of the state
officer defendants herein.3 Indeed, the Court of Appeals’ 
_  __

The position of tlie state officer defendants is that the existing 
racial imbalance in the Detroit public schools is the product of popu­
lation movement and housing patterns, as emphasized by trial court 
that “ [1] he principal causes undeniably have been population move­
ment and housing patterns. . . .” Further, the district court ruled 
that there was no de jure faculty segregation in Detroit. In ad­
dition, it is significant by way of illustration that, as to the optional 
attendance zones, all but one had been eliminated prior to trial, and 
the remaining optional zone was in the process of being eliminated 
in a manner that increased integration. (33a, 28a, 25a). The Detroit 
Board of Education has voted not to file a petition for certiorari. 
The election of the Detroit Board of Education to accept, without 
challenge, the findings of de jure conduct against it, in its desire 
to embrace and achieve a multi-school district remedy, is its 
decision alone to make under Michigan law. This development is 
proof positive that, under Michigan law, the Detroit Board of Educa­
tion governs and controls the conduct of the Schoool District of the 
City of Detroit. The state officer defendants are no more able to 
represent the interests of the Detroit Board of Education, with its 
own locally selected legal counsel, than they are the other school 
districts in Wayne, Oakland and Macomb counties, with their own 
locally chosen legal counsel. (238a-284a).



— 1 6 -

majority opinion expressly rejects any agency theory, as 
between the state officer defendants and local school dis­
tricts in its holding that any “ affected district first must 
be made a party to this litigation and afforded an oppor­
tunity to be heard.”  (177a).

Neither lower court made any findings against either 
the Governor or the Attorney General of conduct resulting 
in de jure segregation. Thus, absent the erroneous notion 
of vicarious liability, there is simply no basis for either 
a finding of acts having been committed by these state 
defendants which resulted in de jure segregation, or the 
granting of relief as against these two defendants and 
the case as to them must be dismissed. This is the sound 
result reached initially by the District Court herein, 433 
F2d 897, 905 (CA 6, 1970), and on appeal by Circuit 
Judge Weick. (216a). The reliance of the lower courts 
on the “ inaction”  of the state officer defendants squarely 
conflicts with this Court’s ruling in Keyes v. School Dis­
trict No. 1, Denver, Colorado,____U S ____ , 93 S Ct 2686,
2696 (1973), that, “ intentional state action”  is an essential 
element of a finding of de jure segregation. (173a).

The defendant, State Treasurer, was added after the 
violation hearings so that the District Court could order 
the State Treasurer to pay funds from the state treasury 
to purchase 295 buses for the multi-district remedy. As to 
him also, the case must be dismissed since there is no 
claim or finding of unconstitutional conduct by him and 
the settled case law of this Court under the Eleventh 
Amendment precludes compelling payment of funds out 
of the State Treasury where, as here, the State of Mich­
igan has never consented to this suit in Federal Court. 
(See the sound discussion of this point in the dissenting 
opinion of Circuit Judge Weick.) (213a-215a).



—17

Finding (4) — Allocation of Transportation Funds

The District Court’s opinion contained the following 
language which was quoted on appeal by the majority 
opinion:

“  . . The State refused, until this session of the
legislature, to provide authorization or funds for the 
transportation of pupils within Detroit regardless of 
their poverty or distance from the school to which 
they were assigned, while providing in many neighbor­
ing, mostly white, suburban districts the full range of 
state supported transportation. This and other finan­
cial limitations, such as those on bonding- and the 
working of the state aid formula whereby suburban 
districts were able to make far larger per pupil ex­
penditures despite less tax effort, have created and 
perpetuated systematic educational inequalities.'’ ”  
(Emphasis added.) (152a).

This language, which constitutes a major part of the Dis­
trict Court’s holding against the state officer defendants 
on the initial question of de jure segregation in Detroit 
goes, not to the question of pupil assignment in Detroit, 
but to the markedly different question of inter-district 
disparities in school finance. This question has subsequent­
ly been definitively adjudicated by this Court in San An­
tonio Independent School District v. Rodrigues, ....... ITS
------, 93 S Ct 1278 (1973), and the conclusion is compelled
that both lower courts erred in relying on alleged inter- 
district financial disparities. The financial disparities 
among school districts in Michigan, as in Texas, are the 
result of local variations in both taxable property per pupil 
and school tax rates that are not violative of the Equal 
Protection Clause under the applicable rational basis test. 
Rodrigues, supra, 1302-1304. See, also, Mich Const 1963,



art 9, § 6 and § 11 for the constitutional outline of Mich­
igan’s system of school finance.

The majority opinion in the Sixth Circuit, while quoting 
this language, appears to expressly adopt as its own find­
ing only the language dealing with transportation funds. 
This reluctance to embrace and approve the general operat­
ing and bonding portions of the trial court’s finance lan­
guage is understandable since such findings are contrary 
to the facts in this cause.

The trial court’s ruling as to state aid transportation 
funding, which was independently adopted and set forth as 
finding (4) on appeal, warrants scrutiny. (151a). This 
urban rural statutory distinction was recently found to be 
both reasonable and non-racial by another Federal District 
Court in Michigan as follows:

“ There was proof that rural school districts received 
up to 75% reimbursement for student transportation 
expense where none was, until recently, received by the 
Grand Rapids Board or other districts for students 
residing within the city limits. While plaintiffs do not 
press any claim that the law is unconstitutional, they 
urge that the fact of the distinction is discriminatory 
as part of overall state action claimed violative of 
plaintiffs’ rights. It is an urban-rural classification 
distinction based upon known differences usually char­
acteristic of urban and rural areas: absence of public 
transportation, sidewalks, lesser density of student 
population and genarally longer distances. It is in no 
part related to racial difference.”

Higgins v Board of Education of the City of Grand 
Rapids, Michigan, (WD, Mich, CA 6386), Slip

— 18-



■ 1 9 -

Opinion of Judge Albert J. Engel, July 18, 1973, 
p 77J

Further, applying the correct reasonable basis test enun­
ciated in Rodrigues, supra, a three judge federal court held 
this very type of urban-rural classification for purposes 
of state school aid transportation funding “ plainly con­
stitutional.”  Sparrow v Gill, 304 F Supp 86, 90-91, (Ml) 
NC 1969). As recognized in the opinion of Mr. Justice 
Powell in Keyes, supra, 2714, the need for pupil transpor­
tation is obviously greater in rural than in urban areas.

In Keyes, supra, 2697, this Court emphasized that the 
difference between de jure and de facto segregation is 
a finding of purposeful intent to segregate. In the instant 
cause, neither lower court made any finding of purposeful 
segregation in connection with the statutory urban-rural 
classification employed for allocating categorical state 
school aid transportation funds to school districts. Clearly, 
this urban-rural geographical statutory classification is 
not based on race but on whether children reside within 
or without incorporated cities, irrespective of race. 4

4
In H iggins, supra, plaintiffs sought a multi-district desegregation 

remedy involving Grand Eapids, which has only a 25% black student 
body, and 11 other surrounding school districts. In a 105 page 
opinion, following a 27 day trial in which all 12 school districts and 
the same state officer defendants involved herein fully participated, 
the District Court ruled that, with the sole exception of faculty 
assignment within Grand Rapids, “ . . . the proofs have failed to 
establish the other allegations in plaintiffs’ complaint, as amended, 
as to the Grand Rapids Board of Education or as to any other de­
fendants in the case.” Slip opinion, p. 103. Thus, in H iggins, supra, 
plaintiffs’ claims of de jure conduct against the state officer de­
fendants, not unlike those made herein, were found wholly lacking 
in merit.



— 2 0 —

Moreover, in Keyes, supra, 2698, 2699, this Court held 
that another finding esisential in determining de jure segre­
gation is that the acts in question must have a present 
causal effect of segregation. In this regard, the District 
Court’s finding on transportation reimbursement made no 
reference to any finding of segregative effect within De­
troit. (27a). The Court of Appeals’ majority opinion er­
roneously conveys the impression that the trial court made 
a finding that the lack of state aid transportation reim­
bursement “ contributed to pupil segregation.”  (154a).

However, the trial court made no such finding as, indeed, 
it logically could not in light of its de jure findings con­
cerning the conduct of the Detroit Board of Education in 
transporting children to relieve overcrowding. (129a-139a). 
The Court of Appeals’ majority opinion is manifestly 
inconsistent in its dual ruling that, while Detroit trans­
ported children in a manner furthering segregation, the 
lack of state school aid transportation funds in Detroit also 
contributed to pupil segregation in some inexplicable way.

Finally, as to finding (4), neither lower court made any 
finding that the urban-rural statutory classification em­
ployed for state school aid transportation reimbursement 
to school districts to transport their own pupils had any 
effect on the distribution of pupils by race as between 
Detroit and the other 85 school districts in Wayne, Oak­
land and Macomb counties.

Finding (5) — Transportation of Carver School 
District’s High School Students

Finding (5) relates to the transportation, by the Detroit 
Board of Education, of high school students from the



■ - 21-

Carver School District, which did not have a high school, 
to Northern High School within Detroit during the late 
1950’s. The majority opinion states that such transporta­
tion “ could not have taken place without the approval, 
tacit or express, of the State Board of Education.”  (Em­
phasis added) (137a-139a, 152a).

The trial court’s finding on this point contains no refer­
ence to the State Board of Education. (96a). The ambiguous 
phrase “ tacit or express” is employed for the reason that the 
record is barren of any proof that the State Board of Edu­
cation possessed any actual knowledge of the transporta­
tion in question, let alone approving same. The reference 
to the State Board of Education by the Sixth Circuit ma­
jority is simply its own embellishment cut from whole cloth 
without any evidentiary support. The requirement of a 
finding of segregative purpose enunciated in Keyes, supra,
2697, is totally lacking as to finding (5).

The majority opinion of the Sixth Circuit correctly 
states that, in 1960, the Carver School District lost its 
identity and became a part of the Oak Park School District 
under Michigan law. (169a). This Court has adopted the 
sound rule that, to establish a constitutional violation, there 
must be a causal relationship between the act complained 
of and a present condition of segregation. Keyes, supra,
2698, 2699. Obviously, the reliance of the majority herein 
on the transportation of Carver students in the late 1950’s 
to a Detroit high school fails to meet this controlling test 
of present causal nexus in light of subsequent developments 
since 1960 involving the attachment of the Carver School 
District to Oak Park, a basically all white school district, 
and the attendance of students now residing in the former 
Carver area in the Oak Park schools since that time.



-22—

Finding (3) — School Construction

Finding (3) relates to the matter of school construction. 
This finding is premised on the alleged statutory control 
of defendant State Board of Education over site selection 
by local school boards for new school construction. (151a, 
157a). This finding of de jure segregation must be care­
fully examined in light of Michigan’s statutory provisions 
relating to site selection and school construction.

Under Michigan law, defendant Detroit Board of Educa­
tion is empowered with plenary discretionary authority to 
acquire school sites. See sections 192 and 220a of the School 
Code of 1955, supra. The basic Michigan statute dealing 
with the construction of school buildings is 1937 PA 306, 
as amended, MCLA 388.851 et seq; MSA 15.1961 et seq. 
In 1949, by 1949 PA 231, the legislature amended section 1 
of this act to provide, for the first time, that in the ap­
proval of construction plans by the Superintendent of 
Public Instruction, not the State Board of Education, he 
was to consider, as one of several factors, “  [t]he adequacy 
and location of the site.”  In 1962, by virtue of 1962 PA 
175, the legislature amended section 1 of this statute again, 
thereby removing any power on the part of the Superin­
tendent of Public Instruction to consider site location as 
a factor in approving or disapproving school construction 
plans. This statute, since 1962 and presently, deals only 
with approval of school construction plans in terms of fire, 
health and safety requirements.

Thus, under Michigan law, the legal authority of de­
fendant, Superintendent of Public Instruction in site selec­
tion was, prior to 1949 and after 1962, nonexistent. During 
the intervening period, this limited role related, not to the 
time at which the site was purchased by the local board 
of education but, to a subsequent point in time relating to



-23—

the submission of construction plans for approval â  to 
health, fire and safety, at which point he could consider, 
as one of several factors, the adequacy and location of 
the site. It is the Detroit Board of Education, acting alone, 
that establishes the attendance areas for each school under 
its jurisdiction. Hiers v Detroit Superintendent of Schools, 
376 Mich 225, 235 (1965).

Virtually all the construction relied upon by the lower 
courts in finding de jure segregation occurred after 1962. 
(144a-151a). Clearly, a failure on the part of the Super­
intendent of Public Instruction to exercise a nonexistent 
power under state law cannot constitute purposeful de jure 
segregation as required by Keyes, supra, 2697. This portion 
of the Court of Appeals’ majority opinion is in direct con­
flict with the en banc opinion of the Fourth Circuit in 
Smith v North Carolina State Board of Education, 444 
P2d 6 (CA 4, 1971), vacating portions of the District 
Court’s order directed at the state defendants therein 
for the reason that, under state law, such defendants 
lacked any lawful authority to prescribe school attendance 
plans for local school districts. As the North Carolina 
State Board of Education lacked authority, under state 
law, to prescribe school attendance plans for local school 
districts, so here the Superintendent of Public Instruction 
lacked any authority under Michigan law, to veto thei school 
site selections of defendant Detroit Board of Education.

Although all the construction relied upon relates solely 
to school construction within Detroit, the Court of Appeals ’ 
majority opinion transforms such evidence into a con­
clusion that such construction “ fostered segregation 
throughout the Detroit metropolitan area.”  (Compare 
144a-151a and 157a). It is impossible to conceive how the 
location and construction of school buildings in Detroit, 
by the Detroit Board of Education to serve the children



— 24—

residing therein, constitutes multi-school district de jure 
segregation by the Superintendent of Public Instruction in 
approving construction plans a,s to health, fire and safety. 
Further, such conclusion on appeal is impossible to recon­
cile with the trial court’s express statement that no proofs 
were taken as to whether any school district, other than 
Detroit, committed any acts of de jure segregation. (59a- 
60a).

Detroit and the other 85 school districts within the coun­
ties of Walyne, Oakland and Macomb each has a locally 
elected board of education with the duty to educate the 
resident children therein. To this end, each of these locally 
elected school boards is empowered to acquire sites and 
construct school buildings that are financed by the sale of 
bonds and the imposition of general ad valorem property 
taxes on property within each district to pay off such 
bonds. See sections 77a, 115, 158, 220a and 356 of the 
School Code of 1955, as amended, supra. Unless this entire 
statutory scheme of local governance and finance, involv­
ing separate, identifiable and unrelated school districts, 
Keyes, supra, 2695, is unconstitutional for failure to guar­
antee racial balance within a, three county area., the Court 
of Appeals’ majority clearly erred in its purported finding 
of a multi-school district construction violation. A;s stated 
in Rodriguez, supra, 1307, footnote 110, “  [t] his Court has 
never doubted the propriety of maintaining political sub­
divisions within the States and has never found in the 
Equal Protection Clause any ‘ per se’ rule of ‘ territorial 
uniformity.’ . . . ”

Finding (2) — The Effect of 1970 PA 48

Finding (2) relates to Section 12 of 1969 PA 244, as 
amended by 1970 PA 48, MCLA 388.182; MSA 15.2298(12), 
which section delayed implementation of defendant Detroit



- 2 5 -

Board of Education's April 7, 1970 racial balance plan 
affecting 12 of its 21 high schools over a three year period. 
(114a-116a, 151a). Section 12 of 1969 PA 244, as amended 
by 1970 PA 48, supra, was held invalid by the Court of 
Appeals on October 13, 1970, and the trial court was ex­
pressly directed to give no effect to such section at the 
trial of this cause. However, the Court of Appeals refused 
to order implementation of the April 7, 1970 plan prior to 
a trial on the merits. 433 F2d 897, 904-905 (CA 6, 1970).

From and after October 13, 1970, Section 12 has been 
legally ineffective. 433 F2d 897, supra. The lack of im­
plementation of the April 7, 1970 plan, since that date, 
has been the result of the unwillingness of the Detroit 
Board of Education to implement such plan and the 
refusal of the District Court, subsequently affirmed on 
appeal, to order its implementation. 438 F2d 945 (CA 6,
1971) Thus, Section 12 has long since ceased to have any 
causal nexus to the racial composition of the 12 Detroit 
high schools included in the April 7, 1970 plan. Keyes, 
supra, 2698, 2699. Moreover the April 7, 1970 plan, affect­
ing only 12 of 21 Detroit high schools, had no causal con­
nection with the distribution of pupils by race between 
Detroit and any other Michigan school districts.5

This review of the purported findings below against the 
state defendants conclusively demonstrates that, in the judi­
cial quest for the social goal of racial balance among school 
districts, the state officer defendants have become the legal 
scapegoat for reasons far removed from their actual con­
duct in office. Obviously, neither the Governor nor the 
Attorney General are involved in the operation of school
5~

The postponement of the April 7, 1970 racial balance plan for one 
semester by § 12 of 1970 P A  18, affected at most, approximately 
3,000 to 4,000 tenth grade students in a school district with 289,743 
students. See 433 F2d 897, 898-901, supra, and (20a).



— 26—

districts which explains the lack of any de jure findings 
against these two state officers. The rulings against the 
State Board of Education and the Superintendent of Public 
Instruction, relating to transportation by the Detroit Board 
of Education in the late 1950’s and school construction in 
Detroit during the 1960’s on sites selected and acquired 
locally, with locally established attendance areas, cannot 
constitute purposeful segregatory conduct with a present 
causal effect of segregation as required by Keyes, supra.

In summary, the lower courts herein clearly erred in 
relying upon alleged inter-district financial disparities as 
a predicate for finding constitutional violations by the state 
officer defendants. Rodriguez, supra. Further, the require­
ment that purposeful affirmative action with the present 
causal effect of segregation is necessary in order to find 
de jure segregation, as enunciated by this Court in Keyes, 
supra, was not followed by the lower courts herein in find­
ing de jure conduct by the state officer defendants.

As to defendants Governor, Attorney General and State 
Treasurer, there are simply no findings of conduct result­
ing in de jure segregation. The purported de jure findings 
against the State Board of Education and/or Superinten­
dent of Public Instruction lack the requisite segregatory 
purpose and present causal segregatory effect basis re­
quired by Keyes, supra. To the significant extent the Sixth 
Circuit majority neglected the question of the lack of au­
thority, under state law, of either of these two defendants 
to veto school site selections by defendant Detroit Board 
of Education, it is squarely in conflict with the en banc 
Fourth Circuit opinion in Smith, supra. In view of the 
patent conflicts between the lower courts opinions herein 
and the opinions of this Court in Rodriguez, supra, and 
Keyes, supra, and the Fourth Circuit opinion in Smith, 
supra, review of this cause should be granted.



■27-

II.

THE RULING OF THE COURT OF APPEALS THAT A 
“DETROIT-ONLY” DESEGREGATION PLAN COULD 
NOT REMEDY THE UNCONSTITUTIONAL SEGRE­
GATION FOUND IN THE DETROIT SCHOOL DIS­
TRICT IS NOT SUPPORTED BY THE RECORD, IS 
CLEARLY ERRONEOUS AND IN CONFLICT WITH 
THE DECISIONS OF THIS COURT AND OTHER 
COURTS OF APPEALS.

The majority of the Court of Appeals affirmed the order 
of the District Court rejecting the plaintiffs’ Detroit-only 
plan to desegregate the Detroit School District. In dissent 
Judge Weick and Judge Kent stated that the majority was 
attempting to overcome demographic racial imbalance as 
between Detroit and surrounding school districts rather 
than correcting constitutional violations limited to the De- 
triot School District. (191a-193a, 224a-225a).

The plaintiffs in their complaint asked specifically for 
the elimination of the racial identity of every school 
in the (Detroit) system and to maintain now and hereafter 
a unitary nonraeial school system.”  (15a). This prayer 
of plaintiffs is in accord with the settled oases of this 
Court that if a school district is found to be de jure 
segregated Federal courts must order its dismantling 
so that the system should then he unitary as required 
by Green v School Board of New Kent County, 391 US 
430 (1968); Alexander v Holmes County Board of Edu­
cation, 396 US 19 (1969), and Swann v Charlotte-MecJclen- 
hurg Board of Education, 402 US 1 (1971).

It is clear from the record that the District Court con­
ceived its role of dismantling a legally segregated school



-28—

district in a manner diametrically opposed to the teachings 
of this Court in Swann, Green and Alexander.

During the trial on the merits the District Court made 
the following observations that are pertinent to the matter 
at hand:

“ THE COURT: In other words, if the projection, 
and I will be surprised if it doesn’t follow the course 
which history has shown since 1940, if the projection 
is in that direction then this occurs to me, how do you 
integrate a school district where the student popula­
tion is, let’s make a guess, 85 to 95 percent black? 
How do yon integrate it I (Emphasis added).

Trial Transcript, p 3537, June 18, 1971.

‘ ‘ THE COURT: Mr. Ritchie has made some points 
along that line, and I have, and to repeat mine as I 
have said to several witnesses in this case: ‘How do 
you desegregate a black city, or a black school system;’ 
That is why I was interested in the projections of the 
student population of the city. We end up with student 
population of Detroit of 80 to 85 percent black. How 
do you integrate, or, if I find segregation, to put it 
another way, how do I desegregate. . . . ”

Trial Transcript, p 4003, 4004, June 24, 1971.

The preoccupation of the District Court with the specu­
lative black student population of the Detroit School Dis­
trict in 1975 and 1980 is underscored by the following find­
ing of the District Court contained in the ruling on issue 
of segregation rendered on September 27, 1971:

“ . . . The percentage of black students in the Detroit 
Public Schools in 1975-76 will be 72.0%, in 1980-81 will



— 29—

be 80.7% and in 1992 it will be virtually 100% if the 
present trends eontinue. . . . ”  (20 a).

Seven days later at the pretrial of all counsel in the case 
the District Court said:

“ As the Court indicated during the course of tak­
ing proofs it entertains serious reservations about a 
plan of integration, which encompasses no more than 
the public schools of the city of Detroit. . . .

“ . . . "We must bear in mind that the task that we 
are called upon to perform is a social one which 
society has been unable to accomplish. In reality our 
courts are called upon, in these school oases, to attain 
a social goal through the education system, by using 
law as a lever.”  (40a-41a).

The District Court simultaneously ordered the Detroit 
Board of Education to submit a plan for the desegrega­
tion of its schools within 60 days, and ordered the state 
defendants to submit a multi-district plan of desegregation 
within 120 days. (43a, 46a-47a).

The attention of the Court is invited to the District 
Court’s findings of fact and conclusion of law relating to 
plaintiffs’ Detroit-only plan:

“ PLAINTIFFS’ PLAN

“ 1. The court finds that Plaintiffs’ Plan would 
accomplish more desegregation than now obtains in 
the system, or would be achieved under Plan A or 
Plan C.

* #  #



— 30—

“ 6. The plan does not lend itself as a building 
block for a metropolitan plan. (Emphasis added).

# #

“ 7. The plan, would make the Detroit school system 
more identifiably Black, and leave many of its schools 
70 to 90 per cent Black.6

££8. It would change a school system which is now 
Black and White to one that would he perceived as 
Black, thereby increasing the flight of Whites from 
the city and the system, thereby increasing the Black 
student population.

* * #

CONCLUSIONS OF LAW 

# # #=

££4. Plaintiffs’ Plan, while it would provide a racial 
mix more in keeping with the Black-White propor­
tions of the student population than under either of 
the Board’s plans or as the system now stands, would 
accentuate the racial identifiability of the district as 
a Black school slystem, and would not accomplish de­
segregation. ’ ’ (54a-56a).

6

This finding affirmed by the majority of the Sixth Circuit Court 
of Appeals is opposite to the recent holding of that Court, sitting 
en banc, in G oss  v B oard  o f E ducation  o f the C ity  o f K noxville , 
. . . .  F2d . . . . ,  decided July 18, 1973, approving a Knoxville-only 
plan which provided that “some schoools in the Knoxville system 
will remain identifiably black or white on the basis of pupil en­
rollments. . . . ” p 3 of slip opinion.



— 31—

The plaintiffs’ Detroit-only plan was submitted by Dr. 
Gordon Foster, a widely utilized expert in tbe area of 
school desegregation, who testified that the plaintiffs’ plan 
would meet the requirements of a unitary system, would 
meet the constitutional requirements of the Fourteenth 
Amendment, would eliminate discriminatory racially iden­
tifiable schools, and would improve educational opportu­
nities of Detroit school children.

It is also worthy of attention that the District Court 
rendered its Ruling on Propriety of Considering a Metro­
politan Plan on March 24, 1972, and ordered hearings on 
metropolitan plans to commence four days later on March 
28, 1972, even though it did not render its decision on the 
Detroit-only Plan of Desegregation until noon on March 28, 
1972, after the hearings on the multi-district plans were 
in progress.

Finally, this Court is asked to examine the following 
portion of the ruling on desegregation area and order for 
development of plan of desegregation entered June 14,1972:

“ Within the limitations of reasonable travel time 
and distance factors, pupil reassignment s shall be 
effected within the clusters described in Exhibit P.M. 
12 so as to achieve the greatest degree of actual de­
segregation to the end that, upon implementation, 
no school, grade or classroom b[e\ substantially dis­
proportionate to the overall pupil racial composition. 
The panel may, upon notice to the parties, recommend 
reorganization of clusters within the desegregation 
area in order to minimize administrative inconvenience, 
or time and/or numbers of pupils requiring transpor­
tation.”  (Emphasis added). (101a-102a).

It is abundantly clear that approval of plaintiffs’ De­



— 32

troit-only plan would frustrate the District Court in attain­
ing the social goal of balancing the races between the 
Detroit and other tri-county school districts.

In affirming the ruling of the District Court on the 
Detroit-only plan the majority of the Sixth Circuit Court 
of Appeals compounded the error of the District Court 
that the constitutional violations found could not be rem­
edied within the boundaries of the Detroit school system.7 
Apparently no plan to convert the Detroit system to a uni­
tary system, as required by Green, Alexander and Swann, 
would do, since in the view of the Court of Appeals any 
Detroit-only plan would not overcome the racial demo­
graphic imbalance between the Detroit and other tri-county 
school districts, arising not from any action of public 
school authorities but from changes in housing patterns.

In Green, supra, a school district 57% black, 43% white, 
was found by this Court to be maintaining a separate school 
for blacks and a separate school for whites. It sought to 
dismantle such system by way of a freedom-of-choice plan. 
This Court laid down the controlling standard for disman­
tling a segregated school district in that a school board op­
erating a dual school system was obligated to convert to 
a unitary system in which racial discrimination would be 
eliminated root and branch.

“ . . . The Board must be required to formulate a
new plan and, in light of other courses which appear

1
This type of erroneous result was recently further expanded by 

the decision that no “Indianapolis Only Plan” of desegregation would 
meet the requirements of the Equal Protection Clause in a school 
district with only a 41.1% Negro student body. U nited S ta tes  v 
B oard  o f S chool Com m issioners o f  the C ity  o f Ind ianapolis, Indiana,
-----  F  Supp ------ (SD Ind), No. IP  68-C-225, Slip opinion issued
July 20,1973, pp 6-9.



— 3 3 -

open to the Board, snch as zoning, fashion steps which 
promise realistically to convert promptly to a system 
without a ‘white’ school and a ‘Negro’ school, but just 
schools.”  391 US at 442.

In Keyes, supra, 2693, 2694, footnote 11, the Court 
reiterated that Green, supra, relying upon Brown II (349 
US 294 [1955]), remains the governing principle. The rul­
ing in Green, supra, was confirmed in Alexander, supra, 
and reviewed and approved in Swann, supra.

Alexander restated the standards for the desegregation 
of several Mississippi school districts:

“ . . . to operate as unitary school systems within 
which no person is to be effectively excluded from any 
school because of race or color.”  396 US, at 20.

In Swann, the Court distilled its holdings in Green and 
Alexander and unanimously reaffirmed the standard to be 
followed:

“ Our objective in dealing with the issues presented 
by these oases is to see that school authorities exclude 
no pupil of a racial minority from any school, directly 
or indirectly, on account of race; it does not and can­
not embrace all the problems of racial prejudice, even 
when those problems contribute to disproportionate 
racial concentrations in some schools.”  402 US, at 23.

The Court then gave fair warning that its ruling should 
not be misapplied:

“ . . . If we were to read the holding of the District 
Court to require, as a matter of substantive constitu­
tional right, any particular degree of racial balance or 
mixing, that approach would be disapproved and we



—3^~

would be obliged to reverse. The constitutional com­
mand to desegregate schools does not mean that every 
school in every community must always reflect the 
racial composition of the school system as a whole.” 
402 US, at 24.

Finally, the Court in Swann said:

“ It does not follow that the communities served by 
such systems will remain demographically stable, for 
in a growing, mobile society, few will do so. Neither 
school authorities nor district courts are constitution­
ally required to make year-by-year adjustments of the 
racial composition of student bodies once the affirma­
tive duty to desegregate has been accomplished and 
racial discrimination through official action is elimi­
nated from the system. . . . ”  402 US, at 31-32.

It is clear that neither the District Court nor the Court 
of Appeals applied and followed these standards. Neither 
lower court made a finding that any pupil of a racial minor­
ity would be excluded from any school, directly or in­
directly, in the Detroit School District, on account of race 
under plaintiffs ’ Detroit-only plan. There can be no ques­
tion but that both the District Court and the Court of 
Appeals were attempting to provide for more than a cor­
rection of the adjudged constitutional violation, but instead 
sought to overcome demographic racial imbalance between 
Detroit and suburban communities, as opposed to correct­
ing alleged racial segregation inside the Detroit School 
District. Racial imbalance as a result of demographic 
residential patterns, as contrasted with state enforced 
segregation within a school district, is not offensive to the 
Constitution. Spencer v Kugler, 326 F Supp 1235 (D NJ,
1971), affirmed on appeal, 404 US 1027 (1972). Clearly, 
the rulings of the District Court and the Court of Appeals



- 3 5 -

are in direct conflict with the controlling authorities of 
this Court, and this Court is “ obliged to reverse.”  Swann, 
supra, p 24 of the opinion.

The effect of the Court of Appeals’ decision must he 
that a unitary system may not be constitutionally established 
in a majority black school district. The Court of Appeals 
uses the adjective “ overwhelmingly”  black in conjunction 
with its attempt to look into the foreseeable future. No doubt 
this is based upon the District Court’s speculation as to the 
school population of the Detroit School District in 1975, 
1980 and 1990. Since Swann proscribes year by year judicial 
adjustments in pupil assignments because of changing demo­
graphic patterns within a school district, and Green re­
quires desegregation of a segregated school district now, 
the purely speculative student population of the Detroit 
School District in 1975, 1980 and 1990 cannot form the 
basis for the conclusion of the District Court that a unitary 
system cannot be established within the majority black 
Detroit School District.

To the contrary, this Court has held that a unitary 
school system, in which no pupil of a racial minority is 
excluded from any school on account of race, must be 
established in a school district that is majority black. 
Wright v. Council of the City of Emporia, 407 US 451
(1972); United States v Scotland Neck Board of Educa­
tion, 407 US 484 (1972); Raney v Board of Education of 
Gould School District, 391 US 443 (1968).

The decision of the Sixth Circuit Court of Appeals in 
Northcross v Board of Education of Memphis, 420 F2d 546, 
548 (1969), required a unitary system within a segregated 
school district 57% black and 43% white. In that case, 
the Court of Appeals asked counsel for plaintiffs, who



— 36—

is also chief trial counsel for plaintiffs here, to advice 
what would be a unitary system in Memphis:

“ He replied that such a system would require that 
in every public school in Memphis there would have 
to be 55% Negroes and 45% white. A departure of 
5% to 10% from such rule would be tolerated. . . .”

These cases unequivocally demonstrate that there is 
no constitutional requirement that the conversion of a 
majority black school district to a unitary system be 
effectuated by involving surrounding school districts. To 
the contrary, these cases stand for the proposition that 
unitary systems may be, indeed, must be, achieved within 
majority black school systems. The District Court’s notion, 
affirmed on appeal, that Detroit could not be integrated 
because it would be perceived as black, is plainly erroneous. 
Almost every school district in the country is either major­
ity white or majority black and thus is susceptible of being 
perceived as such. This numerical fact of life obviously 
gives rise to no constitutional infirmity, whether the pupil 
majority be white or black.

Moreover, the ruling below that the broad remedial equit­
able power of a Federal District Court is insufficient to 
create a unitary school system within Detroit compels the 
conclusion that both lower courts have ruled, in effect, 
that the racial demographic pattern both within Detroit 
and between Detroit and other tri-county school districts is 
inherently unconstitutional. Such result is both unsup­
ported by precedent and directly in conflict with the prior 
decisions of this Court cited above.

The holding of the Court of Appeals that it is constitu­
tionally impermissible to establish a unitary system within 
the Detroit School System squarely conflicts with the de­



-37—

cision of the Fourth Circuit Court of Appeals in Bradley v 
School Board of Richmond, Virginia, 462 F2d 1058 (OA 4,
1972), affirmed by an equally divided court in ------U S -------,
93 S Ct 1952 (1973). In Bradley v Richmond, supra, the 
District Court approved a plan of desegregation of a seg­
regated school district composed of 64% black and 36% 
white. Shortly after the desegregation plan was imple­
mented the Richmond Board of Education moved to add 
two adjoining majority white school districts to provide a 
“ better”  racial mix. The Fourth Circuit Court of Appeals 
held that there is no federally protected right to racial 
balance within even a single school district but only a Tight 
to attend a unitary school system. Once a unitary school 
system was achieved within the school district 64% black 
and 36% white, the authority of the District Court to 
further intervene by racially balancing with white suburban 
school districts was neither necessary nor justifiable. 
Bradley v Richmond, supra, must clearly stand for the 
proposition that a unitary school system can be achieved 
within a school district that is 64% black and 36% white, 
notwithstanding that adjoining school districts are major­
ity white. Thus, if the decisions of the lower courts are 
allowed to stand, a unitary system may be achieved in a 
64% black school district in the Fourth Circuit but is 
unachievable in a 63.8% black school district in the Sixth 
Circuit. A nation committed to rule of law cannot abide 
one rule of law for the Fourth Circuit and another rule 
of law for the Sixth Circuit.

The decision of the Court of Appeals affirming the de­
cision of the District Court rejecting plaintiffs’ Detroit- 
only plan is clearly erroneous and in open conflict with 
the clear standards enunciated by this Court in Green, 
Alexander and Swann. The state of the law so carefully 
developed and delineated by this Court in these cases to 
guide district courts in school desegregation cases will be



— 38—

thrown into disarray, uncertainty and confusion unless 
this Court grants certiorari and reverses such holding.

Rejection of plaintiffs’ Detroit-only plan by the District 
Court and approved by the majority of the Sixth Circuit 
Court of Appeals because it was not a building block for a 
multi-district racial balance plan is opposite to the hold­
ing of this Court in Scotland Neck, Emporia and Raney.

The decision is also in direct conflict with the decision of 
the Fourth Circuit Court of Appeals in Bradley v Richmond, 
supra. Because of the importance of this case to the juris­
prudence of this nation, the conflict between the two Circuit 
Courts of Appeals must be resolved without delay.

III.

THE DECISION OF THE COURT OF APPEALS, THAT 
A MULTI-SCHOOL DISTRICT REMEDY IS CONSTI­
TUTIONALLY PERMISSIBLE HEREIN, IS ERRO­
NEOUS AND IN CONFLICT WITH THE DECISIONS 
OF OTHER COURTS OF APPEALS AND THIS 
COURT.

Plaintiffs’ complaint herein alleged de jure segregation 
only within the confines of the School District of the City 
of Detroit and prayed for relief limited to establishing a 
unitary system of schools therein. (5a, 14a, 15a). After a 
lengthy trial on the merits, at which no school district other 
than Detroit was present as a party in the cause, the District 
Court ruled that the Detroit school system was being 
operated as a de jure segregated school system.

Subsequently, in enunciating the scope of the multi-school 
district remedy, the District Court candidly stated the 
following:



— 39—

. . It should he noted that the court has taken no 
proofs with respect to the establishment of the bound­
aries of the 86 public school districts in the counties 
of Wayne, Oakland and Macomb, nor on the issue of 
whether, with the exclusion of the city of Detroit school 
district, such school districts have committed acts of 
de jure segregation.” (59a-60a).

Nevertheless, the trial court proceeded to enter the most 
sweeping remedial decree ever entered in a school desegrega­
tion case, judicially creating a 53 school district desegrega­
tion area involving 780,000 or 1/3 of Michigan’s public 
school pupils.8 This remedial decree mandates the re­
assignment of pupils across school district boundaries and 
compels massive transportation of 310,000 pupils through­
out an area covering approximately 700 square miles for 
the sole purpose of achieving racial balance. (72a, 101a- 
102a).

Thereafter, the trial court commanded the state officer 
defendants to pay for the acquisition of at least 295 buses 
for use in a partial, interim, multi-district desegregation 
plan during the 1972-73 school year. The approximate cost 
of this initial order to acquire transportation would have 
been approximately $3,000,000.00 since one school bus meet­
ing Michigan standards costs approximately $10,500.00. 
(106a-107a).

The Court of Appeals, while affirming the propriety of a 
multi-school district remedy, partially vacated the multi­
8

Eighteen of these 53 school districts have never heen parties to 
this proceeding at any time and except for Detroit, the remaining 34 
school districts were granted limited intervention on March 15, 
1972 only for the purposes of filing a brief on the propriety of a 
multi-district remedy and reviewing multi-district plans.



— 4 0 -

district remedial decrees for the sole reason that 18 affected 
school districts within the desegregation area had never 
been made parties to this cause, contrary to Rule 19, FR 
Civ P. (176a~179a). However, it is clear that upon remand 
all school districts made parties to the cause may be in­
cluded in the multi-district remedy.

The ruling of the Sixth Circuit majority, affirming the 
propriety of a massive multi-district remedy herein, must 
be tested against the controlling federal appellate prece­
dents. When so tested, these defendants submit that the 
conflict between such ruling and the decisions of both other 
courts of appeals and this Court becomes manifest.

In Swann, supra, this Court unanimously enunciated the 
following principles concerning school desegregation rem­
edies:

“ . . . The task is to correct, by a balancing of the 
individual and collective interests, the condition that 
offends the Constitution.

“In seeking to define even in broad and general 
terms how far this remedial power extends it is im­
portant to remember that judicial powers may be ex­
ercised only on the basis of a constitutional viola­
tion . . .

“ . . . As with any equity case, the nature of the viola­
tion determines the scope of the remedy . . . ”  402 US, 
at 16.

Here, the violation or condition found to offend the Consti­
tution is expressly limited to de jure segregation within the 
Detroit school system, which condition may be remedied as 
set forth in Part II herein in accordance with Swann, supra.



— 41:

The courts below, contrary to the controlling principles of 
Swann, supra, have expanded the remedy to include scores 
of other school districts without the support of any claims, 
proofs or findings concerning either the establishment of 
school district boundaries or any conduct resulting in de 
jure segregation by any school district other than Detroit.

This is not surprising in light of the history of Michigan 
law establishing the coterminous nature of the school dis­
trict and city boundaries of Detroit over 100 years ago in 
1842 as follows:

“ That the city of Detroit shall be considered as one 
school district, and hereafter all schools organized 
therein, in pursuance of this act, shall, under the direc­
tion and regulations of the board of education, be public 
and free to all children residing within the limits 
thereof, between the ages of five and seventeen years, 
inclusive.”

See Section 1 of 1842 PA 70.

Moreover, some 98 years later, in 1940, the population of the 
City of Detroit was approximately 90% white, thus negating 
any possible inference that the city and school district 
boundaries were made coterminous for the purpose of 
separating people or school children on the basis of race. 
(21a).

In Spencer v Kugler, supra, plaintiffs challenged the ra­
cial imbalance existing among New Jersey’s school districts. 
The lower court, in rejecting plaintiffs’ challenge, noted 
that under New Jersey law school district boundaries con­
form to municipal boundaries, p 1240, and held the follow­
ing:



“ A  continuing trend toward racial imbalance caused 
by housing patterns within the various school districts 
is not susceptible to federal judicial intervention. The 
New Jersey Legislature has by intent maintained a 
unitary system of public education, albeit that system 
has degenerated to extreme racial imbalance in some 
school districts; nevertheless the statutes in question 
as they are presently constituted are constitutional.” 
326 F Supp, at 1243.

On appeal, this Court affirmed. Obviously the Court of 
Appeals ’ decision in this cause is in derogation of Spencer 
v Kugler, supra.

Turning to Bradley v Richmond, supra, a case in which 
historically, under Virginia law, unlike Michigan, every 
school district operated a dual school system, the Fourth 
Circuit, having, at p 1064, “ searched the 325-page opinion 
of the district court in vain for the slightest scintilla of 
evidence that the boundary lines of the three local govern­
mental units have been maintained either long ago or 
recently for the purpose of perpetuating racial discrimina­
tion in the public schools” found none and accordingly 
reversed. In reversing the order of the lower court com­
pelling the restructuring of three school districts for racial 
balance purposes as being prohibited by the Tenth Amend­
ment, in the absence of purposeful discrimination as to 
the establishment and maintenance of school district bound­
ary lines, the Fourth Circuit correctly followed the purpose 
test subsequently enunciated by this Court in Keyes, supra. 
Here, as in Bradley v Richmond, supra, the record is barren 
of proof of purposeful segregation concerning the estab­
lishment and maintenance of the school district boundaries 
in question. (See the dissenting opinion of Circuit Judge 
Kent, 222a-225a.) Thus, the decision of the Fourth Circuit 
in Bradley v Richmond, supra, and the Sixth Circuit major­



— 43—

ity herein, constitute an irreconcilable conflict which may- 
only be resolved by this Court.

The Sixth Circuit Court’s attempt to distinguish Bradley 
v Richmond, supra, on the basis that the instant case does 
not involve a restructuring of school districts, only the 
cross-district reassignment of pupils, is manifestly un­
tenable. (175a). The District Court’s order of June 14, 1972 
commands, inter alia, the following:

“The State Superintendent of Public Instruction, 
with the assistance of the other state defendants, shall 
examine, and make recommendations, consistent with 
the principles established above, for appropriate in­
terim and final arrangements for the (1) financial,
(2) administrative and school governance, and (3) con­
tractual arrangements for the operation of the schools 
within the desegregation area, including steps for 
unifying, or otherwise making uniform the personnel 
policies, procedures, contracts, and property arrange­
ments of the various school districts.

*  *  #

“ . . . In particular, the Superintendent shall examine 
and choose one appropriate interim arrangement to 
oversee the immediate implementation of a plan of 
desegregation.” (104a-105a.)

Further, the Court of Appeals majority itself states later 
in the opinion that “ the Legislature of Michigan has an op­
portunity to determine the organizational and governmental 
structure of an enlarged desegregation area” for remedial 
purposes. (188a-189a). This language conclusively lays to 
rest any pretense that the multi-district remedy herein may 
be implemented among scores of legally, geographically



44r

and politically independent Michigan school districts, eacli 
having its own locally elected board of education with legal 
authority over matters of taxation, bonding, personnel and 
curriculum, without a traumatic restructuring of the exist­
ing organizational and governmental structure of scores of 
school districts in Wayne, Oakland and Macomb counties, 
See, e.g., Part 1, Chapter 4 and Part 2, Chapter 9 of the 
School Code of 1955, as amended, supra.

Moreover, by the above quoted language the Court of 
Appeals has correctly recognized that, in Michigan, as in 
Virginia, the power over school district boundaries is re­
posed in the Legislature, not the State Board of Education, 
Bradley v Richond, supra, p 1067. Thus the analogy the 
Sixth Circuit makes (175a) between the powers of the 
Virginia State Board of Education and the State of Michi­
gan, including its legislative branch of government, is un­
sound.

In essence, the Fourth Circuit ruled that, absent proof 
of purposeful segregation in the establishment and main­
tenance of school district boundaries, a multi-district 
remedy was beyond the scope of federal judicial power 
under the Constitution. The Sixth Circuit ruled that, not­
withstanding the absence of any pleaded allegations, proofs 
or findings of purposeful segregation in the establishment 
and maintenance of school district boundaries, nevertheless 
a multi-district remedy is constitutionally permissible for 
the sole purpose of achieving racial balance within a three 
county area. This conflict between the circuits is clear and, 
we respectfully submit, merits the granting of certiorari 
herein.

In the language of Keyes, supra, 2695, the school districts 
involved herein are legally, politically and geographically 
“ separate, identifiable and unrelated units” within the State



45

of Michigan. As demonstrated above, both lower courts 
herein have recognized the need for restructuring these 
governmental units if a multi-district remedy is to be 
effectuated in this cause. Otherwise, parents would be 
voting on school board candidates and school tax rate pro­
posals in the district where they reside, while their school 
age children would be educated in another school district 
where the parents would be denied any effective control 
over school board members, school tax rates, and decisions 
affecting educational personnel and curriculum. The cross­
district reassignment of pupils for purposes of racial 
balance, without more, would completely vitiate any concept 
of local parental control over the education of their children.

This Court lias recently recognized in both Emporia, 
supra, 469 and 478, and Rodriguez, supra, 1305, the con­
tinuing importance of local participation and control in 
educational decision making. This rational state interest, 
which is sufficient to justify large inter-district financial 
disparities, is served by the existing boundaries and govern­
mental structure of the school districts involved herein 
covering a densely populated three county area. The 
coterminous nature of the boundaries of the city and school 
district of Detroit is rational, racially neutral and of historic 
origin. As noted in Rodriguez, supra, 1307, footnote 110, 
“  [t]his. Court has never doubted the propriety of maintain­
ing political subdivisions within the States and has never 
found in the Equal Protection Clause any per se rule of 
‘ territorial uniformity.’ ”  Thus, in the absence of any 
finding below that the school district boundary lines in­
volved herein are “ the product of a state contrivance to 
segregate on the basis of race or place of origin, ’ ’ the multi­
district remedy decreed below must fall. Wright v Rocke­
feller, 376 US 52, 58 (1964).



46-

Education is not among the rights afforded their 
explicit or implicit protection under the Federal Con­
stitution. Rodrigues, supra, 1297. Thus, while not dis­
paraging the undisputed importance of public education, 
it is wise to remember that education is a function en­
trusted to the states under our federal system of gov­
ernment. The Michigan legislature, in response to the 
state constitutional command to establish and maintain a 
system of free public elementary and secondary education 
(Const 1963, art 8, § 2), has enacted the provisions of the 
School Code of 1955, as amended, supra. Pursuant to this 
statutory enactment, local participation and control over 
public education is encouraged and facilitated through local 
school districts and locally elected school boards with broad 
discretionary authority. As stated by this Court in Rod­
rigues, supra, 1305, “ [a]n analogy to the Nation-State 
relationship in our federal system seems uniquely ap­
propriate.”

However, the rulings of the lower courts herein concern­
ing a multi-district remedy deny due process to the affected 
school districts outside Detroit in the judicial quest for 
racial balance. (See dissenting opinions of Judge Weich, 
2C5a-212a; Judge Kent, 230a-238a; Judge Miller, 239a-340a)

Under Michigan law, Michigan school districts may sue 
and be sued. Further, each board of education has the right 
to hire local counsel of its own choosing. See §■§ 352 and 
609 of the School Code of 1955, as amended, supra. More­
over, it has been the consistent position and conduct of the 
state officer defendants throughout this litigation that they 
do not represent any of the school districts involved in 
this cause. The false notion that the interests of the state 
officer defendants and local school districts are as one, and 
thus may be effectively represented by just the state de­
fendants, is surely put to rest by the decision of defendant



— 47-

Detroit Board of Education to accept the de jure findings 
against it and support a multi-district remedy.

On this point, the majority opinion of the Court of Appeals 
is manifestly inconsistent and illogical. Such opinion 
recognizes the independent legal status of Michigan school 
districts for purposes of remedial housekeeping, but on the 
crucial issues of remedy within Detroit and the legal pro­
priety of a multi-district remedy, this independent legal 
status is completely ignored. (176a-178a). The holding that 
each “affected district first must be made a party to this 
litigation and afforded an opportunity to be heard” (177a), 
is without substance since the opportunity to be- heard is 
available only after the decisive issues have already been 
adversely determined.

For the school districts affected herein and their boards 
of education, the interest at stake is their continued exist­
ence as viable governmental entities. To paraphrase the 
language of the dissenting opinion in Emporia, supra, 478, 
to bar these school districts from operating their own school 
systems for the children within their respective geograph­
ical boundaries is to strip them of their only governmental 
responsibility and to deny them any existence as independ­
ent governmental entities, all without their day in court. 
Further, unlike Emporia, supra, this case involves existing 
school districts outside the geographical area of the school 
system previously found to be de jure segregated.

For the parents of school age children within these school 
districts, the interest at stake is the parental right to direct 
the upbringing and education of children under their 
responsibility and control. Pierce v Society of Sisters, 268 
US 510 (1925). Wisconsin v Yoder, 406 US 205 (1972). 
This paramount parental interest, which limits the scope of 
state power over public education, is also clearly entitled



— 48-

to recognition in terms of the power of federal courts over 
public education for purposes of racial balance. At a 
minimum, such parents are entitled to be heard, through 
their locally elected boards of education, at a meaningful 
stage in the proceedings. After all, as cogently noted by 
Mr. Justice Powell in Keyes, supra, 2717, 2718, the com­
pulsory transportation of any child to a distant school 
solely for racial balance purposes impinges upon the liberty 
of that child and it is the parents and children who shoulder 
the full burden of affirmative remedial action in these cases, 
although they did not participate in any constitutional viola­
tion.

In summary, the decision of the Court of Appeals that 
a multi-school district remedy is constitutionally permissible 
herein squarely conflicts with this Court’s affirmance in 
Spencer v Kugler, supra. Further, there is an irreconcilable 
conflict between the Fourth Circuit’s decision in Bradley v 
Richmond, supra, and the Sixth Circuit’s decision herein on 
the question of a multi-school district remedy. Both cases 
involve the judicial restructuring of independent local 
school districts for racial balance purposes. Where, as here, 
the record is barren as to any multi-school district constitu­
tional violation concerning either school district boundary 
lines or the conduct of any school district, other than 
Detroit, the granting of certiorari is clearly in order to 
review this unprecedented expansion of federal judicial 
power over public education. The affected local school 
districts, their boards of education and, most importantly, 
the hundreds of thousands of parents and school age 
children residing therein, upon whom the burden of af­
firmative remedial action will fall, deserve no less than 
full review by this Court of the unprecedented decision of 
the Court of Appeals.



— 49

IV.

THE QUESTION OF WHETHER A MULTI-SCHOOL 
DISTRICT REMEDY IS CONSTITUTIONALLY PER­
MISSIBLE IN THIS CAUSE IS AN IMPORTANT 
QUESTION OF FEDERAL LAW WHICH SHOULD BE 
DEFINITIVELY SETTLED BY THIS COURT.

In its July 20,1972 order herein, granting an interlocutory 
appeal and staying the proceedings below, except for 
remedial planning, the Court of Appeals stated:

“ [TJhere is at least one difficult issue of first im­
pression that never has been decided by this court or 
the Supreme Court.” (108a).

This question is obviously the question of under what 
circumstances a multi-school district remedy, expressly re­
quiring the cross-district reassignment and transportation 
of pupils and contemplating, if not yet requiring, the even­
tual merger of separate, identifiable and unrelated school 
districts, is constitutionally permissible.

Based on the prior decisions of this Court, as applied to 
this cause, the lower courts committed manifest error in de­
creeing a multi-district remedy in the absence of any pleaded 
allegations, proofs or findings that the school district bound­
aries were established and maintained with the purpose and 
present causal effect of separating school children solely by 
race. However, assuming arguendo that the prior precedents 
of this Court are not controlling herein, it is beyond dispute 
that this is an important question of federal law which this 
Court should resolve.

The “familiar phenomenon” of racial residential con­
centration within large urban areas is, indeed, a hard reality



— 50—

of American life on a national scale. Further, the fact of 
majority black, big city school districts is also a national 
phenomenon which includes not only Detroit and Eichmond 
but also, for example, Atlanta, Cleveland, Baltimore City, 
Birmingham, Chicago, Memphis, New Orleans, Philadelphia, 
Washington, D.C., Gary, Kansas City, Newark, Oakland, 
St. Louis. Swann, supra, p 25; Keyes, supra, 2702, 2704; 
1971 HEW Enrollment Survey, 118 Cong. Bee. S 144-148, 
January 20, 1972; United States v Board of School Com­
missioners, Indianapolis, Indiana, 332 F Supp 655, 677
(1971).

As noted in the dissenting opinion of Circuit Judge Kent, 
it is the underlying racial demographic pattern within 
a 3 county area that forms the now inarticulated first 
premise for the majority opinion of the Court of Appeals 
requiring a multi-district remedy. (224a). This type of 
demographic pattern, itself a national phenomenon, is 
clearly a recurring theme in present and future school 
desegregation cases in the Federal courts with which this 
Court must come to grips.

The people of Michigan are aware that, notwithstanding 
a long history of dual school systems in every school 
district by mandate of state law never found in Mich­
igan, the proposed multi-district remedy in Bradley v 
Richmond, supra, was ultimately rejected by the Court 
of Appeals for the Fourth Circuit and affirmed by equally 
divided action of this Court. The concern expressed by 
Mr. Justice Powell’s opinion in Keyes, supra, 2702, 2703, 
2707-2711, for uniform national standards in school de­
segregation litigation is relevant here. If, unlike, Brad­
ley v Richmond, supra, there is to be a multi-district 
remedy here, the hundreds of thousands of parents of Michi­
gan school children who will be reassigned out of their 
neighborhood schools and transported across school district



-51

and county lines solely for racial balance purposes should 
first be told, by this Court, why the result in this cause must 
be different than the result in Bradley v Richmond, supra,
i.e., why the rule in Michigan must be different than the 
rule in Virginia.9

Within Michigan, the judicially created “desegregation 
area” originally ordered by the District Court involved 53 
legally independent school districts and included 780,000 
school children and their parents. Further, the proposed 
multi-district remedy will have a traumatic impact on 
Michigan’s statutory arrangements for local governance and 
control of public education, not to mention a multi-million 
dollar impact on limited public funds otherwise available 
to educate, not transport, school children. Before this un­
precedented exercise of federal judicial power becomes a 
reality, in the name of racial balance as the single judicial 
goal before which all else must fall, we respectfully submit 
that this Court should carefully review and decide this 
important cause on the merits.

As alluded to in the opinion of Mr. Justice Powell in 
Keyes, supra, 2718, currently the major issue in public edu­
cation is the “perennially d[i]visive debate over who is to

9
In contrast to both decisions in B rad ley  v Richm ond, supra, and 

the instant cause, the recent district court decision in United S tates  
v Board o f School C om m issioners o f the C ity  o f Indianapolis, I n ­
diana, supra, has further confused the law in this area by compelling 
a multi-school district remedy limited to the one way transfer and 
transportation of black students from Indianapolis to surround­
ing school districts for the reason that “ [t]he Court is of the opinion 
that it would be without jurisdiction to order the exchange of pupils 
between IPS (Indianapolis) and added defendants at this time.



— 5 2 —

be transported where.” 10 This hotly disputed issue in­
fluences local, state and national elections and, as this Court 
is aware, has spawned serious attempts to amend the Con­
stitution. Without guidance from this Court, this conflict 
will only become more exacerbated as the focus shifts from 
intra-district litigation to inter-district litigation involving 
cross-district reassignment and transportation of children 
for racial balance purposes. This question should, indeed, 
must be definitively settled by this Court in the interests of 
returning public education to its primary goal of quality 
education for all children rather than protracted nation­
wide litigation over school district restructuring for the 
sole purpose of racial balance.

It is Negro children of IPS (Indianapolis) and not suburban chil­
dren who are being deprived of a constitutional right, and so long 
as the various school corporations remain separate the Court be­
lieves that it would have no basis to direct that a suburban child 
be transported out of its own school corporation.” Slip opinion 
issued July 20,1973, p 27.
10

A s noted above in the STATEM EN T OF TH E CASE plaintiffs 
filed a motion on August 6,1973 in the District Court to compel the 
joinder of additional school districts as parties. I f  such motion is 
granted, the school district defendants herein will include 85 in­
dependent school districts having approximately 1,000,000 pupils and 
covering approximately 1,952 square miles.



— 53-

CONCLUSION

For the foregoing reasons, a writ of certiorari should 
issue to review the decision of the Sixth Circuit rendered 
herein on June 12, 1973.

Respectfully submitted,

FRANK J. KELLEY 
Attorney General
Robert A. Derengoski 
Solicitor General
Eugene Krasicky 
Gerald F. Young 
George L. McCargar 
L. Graham Ward 

Assistant Attorneys General
Attorneys for Petitioners 
720 Law Building 
525 West Ottawa Street 
Lansing, Michigan 48913

Dated: September 6, 1973.









IN THE SUPREME COURT OF THE UNITED STATES 
October Term 1973

//

LEN PARK PUBLIC SCHOOLS, SCHOOL DISTRICT OF THE CITY OF BERK­
LEY, BRANDON SCHOOLS, CENTERLINE PUBLIC SCHOOLS, CHERRY HILL 
SCHOOL DISTRICT, CHIPPEWA VALLEY PUBLIC SCHOOLS, SCHOOL DIS­
TRICT OF THE CITY OF CLAWSON, CRESTWOOD SCHOOL DISTRICT, DEAR- 
!ORN PUBLIC SCHOOLS, DEARBORN HEIGHTS SCHOOL DISTRICT NO. 7, 
“AST DETROIT PUBLIC SCHOOLS, SCHOOL DISTRICT OF THE CITY OF 
ERNDALE, FLAT ROCK COMMUNITY SCHOOLS, GARDEN CITY PUBLIC 
CHOOLS, GIBRALTAR SCHOOL DISTRICT, SCHOOL DISTRICT OF THE 
TTY OF HARPER WOODS, SCHOOL DISTRICT OF THE CITY OF HAZEL 
ARK, INTERMEDIATE SCHOOL DISTRICT OF THE COUNTY OF MACOMB, 
AKE SHORE PUBLIC SCHOOLS, LAKEVIEW PUBLIC SCHOOLS, THE LAMP- 
(ERE SCHOOLS, LINCOLN PARK PUBLIC SCHOOLS, MADISON DISTRICT 
UBLIC SCHOOLS, MELVINDALE-NORTH ALLEN PARK SCHOOL DISTRICT, 
CHOOL DISTRICT OF NORTH DEARBORN HEIGHTS, NOVI COMMUNITY 
CHOOL DISTRICT, OAK PARK SCHOOL DISTRICT, OXFORD AREA COM- 
fUNITY SCHOOLS, REDFORD UNION SCHOOL DISTRICT NO. 1, RICHMOND 
O M M U N ITY SCHOOLS, SCHOOL DISTRICT OF THE CITY OF RIVER 
OUGH, RIVERVIEW COMMUNITY SCHOOL DISTRICT, ROSEVILLE PUBLIC 
CHOOLS, SOUTH LAKE SCHOOLS, TAYLOR SCHOOL DISTRICT, WARREN 
ONSOLIDATED SCHOOLS, WARREN WOODS PUBLIC SCHOOLS, WAYNE- 
fESTLAND COMMUNITY SCHOOLS, WOODHAVEN SCHOOL DISTRICT, and 
'Y A N D O T T E  PUBLIC SCHOOLS; SOUTHFIELD PUBLIC SCHOOLS; and 
CHOOL DISTRICT OF THE CITY OF ROYAL OAK,

NALD BRADLEY and RICHARD BRADLEY, by their Mother and Next Friend, 
ERDA BRADLEY; JEANNE GOINGS, by her Mother and Next Friend, BLANCH 
OINGS; BEVERLY LOVE, JIMMY LOVE and DARRELL LOVE, by their Mother

(Continued on Inside Front Cover)

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

TZEL, LONG, GUST, KLEIN 
VAN ZILE,

| O f Counsel.I*!, a pe

•JDIT AND MC GARRY, P C. 
lard P. Condit,

I  O f Counsel

ITMAN, BEIER, HOWLETT,
CCONNELL & GOOGASIAN, 
neth B. McConnell,

O f Counsel

WILLIAM M. SAXTON  
JOHN B. WEAVER 
ROBERT M. VERCRUYSSE 
XHAFER ORHAN 
1881 First National Building 
Detroit, Michigan 48226

Counsel for Petitioners 
Allen Park Public Schools, et al, 
Southfield Public Schools and 
School District of the City of 
Royal Oak



and Next Friend, CLARISSA LOVE; CAMILLE BURDEN, PIERRE BUR 
AVA BURDEN, MYRA BURDEN, MARC BURDEN and STEVEN BURDF 
their Father and Next Friend, MARCUS BURDEN; KAREN WILLIAM 
KRISTY WILLIAMS, by their Father and Next Friend, C. WILLIAMS; RAJ 
and MRS. WILBUR BLAKE, parents; all parents having children attending th 
lie schools of the City of Detroit, Michigan, on their own behalf and on bell 
their minor children, all on behalf of any person similarly situated; and NATK 
ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, DEI 
BRANCH; WILLIAM G. MILLIKEN, Governor of the State of Michigan and 
ficio member of the Michigan State Board of Education; FRANK J. KEl 
Attorney General of the State of Michigan; MICHIGAN STATE BOARD OF 
CATION, a constitutional body corporate, and JOHN W. PORTER, Superintei 
of Public Instruction, Department of Education of the State of Michigan; ALL 
GREEN, Treasurer of the State of Michigan;BOARD OF EDUCATION OF THE 
OF DETROIT, a school district of the first class; PATRICK McDONALD, J) 
HATHAWAY and CORNELIUS GOLIGHTLY, members of the Board of Edui 
of the City of Detroit; and NORMAN DRACHLER, Superintendent of theD 
Public Schools, DETROIT FEDERATION OF TEACHERS, LOCAL 231, A! 
CAN FEDERATION OF TEACHERS, AFL-CIO; DENISE MAGDOWSK 
DAVID MAGDOWSKI, by their Mother and Next Friend, JOYCE MAGDO- 
DAVID VIETTI, by his Mother and Next Friend, VIOLET VIETTI, and the 
ZENS COMMITTEE FOR BETTER EDUCATION OF THE DETROIT Mi 
POLITAN AREA, a Michigan non-profit Corporation; KERRY GREEF 
COLLEEN GREEN, by their Father and Next Friend, DONALD G. GI 
JAMES,JACK and KATHLEEN ROSEMARY, by their Mother and Next! 
EVELYN G. ROSEMARY, TERRI DORAN, by her Mother and Next F 
BEVERLY DORAN, SHERRILL, KEITH, JEFFREY and GREGORY COUI 
their Mother and Next Friend, SHARON COULS, EDWARD and MIC 
ROMESBURG, by their Father and Next Friend, EDWARD M. ROMESBUR 
TRACEY and GREGORY ARLEDGE, by their Mother and Next Friend, All 
ARLEDGE, SHERYL and RUSSELL PAUL by their Mother and Next F 
MARY LOU PAUL, TRACY QUIGLEY, by her Mother and Next Friend, JA 
QUIGLEY, IAN, STEPHANIE, KARL AND JAKOO SUNI, by their Moth. 
Next Friend, SHIRLEY SUNI; and TRI-COUNTY CITIZENS FOR INTER 
TION IN FEDERAL SCHOOL ACTION NO. 35257; MICHIGAN EDUCATE) 
SOCIATION; PROFESSIONAL PERSONNEL OF VAN DYKE, and THE GRi 
POINTE PUBLIC SCHOOLS,

R e  spoilt



1

INDEX

Introduction...........................................................................  1

Opinions and Orders Below ......................................................  2

Jurisdiction ...............................................................................  3

Questions Presented ................................................................. 3

Constitutional Provisions, Statutes and Rules Involved ...........  4

Statement of the Case ............................................................... 5

Reasons For Granting The W rit........ ....................................... 11

1. The Decision Below Presents Issues of Imperative Public
Importance That Have Never Been Decided By This 
Court..........................................................................    11

2. The Decision Below Conflicts In Principle With Deci­
sions Of This Court And Other Courts of Appeals........  15

3. Petitioners Have Been And Will Continue To Be Denied
Due Process of Law Under The Decision Below ............  20

Conclusion .............................................................................. 22

Appendix ...................................................   laa

Page



11

TABLE OF AUTHORITIES

Federal Cases:
Alexander v. Holmes County Board o f Education, 396 U.S. 

19(1969) ..........................................................................  18
Armstrong v. Manzo, 380 U.S. 545 (1965) ............................  20
Bradley et al. v. Milliken et al., 338 F. Supp 582 (E.D.

Mich-1971) ......................................................................  2
Bradley et al v. Milliken et al., 345 F. Supp. 914 (E.D. Mich.-

1972)    2
Bradley et al. v. Milliken et al., 433 F2d 897 (6th Cir., 1970)3,5,0
Bradley et al v.Milliken etal., 438 F2d 945 (6th Cir., 1971) . 3
Bradley et al v. Milliken et al, 468 F2d 902 (6th Cir., 1972), 

cert denied 409 U.S. 874 (1972) .......................................  3
Bradley et al v. Milliken et al, ___ F2d___ (6th Cir., June

12,1973) ..........................................................................  2,7
Bradley v. School Board o f the City o f Richmond, 338 F. 

Supp. 67 (1972), rev’d 462 F2d 1058 (4th Cir., 1972), 
A ffd by equally divided Court., —U.S.—, 93 S.Ct. 1952
(1973) .........................................................................  8,18,19

Brown v. Board o f Education o f Topeka, 347 U.S. 483
(1954) .......................................................  13,19,20

Brown v. Board o f Education o f Topeka, 349 U.S. 294
(1955) ..............................................................................  19,20

Brunson v. Board o f Trustees o f School District No. 1 o f 
Clarendon County, South Carolina, 429 F2d 820 (4th Cir.,
1970)..................................................................................  14

Dred Scott v. Sanford, 60 U.S. (19How) 393 (1856)   14
Railroad Commission o f California v. Pacific Gas & Electric 

Co., 302 U.S. 388 (1938) .................................................  20
San Antonio Independent School District v. Rodriguez, 411 

U.S. 1 (1973) .................................................................... n
Spencer v. Kugler, 326 F. Supp 1235 (D.NJ 1971), Aff’d 404 

U.S. 1027(1972)

Page

17



Page

iii

Swann v. Charlotte-Mecklenburg Board o f Education, 402 
U.S. 1 (1970) .......................................................  15,16,17,18

United States v. Scotland Neck Board o f Education, 407 U.S. 
484(1972) ........................................................................ 18

Wright v. Council o f the City o f Emporia, 407 U.S. 451
(1972) ...............................................................................  18

State Cases:
Ex Rel Workman, 18 Mich. 399 (1 8 6 9 )................ ................ 12

Constitutional Provisions:
U.S. Const. Amend V........................................................ 4,20, laa
U.S. Const., Amend. XIV, Sec. 1 .....................................4,18,laa
Mich. Const, art VIII, Sec. 2 ........................................... 4,12,laa

United States Statutes:
Judicial Code, 28 U.S.C. § 1254(1) ...........................  3,4,2aa
Judicial Code, 28 U.S.C. § 1292(b) .............................4,9,2aa

Michigan Statutes:
Act 34, Sec. 28, Mich. Pub. Acts of 1867 ....................... 4,1 l,3aa
Act 319, Part II, Ch. 2, Sec. 9, Mich. Public Acts of 1927 4,12,4aa
Act 48 Sec. 12, Mich. Pub. Acts of 1970 ........................... 4,5,3aa
Mich. Comp. Laws § 340.352 ............................................ 4,5,2aa

Federal Rules of Civil Procedure:
Fed. R. Civ. P. 19 ........................................................... 4,10,4aa
Fed. R. Civ. P. 54(b) ........................................................... 4,9,5aa

Other:

Official Record, Michigan Constitutional Convention; Vol. II,
P. 3395 12



1

IN THE
SUPREME COURT FOR THE UNITED STATES 

October Term 1973 

No__________________

ALLEN PARK PUBLIC SCHOOLS, et al,

-vs-

RONALD BRADLEY, et al,

Petitioners,

Respondents

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

Petitioners Allen Park Public Schools, et al, Southfield Publit 
Schools and School District for the City of Royal Oak respectfully 
pray that a Writ of Certiorari issue to review the decision rendered 
in this cause on June 12, 1973, by the United States Court ol 
Appeals for the Sixth Circuit. The United States Court of Appeals 
for the Sixth Circuit decreed that a finding of de jure segregation 
with respect to the internal operation of a single school district 
permits a United States District Court to use other geographically 
and politically separate, identifiable and unrelated school districts, 
with regard to which there is no claim or finding of segregative 
actions, for the purpose of fashioning a desegregation remedy 
designed to effectuate a majority white-minority black racial 
balance.



2

OPINIONS AND ORDERS BELOW

The Ruling On Issue of Segregation entered September 27, 
1971, appears in the Appendix at 17a* and is reported at 338 F. 
Supp 582 (E.D. Mich-1971).

The Ruling and Order On Petitions for Intervention setting 
forth conditions on intervention entered March 15, 1972, is 
unreported but appears in the decision of the United States Court 
of Appeals for the Sixth Circuit herein appealed from in the 
Appendix at 232a.

The Ruling On Propriety of Considering A Metropolitan 
Remedy to Accomplish the Desegregation of the Public Schools of 
the City of Detroit, entered March 24, 1972, is unreported and 
appears in the Appendix at 48a.

The Findings of Fact and Conclusions of Law On 
Detroit-Only Plans of Desegregation entered March 28, 1972, is 
unreported and appears in the Appendix at 53a.

The Findings of Fact and Conclusions of Law In Support of 
Ruling On Desegregation Area and Development of Plans and 
Ruling on Desegregation Area and Order for Development of Plan 
of Desegregation entered June 14, 1972, appear in the Appendix 
at 59a and 97a respectively and are reported at 345 F. Supp. 914 
(E.D. Mich-1972).

The Opinion of the United States Court of Appeals for the 
Sixth Circuit decided and filed on June 12, 1973,
---- F2d----- (1973), appears in the Appendix at 110a. The
Judgment of the United States Court of Appeals for the Sixth 
Circuit entered June 12, 1973, is unreported and appears in the 
Appendix at 244a.

Appendix references followed by the letter “ a” refer to the separate 
Appendix filed herewith. Appendix references followed by the letters “aa” 
refer to the Appendix to this Petition commencing at page laa hereof..



3

Opinions of the United States Court of Appeals for the Sixth 
Circuit rendered at prior stages of the present proceedings are 
reported at 433 F2d 897; 438 F2d 945; 468 F2d 902, cert denied 
409 U.S. 874 (1972).

JURISDICTION

The Judgment of the United States Court of Appeals for the 
Sixth Circuit was entered on June 12, 1973. This petition for 
certiorari was filed within ninety (90) days of that date.

This Court’s jurisdiction is invoked under 28 USC § 1254(1).

STATEMENT OF QUESTIONS PRESENTED
I.

ASSUMING, ARGUENDO, A DE JURE SEGREGATED PUBLIC 
SCHOOL SYSTEM IN OPERATION IN DETROIT, CAN THE 
VESTIGES OF SUCH SEGREGATION BE ELIMINATED AND 
THE DETROIT PUBLIC SCHOOL SYSTEM BE CONVERTED 
TO A UNITARY SYSTEM UNDER A DESEGREGATION PLAN 
LIMITED TO SAID SCHOOL DISTRICT?

II.
WHERE A DEJURE SEGREGATED PUBLIC SCHOOL SYSTEM 
IS FOUND IN OPERATION IN THE CITY OF DETROIT 
SCHOOL DISTRICT, DOES THE UNITED STATES CONSTI­
TUTION REQUIRE OR PERMIT A UNITED STATES DISTRICT 
COURT TO ISSUE A DESEGREGATION ORDER EMBRACING 
UP TO EIGHTY-FIVE (85) OTHER GEOGRAPHICALLY AND 
POLITICALLY SEPARATE, IDENTIFIABLE AND UN­
RELATED SCHOOL DISTRICTS AND REQUIRING THE 
FORCED REASSIGNMENT AND CROSS-DISTRICT TRANS­
PORTATION OF HUNDREDS OF THOUSANDS OF CHIL­
DREN, ABSENT (i) ANY CLAIM OR FINDING THAT SUCH 
OTHER SCHOOL DISTRICTS HAVE FAILED TO OPERATE 
UNITARY SCHOOL SYSTEMS, AND (ii) ABSENT ANY CLAIM 
OR FINDING THAT THE BOUNDARY LINES OF ANY 
SCHOOL DISTRICTS WERE ESTABLISHED WITH THE PUR­
POSE OF CREATING OR FOSTERING RACIAL SEGREGA­
TION IN THE PUBLIC SCHOOLS?



4

DOES THE FAILURE TO ACCORD PETITIONERS’ SCHOOL 
DISTRICTS, AGAINST WHOM RELIEF IS IMPOSED, A MEAN­
INGFUL OPPORTUNITY TO PRESENT EVIDENCE AND BE 
HEARD ON ALL CONTROLLING ISSUES, INCLUDING THE 
ISSUE OF SEGREGATION, A “ DETROIT-ONLY” PLAN OF 
DESEGREGATION AND THE PROPRIETY OF A SO-CALLED 
METROPOLITAN REMEDY TO DESEGREGATE THE 
DETROIT PUBLIC SCHOOL SYSTEM, DENY PETITIONERS 
DUE PROCESS OF LAW?

III.

CONSTITUTIONAL PROVISIONS,
STATUTES AND RULES INVOLVED

The constitutional provisions, statutes and rules relevant to 
the issues in this case are: U.S. Constitution, Amendment V; U.S. 
Constitution, Amendment XIV, Section 1; Michigan Constitution, 
Art VII, Sec 2; Judicial Code, 28 U.S.C., Section 1254(1) and Sec­
tion 1292(b); Fed. R. Civ. P. 19 and 54(b); Michigan Compiled 
Laws, Section 340.352; Act 34, Section 28, Michigan Public Acts 
of 1867; Act 319, Part II, Chapter 2, Section 9, Michigan Public 
Acts of 1927; Act 48, Section 12, Michigan Public Acts of 1970, 
which are set forth in relevant part in the Appendix to this Peti­
tion For Writ Of Certiorari.



5

STATEMENT OF THE CASE

Petitioners are forty-two (42) separate, unrelated and identi­
fiable school districts in Wayne, Oakland and Macomb Counties 
within varying degrees of geographical proximity to the city of 
Detroit. Each of Petitioners’ school districts is a body corporate 
organized and existing pursuant to the Constitution and laws of 
the State of Michigan. 111 Each of said school districts is governed 
by its respective duly elected Board of Education. There is no 
claim or finding that any of the Petitioners has failed to operate a 
unitary school system or that any of the Petitioners’ school dis­
trict boundaries were established for the purpose of fostering ra­
cial segregation in the public schools. The complaint in this cause 
asserts no claim respecting Petitioners and makes no claim for re­
lief against Petitioners. Petitioners are before this Court because 
the United States District Court and the United States Court of 
Appeals for the Sixth Circuit have decreed that simply because Pe­
titioners have a predominantly white student population they can 
be used for the purpose of changing the racial composition of the 
Detroit public school system from predominantly black to pre­
dominantly white.

This action was commenced by the filing of a complaint by 
the plaintiffs on August 18, 1970. The defendants named in the 
complaint are the Governor of the State of Michigan, the Attorney 
General of the State of Michigan, the Michigan State Board of 
Education, the Superintendent of Public Instruction for the State 
of Michigan, the Board of Education of the City of Detroit, and its 
then members, and the Superintendent of the Detroit Public 
Schools.

The complaint is directed solely at the Detroit public school 
system and alleges that as a result of actions and policies of the 
Detroit Board of Education and a section of Act No. 48 of the 
Public Acts of Michigan, 1970,f“ J said school system is not being
111 Michigan Complied Laws, Section 340.352. Appendix 2aa.

[2] Said Act applied only to so-called First Class school districts in the State 
of Michigan. The City of Detroit School District is the only First Class school 
district in the State, Bradley et al. v. Milliken et al., 433 F2d 897, 900 (CA6, 
1970). The effect of one section of the Act was to delay implementation of a 
proposed plan to effect a more balanced distribution of black and white 
students in certain Detroit senior high schools (Appendix, 110a-l 1 la).



6

operated on a unitary basis. No claim is made with regard to any 
other school district, nor is any claim made that the establishment 
or operation of any other school district has any causal connection 
with the alleged failure to operate a unitary school system within 
the Detroit school district. No relief is sought against any school 
district other than Detroit. As of August 30, 1973, the complaint 
has never been amended.

Before trial on the issues framed by the complaint ever com­
menced plaintiffs appealed from denial of plaintiffs’ request for a 
preliminary injunction to the United States Court of Appeals for 
the Sixth Circuit seeking to require implementation of the Detroit 
Board of Education’s proposed plan to effect a more balanced 
ratio of black and white students in certain senior high schools. 
The Court of Appeals sua sponte declared that Section 12 of Act 
48 was unconstitutional because it delayed implementation of the 
Detroit Board of Education plan. Bradley et al. v. Milliken et al, 
433 F2d 897 (CA6, 1970).

Trial on the merits limited to the issue of segregation in the 
Detroit public school system^] commenced on April 6, 1971, 
and concluded on July 22, 1971. During the course of said trial, 
Intervenors Denise Magdowski, et al, moved to join eighty-four 
(84) school districts in Wayne, Oakland and Macomb Counties, in­
cluding Petitioners herein, as parties. The District Court never 
granted or denied such motion.

On September 27, 1971, the District Court issued a “ Ruling 
On Issue of Segregation” (Appendix, 17a) finding “a de jure segre­
gated school system in operation in the City o f Detroit ” [4] (Ap­
pendix, 38a).

The District Court stated that the principal causes for the seg­
regation found to exist in Detroit were population movement and 
housing patterns —

“ . . . A current condition of segregation exists . . The
principal causes undeniably have been population movement
and housing patterns, but state and local governmental ac-

[31
“ Ruling On Issue of Segregation” (Appendix, 18a)

141 Emphasis added.



7

tions, including school board actions, have played a substan­
tial role in promoting segregation. . (Appendix, 33a).

On November 5, 1971, the District Court issued an ordei 
which foreshadowed a dramatic change in the nature of the pro 
ceedings. Despite having conducted a trial limited to the issue ol 
unlawful segregation in the Detroit school system and having madt 
findings limited to such issue, the District Court ordered the State 
Defendants to submit a so-called metropolitan plan ol 
desegregation. By judicial fiat eighty-five (85) geographically and 
politically independent school districts, located in three (3) 
counties and encompassing an area of approximately 1,000 square 
miles, were suddenly faced with the prospect of being subjected to 
a judicial order without any claim or finding that they had 
engaged in any unconstitutional acts, or that their establishment 
or existence was the product of unconstitutional acts, and without 
any opportunity for hearing. Pursuant to the aforementioned 
order, on or about February 4, 1972, a so-called metropolitan plan 
of desegregation was filed with the District Court.

On February 9, 16 and 17, 1972, respectively, Petitionee 
filed motions to intervene for the purpose of representing their in- 
terests and those of the parents and children situate in said school 
districts. Hearing on said motions to intervene was held on Feb­
ruary 22, 1972. On March 15, 1972, after hearing on a Detroit 
only plan of desegregation had commenced, the District Court 
granted Petitioners’ motions to intervene as a matter of right but 
imposed conditions thereon which denied Petitioners any mean 
ingful opportunity to be heard on the controlling issues, Nr 
such conditions had been imposed on prior intervenors. Petitionee 
filed written objections to the imposition of such conditions 
which have not been ruled upon by either the District Court or the 
Court of Appeals.

Upon being granted right to intervene on March 15, 1971 
the District Court advised Petitioners that they had one week, un 
til March 22, 1972, to file briefs with respect to the legal propriett 
of a metropolitan plan for desegregation of the Detroit pubis

[5] Bradley et al v. Milliken e t  al,_____F2d_____ (CA6, June 12, 19731
Appendix at 208a-209a and 232a-233a.



8

school system. On March 24, 1972, two days after the submission 
of briefs, the District Court issued a “ Ruling On Propriety of Con­
sidering A Metropolitan Remedy to Accomplish Desegregation of 
the Public Schools of the City of Detroit” (Appendix, 48a).

The District Court commenced taking testimony on a metro­
politan plan to desegregate the Detroit school system at 10:10
a.m. on March 28, 1972. Two (2) hours after Petitioners had first 
appeared in the District Court and before completion of testimony 
of a single witness, the District Court announced that all counsel 
could stop by the Court’s chambers and pick up its “ Findings of 
Fact and Conclusions of Law On Detroit-Only Plans of Desegre­
gation” (Appendix, 53a). The District Court—relying principally 
on Bradley v. Richmond, 338 F. Supp. 67 (1972), reversed 462 
F2d 1058 (4th Cir., 1972), aff’d. by equally divided Court — U.S. 
— (May 21, 1973)-declared that without regard to their status as 
independent and unitary school systems, Petitioners and other 
school districts could be used to counterbalance the racial mix ex­
tant within the Detroit school district.

On June 14, 1972, the District Court issued “Findings of 
Fact And Conclusions of Law In Support of Ruling On Desegre­
gation Area and Development of Plans” (Appendix, 59a) and 
“Ruling On Desegregation Area and Order for Development of 
Plan of Desegregation” (Appendix, 97a).

The District Court fashioned a desegregation remedy embrac­
ing the City of Detroit school district and fifty-three (53) other 
separate, unrelated and identifiable school districts within a 700 
square mile area, without regard to its finding that —

“It should be noted that the court has taken no proofs 
with respect to the establishment of the boundaries of the 86 
public school districts in the counties of Wayne, Oakland and 
Macomb, nor on the issue of whether, with the exclusion of 
the city of Detroit school district, such school districts have 
committed acts of de jure segregation.”  (Appendix, 59a-60a).

The scope of the remedy was not predicated upon the nature of 
the violation found but had as its central purpose the restructuring 
of the student population among the various school districts in or­
der to achieve a racial balance substantially proportionate to the



9

black-white ratio of students within the geographical area selected 
by the District Court. Such purpose is patently expressed by the 
District Court, as follows:

“Within the limitations of reasonable travel time and 
distance factors, pupil reassignments shall be effected within 
the clusters described in Exhibit P.M. 12 so as to achieve the 
greatest degree of actual desegregation to the end that, upon 
implementation, no school, grade or classroom b[e] substan­
tially disproportionate to the overall composition. ”  (Appen­
dix, 101 a-102a). Emphasis added.

On July 11, 1972, the District Court ordered the Detroit 
Board of Education to enter into a contract for the purchase of at 
least 295 school buses within two (2) days with the financial obli­
gation for said purchase to be borne by the State Defendants (Ap­
pendix, 106a-107a)J6J Said purchase was to be made for the pur­
pose of providing transportation under an interim plan not yet in 
esse (Appendix, 106a).

On July 19, 1972, the District Court certified that the orders 
listed below involve controlling questions of law, as provided by 
28 U.S.C. 1292 (b), and made a determination of finality under 
Rule 54 (b), Fed. R. Civ. P.:

(1) Ruling on Issue of Segregation, dated September 27, 
1971 (Appendix, 17a).

(2) Findings of Fact and Conclusions of Law On Detroit- 
Only Plans of Desegregation (Appendix, 53a).

(3) Ruling On Propriety of Considering A Metropolitan 
Remedy to Accomplish Desegregation of the Public 
Schools of the City of Detroit (Appendix, 48a).

(4) Ruling On Desegregation Area and Development of Plans 
and Findings and Conclusions of Law In Support There­
of (Appendix 59a and 97a).

[6] This order was stayed by the Court of Appeals for the Sixth Circuit on 
July 20, 1972 (Appendix 112a; 113a-l 14a).



10

(5) Order directing purchase of at least 295 school buses 
(Appendix, 106a).

Appeal was taken from the aforementioned orders and on 
December 8, 1972, the United States Court of Appeals for the 
Sixth Circuit rendered an opinion, by a panel of three judges, af­
firming the Ruling On Issue of Segregation (Appendix, 17a) and 
Findings of Fact and Conclusions of Law On “ Detroit-Only” Plans 
of Desegregation (Appendix, 53a). The decision of the panel vacat­
ed the remaining orders appealed from, but affirmed in principle 
the ruling of the District Court that Petitioners and other school 
districts could be used to alter the racial balance in the Detroit 
school district (Appendix, 11 la-112a).

On January 16, 1973, the Court of Appeals for the Sixth Cir­
cuit granted rehearing in banc which had the effect of vacating the 
previous opinion and judgment of the court (Appendix, 112a). 
Oral arguments before the court in banc were heard on February 
8, 1973. and the decision of the court issued on June 12, 1973, 
Petitioners seek a Writ of Certiorari to review said decision.

By majority decision the Court of Appeals for the Sixth Cir­
cuit affirmed the Ruling On Issue of Segregation, dated September 
27, 1971, (Appendix, 17a) and the Findings of Fact and Con­
clusions of Law On “Detroit-Only” Plans of Desegregation (Ap­
pendix, 53a). The Court of Appeals further affirmed in principle 
the ruling of the District Court that Petitioners and other school 
districts may be included in a remedy for the desegregation of the 
Detroit public school system.

A substantial number of the fifty-three (53) school districts 
covered under the District Court’s order (Appendix, 101a) have 
never been parties to these proceedings. The Court of Appeals de­
clared that any school district to be affected by the decree of the 
District Court is a necessary party under Rule 19, Fed. R. Civ. P. 
(Appendix, 177a) and as a pre-requisite to implementation of a 
multi-school district remedy, school districts to be affected must 
be made a party to the litigation and afforded an opportunity to 
be heard (Appendix, 177a).



11

The Court of Appeals, while stating that affected school 
districts^] must be afforded an opportunity to be heard, so 
circumscribes such right as to render it meaningless. The Court of 
Appeals states that -

. . the District Court will not be required to receive 
any additional evidence as to the matters contained in its 
Ruling on the Issue of Segregation, dated September 21 
1971, and reported at 338 F. Supp. 582, or its Findings of 
Fact and Conclusions of Law on the ‘Detroit-only’ plans of 
desegregation, dated March 28, 1972.” (Appendix, 178a).

The net result is that Petitioners and other school districts are 
foreclosed from any hearing whatever with respect to the control­
ling issues. The final remedy is, in fact, already ordained by the 
Court of Appeals.

REASONS FOR GRANTING THE WRIT
The Decision Below  Presents Issues o f  

Imperative Public Importance 
That Have N ever Been Decided B y This Court

This case is without precedent in terms of the scope of the 
judicial remedy involved, the failure to accord Petitioners funda­
mental due process, the imposition of a judicial remedy against 
unitary school districts absent a finding of constitutional violation 
and its impact upon the public school systems in the United 
States.

There are upwards of 600 geographically and politically unre­
lated, separate and identifiable school districts in the State of 
Michigan. Over 100 years ago the Michigan legislature in Public 
Act No. 34 of 1867, provided that -

“All residents of any district shall have an equal right to 
attend any school therein.”

The Michigan Supreme Court construed this statute to mean that

[7] A motion which would make eighty-four (84) school districts in Wayne. 
Oakland and Macomb Counties parties to the litigation is now pending before 
the District Court.



12

under Michigan law black children were placed on the same 
footing with white children and were admissible on the same terms 
to the public schools. Ex Rel Workman, 18 Mich. 399 (1869).

In 1927 the Michigan legislature enacted Act No. 319, Part 
II, Chapter 2, Section 9 of which provided as follows:

“All persons residents of any school district and five 
years of age, shall have an equal right to attend any school 
therein; and no separate school or department shall be kept 
for any person or persons on account of race or color.”

This long established policy against racial segregation in the public 
schools is re-affirmed in the Michigan Constitution, as follows:

“ . . . Every school district shall provide for the educa­
tion of its pupils without discrimination as to religion, creed, 
race, color or national origin.” Mich. Const. 1963, art VIII, 
sec 2.f8J

The complaint filed in this case alleges that one of the 600 
Michigan school districts, the City of Detroit, has failed to operate 
a unitary school system. The trial on the merits was confined to 
the issue of de jure segregation with respect to the operation of 
the Detroit public school system. The gravamen of the findings 
and conclusions of the District Court, and the decision of the 
Court of Appeals, is that the Detroit Board of Education, by the 
use of various techniques such as the manipulation of student at­
tendance zones within the Detroit school district, school site selec­
tion and creation of optional attendance areas, deliberately 
fostered and maintained racially segregated schools within the 
Detroit school district, aided or abetted by the action or inaction 
of the State Defendants.

Neither the District Court nor the Court of Appeals made 
any findings that any of the Petitioners, or any other school dis­
trict save Detroit, have defaulted in their constitutional obligation 
to maintain a unitary school system. The District Court stated ex­
plicitly that -
[ 8 ]

The anti-discrimination clause is placed in this section as a declaration 
which leaves no doubt as to where Michigan stands on this question.”  State of 
Michigan Constitutional Convention, 1961, Official Record, Volume II, page



13

“ It should be noted that the court has taken no proofs 
with respect to the establishment of the boundaries of the 86 
public school districts in the counties of Wayne, Oakland and 
Macomb, nor on the issue of whether, with the exclusion of 
the city of Detroit school district, such school districts have 
committed acts of de jure segregation.” (Appendix, 59a-60a).

The Court of Appeals for the Sixth Circuit has decreed that, 
contrary to controlling decisions of this Court, the scope of judi­
cial remedy in a school desegregation case is not dependent upon 
any constitutional violation, but can be predicated on the exist­
ence of racial imbalance between separate, unrelated and identi­
fiable school districts.

Admittedly, the City of Detroit school district is predomi­
nantly black and Petitioners and some other school districts are 
predominantly white. However, there is no claim or finding that 
the de jure segregated operation of the Detroit school system is in 
any way causally connected with the establishment or operation 
of any other school district. There is likewise no claim or finding 
that the creation or establishment of any other school district is 
causally connected with the de jure segregated operation of the 
Detroit school district.

An obvious and simple fact ignored by the District Court and 
the Court of Appeals is that there is absolutely no evidence that 
the racial make-up of the Detroit school district vis-a-vis other 
school districts would be any different had none of the acts of de 
jure segregation here found occurred. In other words, had Detroit 
been operated as a unitary school system its total school popula­
tion would still be predominantly black due to population move­
ments and housing patterns. Only the racial mix in schools within 
the City o f Detroit might be different but for the manipulative 
actions found by the District Court.

The evil intended to be eradicated by the decision of the 
Court in Brown v. Board o f Education o f Topeka, 347 U.S. 483 
(1954), and its descendants, was the label of inferiority which ac­
companied the segregation of black children in the schools by 
“sanction o f law”. It is not the mere presence of too many or too 
few black children in a school that gives rise to a constitutional



14

violation, but the use of governmental action to deny black children 
entrance to a school or classroom solely because of their race. 
Such evil is given rebirth by a decision such as the Court of Ap­
peals herein that black children must not be permitted to predomi­
nate in any school system. In Brunson v. Board o f Trustees o f 
School District No. 1 o f  Clarendon County, South Carolina, 429 
F2d 820, 826 (CA4, 1970), Judge Sobeloff appropriately de­
scribed the actual effect of such a holding, as follows:

“ This idea, then, is no more than a resurrection of the 
axiom of black inferiority as justification for separation of 
the races, and no less than a return to the spirit of Dred 
Scott. ” 19]

Both the District Court and the Court of Appeals acknowl­
edge the lack of controlling decision by this Court with respect to 
the remedy decreed herein.

“The main thrust of the objections to the consideration 
of a metropolitan remedy advanced by intervening school dis­
tricts is that, absent a finding of acts of segregation on their 
part, individually, they may not be considered in fashioning a 
remedy for relief to the plaintiffs. It must be conceded that 
the Supreme Court has not yet ruled directly on this is­
sue. . .” United States District Court, Eastern District of 
Michigan, Southern Division (Appendix, 50a). Emphasis 
added.

* * *

“ [Ajmong the substantial questions presented there is 
at least one difficult issue of first impression that has never 
been decided by this court or the Supreme Court.” United 
States Court of Appeals for the Sixth Circuit (Appendix, 
113a).

The decision of the Court of Appeals portends the cross­
school district assignment and transportation of hundreds of 
thousands of children in the Detroit metropolitan area. The initial 
desegregation plan contemplated by the District Court embraces
[9]

Dred Scott v. Sanford, 60 U.S. (19 How) 393 (1856).



15

fifty-three (53) separate school districts and the reassignment and 
transportation of over 300,000 children (Appendix, 72a; 101a). 
The imperative public importance of this case is readily apparent 
when one conceives the possibility of millions of school children 
in school districts throughout the United States being reassigned 
and transported in order to effect majority white-minority black 
racial balance. The disruptive consequences of such occurrences 
are so obvious as to warrant no comment.

The Court of Appeals has remanded this case to the District 
Court for the purpose of implementing a plan of desegregation 
which could potentially involve in excess of eighty (80) school dis­
tricts and approximately 1,000,000 children. At this juncture the 
scope of the remedy and the desegregation area is limited only by 
the dictates of the District Court (Appendix, 177a). Plaintiffs have 
already filed a motion which, if granted, would make eighty-four 
(84) school districts parties to these proceedings.

Obedience to the rule of law is the keystone of our republic. 
But what is the rule of law in cases such as the instant case? Only a 
decision by this Court can resolve the confusion and conflict en­
gendered by divergent judicial commands emanating from lower 
courts. The issues posed in this case have substantial impact upon 
the lives of nearly one million children in the Detroit metropolitan 
area and millions of children and parents throughout the United 
States. This Court has stated that delay in effecting the desegrega­
tion of public school systems found to be in violation of the Con­
stitution will not be countenanced. It is submitted that this Court 
should likewise not countenance delay in providing definitive and 
controlling guidance in connection with the immensely important 
public issues here presented.

The Decision Below  Conflicts In Principle 
With Decisions O f This Court and Other 

Courts O f Appeals

In Swann v. Charlotte-Mecklenburg Board o f Education, 402 
U.S. 1, 15-16, (1970), this Court stated:

. . a school desegregation case does not differ funda­
mentally from other cases involving the framing of equitable



16

remedies to repair the denial o f a constitutional right. The 
task is to correct, by a balancing of the individual and collec­
tive interests, the condition that offends the Constitution.

“ In seeking to define even in broad and general terms 
how far this remedial power extends it is important to re­
member that judicial powers may be exercised only on the 
basis o f a constitutional violation. . . .

“ School authorities are traditionally charged with broad 
power to formulate and implement educational policy and 
might well conclude, for example, that in order to prepare 
students to live in a pluralistic society each school should 
have a prescribed ratio of Negro to white students reflecting 
the proportion for the district as a whole. To do this as an 
educational policy is within the broad discretionary powers 
of school authorities; absent a finding of a constitutional vio­
lation, however, that would not be within the authority of a 
federal court. As with any equity case, the nature o f the 
violation determines the scope o f the remedy. . .” Emphasis 
added.

Assuming, arguendo, the validity of the findings of the Dis­
trict Court on the issue of segregation and the Court of Appeals 
affirmance thereof, the only constitutional violation in this case is 
the operation of the Detroit public school system on a de jure 
segregated basis which denies black children access to certain 
schools within the Detroit School system on account of their race. 
There is no claim or finding that black children have been denied 
such access in any other school district because of their race.

The condition that offends the constitution is the internal 
operation of the Detroit public school system. The nature of the 
constitutional violation is the manipulative techniques used in con­
nection with the assignment of children to schools within the 
Detroit school system. The scope of the remedy should thus be 
limited to prohibiting the denial of access to schools within the 
Detroit school system on account of race and elimination of the 
vestiges of segregation by reassigning Detroit school children to 
schools on a basis which is reflective of the condition which would 
prevail had the Detroit system been operated as a unitary school 
system.



17

There is no claim or finding that the racial composition of 
the Detroit public school system vis-a-vis other school districts 
throughout the Detroit metropolitan area is causally connected 
with the actions found to constitute de jure segregation. With or 
without the acts of commission and omission by the Detroit Board 
of Education and the State defendants found to constitute de jure 
segregation, the Detroit school system would be predominantly 
black and other school districts in the Detroit metropolitan area 
would be predominantly white. Applying the teachings of Swann, 
supra, there is no basis upon which Petitioners and other unitary 
school districts can be subjected to a judicial remedy for the 
purpose of changing the racial mix in the Detroit public school 
system. Judge Kent in his dissenting opinion put it succinctly, as 
follows:

“ I know of no authority which would permit a Court to 
announce a conclusion, based upon a violation of the Consti­
tution, absent the taking of proofs to establish such constitu­
tional violation, which proofs the District Judge stated he did 
not take in this case.”  (Appendix, 225a).
The Court of Appeals for the Sixth Circuit has, in reality, de­

creed that the existence of a big city school system which is predo­
minantly black due to residential patterns, surrounded by school 
districts which are predominantly white due to residential 
patterns, constitutes a denial of equal protection of the law. This 
holding is in direct and irreconcilable conflict with the pronounce­
ments in Spencer v. Kugler, 326 F. Supp. 1235 (1971), aff’d 404 
U.S. 1027 (1972), as follows:

. . Racially balanced municipalities are beyond the 
pale of either judicial or legislative intervention.” 326 F. 
Supp. 1235 at 1240.

*  *  *

“ A continuing trend toward racial imbalance caused by 
housing patterns within the various school districts is not sus­
ceptible to judicial intervention. . .” 326 F. Supp 1235 at 
1242.

Moreover, this Court recently stated in San Antonio Independent 
School District v. Rodriquez, 411 U.S. 1,54 (1973) that —

“This Court has never doubted the propriety of main­
taining political subdivisions within the States and has never



1 8

found in the Equal Protection Clause any per se rule of 
territorial uniformity [citations omitted]
The holding of the Sixth Circuit Court of Appeals that relief 

from segregation in the Detroit public school system cannot be ac­
complished within said school district is patently erroneous. Con­
trary to the majority opinion of the Sixth Circuit, a unitary school 
system is not a minority-black system but is a school system with­
in which no person is effectively excluded from any school or 
classroom because of race or color. Alexander v. Holmes County 
Board of Education, 396 U.S. 19 (1969). Relief of segregation can 
be accomplished by converting Detroit to a unitary school system. 
As stated by the Fourth Circuit Court of Appeals in Bradley v. 
School Board o f the City o f Richmond, 462 F2d 1058, 1069 
(CA4, 1972), aff’d by an equally divided Court, 93 S. Ct. 1952
(1973).

“ . . . there is no right to a racial balance within even a 
single school district, Swann v. Charlotte-Mecklenburg Board 
of Education, supra at 24, but only a right to attend a uni­
tary school system.”
The objective of the so-called metropolitan remedy required 

by the holdings of the courts below is racial balancing, pure and 
simple. This Court in Swann, supra, unequivocally rejected the no­
tion that desegregation requires racial balancing, saying:

. . .  If we were to read the holding of the District 
Court to require, as a matter of substantive constitutional 
right, any particular degree of racial balance, or mixing, that 
approach would be disapproved and we would be obliged to 
reverse.” Swann, supra, at page 24.

The conclusion of the Sixth Circuit Court of Appeals that desegre­
gation requires reducing the black student population of the of­
fending school district to a minority ratio is further negated by 
United States v. Scotland Neck Board o f Education, 407 U.S. 484 
(1972), where the enrollment under the desegregation plan was 
78% black and by Wright v. Council o f  the City o f Emporia. 407 
U.S. 451 (1972) where the enrollment under the desegregation 
plan was 66% black.

In Bradley v. School Board o f the City o f  Richmond, supra, 
the Court of Appeals for the Fourth Circuit rejected adoption of a 
so-called metropolitan remedy aimed at using predominantly



19

white school districts to effect a more desirable racial balance vis- 
a-vis a predominantly black school district. The Court of Appeals 
for the Fourth Circuit noted as follows:

. the forces influencing demographic patterns in 
New York, Chicago, Detroit, Los Angeles, Atlanta and other 
metropolitan areas have operated in the same way in the 
Richmond area to produce the same result. Typical of all 
these cities is a growing black population in the central city 
and a growing white population in the surrounding suburban 
and rural areas. Whatever the basic causes, it has not been 
school assignments, and school assignments cannot reverse 
the trend. That there has been housing discrimination in all 
three units is deplorable, but a school case, like a vehicle, can 
carry only a limited amount of baggage. Swann v. Char- 
lotte-Mecklenburg Board o f Education, supra at 24.” 462 
F2d 1058, 1066 (CA4, 1972).

The decisions of the District Court and the Court of Appeals 
in this case are founded upon the erroneous premise that the judi­
cial remedy in a school desegregation case need not be confined to 
the scope of constitutional violations but may be used as a vehicle 
of unlimited capacity for the purpose of effecting social goals. The 
District Court stated as much, saying:

“ We need not recite the many serious problems such a 
plan entails, suffice it to say that a plan of such dimensions 
can hardly be conceived in a day, to say nothing of the time 
it will require for implementation. A large metropolitan area 
such as we have in our case can not be made the subject of 
instant integration. We must bear in mind that the task we 
are called upon to perform is a social one, which society has 
been unable to accomplish. In reality, our courts are called 
upon, in these school cases, to attain a social goal, through 
the educational system, by using the law as a lever. ” (Ap­
pendix, 40a-41a). Emphasis added.

The mandate of Brown I, supra, and Brown II, 349 U.S. 294 
(1955), is to dismantle dual school systems and eliminate the ves­
tiges of segregation where the actions of school authorities have 
denied children access to public schools solely on account of their



20

race or color. Brown and its progeny have all addressed themselves 
to this objective. The Sixth Circuit Court of Appeals has mis­
apprehended the controlling principles enunciated by this Court 
and has gone far beyond correcting the condition that offends the 
Constitutiont in decreeing that children attending the public 
schools may be reassigned and transported for purposes of racial 
balancing to counteract residential patterns. The irreconcilable 
conflict between the decision of the Sixth Circuit Court of Ap­
peals and prior decisions of this Court not only warrants but calls 
for immediate review of this case by Writ of Certiorari.

Petitioners Have Been A n d  Will Continue 
To B e Denied Due Process o f  Law  

Under The Decision Below

It is impossible to equate the proceedings below with the 
minimal requirements of due process of law.I^] This Court has 
set forth such requirements, as follows:

“A fundamental requirement of due process is ‘the 
opportunity to be heard’ . . .  It is an opportunity which must 
be granted at a meaningful time and in a meaningful man­
ner.” Armstrong v. Manzo, 380 U.S. 545, 552 (1965).

*  *  *

“The right to a fair and open hearing is one of the 
rudiments of fair play assured to every litigant by the Federal 
Constitution as a minimal requirement,” Railroad Com­
mission o f California v. Pacific Gas & Electric Co., 302 U.S. 
388, 393 (1938).

The decision of the Sixth Circuit holds that Petitioners and 
other school districts to be affected by judicial decree are “neces­
sary parties” , yet denies to such necessary parties any opportunity 
for hearing with respect to the controlling issues here involved.

As noted hereinabove in the Statement of the Case, decisions 
of the courts below foreclose Petitioners from an opportunity to

 ̂ See dissenting opinion of Judge Kent, Appendix, 223a.

1 United States Constitution, Amendment V.



21

be heard on the issue of segregation and the issue of a “ Detroit- 
Only” plan of desegregation and subject Petitioners to judicial 
sanction without any finding that they have committed, or are 
causally connected with, any constitutional violation.

The Sixth Circuit decision commands the District Court to 
fashion a so-called metropolitan remedy to alter the racial balance 
vis-a-vis the Detroit school district and geographically and politi­
cally independent school districts in the geographical area proxi­
mate to the Detroit school district. Thus the ultimate remedy has 
been determined and the hearing to be accorded Petitioners is il­
lusory. As stated by Judge Miller, in dissenting from the majority 
opinion of the Sixth Circuit—

“ Parties to be affected and against whom relief is 
sought should be accorded, in compliance with basic prin­
ciples of due process, an opportunity to be heard at a mean­
ingful time and in a meaningful manner not only with respect 
to the ultimate scope of the remedy to be fashioned, but also 
with respect to important, significant and perhaps even con­
trolling issues, including the issue of segregation, a ‘Detroit 
on ly ’ school plan and the propriety of a metropolitan 
remedy. If any one of these issues is resolved in favor of 
parties outside the Detroit School District, the nature and 
scope of a remedy embracing outlying districts would not be 
reached. Hence the outlying districts have a vital interest in 
each issue separately and should be heard on each in a true 
adversary sense. Until this is done our expression of view on 
the merits of the several questions is uncalled for and ill- 
advised. To permit these additional parties to be heard only 
in the restricted sense set forth in the majority opinion is to 
deny them basic rights guaranteed not only by Rule 19, 
Federal Rules of Civil Procedure, but by the Constitution 
itself. "(Appendix, 239a-240a). Emphasis added.

The unprecedented decision of the Sixth Circuit warrants 
immediate review by this Court in order to determine and protect 
fundamental constitutional rights to due process of law.



22

CONCLUSION

The unprecedented decision of the Sixth Circuit Court of 
Appeals and its tremendous public impact on parents and 
children in Michigan and throughout the United States make this 
case one of imperative public importance warranting the issuance 
of a Writ of Certiorari.

Respectfully submitted,

BUTZEL, LONG, GUST, KLEIN 
& VAN ZILE,

WILLIAM M. SAXTON 
JOHN B. WEAVER 
ROBERT M. VERCRUYSSE

Of Counsel. XHAFER ORHAN 
1881 First National Building 
Detroit, Michigan 48226

CONDIT AND MC GARRY, P.C. 
Richard P. Condit,

Counsel for Petitioners Allen 
Park Public Schools, et al, 
Southfield Public Schools and 
School District of the City of 
Royal Oak

Of Counsel

HARTMAN, BEIER, HOWLETT, 
MC CONNELL & GOOGASIAN, 

Kenneth B. McConnell,
Of Counsel

Dated: September 6, 1973.



laa

APPENDIX

CONSTITUTIONAL PROVISIONS

United States Constitution, Amendment V provides:

AMENDMENT V -  CAPITAL CRIMES; DOUBLE JEOP­
ARDY; SELF - INCRIMINATION; DUE PROCESS; JUST 
COMPENSATION FOR PROPERTY
No person shall be held to answer for a capital, or other­

wise infamous crime, unless on a presentment or indictment 
of a Grand Jury, except in cases arising in the land or naval 
forces, or in the Militia, when in actual service in time of War 
or public danger; nor shall any person be subject for the same 
offence to be twice put in jeopardy of life or limb; nor shall 
be compelled in any criminal case to be a witness against him­
self, nor be deprived of life, liberty, or property, without due 
process of law; nor shall private property be taken for public 
use, without just compensation.

United States Constitution, Amendment XIV, Section 1, provides:
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 citizens 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 jurisdiction the equal protection of the laws.

Michigan Constitution of 1963, Art. 8, §2 provides:

Free public elementary and secondary schools; discrimina­
tion.

SEC. 2. The legislature shall maintain and support a system 
of free public elementary and secondary schools as defined 
by law. Every school district shall provide for the education 
of its pupils without discrimination as to religion, creed, race, 
color or national origin.



2aa

UNITED STATES STATUTES

Judicial Code, 28 U.S.C. § 1254(1) provides:

1254. Courts of appeals; certiorari; appeal, certified ques­
tions

Cases in the courts of appeals may be reviewed by the 
Supreme Court by the following methods;

(1) By writ of certiorari granted upon the petition of any 
party to any civil or criminal case, before or after rendition 
of judgment or decree;

Judicial Code, 28 U.S.C. § 1292(b) provides:

§1292. Interlocutory decisions

(b) When a district judge, in making in a civil action an 
order not otherwise appealable under this section, shall be of 
the opinion that such order involves a controlling question of 
law as to which there is substantial ground for difference of 
opinion and that an immediate appeal from the order may 
materially advance the ultimate termination of the litigation, 
he shall so state in writing in such order. The Court of Ap­
peals may thereupon, in its discretion, permit an appeal to be 
taken from such order, if application is made to it within ten 
days after the entry of the order: Provided, however, That 
application for an appeal hereunder shall not stay proceed­
ings in the district court unless the district judge or the Court 
of Appeals or a judge thereof shall so order.

MICHIGAN STATUTES

Michigan Compiled Laws Annotated, §340.352 provides:

340.352 Body corporate; powers, rights, liabilities; pre­
sumptions

SEC. 352. Every school district shall be a body corporate 
under the name provided in this act, and may sue and be sued 
111 name> may acquire and take property, both real and 
Personal, for educational purposes within or without its cor-



3aa

porate limits, by purchase, gifts, grant, devide or bequest, and 
hold and use the same for such purposes, and may sell and 
convey the same as the interests of such district may require, 
subject to the conditions of this act contained. As such body 
corporate, every school district shall be the successor of any 
school district previously existing within the same territorial 
limits and shall be vested with all rights of action, with the 
title of all property, real and personal, of the district of 
which it is the successor, and the indebtedness and obliga­
tions of the district superseded shall become and be the 
indebtedness and obligations of the succeeding district, ex­
cept as otherwise provided in chapters 3, 4 and 5, part 2 of 
this act. Every school district shall in all cases be presumed to 
have been legally organized when it shall have exercised the 
franchises and privileges of a district for the term of 2 years; 
and such school district and its officers shall be entitled to all 
the rights, privileges and immunities, and be subject to all the 
duties and liabilities conferred upon school districts by law.

Act 34, Sec. 28, Mich. Pub. Acts of 1867 provides:

(2271) Sec. 28. All residents of any district shall have an 
equal right to attend any school therein: Provided, That this 
shall not prevent the grading of schools according to the in­
tellectual progress of the pupils, to be taught in separate 
places when deemed expedient.

Act 48, Sec. 12, Mich. Pub. Act of 1970 provides:

3 88.182 Attendance provisions, implementation; condi­
tions. [M.S.A. 15.2298(12)]

Sec. 12. The implementation of any attendance provi­
sions for the 1970-71 school year determined by any first 
class school district board shall be delayed pending the date 
of commencement of functions by the first class school dis­
trict boards established under the provisions of this amenda­
tory act but such provision shall not impair the right of any 
such board to determine and implement prior to such date 
such changes in attendance provisions as are mandated by 
practical necessity. In reviewing, confirming, establishing of 
modifying attendance provisions the first class school district



4aa

boards established under the provisions of this amendatory 
act shall have a policy of open enrollment and shall enable 
students to attend a school of preference but providing prior­
ity acceptance, insofar as practicable, in cases of insufficient 
school capacity, to those students residing nearest the school 
and to those students desiring to attend the school for parti­
cipation in vocationally oriented courses or other specialized 
curriculum.

Act 319, Part II, Ch. 2, Sec. 9, Mich. Pub. Acts of 1927, provides:

SEC. 9. All persons residents of any school district, and 
five years of age, shall have an equal right to attend any 
school therein; and no separate school or department shall be 
kept for any person or persons on account of race or color: 
Provided, That this shall not be construed to prevent the 
grading of schools according to the intellectual progress of 
the pupil, to be taught in separate places as may be deemed 
expedient.

FEDERAL RULES OF CIVIL PROCEDURE

Fed. R. Civ. P. 19 provides:

Rule 19. Joinder of Persons Needed for Just Adjudication

(a) Persons to be Joined if Feasible. A person who is sub­
ject to service of process and whose joinder will not deprive 
the court of jurisdiction over the subject matter of the action 
shall be joined as a party in the action if (1) in his absence 
complete relief cannot be accorded among those already par­
ties, or (2) he claims an interest relating to the subject of the 
action and is so situated that the disposition of the action in 
his absence may (i) as a practical matter impair or impede his 
ability to protect that interest or (ii) leave any of the persons 
already parties subject to a substantial risk of incurring 
double, multiple, or otherwise inconsistent obligations by 
reason of his claimed interest. If he has not been so joined, 
the court shall order that he be made a party. If he should 
join as a plaintiff but refuses to do so, he may be made a 
defendant, or, in a proper case, an involuntary plaintiff. If



5aa

the joined party objects to venue and his joinder would ren­
der the venue of the action improper, lie shall be dismissed 
from the action.

(b) Determination by Court Whenever Joinder not Feas­
ible. If a person as described in subdivision (a) (1)-(2) hereof 
cannot be made a party, the court shall determine whether in 
equity and good conscience the action should proceed among 
the parties before it, or should be dismissed, the absent per­
son being thus regarded as indispensable. The factors to be 
considered by the court include: first, to what extent a judg­
ment rendered in the person’s absence might be prejudicial to 
him or those already parties; second, the extent to which, by 
protective provisions in the judgment, by the shaping of re­
lief, or other measures, the prejudice can be lessened or 
avoided; third, whether a judgment rendered in the person’s 
absence will be adequate; fourth, whether the plaintiff will 
have an adequate remedy if the action is dismissed for non­
joinder.

(c) Pleading Reasons for Nonjoinder. A pleading asserting 
a claim for relief shall state the names, if known to the plead­
er, of any persons as described in subdivision (a) (l)-(2) here­
of who are not joined, and the reasons why they are not 
joined.

(d) Exception of Class Actions. This rule is subject to the 
provisions of Rule 23.

Fed. R. Civ. P. 54(b) provides:

Rule 54. Judgments; Costs

(b) Judgment upon Multiple Claims or Involving Multiple 
Parties. When more than one claim for relief is presented in 
an action, whether as a claim, counter-claim, cross-claim, or 
third-party claim, or when multiple parties are involved, the 
court may direct the entry of a final judgment as to one or 
more but fewer than all of the claims or parties only upon an 
express determination that there is no just reason for delay 
and upon an express direction for the entry of judgment. In 
the absence of such determination and direction, any order



6aa

or other form of decision, however designated, which adjudi­
cates fewer than all the claims or the rights and liabilities of 
fewer than all the parties shall not terminate the action as to 
any of the claims or parties, and the order or other form of 
decision is subject to revision at any time before the entry of 
judgment adjudicating all the claims and the rights and liabili­
ties of all the parties.









IN THE
SUPREME COURT OF THE UNITED STATES 

October Term 1973

No.

THEGROSSE POINTE PUBLIC SCHOOL SYSTEM,
Petitioner,

vs.

RONALD BRADLEY and RICHARD BRADLEY, by their Mother and Next 
Friend, VERDA BRADLEY; JEANNE GOINGS, by her Mother and Next 
Friend, BLANCH GOINGS; BEVERLY LOVE, JIMMY LOVE and 
DARRELL LOVE, by their Mother and Next Friend, CLARISSA LOVE; 
CAMILLE BURDEN, PIERRE BURDEN, AVA BURDEN, MYRA BUR 
DEN, MARC BURDEN and STEVEN BURDEN, by their Father and Next 
Friend, MARCUS BURDEN; KAREN WILLIAMS and KRISTY WIL­
LIAMS, by their Father and Next Friend, C. WILLIAMS; RAY LITT and

I
 MRS. WILBUR BLAKE, parents; all parents having children attending the 

public schools of the City of Detroit, Michigan, on their own behalf and on 
behalf of their minor children, all on behalf of any person similarly situ­
ated; and NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF 
COLORED PEOPLE, DETROIT BRANCH; DETROIT FEDERATION OF 
TEACHERS, LOCAL 231, AMERICAN FEDERATION OF TEACHERS, 
AFL-CIO, BOARD OF EDUCATION OF THE CITY OF DETROIT, a 
school district of the first class; PATRICK McDONALD, JAMES HATHA­
WAY and CORNELIUS GOLIGHTLY, members of the Board of Educa­
tion of the City of Detroit; and NORMAN DRACHLER, Superintendent 
of the Detroit Public Schools; WILLIAM G. MILLIKEN, Governor of the 
State of Michigan and ex-officio member of the Michigan State Board of 
Education; FRANK J. KELLY, Attorney General of the State of Michigan; 
MICHIGAN STATE BOARD OF EDUCATION, a constitutional body 
corporate, and JOHN W. PORTER, Superintendent of Public Instruction, 
Department of Education of the State of Michigan, ALLISON GREEN, 
State Treasurer; ALLEN PARK PUBLIC SCHOOLS, SCHOOL DISTRICT

(Continued on Reverse Side)

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 
DOUGLAS H. WEST 
3700 Penobscot Building 
Detroit, Michigan 48226 
Counsel fo r  Petitioner 
THOMAS E. COULTER and 
HILL, LEWIS, ADAMS, GOODRICH

& TAIT
3700 Penobscot Building 
Detroit, Michigan 48226 
O f Counsel for  Petitioner



OF THE CITY OF BERKLEY, BRANDON SCHOOLS, CENTERLINE 
PUBLIC SCHOOLS, CHERRY HILL SCHOOL DISTRICT, CHIPPEWA 
VALLEY PUBLIC SCHOOLS, SCHOOL DISTRICT OF THE CITY OF 
CLAWSON, CRESTWOOD SCHOOL DISTRICT, DEARBORN PUBLIC 
SCHOOLS, DEARBORN HEIGHTS SCHOOL DISTRICT NO. 7, EAST 
DETROIT PUBLIC SCHOOLS. SCHOOL DISTRICT OF THE CITY OF 
FERNDALE, FLAT ROCK COMMUNITY SCHOOLS, GARDEN CITY 
PUBLIC SC H O O LS, G IBRALTAR SCHOOL DISTRICT, SCHOOL 
DISTRICT OF THE CITY OF HARPER WOODS, SCHOOL DISTRICT 
OF THE CITY OF HAZEL PARK, INTERMEDIATE SCHOOL DISTRICT 
OF THE COUNTY OF MACOMB, LAKE SHORE PUBLIC SCHOOLS, 
LAKEVIEW PUBLIC SCHOOLS, THE LAMPHERE SCHOOLS, LINCOLN 
PARK PUBLIC SCHOOLS. MADISON DISTRICT PUBLIC SCHOOLS, 
MELVINDALE-NORTH ALLEN PARK SCHOOL DISTRICT, SCHOOL 
DISTRICT OF NORTH DEARBORN HEIGHTS, NOVI COMMUNITY 
SCHOOL DISTRICT, OAK PARK SCHOOL DISTRICT, OXFORD AREA 
COMMUNITY SCHOOLS, REDFORD UNION SCHOOL DISTRICT NO, 
1, RICHMOND COMMUNITY SCHOOLS, SCHOOL DISTRICT OF THE 
C IT Y  OF R IV E R  R O U G E , RIVERVIEW COMMUNITY SCHOOL 
DISTRICT, ROSEVILLE PUBLIC SCHOOLS, SOUTH LAKE SCHOOLS, 
TAYLOR SCHOOL DISTRICT, WARREN CONSOLIDATED SCHOOLS, 
W A R R E N  WOODS PUBLIC SCHOOLS, WAYNE-WESTLAND COM 
MUNITY SCHOOLS, WOODHAVEN SCHOOL DISTRICT and WYAN­
DOTTE PUBLIC SCHOOLS; KERRY and COLLEEN GREEN, by their 
Father and Next Friend, DONALD G. GREEN; JAMES, JACK and KATH­
LEEN ROSEMARY, by their Mother and Next Friend, EVELYN G. 
ROSEMARY; TERRI DORAN, Mother and Next Friend, BEVERLY 
DORAN; SHERRILL, KEITH, JEFFREY and GREGORY COULS, by 
their Mother and Next Friend, SHARON COULS; EDWARD and 
MICHAEL ROMESBURG, by their Father and Next Friend, EDWARD M. 
ROMESBURG, JR.; TRACEY and GREGORY ARLEDGE, by their 
Mother and Next Friend, AILEEN ARLEDGE; SHERYL and RUSSELL 
PAUL, by their Mother and Next Friend, MARY LOU PAUL; TRACY 
QUIGLEY, by her Mother and Next Friend, JANICE QUIGLEY; IAN, 
STEPHANIE, KARL and JAAKO SUNI, by their Mother and Next Friend, 
SHIRLEY SUNI; and TRI-COUNTY CITIZENS FOR INTERVENTION IN 
FEDERAL SCHOOL ACTION NO. 35257; DENISE MAGDOWSKI and 
DAVID MAGDOWSKI, by their Mother and Next Friend, JOYCE 
MAGDOWSKI; DAVID VIETTI, by his Mother and Next Friend, VIOLET 
VIETTI; and the CITIZENS COMMITTEE FOR BETTER EDUCATION 
OF THE DETROIT METROPOLITAN AREA, a Michigan non-Profit 
Corporation; SCHOOL DISTRICT OF THE CITY OF ROYAL OAK; 
SOUTHFIELD PUBLIC SCHOOLS, MICHIGAN EDUCATION ASS0 =

CIATICN; PROFESSION.:-L Respondents.

PERSONNEL OF VAN DYKSj,...  ..



1

INDEX

Page

Introductory Prayer .............................................................. 1

Opinions and Orders Below ..............................    1

Jurisdiction ............................................................................  2

Questions Presented .............................................................. 2

Constitutional Provisions, Statutes and Rules Involved ........  3

Statement of the Case ............................................................ 3

Reasons For Granting The Writ .............................................  7

1. The Decisions Below Are in Direct And Irreconcilable
Conflict With Decisions Of Other United States Courts 
Of Appeal, As Well As Decisions Of The United States 
Supreme Court .............................................................. 8

2. The Decisions Below Involve Issues Of Immense Public
Importance Because Of: (A) The Far-Reaching Pre­
cedent Established Thereby, And, (B) The Impact Of 
The Lower Courts’ Proposed Remedy Upon The Resi­
dents Of Every School District In The Detroit Metro­
politan Area .................................................................. 14

3. The Refusal Of The Lower Courts To Accord Funda­
mental Due Process Of Law To Forty-Three (43) Politi­
cally Autonomous And Geographically Independent 
School Districts, Who Are Admitted By The Lower 
Courts To Be Necessary Parties To This Action, Re­
quires The Exercise By This Court Of Its Supervisory
Powers............................................................................ 17

Conclusion ............................................................................ 22

Appendix .............................................................................. 23aa



TABLE OF AUTHORITIES

Federal Cases:
Armstrong v. Manzo, 380 U.S. 545 (1965) ........................... 20
Bell v. School City o f Gary, Indiana, 324 F.2d 209 (7th Cir. 

1963), aff’g, 213 F. Supp. 819 (N.D. Ind. 1963) ..............  II
Bradley v. Milliken, C.A.6, 72-1809-1814 (6th Cir., Dec. 8, 

1972) ................................................................................  1
Bradley v, School Board o f  the City o f Richmond, 462 F.2d 

1058 (4th Cir. 1972), aff’d by an equally divided court, 93

Page

S.Ct. 1952 (1973) .............................................................. 10
Deal v. Cincinnati Board o f  Education, 419 F.2d 1387 (6th 

Cir. 1969), cert, denied, 402 U.S. 962 (1971) ..................  9
Goss v. Board o f  Education o f the City o f Knoxville, C.A.6, 

72-1766-1767 (6th Cir., July 18, 1973) ...........................  9
Higgins v. Board o f  Education o f City o f  Grand Rapids, Civ.

No. 6386 (W.D. Mich., July 18, 1973) ............................. 20
Jenkins v. McKeithen, 395 U.S. 411 (1969) ......................... 20
Keyes v. School District No. 1, Denver, Colorado, 445 F.2d 

990 (10th Cir. 1971) .......................................................... H
Keyes v. School District No. 1, Denver, Colorado, 93 S.Ct. 

2686 (1973) .............. .......................................................11,U
Spencer v. Kugler, 326 F.Supp. 1235 (D.N.J. 1971), aff’d,

404 U.S. 1027 (1972) ........................................................ 12,13
Swann v. Charlotte-Mecklenburg Board o f Education, 402 

U.S. 1 (1971) .................................................................... 13,14
United States v. Board o f School Commissioners o f the City 

o f Indianapolis, Indiana, 474 F.2d 81 (7th Cir. 1973) . . . .  ^
United States v. Indianapolis, Civ. No. 68c-225 (S.D. Ind., 

July 20, 1973)...................................................................
United States v. Texas Education Agency, 467 F.2d 848 (5th 

Cir. 1972) ............ ...................................................
Wright v. Council o f the City o f Emporia, 407 U.S. 451 

(1972) ................................................................................



Ill

State Cases:
People, ex rel. Workman v. Board o f  Education o f Detroit, 18 

Mich. 399 (1869) .............................................................. 10
Constitutional Provisions:

U.S. Const. Amend. V ............................................................3,23aa
Mich. Const. Art. 8, §2 ......................................................3,10,23aa
United States Statutes:
Judicial Code, 28 U.S.C. § 1254(1) ............................. 2,3,23aa,24aa
Judicial Code, 28 U.S.C. § 1292(b) ................................... l,3,6,24aa
Michigan Statutes:
Mich. Comp. Laws Ann. §340.352 ........ ..................3,19,24aa,25aa
Act 34, Sec. 28, Mich. Pub. Acts of 1867 ...................... 3,10,25aa
Act 48, Sec. 12, Mich. Pub. Acts of 1970 ........................ 3,4,25aa
Federal Rules Of Civil Procedure:
Fed. R. Civ. P. 19 ................................................... 3,21,26aa,27aa
Fed. R. Civ. P. 54(b) ........................................................l,3,6,27aa

Page





1

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term 1973

No.

THE GROSSE POINTE PUBLIC SCHOOL SYSTEM,
Petitioner,

vs.
RONALD BRADLEY, et al„

Respondents.

PETITION FOR WRIT OF 
CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR 
THE SIXTH CIRCUIT

Petitioner, THE GROSSE POINTE PUBLIC SCHOOL 
SYSTEM, Wayne County, Michigan (Grosse Pointe Schools), 
respectfully prays that a writ of certiorari issue to review the 
judgment and opinion of the United States Court of Appeals for 
the Sixth Circuit entered in these proceedings on June 12, 1973.

OPINIONS AND ORDERS BELOW
The judgment of the United States Court of Appeals for the 

Sixth Circuit is not as yet reported and is contained in the separate 
Joint Appendix filed herewith. This judgment was issued upon a 
rehearing by the Court of Appeals sitting in banc, and was decided 
and filed on June 12, 1973. (Joint Appendix, at 110a) A prior 
judgment of the Court of Appeals, decided and filed on December 
8, 1972, was vacated by the granting of the rehearing in banc. The 
judgment of December 8, 1972 is reported in Bradley v. Milliken, 
C-A.6, 72-1809-1814 (6th Cir. Dec. 8, 1972).

The judgment of the Court of Appeals reviewed the following 
Rulings and Orders of the District Court, under the provisions of 
28 U.S.C. § 1292(b) and Rule 54(b) Fed. R. Civ. P.:



2

1. Ruling on Issue of Segregation, dated September 27,
1971 (Joint Appendix, at 17a).HI

2. Ruling on Propriety of Considering a Metropolitan 
Remedy to Accomplish Desegregation of the Public 
Schools of the City of Detroit, dated March 24, 1972 
(Joint Appendix, at 48a).

3. Findings of Fact and Conclusions of Law on Detroit-Only 
Plans of Desegregation, dated March 28, 1972 (Joint 
Appendix, at 53a).

4. Ruling on Desegregation Area and Development of Plan, 
and Findings of Fact and Conclusions of Law in Support 
thereof, dated June 14, 1972, reported at 345 F.Supp. 
914 (Joint Appendix, at 97a and 59a, respectively).

5. Order for Acquisition of Transportation, dated July 11,
1972 (Joint Appendix, at 106a).

JURISDICTION
The judgment of the Court of Appeals for the Sixth Circuit 

was entered on June 12, 1973 upon a rehearing by the Court 
sitting in banc. This Petition for Writ of Certiorari was filed within 
90 days of that date. This Court’s jurisdiction is invoked under 28 
U.S.C. §1254(1).

QUESTIONS PRESENTED
1. Is a Plan of Desegregation limited to the boundaries of 

the School District of the City of Detroit constitutionally insuf­
ficient as a result of a finding that it has a predominantly black 
student enrollment and therefore it may be perceived as a black 
school district?

2. Is a “Metropolitan” Plan of Desegregation, intended to 
achieve a certain pupil racial balance in all schools in the Detroit 
School District and other school districts outlying therefrom,
[ 1 ] The parenthetical page references followed by the letter “ a”  refer to the 

page number o f the separate Joint Appendix filed herewith. The paren­
thetical page references followed by the letters “ aa’ refer to the page 
number of the Appendix to this Petition commencing at page 2jaa 
hereof.



3

which are independent municipal bodies corporate, legally proper 
in the absence of any finding of intentional discriminatory acts by 
such outlying school districts or in the establishment of their 
boundary lines, and in the absence of any finding of a causal con­
nection between alleged discriminatory acts of State defendants 
and the predominance of black or white students in Detroit or the 
outlying school districts?

3. Have all school districts other than Detroit, potentially 
the object of a “ Metropolitan” Plan of Desegregation, been denied 
due process of law: (1) by their exclusion from any effective 
participation in the District Court proceedings culminating in its 
Rulings on De Jure Segregation in Detroit, sufficiency of a 
Detroit-Only Plan, and legal propriety of a Metropolitan Plan, and
(2) by the ruling of the Court of Appeals that in a “ Metropolitan” 
desegregation case, outlying school districts have a right to partici­
pate only in the remedy stage of the proceedings?

CONSTITUTIONAL PROVISIONS,
STATUTES AND RULES INVOLVED

The relevant constitutional provisions, statutes and rules to 
the issues in this case are: U.S. Const. Amend. V; Mich. Const. 
Art. 8, §2; Judicial Code, 28 U.S.C. §1254(1) and § 1292(b); 
Fed. R. Civ. P. 19 and 54(b); Mich. Comp. Laws Ann., §340.352; 
Act 34, Sec. 28, Mich. Pub. Acts of 1867; and Act 48, Sec. 12, 
Mich. Pub. Acts of 1970, which are set forth in relevant part in the 
Appendix to this Brief.

STATEMENT OF THE CASE
Petitioner is one of 85 independent school districts located in 

the Michigan counties of Wayne, Oakland and Macomb, consti­
tuting what was defined by the District Judge to be the “ Detroit 
metropolitan area”'. [2] Of these 85 school districts, 43 are 
defendant-intervenors in this action. Of the 43 intervening 
districts, 34 are included within the “desegregation area” original­
ly established by the District Court in its Order of June 14, 
197213] (Joint Appendix, at 97a), which “ desegregation area”

[2] Ruling on Propriety o f Considering a Metropolitan Plan, Joint Appen­
dix, at 49a. 13

13] Vacated by the June 12, 1973 judgment o f the Court o f Appeals. As to 
its continued significance, See p. 16, Infra.



4

includes a total of 53 districts, encompassing 34 intervenors, an 
additional 18 school districts which did not intervene and are not 
parties to this action, plus the School District of the City of 
Detroit. All of these school districts are autonomous municipal 
bodies corporate, being geographically and politically independent 
and organized and existing pursuant to the laws of the State of 
Michigan, and are each governed by their respective duly elected 
boards of education.

This action was commenced in the United States District 
Court for the Eastern District of Michigan, Southern Division, by 
the Plaintiffs against the Board of Education of the City of Detroit 
and its Superintendent of Schools, and also against the Governor, 
Attorney General, State Board of Education and State Superin­
tendent of Public Instruction of the State of Michigan. The 
Detroit Federation of Teachers and Magdowski, et al., a Detroit 
homeowners group, were permitted intervention prior to com­
mencement of the trial.

Plaintiffs’ Complaint claimed that as a result of official 
policies and practices of the originally named Defendants, a con­
stitutionally impermissible racially identifiable pattern of faculty 
and student assignments existed within the schools of the School 
District of the City of Detroit.[4] Plaintiffs’ Complaint, which 
was thus limited to the operation of the Detroit School District 
alone, has never been amended to include any allegations with 
respect to any school in any school district other than Detroit.

The trial on the merits commenced on April 6, 1971, was 
concluded on July 22, 1971, and concerned only the question of 
whether or not the Detroit Public School System was operated so 
as to impair the constitutional rights of the Plaintiffs within that 
school district.

During the trial, on July 17, 1971, intervenors Magdowski, et 
al., moved to join as parties the 84 school districts in the counties
[4] Plaintiffs also claimed that Section 12, Public Act 48 o f the Mich. Pub. 

Acts o f 1970 was unconstitutional as interfering with the implementa 
tion o f a voluntary plan of partial high school pupil desegregation with­
in the School District o f the City o f Detroit, previously adopted by its 
Board of Education. By judgment o f the Court o f Appeals reported at 
433 F.2d 847 this claim o f plaintiffs was disposed o f by its ruling that 
said Section 12, Public Act 48 was unconstitutional, although that ques­
tion had not yet been ruled on by the District Court.



5

of Wayne, Oakland and Macomb, outlying from the City of 
Detroit. That Motion was not acted upon until almost one year 
later, when the Court deemed it to be withdrawn.

The District Court issued its “ Ruling on Issue of Segregation” 
on September 27, 1971 (Joint Appendix, at 17a), which found 
the existence of de jure segregation of students but found no 
segregation of faculty within the School District of the City of 
Detroit.

Although the proceedings before the District Court had 
theretofore been limited to the issue of unlawful segregation in the 
Detroit School System, on October 4, 197115] the District Court 
ordered the State defendants to submit a “Metropolitan Plan of 
Desegregation” for the School District of the City of Detroit, 
which would embrace the three counties comprising the Detroit 
metropolitan area. Pursuant to this Order, on January 4, 1972 the 
State Board of Education filed a so-called Metropolitan Plan of 
Desegregation, which substantially affected the interests of all 84 
school districts within the three counties surrounding the City of 
Detroit.

Consequently, intervention in these proceedings was sought 
by Petitioner and 42 other school districts for the purpose of 
representing their interests as municipal bodies corporate and the 
interests of the parents and children resident therein. Although by 
Order of the District Court on March 15, 1972 these Motions to 
intervene were granted as a matter of right, the District Court 
simultaneously imposed certain very restrictive and burdensome 
conditions upon such intervention.[6] The intervening school 
districts filed written objections to these conditions, which objec­
tions were never acted upon by the Court.

On March 24, 1972 the District Court issued its Ruling on 
Propriety of Considering a Metropolitan Remedy (Joint Appendix, 
at 48a). Only 4 days later, on March 28, 1972, the District Court 
issued its “ Findings of Fact and Conclusions of Law on

[5] Entered November 5, 1971, as o f October 4, 1971.
[6] For a list o f such conditions, see the dissenting opinion o f Judge Kent, 

Joint Appendix, at 232a.



6

Detroit-Only Plans of Desegregation” (Joint Appendix, at 53a).

On June 14, 1972 the District Court entered its “ Ruling on 
Desegregation Area and Order for Development of Plan of De­
segregation”  (Joint Appendix, at 97a) and its “ Findings of Fact 
and Conclusions of Law in Support of Ruling on Desegregation 
Area and the Development of Plan”  (Joint Appendix, at 59a). In 
the opening paragraph of its Findings of Fact, the District Court 
stated:

“ It should be noted that the court has taken no proofs with 
respect to the establishment of the boundaries of the 86 
public school districts in the counties of Wayne, Oakland and 
Macomb, nor on the issue of whether, with the exclusion of 
the city of Detroit School District, such school districts have 
committed acts of de jure segregation.” (Joint Appendix, at 
59-60a).

Notwithstanding this candid admission, the District Court’s Order 
of June 14, 1972 directed that final details be formulated fora 
plan of desegregation for the School District of the City of 
Detroit, involving 52 other independent school districts and order­
ing the transportation and transfer of pupils as between said 
school districts . .to the end that, upon implementation, no 
school, grade or classroom be substantially disproportionate to the 
overall pupil racial composition” ^ ]  of all school districts within 
the desegregation area established by the District Court’s Order.

On July 20, 1972 the District Court entered an Order de­
claring its principal prior Orders as final in pursuance of the 
provisions of Rule 54(b), Fed.R.Civ.P., and further certifying that 
the said Orders contained certain controlling questions of law, in 
pursuance of the provisions of 28 U.S.C. § 1292(b).

On December 8, 1972, the Court of Appeals for the Sixth 
Circuit decided and filed its first judgment, which was vacated by 
its grant of a rehearing in banc on January 16, 1973.

On June 12, 1973 the Court of Appeals for the Sixth Circuit, 
sitting in banc, decided and filed its judgment, from which this

[7] Joint Appendix, at 101-102a.



7

appeal is sought, affirming the District Court’s Rulings that (1) 
Detroit was a de jure segregated school system, (2) that a 
“Detroit-Only” plan was constitutionally insufficient, and (3) that 
a metropolitan desegregation plan was “ essential to a solution of 
this problem” , and would, in all events, be implemented in this case 
in one form or another. The Court of Appeals, however, remanded 
the matter to the District Court for the narrow purpose of pro­
viding each of the outlying school districts an opportunity to 
present evidence to the Court that the inclusion of the students in 
their district would not be necessary for the implementation of 
the metropolitan plan to be ordered into effect.

REASONS FOR GRANTING THE WRIT

The precedent established by the Courts below may be 
briefly stated as follows: A core school district, judicially de­
termined to be de jure segregated, may be “ desegregated” by the 
cross-district transfer and transportation of pupils from and to 
outlying school districts for the purpose of achieving a more ap­
propriate racial mix (as perceived by the Court and expressed in a 
fixed percentage of minorities) in each school in every school dis­
trict involved. This may be accomplished notwithstanding the fact 
that (1) no proofs were taken or findings made with respect to 
discriminatory establishment or maintenance of the outlying dis­
tricts, discriminatory acts on the part of the outlying school dis­
tricts, or any intention by any of them to segregate outlying 
districts vis-a-vis the core district, and (2) no causal connection 
was established between the acts of segregation in the core school 
district and the racial composition of the student population in 
outlying school districts. The Courts below would thereby extend 
the remedial powers of a court to the operation of any school dis­
trict within busing distance of a de jure segregated school district, 
irrespective of whether any relevant facts exist or were proved 
with respect to such outlying school district.

This precedent: (1) is in direct conflict with decisions of 
other United States Courts of Appeal, as well as the decisions of 
this Court; (2) involves issues of great importance not only to the 
Petitioner and its residents, but to every school district in the 
United States and the residents, pupils and staff thereof; and (3) 
sanctions the denial of fundamental due process of law to every



8

school district which becomes part of such a desegregation plan 
implemented on the authority of this case.

1. THE DECISIONS BELOW ARE IN DIRECT AND IR­
RECONCILABLE CONFLICT WITH DECISIONS OF 
OTHER UNITED STATES COURTS OF APPEAL, AS 
WELL AS DECISIONS OF THE UNITED STATES 
SUPREME COURT.

The philosophy underlying the unprecedented and novel 
holdings below is perhaps best reflected in the statement by the 
District Judge, during the Pre-trial conference on October 4, 1971:

“ A large metropolitan area such as we have in our case can 
not be made the subject of instant integration. We must bear 
in mind that the task we are called upon to perform is a 
social one, which society has been unable to accomplish. In 
reality, our courts are called upon, in these school cases, to 
attain a social goal, through the educational system, by using 
law as a lever. ” (emphasis added) (Joint Appendix, at 40-4la)

Judge Kent, in his dissenting opinion, also observed:

“ ...[I] am persuaded that those who subscribe to the 
majority opinion are convinced, as stated in the slip opinion 
of the original panel, ‘big city school systems for blacks sur­
rounded by suburban school systems for whites cannot repre­
sent equal protection of the law.’ While that statement has 
been removed from the opinion of the majority, yet the 
premise upon which the statement was obviously based must 
necessarily form the foundation of the conclusions reached in 
the majority opinion.” [8]

In the process of accomplishing this social goal of preventing 
a predominantly black school system from being surrounded by 
predominantly white school systems, the Courts below have 
placed themselves in square conflict with the Courts of Appeal for

[8] Joint Appendix, at 224a.



9

other Circuits, as well as the decisions of this Court.[9] This con­
flict arises because the Courts below have required a metropolitan 
desegregation plan to be implemented so as to effect what they 
perceive to be a more appropriate racial balance, without any 
findings o f purposeful segregation as between Detroit and its out­
lying area and without any finding o f a causal relationship 
between the intra-Detroit segregative acts and the racial demo­
graphic patterns o f the metropolitan area. As observed by Judge 
Kent in his dissenting opinion:

“Without proof with regard to segregatory activities within 
the other school districts or in regard to district boundaries 
any conclusion by the District Court or by this Court that 
school district boundaries of other districts had the effect of 
maintaining or creating unconstitutionally segregated schools 
within the City of Detroit is obviously based on irrelevant, 
unsubstantial evidence or totally unsupported assumptions.” 
Joint Appendix, at 222a.

“ I know of no authority which would permit a Court to 
announce a conclusion, based upon a violation of the Con­
stitution, absent the taking of proofs to establish such con­
stitutional violation, which proofs the District Judge stated 
he did not take in this case.”  Joint Appendix, at 225a.

[9] It should be noted, as an additional reason for granting Certiorari, that 
the judgment below is also in direct conflict with other decisions o f the 
Sixth Circuit. Although expressly denied by the majority to be in con­
flict with its prior decision in Deal v. Cincinnati Bd. o f  Education, 419 
F.2d 1387 (6th Cir. 1969), cert, denied, 402 U.S. 962 (1971), it is in­
conceivable that anything but a square conflict could be acknowl­
edged—unless the social considerations perceived by the majority com­
pelled the Court to carve an exception out o f Deal to take care o f “ big 
city problems. Judge Weick pointed out that the majority opinion is in 
' irreconcilable conflict' with Deal, “ . . . .with the unfortunate result 
that acts which do not violate the Constitution in Cincinnati, are held to 
be unconstitutional in Detroit.”  Joint Appendix, at 197a. See also dis­
senting opinion o f Judge Kent regarding Deal, Joint Appendix, at 228a. 
For the most recent example o f an opinion o f the Sixth Circuit, also in 
conflict with the majority opinion, see Goss v. Bd. o f  Education o f  the 
City o f  Knoxville, C.A.6, 72-1766-1767 (6th Cir., July 18, 1973), sit­
ting in banc, wherein the Court stated: “ While it is true that some 
schools in the Knoxville system will remain identifiably black or white 
on the basis o f pupil enrollment, this is largely the result o f several con­
centrations of blacks in the area . . . .’



10

The opinion of the 4th Circuit in Bradley v. School Board of 
the City o f Richmond, 462 F.2d 1058 (4th Cir. 1972), aff’d by 
an equally divided Court, 93 S.Ct. 1952 (1973), represents the 
Court of Appeals decision most clearly in square conflict with the 
holding of the Circuit Court below. In Richmond, the 4th Circuit 
rejected the “metropolitan” approach to school desegregation, and 
refused to affirm the cross-district transfer of students by the 
consolidation of 3 independent school districts in order to “de­
segregate” the predominantly black school district of the City of 
Richmond. The Court stated, at page 1064:

“ But we think the adoption of the Richmond Metropolitan 
Plan in toto by the district court, viewed in the light of the 
stated reasons for its adoption, is the equivalent, despite dis­
claimer, of the imposition of a fixed racial quota. The Con­
stitution imposes no such requirement, and imposition as a 
matter of substantive constitutional right of any particular 
degree of racial balance is beyond the power of a district 
court.” (emphasis added)

In referring to the fact that the reason for the concentration of 
blacks in cities is not precisely known, the 4th Circuit stated, at 
1066:

“ Whatever the basic causes, it has not been school assign­
ments, and school assignments cannot reverse the trend.”

The conflict between Bradley v. Richmond and the decisions be­
low is even more apparent in light of the fact that although Vir­
ginia was historically a dual school system state, the State of Michi­
gan has prohibited segregation in its public schools for in excess of 
100 years.t

The 5th Circuit in United States v. Texas Education Agency, 
467 F.2d 848 (5th Cir. 1972), sitting in banc, held that as a

[10] Act 34, Sec. 28, Mich. Pub. Acts o f 1867 (25aa);People, ex rel. Work­
man v. Board o f  Education o f  Detroit, 18 Mich. 399 (1869); Mich 
Const. 1963, Art 8, Sec 2. (23aa).



11

predicate to the exercise by the District Court of its remedial 
powers there must be a finding of purposeful discrimination, sup­
ported by findings of fact, identifying the particular school found 
to be segregated. The concurring opinion declared at 884:

“The importance of such a determination will be seen in 
some populous school districts embracing large geographical 
areas. There may be segregated schools which are the result 
of unconstitutional statutes or of official action. There may 
be other one race schools which are the product o f neutral, 
nondiscriminatory forces. ”  (emphasis added)

Following the authority of the 5th Circuit, the fact that there 
would be some predominantly white schools existing in outlying 
school districts, or some predominantly black schools in the 
Detroit School District following the implementation of a 
“Detroit-Only” plan of desegregation would result in no depriva­
tion of constitutional rights requiring additional intervention by 
the Court, so long as the racial make-up of such schools is the 
“.. .product of neutral, nondiscriminatory forces.” As candidly 
admitted by the District Court [ 11 ], however, no proofs were 
taken on this subject, and on the basis of the record in this case it 
is simply impossible to determine what factors have produced the 
racial make-up of the schools in the Detroit metropolitan area.

The opinion of United States v. Board o f School Commis­
sioners o f the City o f Indianapolis, Indiana, 474 F.2d 81 (7th Cir.
1973) is also in conflict with the decisions of the Courts below. In 
referring to the fact that there is no constitutional duty to remedy 
a racial imbalance, the 7th Circuit stated at pages 83, 84:

“ [Ijndeed, insofar as it relates to purely de facto segregation, 
unaided by any state action, it is the law of this circuit, Bell 
v. School City o f Gary, Indiana, 324 F.2d 209 (7th cir. 
1963), aff’g, 213F.Supp. 819 (N.D.Ind. 1963).”

Although modified and remanded on other grounds by the 
recent opinion of this Court[12], that portion of the 10th Circuit 
opinion in Keyes v. School District No. 1, Denver, Colorado, 445
[O ] See Statement o f the Case, supra, at 6.
02] Keys v. School District No. 1, Denver Colorado, 93 S.Ct. 2686 

(1973).



12

F.2d 990 (10th Cir. 1971), requiring intentional discriminatory 
acts causally connected to the segregated condition found to exist 
as an essential predicate to implementation of a plan for the de­
segregation of any school, remains viable. Indeed, the opinion of 
this Court in Keyesi 13] has established that proposition which is 
dispositive of the issues herein presented. In Keyes, this Court 
held:

“ . . .[I]n the case of a school system like Denver’s, where no 
statutory dual system has ever existed, plaintiffs must prove 
not only that segregated schooling exists but also that it was 
brought about or maintained by intentional state
action.” [14]

With respect to the relationship between a finding of intentionally 
segregated schools in one part of a school system, and the exis­
tence of racially identifiable schools in other parts of the school 
system, this Court stated that the racially identifiable schools will 
not be found to be de jure segregated if based on “ . . .evidence 
supporting a finding that a lesser degree of segregated schooling in 
the core city area would not have resulted even if the Board had 
not acted as it did.” 115] This Court further held that even if 
segregative intent is found to exist, a prima facie case can be 
rebutted “ . . .by showing that its past segregative acts did not 
create or contribute to the current segregated condition of the 
core city schools.” [ 16! The decisions below are squarely in con­
flict with these requirements, for the reason that the lower courts 
deemed irrelevant the question of segregative intent with respect 
to the outlying school districts, and permitted no proofs as to 
whether or not the segregative acts found to have been committed 
in Detroit in any way created or contributed to the racial make-up 
of the outlying schools.

The decisions below are also clearly in conflict with this 
Court’s summary affirmance of the three judge District Court’s 
opinion in Spencer v. Kugler, 326 F.Supp. 1235 (N.J. \ 91\ ),a ffd , 13 14 15 16

[13] Id.
[14] Id. at 2692.
[15] Id. at 2698.
[16] Id. at 2699.



13

404 U.S. 1027 (1972). In referring to the State’s affirmative duty 
to remedy racially imbalanced schools, the District Court in 
Spencer stated, at page 1240:

“Nowhere in the drawing of school district lines are con­
siderations of race, creed, color or national origin made. The 
setting of municipalities as local school districts is a reason­
able standard especially in light of the municipal taxing 
authority. The system as provided by the various legislative 
enactments is unitary in nature and intent and any purported 
racial imbalance within a local school district results from an 
imbalance in the population of that municipality-school dis­
trict. Racially balanced municipalities are beyond the pale of 
either judicial or legislative intervention.”

It is further submitted that the holding of the Courts below, 
to the effect that a plan of desegregation limited solely to the 
Detroit School District would be constitutionally insufficient 
because Detroit would be left a predominantly black school 
district, is also in conflict with the result of this Court’s decision in 
Wright v. Council o f the City o f Emporia, 407 U.S. 451 (1972), 
which approved a desegregation plan for an area having a racial 
make-up of 34% white and 66% black—almost the same racial 
proportion which the Courts below held was constitutionally im­
permissible for a Detroit-only plan. 117]

Finally, and most importantly, the entire thrust and effect of 
the lower courts’ holdings are in clear conflict with the following 
pronouncements of this Court in Swann:

“As with any equity case, the nature of the violation de­
termines the scope of the remedy.” H8]

“Our objective in dealing with the issues presented by these 
cases is to see that school authorities exclude no pupil of a 
racial minority from any school, directly or indirectly, on * 18

ID] The District Court found that in 1970-71 the racial make-up o f the 
Detroit School District was 37.2% white and 63.8% black.

[18] Swann v. Charlotte-Mecklenburg Board o f  Education, 402 U.S. 1 
(1971), at 16.



14

account of race; it does not and cannot embrace all the 
problems of racial prejudice, even when those problems 
contribute to disproportionate racial concentrations in some 
schools.” [ 19]

“ If we were to read the holding of the District Court to 
require, as a matter of substantive constitutional right, any 
particular degree of racial balance or mixing, that approach 
would be disapproved and we would be obliged to
reverse.” [20]

“ One vehicle can carry only a limited amount of bag- 
gage .” [21]

All of the cases discussed in this section involved basic and 
controlling issues as to the scope and extent of a Federal Court’s 
remedial powers with respect to racially imbalanced school 
districts. It is submitted that the judgments of the Courts below 
cannot be reconciled with any of these decisions, and that the 
resulting conflict can be effectively resolved only by prompt 
review by this Court.

2. THE DECISIONS BELOW INVOLVE ISSUES OF IM­
MENSE PUBLIC IMPORTANCE BECAUSE OF (A) THE 
FAR-REACHING PRECEDENT ESTABLISHED THERE­
BY, AND (B) THE IMPACT OF THE LOWER COURTS’ 
PROPOSED REMEDY UPON THE RESIDENTS OF 
EVERY SCHOOL DISTRICT IN THE DETROIT METRO­
POLITAN AREA.

A.
The far-reaching nature of the precedent established by the 

lower courts’ opinions is illustrated by considering its potential 
application to other cases. The reasoning below is not limited to 
big city-suburban school cases. Rather, any case against a single 
school district can be expanded into a “metropolitan case” at the 
remedy stage of the proceedings. Any school district, no matter

[19] Id. at 23. 
[201 Id. at 24.
[21] Id. at 22.



1 5

how small, which has been found guilty of de jure segregation, 
may now be considered the “ core” around which a desegregation 
remedy may be designed. The transfer of children to and from 
other outlying districts may be ordered to obtain a more “ap­
propriate” racial mix in each school in the general area. This may 
be decreed without any finding that the outlying districts are de 
jure segregated or in any way were affected by the acts of the 
district to be “ desegregated” , and without any participation by 
the outlying districts in the judicial proceedings other than in 
developing the specific details of the reassignment plan. Indeed, 
all that is necessary to include a school district within a “Metro­
politan” plan is that the “ non-guilty” district be within busing 
distance of a “guilty” district.

When boiled down, the proposition established below is quite 
simple: Any de jure segregated school district, when combined 
with a racial imbalance in the schools in the surrounding 
geographical area, will yield a metropolitan plan at the remedy 
stage, limited only by considerations of distance.

Petitioner is aware of other cases pending before District 
Courts involving proposed metropolitan desegregation orders,[22] 
which will be or have been directly affected by the precedent 
established by the Courts below.[23] in addition, any desegrega­
tion case is now subject to expansion into a metropolitan case. It 
is respectfully submitted that it is vital that the judgments below 
be reviewed by this Court to provide clear and authoritative 
guidance which will be essential for a proper and orderly disposi­
tion of such other school desegregation cases.

[22] It is Petitioner’s information and belief that such cases are at least pres­
ently pending in Boston, Buffalo and Hartford.

[23] In United States v. Indianapolis, Civ. No. 68c 225 (S.D.Ind., July 20, 
1973), District Judge S. Hugh Dillin ruled that a metropolitan busing 
plan for Indianapolis and surrounding school systems in 8 counties 
would be necessary because any Indianapolis-only plan “ . . .would 
leave a large number o f schools with a minority percentage in excess of 
50%, which would not only make them racially identifiable schools, 
but would once again accelerate white flight from those particular 
schools. ’ (Slip Opinion, at 8). Judge Dillin relied heavily on the judg­
ment of the Court o f Appeals below in support of his opinion.



1 6

B.
In addition to the precedent which will be established, this 

case is also of immense importance warranting review by this 
Court simply on the basis of its impact on the people of the 
Detroit metropolitan area. The true impact of this case is fully 
illustrated by only one part of the “baggage” which the District 
Court would have this cause carry—the number of children 
involved.

Although the District Court’s Ruling on Desegregation Area 
and Development of Plan, dated June 14, 1972, was vacated in 
part by the Court of Appeals [ 24 ] ; it remains fully illustrative of 
the magnitude of a plan which the District Court considered 
necessary to implement a remedy pursuant to its findings on 
Detroit-only plans and metropolitan plans, which were sustained 
by the Court of Appeals.

There are approximately 1 million children in attendance in 
the schools of 85 autonomous and geographically independent 
school districts in the three counties of Wayne, Oakland and 
Macomb, constituting what was defined by the District Court as 
the Detroit Metropolitan area. Of these 85 school districts, 53 
were included in the Desegregation Area defined by the District 
Court as being necessary to provide enough white students, when 
combined with the students residing in the City of Detroit, to 
create a racial mix within each school in the desegregation area 
roughly proportionate to the population of the Detroit Metro­
politan area. The total number of students involved in the District 
Court’s 53 district desegregation area, based on 1971-72 popula­
tion figures, was 779,000; 276,000 in Detroit and 503,000 in the 
52 suburban districts.

Since the effect of the decisions below is to require the cross­
district transfer of pupils to the end that after such transfer no

[24] Although substantially vacated, the Court o f Appeals continued in 
existence the Desegregation Panel established in such Order. See Joint 
Appendix, at 99a. In addition, it is quite apparent that this action 
was taken only to correct what the majority o f the Court of Appeals 
perceived to be a technical defect in the proceedings below with re­
spect to those 18 school districts included in the District Court’s De­
segregation Order which had not sought intervention.



17

school in Detroit will be predominantly black, or perceived as 
black when viewed against other schools in the metropolitan area, 
any plan which is devised by the District Court to implement this 
transfer will, of necessity, require the reassignment of hundreds of 
thousands of students. The fact that the Court of Appeals has 
vacated the Order delineating the exact geographical area and the 
number of students to be involved does not vitiate the immense 
importance of this Court reviewing the decision at this time. The 
die has been cast, and the inevitable consequences to Petitioner 
and dozens of other school districts suburban to Detroit have been 
determined with sufficient certainty to warrant immediate review 
by this Court. [25]

3. THE REFUSAL OF THE LOWER COURTS TO ACCORD 
FUNDAMENTAL DUE PROCESS OF LAW TO FORTY- 
THREE (4 3 ) POLITICALLY AUTONOMOUS AND 
GEOGRAPHICALLY INDEPENDENT SCHOOL DIS­
TRICTS, WHO ARE ADMITTED BY THE LOWER 
COURTS TO BE NECESSARY PARTIES TO THIS 
ACTION, REQUIRES THE EXERCISE BY THIS COURT 
OF ITS SUPERVISORY POWERS.

In order to adequately present to the Court the basis upon 
which Petitioner claims a denial of due process, further elabora­
tion of the proceedings in the District Court is necessary.

[25] In addition to pupil reassignment and transportation, the June 14, 
1972 Order o f the District Court required that employees be reas­
signed to work for other school districts in order to have a racial bal­
ance of the faculty through the metropolitan area, notwithstanding the 
fact that in its September 27, 1971 Ruling on Issue o f Segregation, the 
District Court specifically found that Detroit had not been guilty of 
faculty segregation. Also, governance, finance and administrative ar­
rangements between the several school districts were to be modified 
pursuant to the Court’s Order. See Joint Appendix, at 104a. Finally, 
the dollar cost to the educational process is also a factor which should 
not be overlooked. For example, in its July 11, 1972 Order for the 
purchase o f buses the District Court determined that $3,000,000 
would be required to purchase 295 buses, necessary only for partial 
implementation o f its plan. The multiple millions o f dollars that would 
be required for the purchase of additional buses for full implementa­
tion, plus operating expenses o f student transportation on this magni­
tude, together with the in-service training of teachers ordered by the 
Court, etc., is inestimable.



18

During the course of the trial on the merits the District Judge 
stated from the bench, on June 24, 1971: . .[A]s I have said to
several witnesses in this case: ‘How do you desegregate a black 
city, or a black school system;’ ” .[26] Soon thereafter, a Detroit 
homeowners group, Magdowski, et ah, (which had previously been 
permitted intervention, without conditions), filed a motion on 
July 17, 1971, requesting the District Court to join the additional 
84 school districts in Wayne, Oakland and Macomb counties so 
that “ complete relief [can] be awarded to plaintiff” , and because 
without such districts there would be an “ unconstitutional burden 
on intervening defendant, in that the resulting school district of 
the City of Detroit would be and will remain as established by the 
proofs already submitted an inferior school district.” This motion 
was never ruled upon by the Court, and was deemed by the Court 
to be withdrawn almost one year later.

Because of the District Court’s Order of October 4, 1971 
requiring the State defendants to submit a “Metropolitan Plan of 
Desegregation” , and the filing of such a Plan by the State Depart­
ment of Education on January 4, 1972, Petitioner and other 
suburban school districts were suddenly confronted with the 
dilemma of either being subject to a judicial remedy without ever 
having had the opportunity to be heard, or of seeking inter­
vention. Although intervention was sought and granted by the 
District Court on March 15, 1972, it proved to be illusory indeed. 
The District Judge imposed extremely restrictive conditions on the 
participation of the intervenors,[27] even though intervention was 
granted of right. Then, the rapid succession of events which took 
place is as follows.

On the day intervention was granted, the District Court 
advised the intervening school districts that the Court had 
previously set March 22, 1972 as the date for filing briefs on the 
legal propriety of a “ Metropolitan Plan of Desegregation” . Con­
sequently, the intervening school districts had exactly one week to 
prepare and present to the District Court their legal arguments in 
the form of written briefs with respect to such an important and

[26] Joint Appendix, at 243a.
[27] See footnote 6, supra.



19

complex issue. On March 24, 1972, only two days following the 
due date for such briefs, the District Court issued its “ Ruling on 
Propriety of Considering a Metropolitan Remedy to Accomplish 
Desegregation of the Public Schools of the City of Detroit” (Joint 
Appendix, at 48a). Considering the fact that 7 separate briefs 
totaling 112 typewritten pages were simultaneously filed on March 
22,[28] it perhaps is all too apparent that the District Court was 
predisposed as to its Ruling, which was written and distributed 
within 36 hours after briefs were filed.

On March 28, 1972 the District Court commenced taking 
testimony on a Metropolitan Plan of Desegregation, which was the 
first opportunity which the intervening school districts’ attorneys 
had to appear in the District Court to participate in the 
proceedings. Only 2 hours later the District Court distributed its 
“Findings of Fact and Conclusions of Law on Detroit-Only Plans 
of Desegregation”  (Joint Appendix, at 53a), concluding that a 
Metropolitan Plan was not only proper, but necessary.

Thus, by the District Court’s control over the timing of 
events which occurred upon intervention, Petitioner was ef­
fectively foreclosed from any meaningful participation in the 
proceedings relative to the necessity or propriety of a Metro­
politan Plan. Indeed, it is respectfully submitted that the District 
Court had determined prior to intervention that it would be 
necessary to desegregate the Detroit public schools by use of 
Petitioner’s school children, and consequently the fundamental 
predicates for the imposition of judicial sanction - claim, proof, 
finding of a wrong and causation - were either ignored by the 
District Judge or intentionally given minimal consideration.

Under the law of the State of Michigan, Petitioner is a legally 
autonomous and geographically independent municipal body 
corporate, having the power to sue and be sued. [29] As such, 
Petitioner was and is entitled to fundamental rights of due process 
of law, including the opportunity to be heard in a meaningful way.

[28] In addition, at this time the United States filed a 27 page memoran­
dum in connection with its Motion to Intervene.

[29] Mich. Comp. Laws Ann., §340.352. (24aa).



20

“ A fundamental requirement of due process is ‘the op­
portunity to be heard.’ . . .It is an opportunity which must be 
granted at a meaningful time and in a meaningful manner.” 
Armstrong v. Manzo, 380 U.S. 545, 552 (1965).

“We have frequently emphasized that the right to confront 
and cross-examine witnesses is a fundamental aspect of 
procedural due process.” Jenkins v. McKeithen, 395 U.S. 
411, 428 (1969).

Petitioner never had an opportunity to participate in a trial of the 
essential basic issues concerning de jure segregation and the 
necessity of a Metropolitan desegregation plan for Detroit.[30] 
The failure to afford Petitioner an opportunity to be heard when 
the basic issues which so vitally affected it were being judicially 
determined, constitutes a blatent denial of fundamental due 
process of law.[31] The Court of Appeals failed to correct this 
wrong. Only this Court has the power to correct the wrong done 
to Petitioner in these proceedings. The dissenting opinions of 
Circuit Judges Weick and Miller [32] underscore the denial of due 
process to Petitioner:

Judge Weick:

“ All school districts whose borders were being invaded were 
entitled, as a matter of right and not of mere grace, to be

[30] For an example o f  a case where such rights were properly safeguarded, 
see Higgins v. Bd. o f  Educ. o f  City o f  Grand Rapids, Civ. No. 6386 
(W.D. Mich., July 18,1973), where the District Court ordered joinder as 
parties defendant 11 suburban school districts prior to the trial on the 
merits o f the de jure segregation claim. The District Judge stated: 
“ Thus all parties who might be affected by any judgment o f the court 
were given the opportunity to defend on the issues o f constitutional 
violations charged against them by the plaintiffs.”  Slip opinion, at 3.

[31] As indicated by his statement from the bench on June 24, 1971, it be­
came apparent to the District Judge that he might conclude it neces­
sary to include suburban districts in a desegregation order. A few 
weeks later a Motion to join all outlying school districts was filed. At 
this stage o f the proceedings it was still quite feasible for all outlying 
school districts to have had full and meaningful participation with re­
spect to all three principal issues ultimately ruled on by the Court.

[32] Judge Weick, Joint Appendix, at 191a.
Judge Miller, Joint Appendix, at 239a.



21

made parties defendant in the case and to be accorded the 
same rights as any other defendants. . . .These rights were 
denied to the intervenors. [33]

*  *  *

However, in its opinion the majority did provide for amend­
ment of pleadings on remand, making new party defendants, 
for intervention, and for offering additional testimony. These 
provisions are wholly illusory with respect to the issues of 
segregation, the ‘Detroit-Only Plan’ and the ‘Metropolitan 
plan’, as the opinion expressly excludes these issues from 
reconsideration upon remand.” Joint Appendix, at 206a.

Judge Miller:

“Parties to be affected and against whom relief is sought 
should be accorded, in compliance with basic principles of 
due process, an opportunity to be heard at a meaningful time 
and in a meaningful manner not only with respect to the 
ultimate scope of the remedy to be fashioned, but also with 
respect to important, significant and perhaps even controlling 
issues, including the issue of segregation, a ‘Detroit only’ 
school plan and the propriety of a metropolitan remedy.
. . .Until this is done our expression of view on the merits of 
the several questions is uncalled for and ill-advised. To permit 
these additional parties to be heard only in the restricted sense 
set forth in the majority opinion is to deny the?n basic rights 
guaranteed not only by Rule 19, Federal Rules o f Civil 
Procedure, but by the Constitution itself. ” Joint Appendix, 
at a. (emphasis added)

Insofar as the precedent thereby established, and its potential 
application to every other “Metropolitan” case which may arise in 
the future, this highly unusual treatment of the outlying school 
districts by the Courts below is intolerable. Consequently, the 
need for the exercise by this Court of its supervisory powers over 
the Courts below warrants the grant of Certiorari at this time.
C3] In addition to Petitioner and other intervening school districts, the 18 

non-intervening districts are similarly affected. As Judge Weick ob­
served o f the 18 districts, “ They have surely been deprived of then- 
property rights, not only without due process o f law, but without any 
process of law.”  Joint Appendix, at 207a.



22

CONCLUSION
For the reasons above stated, it is respectfully submitted that 

it is imperative that this Court issue its Writ of Certiorari to review 
the judgment and opinions of the Courts below.

Respectfully submitted,

HILL, LEWIS, ADAMS, GOODRICH & TAIT

By Is/ DOUGLAS H. WEST____________
Douglas H. West

By: /s/ THOMAS E. COULTER__________
Thomas E. Coulter

Attorneys for the
Grosse Pointe Public School System 

3700 Penobscot Building 
Detroit, Michigan 48226 
962-6485

Dated: August L, 1973



23aa

APPENDIX

CONSTITUTIONAL PROVISIONS

United States Constitution, Amendment V provides:

AMENDMENT V -  CAPITAL CRIMES; DOUBLE JEOP­
ARDY; SELF - INCRIMINATION; DUE PROCESS; JUST 
COMPENSATION FOR PROPERTY
No person shall be held to answer for a capital, or other­

wise infamous crime, unless on a presentment or indictment 
of a Grand Jury, except in cases arising in the land or naval 
forces, or in the Militia, when in actual service in time of War 
or public danger; nor shall any person be subject for the same 
offence to be twice put in jeopardy of life or limb; nor shall 
be compelled in any criminal case to be a witness against him­
self, nor be deprived of life, liberty, or property, without due 
process of law; nor shall private property be taken for public 
use, without just compensation.

Michigan Constitution of 1963, Art. 8, §2 provides:

Free public elementary and secondary schools; discrimina­
tion.

SEC. 2. The legislature shall maintain and support a system 
of free public elementary and secondary schools as defined 
by law. Every school district shall provide for the education 
of its pupils without discrimination as to religion, creed, race, 
color or national origin.

UNITED STATES STATUTES
Judicial Code, 28 U.S.C. § 1254(1) provides:

1254. Courts of appeals; certiorari; appeal, certified ques­
tions

Cases in the courts of appeals may be reviewed by the 
Supreme Court by the following methods;



24aa

(1) By writ of certiorari granted upon the petition of any 
party to any civil or criminal case, before or after rendition 
of judgment or decree;

Judicial Code, 28 U.S.C. § 1292(b) provides:

§1292. Interlocutory decisions

(b) When a district judge, in making in a civil action an 
order not otherwise appealable under this section, shall be of 
the opinion that such order involves a controlling question of 
law as to which there is substantial ground for difference of 
opinion and that an immediate appeal from the order may 
materially advance the ultimate termination of the litigation, 
he shall so state in writing in such order. The Court of Ap­
peals may thereupon, in its discretion, permit an appeal to be 
taken from such order, if application is made to it within ten 
days after the entry of the order: Provided, however, That 
application for an appeal hereunder shall not stay proceed­
ings in the district court unless the district judge or the Court 
of Appeals or a judge thereof shall so order.

MICHIGAN STATUTES

Michigan Compiled Laws Annotated, §340.352 provides:

340.352 Body corporate; powers, rights, liabilities; pre­
sumptions

SEC. 352. Every school district shall be a body corporate 
under the name provided in this act, and may sue and be sued 
in its name, may acquire and take property, both real and 
personal, for educational purposes within or without its cor­
porate limits, by purchase, gifts, grant, devide or bequest, and 
hold and use the same for such purposes, and may sell and 
convey the same as the interests of such district may require, 
subject to the conditions of this act contained. As such body 
corporate, every school district shall be the successor of any 
school district previously existing within the same territorial 
limits and shall be vested with all rights of action, with the 
title of all property, real and personal, of the district of 
which it is the successor, and the indebtedness and obliga­



25aa

tions of the district superseded shall become and be the 
indebtedness and obligations of the succeeding district, ex­
cept as otherwise provided in chapters 3, 4 and 5, part 2 of 
this act. Every school district shall in all cases be presumed to 
have been legally organized when it shall have exercised the 
franchises and privileges of a district for the term of 2 years; 
and such school district and its officers shall be entitled to all 
the rights, privileges and immunities, and be subject to all the 
duties and liabilities conferred upon school districts by law.

Act 34, Sec. 28, Mich. Pub. Acts of 1867 provides:

(2271) Sec. 28. All residents of any district shall have an 
equal right to attend any school therein: Provided, That this 
shall not prevent the grading of schools according to the in­
tellectual progress of the pupils, to be taught in separate 
places when deemed expedient.

Act 48, Sec. 12, Mich. Pub. Act of 1970 provides:

388.182 Attendance provisions, implementation; condi­
tions. [M.S.A. 15.2298(12)]

Sec. 12. The implementation of any attendance provi­
sions for the 1970-71 school year determined by any first 
class school district board shall be delayed pending the date 
of commencement of functions by the first class school dis­
trict boards established under the provisions of this amenda­
tory act but such provision shall not impair the right of any 
such board to determine and implement prior to such date 
such changes in attendance provisions as are mandated by 
practical necessity. In reviewing, confirming, establishing or 
modifying attendance provisions the first class school district 
boards established under the provisions of this amendatory 
act shall have a policy of open enrollment and shall enable 
students to attend a school of preference but providing prior­
ity acceptance, insofar as practicable, in cases of insufficient 
school capacity, to those students residing nearest the school 
and to those students desiring to attend the school for parti­
cipation in vocationally oriented courses or other specialized 
curriculum.



26aa

FEDERAL RULES OF CIVIL PROCEDURE

Fed. R. Civ. P. 19 provides:

Rule 19. Joinder of Persons Needed for Just Adjudication

(a) Persons to be Joined if Feasible. A person who is sub­
ject to service of process and whose joinder will not deprive 
the court of jurisdiction over the subject matter of the action 
shall be joined as a party in the action if (1) in his absence 
complete relief cannot be accorded among those already par­
ties, or (2) he claims an interest relating to the subject of the 
action and is so situated that the disposition of the action in 
his absence may (i) as a practical matter impair or impede his 
ability to protect that interest or (ii) leave any of the persons 
already parties subject to a substnatial risk of incurring 
double, multiple, or otherwise inconsistent obligations by 
reason of his claimed interest. If he has not been so joined, 
the court shall order that he be made a party. If he should 
join as a plaintiff but refuses to do so, he may be made a 
defendant, or, in a proper case, an involuntary plaintiff. If 
the joined party objects to venue and his joinder would ren­
der the venue of the action improper, he shall be dismissed 
from the action.

(b) Determination by Court Whenever Joinder not Feas­
ible. If a person as described in subdivision (a) (1 )-(2) hereof 
cannot be made a party, the court shall determine whether in 
equity and good conscience the action should proceed among 
the parties before it, or should be dismissed, the absent per­
son being thus regarded as indispensable. The factors to be 
considered by the court include: first, to what extent a judg­
ment rendered in the person’s absence might be prejudicial to 
him or those already parties; second, the extent to which, by 
protective provisions in the judgment, by the shaping of re­
lief, or other measures, the prejudice can be lessened or 
avoided; third, whether a judgment rendered in the person’s 
absence will be adequate; fourth, whether the plaintiff will 
have an adequate remedy if the action is dismissed for non­
joinder.

(c) Pleading Reasons for Nonjoinder. A pleading asserting



27aa

a claim for relief shall state the names, if known to the plead­
er, of any persons as described in subdivision (a) (l)-(2) here­
of who are not joined, and the reasons why they are not 
joined.

(d) Exception of Class Actions. This rule is subject to the 
provisions of Rule 23.

Fed. R. Civ. P. 54(b) provides:

Rule 54. Judgments; Costs

(b) Judgment upon Multiple Claims or Involving Multiple 
Parties. When more than one claim for relief is presented in 
an action, whether as a claim, counter-claim, cross-claim, or 
third-party claim, or when multiple parties are involved, the 
court may direct the entry of a final judgment as to one or 
more but fewer than all of the claims or parties only upon an 
express determination that there is no just reason for delay 
and upon an express direction for the entry of judgment. In 
the absence of such determination and direction, any order 
or other form of decision, however designated, which adjudi­
cates fewer than all the claims or the rights and liabilities of 
fewer than all the parties shall not terminate the action as to 
any of the claims or parties, and the order or other form of 
decision is subject to revision at any time before the entry of 
judgment adjudicating all the claims and the rights and liabili­
ties of all the parties.









IN THE SUPREME COURT OF THE UNITED STATES 
October Term 1973 

No.

WILLIAM G. MILLIKEN, Governor of the State of Michigan; FRANK J. KELLEY, 
Attorney General of the State of Michigan; MICHIGAN STATE BOARD OF EDU­
CATION, a constitutional body corporate, and JOHN W. PORTER, Superintendent 
of Public Instruction, of the State of Michigan; ALLISON GREEN, Treasurer of the 
State of Michigan; ALLEN PARK PUBLIC SCHOOLS, SCHOOL DISTRICT OF 
THE CITY OF BERKLEY, BRANDON SCHOOLS, CENTERLINE PUBLIC 
SCHOOLS, CHERRY HILL SCHOOL DISTRICT, CHIPPEWA VALLEY PUBLIC 
SCHOOLS, SCHOOL DISTRICT OF THE CITY OF CLAWSON, CRESTWOOD 
SCHOOL DISTRICT, DEARBORN PUBLIC SCHOOLS, DEARBORN HEIGHTS 
SCHOOL DISTRICT NO. 7, EAST DETROIT PUBLIC SCHOOLS, SCHOOL DIS­
TRICT OF THE CITY OF FERNDALE, FLAT ROCK COMMUNITY SCHOOLS,

(Continued on Inside Front Cover) 
-vs-

RONALD BRADLEY and RICHARD BRADLEY, by their Mother and Next Friend, 
VERDA BRADLEY; JEANNE GOINGS, by her Mother and Next Friend, BLANCH

(Continued on Inside Front Cover)

APPENDIX
FRANK J. KELLEY 
Attorney General

BUTZEL, LONG, GUST, KLEIN & 
VAN ZILE

O f Counsel

HILL, LEWIS, AD AM S, 
GOODRICH & T A IT

lliomas E. C oulter
Of Counsel 

CONDIT AND MC GARRY, P.C.
Richard P. C ondit,

Of Counsel
b e ie r , HOWLETT, 

MC CONNELL & GOOGASIAh 
; Ke«nethB. McConnell,

O f Counsel

ROBERT A. DERENGOSKI
Solicitor General
EUGENE KRASICKY 
GERALD F. YOUNG 
GEORGE L. McCARGAR 
L. GRAHAM WARD 
Assistant Attorneys General
Counsel for Petitioners 
525 W. Ottawa Street 
Lansing, Michigan 48913
WILLIAM M. SAXTON 
JOHN B. WEAVER 
ROBERT M. VERCRUYSSE 
X. ORHAN
1881 First National Building 
Detroit, Michigan 48226
Counsel for Petitioners, Allen 
Park Public Schools, et al, Southfield 
Public Schools and School District 
o f  the City o f  Royal Oak
DOUGLAS H. WEST 
3700 Penobscot Building 
Detroit, Michigan 48226
Counsel for Respondent Grosse 
Pointe Public Schools



GARDEN CITY PUBLIC SCHOOLS, GIBRALTAR SCHOOL DISTRICT, SCHOOL ( 
DISTRICT OF THE CITY OF HARPER WOODS, SCHOOL DISTRICT OF THE/ 
CITY OF HAZEL PARK, INTERMEDIATE SCHOOL DISTRICT OF THE C01! 
TY  OF MACOMB, LAKE SHORE PUBLIC SCHOOLS, LAKEVIEW PUBLIC 
SCHOOLS, THE LAMPHERE SCHOOLS, LINCOLN PARK PUBLIC SCHOOLS 
MADISON DISTRICT PUBLIC SCHOOLS, MELVINDALE-NORTH ALLEN PARS 
SCHOOL DISTRICT, SCHOOL DISTRICT OF NORTH DEARBORN HEIGHTS 
NOVI COMMUNITY SCHOOL DISTRICT, OAK PARK SCHOOL DISTRICT,OX 
FORD AREA COMMUNITY SCHOOLS, REDFORD UNION SCHOOL DISTRICT 
NO. 1, RICHMOND COMMUNITY SCHOOLS, SCHOOL DISTRICT OF THE CUT 
OF RIVER ROUGE, RIVERVIEW COMMUNITY SCHOOL DISTRICT, ROSE 
VILLE PUBLIC SCHOOLS, SOUTH LAKE SCHOOLS, TAYLOR SCHOOL DIS 
T R IC T , WARREN CONSOLIDATED SCHOOLS, WARREN WOODS PUBLIC 
SC H O O LS, W A Y N E -W E ST L A N D  COMMUNITY SCHOOLS, WOODHAVES 
SCHOOL DISTRICT, and WYANDOTTE PUBLIC SCHOOLS; GROSSE POINTI 
PUBLIC SCHOOLS: SOUTHFIELD PUBLIC SCHOOLS; and SCHOOL DISTRICT? 
OF THE CITY OF ROYAL OAK,

Petitioners,

GOINGS: BEVERLY LOVE, JIMMY LOVE and DARRELL LOVE, b y  their 
Mother and Next Friend, CLARISSA LOVE: CAMILLE BURDEN, PIERRE BUR­
DEN, AVA BURDEN, MYRA BURDEN, MARC BURDEN and STEVEN BURDEN, 
by their Father and Next Friend, MARCUS BURDEN: KAREN W I L L I A M S  aii 
KRISTY WILLIAMS, by their Father and Next Friend, C. WILLIAMS; RAY LIT! 
and MRS. WILBUR BLAKE, parents; all parents having children attending the put 
lie schools of the City of Detroit, Michigan, on their own behalf and on behalf of 
their minor children, all on behalf of any person similarly situated; and NATIONAl 
ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, DETROIT \ 
BRANCH; BOARD OF EDUCATION OF THE CITY OF DETROIT, a school dis­
trict of the first class; PATRICK McDONALD, JAMES HATHAWAY and CORNET 
IUS GOLIGHTLY, members of the Board of Education of the City of D etroit;am  i 
NORMAN DRACHLER, Superintendent of the Detroit Public Schools; DETROIT: 
FEDERATION OF TEACHERS, LOCAL 231, AMERICAN F E D E R A T I O N  Of 
TEACHERS, AFL-CIO; DENISE MAGDOWSKI and DAVID MAGDOWSKI,f 
their Mother and Next Friend, JOYCE MAGDOWSKI; DAVID VIETTI, by» 
Mother and Next Friend, VIOLET VIETTI, and the CITIZENS COMMITTEE FOR § 
BETTER EDUCATION OF THE DETROIT METROPOLITAN AREA, a Michigan r 
non-profit Corporation; KERRY GREEN and COLLEEN GREEN, by their Father 
and Next Friend, DONALD G. GREEN, JAMES, JACK and KATHLEEN ROSE­
MARY, by their Mother and Next Friend, EVELYN G. ROSEMARY, TER' 
DORAN, by her Mother and Next Friend, BEVERLY DORAN, SHERRILL 
KEITH, JEFFREY and GREGORY COULS, by their Mother and N e x t  Friend, 
SHARON COULS, EDWARD and MICHAEL ROMESBURG, by their Father and 
Next Friend, EDWARD M. ROMESBURG, JR., TRACEY and GREGORY AK , 
LEDGE, by their Mother and Next Friend, AILEEN ARLEDGE, SHERYL" 
RUSSELL PAUL, by their Mother and Next Friend, MARY LOU PAUL, TRAY. 
QUIGLEY, by her Mother and Next Friend, JANICE QUIGLEY, IAN, STEPHAN . 
KARL and JAAKO SUNI, by their Mother and Next Friend, SHIRLEY SUNU 
TRI-COUNTY CITIZENS FOR INTERVENTION IN FEDERAL SCHOOL AcW  
NO. 3S257; MICHIGAN EDUCATION ASSOCIATION; and PROFESSIONALrt» 
SONNEL OF VAN DYKE,



INDEX TO APPENDIX

Complaint .......................................................................... 2a

Ruling on Issue of Segregation, dated September 27, 1971 17a

October 4, 1971, proceedings ........................................... 40a

November 5, 1971, Order ...............................................  46a

Ruling on Propriety of Considering a Metropolitan 
Remedy to Accomplish Desegregation of the Public 
Schools of the City of Detroit, March 24, 1972 ............  48a

Findings of Fact and Conclusions of Law on Detroit-Only 
Plans of Desegregation, March 28, 1972 ........................  53a

Findings of Fact and Conclusions of Law in Support of 
Ruling on Desegregation Area and Development of 
Plans, June 14, 1972 .........................r-.L.....................  59a

Ruling on Desegregation Area and Order for Development 
of Plan of Desegregation, June 14, 1972 ......................  97a

Order for Acquisition of Transportation, July 11, 1972 . . 106a

Order, United States Court of Appeals for the Sixth 
Circuit ............................................................................ 108a

Opinion, June 12, 1973 .....................................................  110a

Notice of Judgment, June 12, 1973 ................................. 241a

Excerpt from June 24, 1971 Proceedings ........................  242a

Judgment, June 12, 1973 .................................................  244a



la

IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

R O N ALD  B R A D L E Y  and RICHARD )
BRAD LEY, by their Mother and Next )
Friend, VERDA BRADLEY; JEANNE GO- )
INGS, by her Mother and Next Friend, )
BLANCHE GOINGS; BEVERLY LOVE, )
JIMMY LOVE and DARRELL LOVE, by ) 
their Mother and Next Friend, CLARISSA )
L O V E ; C AM ILLE BURDEN, PIERRE )
BURDEN, AVA BURDEN, MYRA BUR- )
DEN, M AR C BURDEN and STEVEN )
BURDEN, by their Father and Next )
Friend, M ARCUS BURDEN; KAREN )
WILLIAMS AND KRISTY WILLIAMS, by ) 
their Father and Next Friend, C. WIL- )
LIAMS; RAY LITT and Mrs. WILBUR )
BLAKE, parents; all parents having chil- ) 
dren attending the public schools of the )
City of Detroit, Michigan, on their own be- ) 
half and on behalf of their minor children, ) 
all on behalf of any persons similarly situ- ) 
ated; and NATIONAL ASSOCIATION )
FOR THE ADVANCEMENT OF COLOR- )
ED PEOPLE, DETROIT BRANCH, )

Plaintiffs, ) CIVIL ACTION
vs. ) NO. 35257

WILLIAM J. MILLIKEN, Governor of the )
State of Michigan and ex-officio member of )
Michigan State Board o f Education; )
FRANK J. KELLEY, Attorney General of ) 
the State of Michigan; MICHIGAN STATE )
BOARD OF EDUCATION, a constitutional ) 
body corporate; JOHN W. PORTER, Act- ) 
ing Superintendent of Public Instruction, )
Department of Education and ex-officio )
Chairman of Michigan State Board of Edu- ) 
cation; BOARD OF EDUCATION OF THE )
CITY OF DETROIT, a school district of )



2a

the first class; PATRICK McDONALD, ) 
JAMES HATHAWAY and CORNELIUS ) 
GO LIGHTLY, members of the Board of ) 
Education of the City of Detroit; and ) 
NORMAN DRACHLER, Superintendent of ) 
the Detroit Public Schools, )

Defendants.

C O M P L A I N T

I.

The jurisdication of this Court is invoked under 28 U.S.C. 
Sections 1331(a), 1343(3) and (4), this being a suit in equity 
authorized by 42 U.S.C. Sections 1983, 1988 and 2000d, to re­
dress the deprivation under color of Michigan law, statute, custom 
and/or usage of rights, privileges and immunities guaranteed by the 
Thirteenth and Fourteenth Amendments to the Constitution of 
the United States. This action is also authorized by 42 U.S.C. Sec­
tion 1981 which provides that all persons within the jurisdiction 
of the United States shall have the same rights to the full and 
equal benefits of all laws and proceedings for the security of per­
sons and property as is enjoyed by white citizens. Jurisdiction is 
further invoked under 28 U.S.C. Sections 2201 and 2202, this be­
ing a suit for declaratory judgment declaring certain portions of 
Act No. 48 of the Michigan Public Acts of 1970 (a copy of which 
is attached hereto as Exhibit A) unconstitutional. This is also an 
action for injunctive relief against the enforcement of certain por­
tions of said Act No. 48 and to require the operation of the 
Detroit, Michigan public schools on a unitary basis.

II.

Plaintiffs, Ronald Bradley and Richard Bradley, by their 
Mother and Next Friend, Verda Bradley; Jeanne Goings, by her 
Mother and Next Friend, Blanche Goings; Beverly Love, Jimmy 
Love and Darrell Love, by their Mother and Next Friend, Clarissa 
Love; Camille Burden, Pierre Burden, Ava Burden, Myra Burden, 
Marc Burden and Steven Burden, by their Father and Next Friend,



3a

Marcus Burden; Karen Williams and Kristy Williams, by their 
Father and Next Friend, C. Williams; Ray Litt and Mrs. Wilbur 
Blake, parents, are all parents or minor children thereof attending 
schools in the Detroit, Michigan public school system. All of the 
above-named plaintiffs are black except Ray Litt, who is white 
and who joins with them to bring this action each in their own 
behalf and on behalf of their minor children and all persons simi­
larly situated.

Plaintiff, National Association for the Advancement of 
Colored People, Detroit Branch, is an unincorporated association 
with offices at 242 East Warren Avenue, Detroit, Michigan, which 
sues on behalf of its membership who are members of the plaintiff 
class. Plaintiff, N.A.A.C.P., has as one of its purposes the advance­
ment of equal educational opportunities through the provision of 
integrated student bodies, faculty and staff.

III.

Plaintiffs, pursuant to Rule 23 of the Federal Rules of Civil 
Procedure, bring this action on their own behalf and on behalf of 
all persons in the City of Detroit similarly situated. There are com­
mon questions of law and fact affecting the rights of plaintiffs and 
the rights of the members of the class. The members of the class 
are so numerous as to make it impracticable to bring them all be­
fore the Court. A common declaratory and injunctive relief is 
sought and plaintiffs adequately represent the interests of the 
members of the class.

IV.

The defendants are:

1. William J. Milliken, Governor of the State of Michigan 
and ex-officio member of the State Board of Education;

2. Frank J. Kelley, Attorney General of the State of 
Michigan, who is responsible for enforcing the public acts and laws 
of the State of Michigan;



4a

3. The Michigan State Board of Education, a constitutional 
body corporate, which is generally charged with the power and re­
sponsibility of administering the public school system in the State 
of Michigan, including the City of Detroit;

4. John W. Porter, Acting Superintendent of Public Instruc­
tion, Department of Education, in the State of Michigan, and ex- 
officio member of the State Board of Education;

5. The Board of Education of the City of Detroit, a school 
district of the first class, organized and existing in Wayne County, 
Michigan, under and pursuant to the laws of the State of Michigan 
and operating the public school system in the City of Detroit, 
Michigan;

6. Patrick McDonald, James Hathaway and Cornelius 
Golightly, all residents of Wayne County, Michigan, and elected 
members of the Board of Education of the City of Detroit;

7. The remaining board members of the Board of Education 
of the City of Detroit;

8. Norman Drachler, a resident of Wayne County, Michigan, 
and the appointed Superintendent of the Detroit Public Schools.

V.

Plaintiffs seek a declaratory judgment declaring the last sen­
tence of the first paragraph of Section 2a and the entirety of Sec­
tion 12 of Public Act No. 48 of the Michigan Public Acts of 1970 
unconstitutional.

The challenged portion of Section 2a reads as follows:

Regions shall be as compact, contiguous and nearly equal as
practicable.

Section 12 reads as follows:

The implementation of any attendance provisions for the



5a

1970-71 school year determined by any first class school dis­
trict board shall be delayed pending the date of commence­
ment of functions by the first class school district boards 
established under the provisions of this amendatory act but 
such provision shall not impair the right of any such board to 
determine and implement prior to such date such changes in 
attendance provisions as are mandated by practical necessity. 
In reviewing, confirming, establishing or modifying atten­
dance provisions the first class school district boards esta­
blished under the provisions of this amendatory act shall have 
a policy of open enrollment and shall enable students to 
attend a school of preference but providing priority accep­
tance, insofar as practicable, in cases of insufficient school 
capacity, to those students residing nearest the school and to 
those students desiring to attend the school for participation 
in vocationally oriented courses or other specialized curri­
culum.

Plaintiffs also seek a temporary restraining order and pre­
liminary and permanent injunctions against the enforcement of 
said provisions of Act 48.

VI.

This is also a proceeding for a permanent injunction enjoining 
the defendant, Board of Education of the City of Detroit, its 
members and the Superintendent of Schools from continuing their 
policy, practice, custom and usage of operating the public school 
system in and for the City of Detroit, Michigan in a manner which 
has the purpose and effect of perpetuating a biracial segregated 
public school system, and for other relief, as hereinafter more 
fully appears.

VII.

On August 11, 1969, the Governor of the State of Michigan 
approved Act No. 244 of the Public Acts of 1969 (Mich. Stats. 
Ann. Section 15.2298), said Act being entitled, “ AN ACT to  re­
quire first class school districts to be divided into regional districts 
and to provide for local district school boards and to define their



6a

powers and duties and the powers and duties of the first class dis­
trict board.”  (A copy of Act No. 244 is attached hereto as Exhibit 
B). Act No. 244 applies exclusively to the Board of Education of 
the School District of the City of Detroit, that being the only first 
class school district in the State of Michigan. The essence of Act 
No. 244 is that it provides the mandate and means for the admini­
strative decentralization of the Detroit school system and the ex­
tent thereof.

On March 2, 1970, the Detroit School Board’s attorney ren­
dered an opinion (attached hereto as Exhibit C) advising the Board 
that in effectuating decentralization under Act No. 244 the law 
imposed three limitations:

1. The Act itself required each district to have not less than
25,000 nor more than 50,000 pupils;

2. The United States Constitution required each district to 
be in compliance with the “ one man, one vote” principle;

3. The United States Constitution, above all, required that 
the districts be established on a racially desegregated basis.

VIII.

In the 1969-70 school year, the Detroit Board of Education 
operated 21 high school constellations providing a public educa­
tion for 281,101 school children (excluding 12,758 students not 
listed in high school constellations and in adult programs). 61.9% 
of these students were Negro, 36.4% were white, and 1.7% were of 
other racial-ethnic minorities. Of the 21 high school constellations 
operated by the Detroit School Board in 1969-70, 14 were racially 
identifiable as “ white”  or “Negro”  constellations. The high school 
constellations contain within them 208 elementary schools, 53 
junior high schools, and 21 senior high schools. Of the 208 ele­
mentary schools (enrolling 166,258 pupils), 114 (enrolling 92,225 
Pupils) are identifiable as “Negro”  schools and 71 (enrolling 
46,448 pupils) are identifiable as “ white” schools. Of the 53 
junior high schools (enrolling 63,476 pupils), 24 (enrolling 31,201 
pupils) are identifiable as “ Negro” schools and 18 (enrolling



7a

21,507 pupils) are identifiable as “ white” schools. Of the 21 
senior high schools (enrolling 54,394 pupils, 11 (enrolling 25,351 
pupils) are identifiable as “ Negro” schools and 6 (enrolling 19,183 
pupils) are identifiable as “ white” schools.

IX.

On April 7, 1970, the Detroit Board of Education adopted a 
limited plan of desegregation (Exhibit D, attached hereto) for the 
senior high school level, which plan was to take effect on a stair­
step basis over a period of four years so that by 1972, there 
would be substantially increased racial integration. This plan for 
high school desegregation comtemplated a change in high school 
boundary lines, thereby changing the junior high feeder patterns in 
twelve of Detroit’s 21 senior high schools. The plan was designed 
so that by the year 1972, only three (as compared to the present 
17) of Detroit’s senior high schools would be racially identifiable 
as “ Negro” or “ white” high schools. The plan also provided that a 
student presently enrolled in a junior high school and who has a 
brother or sister presently enrolled in a senior high school would 
continue in senior high school at the school his brother or sister 
was presently attending. All those presently enrolled in senior high 
school would not, due to the stair-step feature of the plan, be 
affected and they would continue through graduation at the segre­
gated senior high school they were presently attending. The April 
7 plan did not involve, nor did it affect, the existing racially segre­
gated pattern of pupil assignments in the elementary and junior 
high schools.

X.

On April 7, 1970, the Detroit Board of Education by afour- 
to-two vote (the seventh member, now deceased, expressing his 
approval by letter from his hospital bed) adopted a regional 
boundary plan (attached hereto as Exhibit D) for administrative 
decentralization consisting of seven regions. The seven regions as 
established by the Board on April 7, 1970 contained an average of 
38,802 pupils per region with the smallest region containing 
33,043 pupils and the largest region containing 46,592 pupils, ora 
range of deviation of 13,549 pupils with an average deviation of



8a

2,892 pupils per region. The racial complexion of the pupil enroll­
ment in the seven regions averaged 61.7% Negro with the lowest 
percent Negro region being 34.4% and the largest percent Negro 
region being 76.7%, or a range of deviation of 42.3% Negro with 
an average regional deviation of 10.5% Negro.

XI.

The actions of the Detroit School Board on April 7, 1970 
approving a desegregation plan resulted in expressions of 
“community hostility” . A movement to recall the four members 
of the Detroit School Board who voted in favor of the April 7, 
1970 action was initiated by white citizens. The recall movement 
was resolved by the Detroit voters (of which a majority are white) 
at the August 4, 1970 election, which resulted in the removal of 
the four board members who had voted in favor of the April 7, 
1970 plan. The April 7th plan created a similar reaction in the 
Michigan State Legislature which culminated in the passage of 
Public Act 48, interposing the State and voiding the partial dese­
gregation plan, which Act was approved by the defendant, 
Governor Milliken, on July 7, 1970.

XII.

On July 28, 1970, the attorney for the Detroit Board of 
Education rendered an opinion (attached hereto as Exhibit E) that 
Act 48 has both the design and the effect of completely elimi­
nating the provisions of the April 7th plan adopted by the Board. 
Section 2a of the Act provides that “ [rjegions shall be as com­
pact, contiguous and nearly equal in population as practicable.” 
This provision was intended to and does eliminate the efforts of 
the Board on April 7, 1970 to create racially integrated regions. 
Section 12 of Act 48 eliminates all provisions of the Board’s April 
7th plan aimed at desegregation of the Detroit public schools by, 
first, delaying the implementation of the attendance provisions 
until January 1, 1971 and, second, by mandating an open enroll­
ment (“ freedom of choice” ) policy qualified only by a provision 
providing students residing nearest a school with an attendance 
priority over those residing farther away. Section 12 has the fur­
ther effect of eliminating two policies of the Detroit Board of



9a

Education: (1) prior to the adoption of Act 48, a student could 
transfer to a school other than the one to which he was initially 
assigned only if his transfer would have the effect of increasing 
desegregation in the Detroit school system; (2) prior to the adop­
tion of Act 48, whenever pupils had to be bused to relieve over­
crowding, they were transported to the first and nearest school 
where their entry would increase desegregation.

XIII.

Pursuant to the provisions of Section 2a of Act 48, the defen­
dant, Governor William G. Milliken, on July 22, 1970 appointed a 
three-member commission known hereafter as the Detroit Boun­
dary Line Commission to draw the boundary lines for the eight 
public school election regions mandated by Act 48. On August 4, 
1970 the Detroit Boundary Line Commission adopted its plan and 
presented its boundary lines for the eight election regions as called 
for in Act 48. The Boundary Line Commission’s August 4th plan 
(a copy of which is attached hereto as Exhibit F) is a complete 
negation of the Board’s April 7th region plan. The August 4th plan 
creates eight regions with an average of 33,582 pupils in each 
region with a range of deviation of 19,942 (the largest region con­
tains 43,025 pupils while the smallest region contains 23,083) and 
an average deviation for each region of 22.9%. Under the plan 
adopted by the Detroit Boundary Line Commission on August 4, 
1970, there will be new racially segregated school regions estab­
lished in the defendant school system.

XIV.

Section 12 of the Act was enacted with the express intent of 
preventing the desegregation of the defendant system. It applies to 
but one school district in the State and reestablishes a policy 
found by the United States Supreme Court to be an inadequate 
method for elimination of segregated school attendance patterns. 
It seeks to reverse a finding of the United States District Court for 
the Eastern District of Michigan in Sherrill School Parents Com­
mittee v. The Board o f Ed. o f  the School District o f the City of 
Detroit, Michigan, No. 2 2 0 9 2 , E.D. Mich. Sept. 18, 1964, that the 
“ Open School”  program does not appear to be achieving substan-



10a

tial student integration in the Detroit School System presently or 
within the foreseeable future.

XV.

Plaintiffs allege that in the premises Public Act 48 on its face 
and as applied violates the Fourteenth Amendment to the Consti­
tution of the United States; the Act pertains solely to the Detroit 
Board of Education and thereby deliberately prohibits the Detroit 
Board of Education from making pupil assignments and estab­
lishing pupil attendance zones in a manner which all other school 
districts in the State of Michigan are free to do. Public Act 48 
thereby creates an irrational, unreasonable and arbitrary classifi­
cation which contravenes the equal protection and due process 
clauses of the Fourteenth Amendment. The distinction made by 
Public Act 48 is further unconstitutional by the fact that it applies 
solely to the Detroit school district where the bulk of Negro 
school children in the State of Michigan are concentrated.

XVE

Public Act 48 further violates the Fourteenth Amendment to 
the United States Constitution in that the Act impedes the legally 
mandated integration o f the public schools; the effect of the Act is 
to perpetuate the segregation and racial isolation of the past and 
give it the stamp of legislative approval. The Act, building upon 
the preexisting public and private housing segregation, has the pur­
pose, intent and effect of intensifying the present segregation and 
racial isolation in the Detroit public schools. The Act further vio­
lates the Fourteenth Amendment in that it constitutes a reversal 
by the State of Michigan of action taken by the Detroit School 
Board which action was consistent with and mandated by the Con­
stitution of the United States. In addition, Public Act 48 infringes 
upon the Thirteenth Amendment in that its effect is to relegate 

egro school children in the City of Detroit to a position of 
inferiority and to assert the inferiority of Negroes generally, there- 
y creating and perpetuating badges and incidents of slavery; and, 
so’ ’n it denies to black persons in Detroit the same rights to 
e full and equal benefit of all laws and proceedings as white 

citizens enjoy.



11a

xvn.
The defendants, Board of Education of the City of Detroit 

and Michigan State Board of Education, are charged under 
Michigan law and the Constitution and laws of the United States 
with the responsibility of operating a unitary public school system 
in the City of Detroit, Michigan.

xvm.
Plaintiffs allege that they are being denied equal educational 

opportunities by the defendants because of the segregated pattern 
of pupil assignments and the racial identifiability of the schools in 
the Detroit public school system. Plaintiffs further allege that said 
denials of equal educational opportunities contravene and abridge 
their rights as secured by the Thirteenth and Fourteenth Amend­
ments to the Constitution of the United States.

XIX.

The plaintiffs allege that the defendants herein, acting under 
color of the laws of the State of Michigan, have pursued and are 
presently pursuing a policy, custom, practice and usage of oper­
ating, managing and controlling the said public school system in a 
manner that has the purpose and effect of perpetuating a segre­
gated public school system. This segregated public school system is 
based predominantly upon the race and color of the students 
attending said school system; attendance at the various schools is 
based upon race and color; and the assignment of personnel has in 
the past and remains to an extent based upon the race and color of 
the children attending the particular school and the race and color 
of the personnel to be assigned.

XX.

The plaintiffs allege that the racially discriminatory policy, 
custom, practice and usage described in paragraph XIX has in­
cluded assigning students, designing attendance zones for elemen­
tary junior and senior high schools, establishing feeder patterns to 
secondary schools, planning future public educational facilities.



12a

constructing new schools, and utilizing or building upon the 
existing racially discriminatory patterns in both public and private 
housing on the basis of the race and color of the children who are 
eligible to attend said schools. The said discriminatory policy, cus­
tom, practice, and usage has resulted in a public school system 
composed of schools which are either attended solely or pre­
dominantly by black students or attended solely or predominantly 
by white students.

XXI.

The plaintiffs allege that the racially discriminatory policy, 
custom, practice and usage described in paragraph XIX has also 
included assigning faculty and staff members employed by defen­
dants to the various schools in the Detroit school system on the 
basis of the race and color of the personnel to be assigned. Conse­
quently, a general practice has developed whereby white faculty 
and staff members have been assigned on the basis of their race 
and color to schools attended solely or predominantly by white 
students and Negro faculty and staff members have been assigned 
on the basis of their race and color to schools attended solely or 
predominantly by black students.

xxn.
The defendants have failed and refused to take all necessary 

steps to correct the effects of their policy, practice, custom and 
usage of racial discrimination in the operation of said school 
system and to insure that such policy, custom, practice and usage 
for the 1970-71 school year, and thereafter, will conform to the 
requirements of the Thirteenth and Fourteenth Amendments.

xxni.
Plaintiffs and those similarly situated and affected on whose 

behalf this action is brought are suffering irreparable injury and 
will continue to suffer irreparable injury by reason of the pro­
visions of the Act complained of herein and by reason of the 
failure or refusal of defendants to operate a unitary school system 
ln *-be City of Detroit. Plaintiffs have no plain, adequate or com-



13a

plete remedy to redress the wrongs complained of herein other 
than this action for declaratory judgment and injunctive relief. 
Any other remedy to which plaintiffs could be remitted would be 
attended by such uncertainties and delays as to deny substantial 
relief, would involve a multiplicity of suits and would cause fur­
ther irreparable injury. The aid of this Court is necessary in 
assuring the citizens of Detroit and particularly the black public 
school children of the City of Detroit that this is truly a nation of 
laws, not of men, and that the promises made by the Thirteenth 
and Fourteenth Amendments are and will be kept.

WHEREFORE, plaintiffs respectfully pray that upon the 
filing of this complaint the Court:

1. Issue, pendente lite, a temporary restraining order and a 
preliminary injunction:

a. Requiring defendants, their agents and other persons 
acting in concert with them to put into effect the partial plan 
of senior high school desegregation adopted by the defendant, 
Detroit Board of Education, on April 7, 1970, which plan 
called for its implementation at the start of the 1970-71 
school term, provided, however: (1) that the plan shall not be 
effected on a stair-step basis, but shall, in accord with 
Alexander v. Holmes County Board, 396 U.S. 19 (1969), be­
come completely and fully effective at the beginning of the 
coming (1970-71) school year; and (2) that those provisions 
which exclude a pupil who has a brother or sister presently 
enrolled in a senior high school from being affected by the 
plan shall be deleted in accord with Ross v. Dyer, 312 F.2d 
191 (5th Cir. 1963);

b. Restraining defendants, their agents and other per­
sons acting in concert with them from giving any force or 
effect to Sec. 12 of Act No. 48 of the Michigan Public Acts of 
1970 insofar as its application would impair or delay the dese­
gregation of the defendant system;

c. Restraining defendants from taking any steps to 
implement the August 4, 1970 plan, or any other plan, f°r



14a

new district or regional boundaries pursuant to Act 48, or 
from taking any action which would prevent or impair the 
implementation o f  the regions established under the 
defendant Board’s earlier plan which provided for non-racially 
identifiable regions;

d. Restraining defendants from all further school con­
struction until such time as a constitutional plan for 
operation of the Detroit public schools has been approved and 
new construction reevaluated as a part thereof;

e. Requiring defendants to assign by the beginning of 
the 1970-71 school year principals, faculty, and other school 
personnel to each school in the system in accordance with the 
ratio of white and black principals, faculty and other school 
personnel throughout the system.

2. Advance this cause on the docket and order a speedy 
hearing of this action according to law and upon such hearing:

a. Enter a judgment declaring the provisions of Act No. 
48 complained of herein unconstitutional on their face and as 
applied as violative of the Thirteenth and Fourteenth Amend­
ments to the United States Constitution;

b. Enter preliminary and permanent decrees perpetu­
ating the orders previously entered;

c. Enter a decree enjoining defendants, their agents, 
employees and successors from continuing to employ policies, 
customs, practices and usages which, as described herein­
above, have the purpose and effect of leaving intact racially 
identifiable schools;

d. Enter a decree enjoining defendants, their agents, 
employees and successors from assigning students and/or 
operating the Detroit school system in a manner which re­
sults in students attending racially identifiable public schools;

e. Enter a decree requiring defendants, their agents,



15a

employees and successors to assign teachers, principals and 
other school personnel to schools to eliminate the racial 
identity of schools by assigning such personnel to each school 
in accordance with the ratio of white and black personnel 
throughout the system.

f. Enter a decree enjoining defendants, their agents, 
employees and successors from approving budgets, making 
available funds, approving employment and construction con­
tracts, locating schools or school additions geographically, and 
approving policies, curriculum and programs, which are de­
signed to or have the effect of maintaining, perpetuating or 
supporting racial segregation in the Detroit school system.

g. Enter a decree directing defendants to present a com­
plete plan to be effective for the 1970-71 school year for the 
elimination of the racial identity of every school in the system 
and to maintain now and hereafter a unitary, nonracial school 
system. Such a plan should include the utilization of all 
methods of integration of schools including rezoning, pairing, 
grouping, school consolidation, use of satellite zones, and 
transportation.

h. Plaintiffs pray that the Court enjoin all further con­
struction until such time as a constitutional plan has been 
approved and new construction reevaluated as a part thereof.

i. Plaintiffs pray that this Court will award reasonable 
counsel fees to their attorneys for services rendered and to be 
rendered them in this cause and allow them all out-of-pocket 
expenses of this action and such other and additional relief as 
may appear to the Court to be equitable and just.

Respectfully submitted,

Nathaniel Jones, General Counsel 
N.A.A.C.P.
1790 Broadway 
New York, New York



16a

Louis R. Lucas 
Ratner, Sugarmon & Lucas 
525 Commerce Title Building 
Memphis, Tennessee

Bruce Miller and 
Lucille Watts, Attorneys for 
Legal Redress Committee 
N.A.A.C.P., Detroit Branch 
3426 Cadillac Towers 
Detroit, Michigan, and 
Attorneys for Plaintiffs

'



17a

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al.,
Plaintiffs

v.
WILLIAM G. MILLIKEN, et al.,

Defendants
DETROIT FEDERATION OF TEACH­
ERS, LO CAL N O . 231, AMERICAN 
FEDERATION OF TEACHERS, AFL-CIO, 

Defendant-Intervenor
and

DENISE MAGDOWSKI, et al.,
Defendants-Intervenor

)
)
)
)
)
) CIVIL ACTION 
) NO: 35257 
)
)
)
)
)

RULING ON ISSUE OF SEGREGATION

This action was commenced August 18, 1970, by plaintiffs, 
the Detroit Branch of the National Association for the Advance­
ment of Colored People* and individual parents and students, on 
behalf of a class later defined by order of the Court dated February 
16, 1971, to include “ all school children of the City of Detroit 
and all Detroit resident parents who have children of school age,” 
Defendants are the Board of Education of the City of Detroit, its 
members and its former superintendent of schools, Dr. Norman A. 
Drachler, the Governor, Attorney General, State Board of Educa­
tion and State Superintendent of Public Instruction of the State of 
Michigan. In their complaint, plaintiffs attacked a statute of the 
State of Michigan known as Act 48 of the 1970 Legislature on the 
ground that it put the State of Michigan in the position of uncon­
stitutionally interfering with the execution and operation of a 
voluntary plan of partial high school desegregation (known as the 
April 7, 1970 Plan) which had been adopted by the Detroit Board 
of Education to be effective beginning with the fall 1970 semester.

* The standing o f the NAACP as a proper party plaintiff was not contested  
by the original defendants and the Court expresses no opinion on the matter.



18a

Plaintiffs also alleged that the Detroit Public School System was 
and is segregated on the basis of race as a result of the official 
policies and actions of the defendants and their predecessors in 
office.

Additional parties have intervened in the litigation since it was 
commenced. The Detroit Federation of Teachers (DFT) which re­
presents a majority of Detroit Public school teachers in collective 
bargaining negotiations with the defendant Board of Education, 
has intervened as a defendant, and a group of parents has inter­
vened as defendants.

Initially the matter was tried on plaintiffs’ motion for pre­
liminary injunction to restrain the enforcement of Act 48 so as to 
permit the April 7 Plan to be implemented. On that issue, this 
Court ruled that plaintiffs were not entitled to a preliminary in­
junction since there had been no proof that Detroit has a segre­
gated school system. The Court of Appeals found that the “imple­
mentation of the April 7 Plan was thwarted by State action in the 
form of the Act of the Legislature of Michigan,” (433 F.2d 897, 
902), and that such action could not be interposed to delay, 
obstruct or nullify steps lawfully taken for the purpose of protect­
ing rights guaranteed by the Fourteenth Amendment.

The plaintiffs then sought to have this Court direct the de­
fendant Detroit Board to implement the April 7 Plan by the start 
of the second semester (February, 1971) in order to remedy the 
deprivation of constitutional rights wrought by the unconstitu­
tional statute. In response to an order of the Court, defendant 
Board suggested two other plans, along with the April 7 Plan, and 
noted priorities, with top priority assigned to the so-called “ Magnet 
Plan.” The Court acceded to the wishes of the Board and approved 
the Magnet Plan. Again, plaintiffs appealed but the appellate court 
refused to pass on the merits of the plan. Instead, the case was 
remanded with instructions to proceed immediately to a trial on 
the merits of plaintiffs’ substantive allegations about the Detroit 
School System. 438 F. 2d 945 (6th Cir. 1971).

Trial, limited to the issue of segregation, began April 6, 1971 
and concluded on July 22, 1971, consuming 41 trial days, inter-



19a

spersed by several brief recesses necessitated by other demands 
upon the time of Court and counsel. Plaintiffs introduced sub­
stantial evidence in support of their contentions, including expert 
and factual testimony, demonstrative exhibits and school board 
documents. At the close of plaintiffs’ case, in chief, the Court 
ruled that they had presented a prima facie case of state imposed 
segregation in the Detroit Public Schools; accordingly, the Court 
enjoined (with certain exceptions) all further school construction 
in Detroit pending the outcome of the litigation.

The State defendants urged motions to dismiss as to them. 
These were denied by the Court.

At the close of proofs intervening parent defendants (Denise 
Magdowski, et al.) filed a motion to join, as parties 85 contiguous 
“ suburban”  school districts — all within the so-called Larger 
Detroit Metropolitan area. This motion was taken under advise­
ment pending the determination of the issue of segregation.

It should be noted that, in accordance with earlier rulings of 
the Court, proofs submitted at previous hearings in the cause, were 
to be and are considered as part of the proofs of the hearing on 
the merits.

In considering the present racial complexion of the City of 
Detroit and its public school system we must first look to the past 
and view in perspective what has happened in the last half century. 
In 1920 Detroit was a predominantly white city — 91% -  and its 
population younger than in more recent times. By the year 1960 
the largest segment of the city’s white population was in the age 
range of 35 to 50 years, while its black population was younger 
and of childbearing age. The population of 0-15 years of age con­
stituted 30% of the total population of which 60% were white and 
40% were black. In 1970 the white population was principally 
aging—45 years—while the black population was younger and of 
childbearing age. Childbearing blacks equaled or exceeded the 
total white population. As older white families without children of 
school age leave the city they are replaced by younger black 
families with school age children, resulting in a doubling of enroll­
ment in the local neighborhood school and a complete change in



20a

student population from white to black. As black inner city re­
sidents move out of the core city they “ leap-frog” the residential 
areas nearest their former homes and move to areas recently 
occupied by whites.

The population of the City of Detroit reached its highest 
point in 1950 and has been declining by approximately 169,500 
per decade since then. In 1950, the city population constituted 
61% of the total population of the standard metropolitan area and 
in 1970 it was but 36% of the metropolitan area population. The 
suburban population has increased by 1,978,000 since 1940. 
There has been a steady out-migration of the Detroit population 
since 1940. Detroit today is principally a conglomerate of poor 
black and white plus the aged. Of the aged, 80% are white.

If the population trends evidenced in the federal decennial 
census for the years 1940 through 1970 continue, the total black 
population in the City of Detroit in 1980 will be approximately 
840,000, or 53.6% of the total. The total population of the city in 
1970 is 1,511,000 and, if past trends continue, will be 1,338,000 
in 1980. In school year 1960-61, there were 285,512 students in 
the Detroit Public Schools of which 130,765 were black. In school 
year 1966-67, there were 297,035 students, of which 168,299 
were black. In school year 1970-71 there were 289,743 students 
of which 184,194 were black. The percentage of black students in 
the Detroit Public Schools in 1975-76 will be 72.0%, in 1980-81 
will be 80.7% and in 1992 it will be virtually 100% if the present 
trends continue. In 1960, the non-white population, ages 0 years 
to 19 years, was as follows:

0 - 4 years 42%
5 - 9 years 36%

10 - 14 years 28%
15 - 19 years 18%

In 1970 the non-white population, ages 0 years to 19 years, was as 
follows:



21a

0 - 4 years 48%
5 - 9 years 50%

10 - 14 years 50%
15 - 19 years 40%

The black population as a percentage of the total population in 
the City of Detroit was:

(a) 1900 1.4%
(b) 1910 1.2%
(c) 1920 4.1%
(d) 1930 7.7%
(e) 1940 9.2%

(f) 1950 16.2%

(g) 1960 28.9%
(h) 1970 43.9%

The black population as a percentage of total student population 
of the Detroit Public Schools was as follows:

(a) 1961 45.8%
(b) 1963 51.3%
(c) 1964 53.0%
(d) 1965 54.8%
(e) 1966 56.7%
(f) 1967 58.2%
(g) 1968 59.4%
(h) 1969 61.5%
(i) 1970 63.8%

For the years indicated the housing characteristics in the City of 
Detroit were as follows:

(a) 1960 total supply of housing
units was 553,000

(b) 1970 total supply of housing
units was 530,770



22a

The percentage decline in the white students in the Detroit 
Public Schools during the period 1961-1970 (53.6% in 1960; 
34.8% in 1970) has been greater than the percentage decline in the 
white population in the City of Detroit during the same period 
(70.8% in 1960; 55.21% in 1970), and correlatively, the percent­
age increase in black students in the Detroit Public Schools during 
the nine-year period 1961-1970 (45.8% in 1961; 63.8% in 1970) 
has been greater than the percentage increase in the black popula­
tion of the City of Detroit during the ten-year period 1960-1970 
(28.9% in 1960; 43.9% in 1970). In 1961 there were eight schools 
in the system without white pupils and 73 schools with no Negro 
pupils. In 1970 there were 30 schools with no white pupils and 11 
schools with no Negro pupils, an increase in the number of schools 
without white pupils of 22 and a decrease in the number of 
schools without Negro pupils of 62 in this ten-year period. 
Between 1968 and 1970 Detroit experienced the largest increase 
in percentage of black students in the student population of any 
major northern school district. The percentage increase in Detroit 
was 4.7% as contrasted with —

New York 2.0%
Los Angeles 1.5%
Chicago 1.9%
Philadelphia 1.7%
Cleveland 1.7%
Milwaukee 2.6%
St. Louis 2.6%
Columbus 1.4%
Indianapolis 2.6%
Denver 1.1%
Boston 3.2%
San Francisco 1.5%
Seattle 2.4%

In 1960, there were 266 schools in the Detroit School 
System. In 1970, there were 319 schools in the Detroit School 
System.

In the Western, Northwestern, Northern, Murray, North- 
eastern, Kettering, King and Southeastern high school service



23a

areas, the following conditions exist at a level significantly higher 
than the city average:

(a) Poverty in children
(b) Family income below poverty level
(c) Rate of homicides per population
(d) Number of households headed by females
(e) Infant mortality rate
(f) Surviving infants with neurological 

defects
(g) Tuberculosis cases per 1,000 population
(h) High pupil turnover in schools

The City of Detroit is a community generally divided by racial 
lines. Residential segregation within the city and throughout the 
larger metropolitan area is substantial, pervasive and of long stand­
ing. Black citizens are located in separate and distinct areas within 
the city and are not generally to be found in the suburbs. While 
the racially unrestricted choice of black persons and economic 
factors may have played some part in the development of this 
pattern of residential segregation, it is, in the main, the result of 
past and present practices and customs of racial discrimination, 
both public and private, which have and do restrict the housing 
opportunities of black people. On the record there can be no other 
finding.

Governmental actions and inaction at all levels, federal, state 
and local, have combined, with those of private organizations, 
such as loaning institutions and real estate associations and broker­
age firms, to establish and to maintain the pattern of residential 
segregation throughout the Detroit metropolitan area. It is no 
answer to say that restricted practices grew gradually (as the black 
population in the area increased between 1920 and 1970), or that 
since 1948 racial restrictions on the ownership of real property 
have been removed. The policies pursued by both government and 
private persons and agencies have a continuing and present effect 
upon the complexion of the community — as we know, the choice 
of a residence is a relatively infrequent affair. For many years 
FHA and VA openly advised and advocated the maintenance of 
“ harmonious”  neighborhoods, i.e., racially and economically



24a

harmonious. The conditions created continue. While it would be 
unfair to charge the present defendants with what other gov­
ernmental officers or agencies have done, it can be said that the 
actions or the failure to act by the responsible school authorities, 
both city and state, were linked to that of these other govern­
mental units. When we speak of governmental action we should 
not view the different agencies as a collection of unrelated units. 
Perhaps the most that can be said is that all of them, including the 
school authorities, are, in part, responsible for the segregated con­
dition which exists. And we note that just as there is an inter­
action between residential patterns and the racial composition of 
the schools, so there is a corresponding effect on the residential 
pattern by the racial composition of the schools.

Turning now to the specific and pertinent (for our purposes) 
history of the Detroit school system so far as it involves both the 
local school authorities and the state school authorities, we find 
the following:

During the decade beginning in 1950 the Board created and 
maintained optional attendance zones in neighborhoods under­
going racial transition and between high school attendance areas of 
opposite predominant racial compositions. In 1959 there were 
eight basic optional attendance areas affecting 21 schools. 
Optional attendance areas provided pupils living within certain 
elementary areas a choice of attendance at one of two high 
schools. In addition there was at least one optional area either 
created or existing in 1960 between two junior high schools of 
opposite predominant racial components. All of the high school 
optional areas, except two, were in neighborhoods undergoing 
racial transition (from white to black) during the 1950s. The two 
exceptions were: (1) the option between Southwestern (61.6% 
Wack in 1960) and Western (15.3% black); (2) the option between 
Denby (0% black) and Southeastern (30.9% black). With the 
exception of the Denby -  Southeastern option Gust noted) 
all of the options were between high schools of opposite 
predominant racial compositions. The Southwestern-Western and 
Denby-Southeastern optional areas are all white on the 1950, 
I960 and 1970 census maps. Both Southwestern and South­
eastern, however, had substantial white pupil populations, and the



25a

option allowed whites to escape integration. The natural, 
probable, foreseeable and actual effect of these optional zones was 
to allow white youngsters to escape identifiably “ black” schools. 
There had also been an optional zone (eliminated between 1956 
and 1959) created in “ an attempt. . . to separate Jews and Gentiles 
within the system,” the effect of which was that Jewish 
youngsters went to Mumford High School and Gentile youngsters 
went to Cooley. Although many of these optional areas had 
served their purpose by 1960 due to the fact that most of the 
areas had become predominantly black, one optional area (South- 
western-Western affecting Wilson Junior High graduates) con­
tinued until the present school year (and will continue to effect 
11th and 12th grade white youngsters who elected to escape from 
predominantly black Southwestern to predominantly white 
Western High School). Mr. Henrickson, the Board’s general fact 
witness, who was employed in 1959 to, inter alia, eliminate 
optional areas, noted in 1967 that: “ In operation Western appears 
to be still the school to which white students escape from pre­
dominantly Negro surrounding schools.” The effect of eliminating 
this optional area (which affected only 10th graders for the 
1970-71 school year) was to decrease Southwestern from 86.7% 
black in 1969 to 74.3% black in 1970.

The Board, in the operation of its transportation to relieve 
overcrowding policy, has admittedly bused black pupils past or 
away from closer white schools with available space to black 
schools. This practice has continued in several instances in recent 
years despite the Board’s avowed policy, adopted in 1967, to 
utilize transportation to increase integration.

With one exception (necessitated by the burning of a white 
school), defendant Board has never bused white children to pre 
dominantly black schools. The Board has not bused white pupis 
to black schools despite the enormous amount of space availab e 
in inner-city schools. There were 22,961 vacant seats inschoos 
90% or more black.

The Board has created and altered attendance zones, 
maintained and altered grade structures and created and altere 
feeder school patterns in a manner which has had the natura,



26a

probable and actual effect of continuing black and white pupils in 
racially segregated schools. The Board admits at least one instance 
where it purposefully and intentionally built and maintained a 
school and its attendance zone to contain black students. 
Throughout the last decade (and presently) school attendance 
zones of opposite racial compositions have been separated by 
north-south boundary lines, despite the Board’s awareness (since 
at least 1962) that drawing boundary lines in an east-west direc­
tion would result in significant integration. The natural and actual 
effect of these acts and failures to act has been the creation and 
perpetuation of school segregation. There has never been a feeder 
pattern or zoning change which placed a predominantly white 
residential area into a predominantly black school zone or feeder 
pattern. Every school which was 90% or more black in 1960, and 
which is still in use today, remains 90% or more black. Whereas 
65.8% of Detroit’s black students attended 90% or more black 
schools in 1960, 74.9% of the black students attended 90% or 
more black schools during the 1970-71 school year.

The public schools operated by defendant Board are thus 
segregated on a racial basis. This racial segregation is in part the 
result of the discriminatory acts and omissions of defendant 
Board.

In 1966 the defendant State Board of Education and 
Michigan Civil Rights Commission issued a Joint Policy Statement 
on Equality of Educational Opportunity, requiring that

Local school boards must consider the factor of racial 
balance along with other educational considerations in making 
decisions about selection of new school sites, expansion of 
present facilities . . . .  Each of these situations presents an 
opportunity for integration.”

Defendant State Board’s “School Plant Planning Handbook” 
requires that

Care in site location must be taken if a serious transportation 
problem exists or if housing patterns in an area would result 
ln a school largely segregated on racial, ethnic, or socio-



27a

economic lines.”

The defendant City Board has paid little heed to these statements 
and guidelines. The State defendants have similarly failed to take 
any action to effectuate these policies. Exhibit NN reflects con­
struction (new or additional) at 14 schools which opened for use 
in 1970-71; of these 14 schools, 11 opened over 90% black and 
one opened less than 10% black. School construction costing 
$9,222,000 is opening at Northwestern High School which is 
99.9% black, and new construction opens at Brooks Junior High, 
which is 1.5% black, at a cost of $2,500,000. The construction at 
Brooks Junior High plays a dual segregatory role: not only is the 
construction segregated, it will result in a feeder pattern change 
which will remove the last majority white school from the already 
almost all-black Mackenzie High School attendance area.

Since 1959 the Board has constructed at least 13 small pri­
mary schools with capacities of from 300 to 400 pupils. This 
practice negates opportunities to integrate, “ contains” the black 
population and perpetuates and compounds school segregation.

The State and its agencies, in addition to their general re­
sponsibility for and supervision of public education, have acted 
directly to control and maintain the pattern of segregation in the 
Detroit schools. The State refused, until this session of the legisla­
ture, to provide authorization or funds for the transportation of 
pupils within Detroit regardless of their poverty or distance from 
the school to which they were assigned, while providing in many 
neighboring, mostly white, suburban districts the full range of 
state supported transportation. This and other financial limita­
tions, such as those on bonding and the working of the state aid 
formula whereby suburban districts were able to make far larger 
per pupil expenditures despite less tax effort, have created and 
perpetuated systematic educational inequalities.

The State, exercising what Michigan courts have held to be is 
“ plenary power” which includes power “ to use a statutory 
scheme, to create, alter, reorganize or even dissolve a sch oo l 
district, despite any desire of the school district, its board, or the 
inhabitants thereof,” acted to reorganize the school district of the



28a

City of Detroit.

The State acted through Act 48 to impede, delay and 
minimize racial integration in Detroit schools. The first sentence 
of Sec. 12 of the Act was directly related to the April 7, 1970 
desegregation plan. The remainder of the section sought to pre­
scribe for each school in the eight districts criterion of “ free 
choice” (open enrollment) and “neighborhood schools” (“ nearest 
school priority acceptance” ), which had as their purpose and 
effect the maintenance of segregation.

In view of our findings of fact already noted we think it 
unnecessary to parse in detail the activities of the local board and 
the state authorities in the area of school construction and the 
furnishing of school facilities. It is our conclusion that these 
activities were in keeping, generally, with the discriminatory 
practices which advanced or perpetuated racial segregation in these 
schools.

It would be unfair for us not to recognize the many fine steps 
the Board has taken to advance the cause of quality education for 
all in terms of racial integration and human relations. The most 
obvious of these is in the field of faculty integration.

Plaintiffs urge the Court to consider alledgedly discriminatory 
practices of the Board with respect to the hiring, assignment and 
transfer of teachers and school administrators during a period 
reaching back more than 15 years. The short answer to that must 
be that black teachers and school administrative personnel were 
not readily available in that period. The Board and the intervening 
defendant union have followed a most advanced and exemplary 
course in adopting and carrying out what is called the “balanced 
staff concept” — which seeks to balance faculties in each school 
with respect to race, sex and experience, with primary emphasis 
on race. More particularly, we find:

1. With the exception of affirmative policies designed to 
achieve racial balance in instructional staff, no teacher in the 
Detroit Public Schools is hired, promoted or assigned to any 
school by reason of his race.



29a

2. In 1956, the Detroit Board of Education adopted the 
rules and regulations of the Fair Employment Practices Act as its 
hiring and promotion policy and has adhered to this policy to 
date.

3. The Board has actively and affirmatively sought out and 
hired minority employees, particularly teachers and administra­
tors, during the past decade.

4. Between 1960 and 1970, the Detroit Board of Education 
has increased black representation among its teachers from 23.3% 
to 42.1%, and among its administrators from 4.5% to 37.8%.

5. Detroit has a higher proportion of black administrators 
than any other city in the country.

6. Detroit ranked second to Cleveland in 1968 among the 
20 largest northern city school districts in the percentage of blacks 
among the teaching faculty and in 1970 surpassed Cleveland by 
several percentage points.

7. The Detroit Board of Education currently employs black 
teachers in a greater percentage than the percentage of adult black 
persons in the City of Detroit.

8. Since 1967, more blacks than whites have been placed in 
high administrative posts with the Detroit Board of Education.

9. The allegation that the Board assigns black teachers to 
black schools is not supported by the record.

10. Teacher transfers are not granted in the Detroit Public 
Schools unless they conform with the balanced staff concept. 11

11. Between 1960 and 1970, the Detroit Board of Education 
reduced the percentage of schools without black faculty from 
36.3% to 1.2%, and of the four schools currently without black 
faculty, three are specialized trade schools where minority faculty 
cannot easily be secured.



30a

12. In 1968, of the 20 largest northern city school districts, 
Detroit ranked fourth in the percentage of schools having one or 
more black teachers and third in the percentage of schools having 
three or more black teachers.

13. In 1970, the Board held open 240 positions in schools 
with less than 25% black, rejecting white applicants for these 
positions until qualified black applicants could be found and 
assigned.

14. In recent years, the Board has come underpressure from 
large segments of the black community to assign male black ad­
ministrators to predominantly black schools to serve as male role 
models for students, but such assignments have been made only 
where consistent with the balanced staff concept.

15. The numbers and percentages of black teachers in Detroit 
increased from 2,275 and 21.6%, respectively, in February, 1961, 
to 5,106 and 41.6%, respectively, in October, 1970.

16. The number of schools by percent black of staffs changed 
from October, 1963 to October, 1970 as follows:

Number of schools without black teachers — decreased from 
41, to 4.

Number of schools with more than 0%, but less than 10% 
black teachers — decreased from 58, to 8.

Total number of schools with less than 10% black teachers — 
decreased from 99, to 12.

Number of schools with 50% or more black teachers — 
increased from 72, to 124.

17. The number of schools by percent black of staffs changed 
horn October, 1969 to October, 1970, as follows:

Number of schools without black teachers — decreased from 
6, to 4.



31a

Number of schools with more than 0%, but less than 10%
black teachers — decreased from 41, to 8.

Total number of schools with less than 10% black teachers -
decreased from 47, to 12.

Number of schools with 50% or more black teachers -
increased from 120, to 124.

18. The total number of transfers necessary to achieve a 
faculty racial quota in each school corresponding to the system- 
wide ratio, and ignoring all other elements is, as of 1970, 1,826.

19. If account is taken of other elements necessary to assure 
quality integrated education, including qualifications to teach the 
subject area and grade level, balance of experience, and balance of 
sex, and further account is taken of the uneven distribution of 
black teachers by subject taught and sex, the total number of 
transfers which would be necessary to achieve a faculty racial 
quota in each school corresponding to the system-wide ratio, if 
attainable at all, would be infinitely greater.

20. Balancing of staff by qualifications for subject and grade 
level, then by race, experience and sex, is educationally desirable 
and important.

21. It is important for students to have a successful role 
model, especially black students in certain schools, and at certain 
grade levels.

22. A quota of racial balance for faculty in each school which 
is equivalent to the system-wide ratio and without more is educa­
tionally undesirable and arbitrary.

23. A severe teacher shortage in the 1950s and 1960s 
impeded integration-of-faculty opportunities.

24. Disadvantageous teaching conditions in Detroit in the 
1960s—salaries, pupil mobility and transiency, class size, bunding 
conditions, distance from teacher residence, shortage of teacie



32a

substitutes, etc.-made teacher recruitment and placement dif­
ficult.

25. The Board did not segregate faculty by race, but rather 
attempted to fill vacancies with certified and qualified teachers 
who would take offered assignments.

26. Teacher seniority in the Detroit system, although 
measured by system-wide service, has been applied consistently to 
protect against involuntary transfers and “bumping” in given 
schools.

27. Involuntary transfers of teachers have occurred only 
because of unsatisfactory ratings or because of decrease of teacher 
services in a school, and then only in accordance with balanced 
staff concept.

28. There is no evidence in the record that Detroit teacher 
seniority rights had other than equitable purpose or effect.

29. Substantial racial integration of staff can be achieved, 
without disruption of seniority and stable teaching relationships, 
by application of the balanced staff concept to naturally occurring 
vacancies and increases and reductions of teacher services.

30. The Detroit Board of Education has entered into suc­
cessive collective bargaining contracts with the Detroit Federation 
of Teachers, which contracts have included provisions promoting 
integration of staff and students.

The Detroit School Board has, in many other instances and in 
many other respects, undertaken to lessen the impact of the forces 
of segregation and attempted to advance the cause of integration. 
Perhaps the most obvious one was the adoption of the April 7 
Plan. Among other things, it has denied the use of its facilities to 
groups which practice racial discrimination; it does not permit the 
use of its facilities for discriminatory apprentice training programs;

has opposed state legislation which would have the effect of 
segregating the district; it has worked to place black students in 
craft positions in industry and the building trades; it has brought



33a

about a substantial increase in the percentage of black students in 
manufacturing and construction trade apprenticeship classes; it 
became the first public agency in Michigan to adopt and 
implement a policy requiring affirmative act of contractors with 
which it deals to insure equal employment opportunities in their 
work forces; it has been a leader in pioneering the use of multi 
-ethnic instructional material, and in so doing has had an impact 
on publishers specializing in producing school texts and 
intructional materials; and it has taken other noteworthy 
pioneering steps to advance relations between the white and black 
races.

In conclusion, however, we find that both the State of Michi­
gan and the Detroit Board of Education have committed acts 
which have been causal factors in the segregated condition of the 
public schools of the City of Detroit. As we assay the principles 
essential to a finding of de jure segregation, as outlined in rulings 
of the United States Supreme Court, they are:

1. The State, through its officers and agencies, and usually, 
the school administration, must have taken some action or actions 
with a purpose of segregation.

2. This action or these actions must have created or 
aggravated segregation in the schools in question.

3. A current condition of segregation exists. We find these tests 
to have been met in this case. We recognize that causation in the case 
before us is both several and comparative. The principal causes 
undeniably have been population movement and housing patterns, 
but state and local governmental actions, including school board 
actions, have played a substantial role in promoting segregation. It 
is, the Court believes, unfortunate that we cannot deal with public 
school segregation on a no-fault basis, for if racial segregation in 
our public schools is an evil, then it should make no difference 
whether we classify it de jure or de facto. Our objective, logically, 
it seems to us, should be to remedy a condition which we believe 
needs correction. In the most realistic sense, if fault or blame must 
be found it is that of the community as a whole, including, of



34a

course, the black components. We need not minimize the effect of 
the actions of federal, state and local governmental officers and 
agencies, and the actions of loaning institutions and real estate 
firms, in the establishment and maintenance of segregated 
residential patterns -  which lead to school segregation -  to 
observe that blacks, like ethnic groups in the past, have tended to 
separate from the larger group and associate together. The ghetto 
is at once both a place of confinement and a refuge. There is 
enough blame for everyone to share.

CONCLUSIONS OF LAW

1. This Court has jurisdiction of the parties and the subject 
matter of this action under 28 U.S.C. 1331 (a), 1343 (3) and (4), 
2201 and 2202; 42 U.S.C. 1983, 1988, and 2000d.

2. In considering the evidence and in applying legal stand­
ards it is not necessary that the Court find that the policies and 
practices, which it has found to be discriminatory, have as their 
motivating forces any evil intent or motive. Keyes v. Sch. Dist. No.
1, Denver, 383 F. Supp. 279. Motive, ill will and bad faith have 
long ago been rejected as a requirement to invoke the protection 
of the Fourteenth Amendment against racial discrimination. Sims 
v. Georgia, 389 U.S. 404, 407-8.

3. School districts are accountable for the natural, probable 
and foreseeable consequences of their policies and practices, and 
where racially identifiable schools are the result of such policies, 
the school authorities bear the burden of showing that such 
policies are based on educationally required, non-racial con­
siderations. Keyes v. Sch. Dist., supra, and Davis v. Sch. Dist. of 
Pontiac, 309 F. Supp. 734, and 443 F.2d 573.

4. In determining whether a constitutional violation has 
occurred, proof that a pattern of racially segregated schools has 
existed for a considerable period of time amounts to a showing of 
racial classification by the state and its agencies, which must be 
justified by clear and convincing evidence. State o f Alabama v. 
Us-> 304 F.2d 583.



35a

5. The Board’s practice of shaping school attendance zones 
on a north-south rather than an east-west orientation, with the 
result that zone boundaries conformed to racial residential 
dividing lines, violated the Fourteenth Amendment. Northcrossv. 
Bd. o f Ed., Memphis, 333 F. 2d 661.

6. Pupil racial segregation in the Detroit Public School 
System  and the re s id e n t ia l racial segregation resulting 
primarily from public and private racial discrimination are interde­
pendent phenomena. The affirmative obligation of the defendant 
Board has been and is to adopt and implement pupil assignment 
practices and policies that compensate for and avoid incorporation 
into the school system the effects of residential racial segregation. 
The Board’s building upon housing segregation violates the Fourte­
enth Amendment. See, Davis v. Sch. Dist. o f Pontiac, supra, and 
authorities there noted.

7. The Board’s policy of selective optional attendance 
zones, to the extent that it facilitated the separation of pupils on 
the basis of race, was in violation of the Fourteenth Amendment. 
Hobson v. Hansen, 269 F. Supp. 401, aff’d sub nom., Smuckv. 
Hobson, 408 F.2d 175.

8. The practice of the Board of transporting black students 
from overcrowded black schools to other identifiably black 
schools, while passing closer identifiably white schools, which 
could have accepted these pupils, amounted to an act of segre­
gation by the school authorities. Spangler v. Pasadena City Bd. of 
Ed., 311 F. Supp. 501.

9. The manner in which the Board formulated and modilied 
attendance ones for elementary schools had the natural and pre­
dictable effect of perpetuating racial segregation of students. Such 
conduct is an act of de jure discrimination in violation of the 
Fourteenth Amendment. U.S. v. School District 151, 286 F. Supp- 
786; Brewer v. City o f  Norfolk, 397 F. 2d 37.

10. A school board may not, consistent with the Fourteenth 
Amendment maintain segregated elementary schools or permit 
educational choices to be influenced by community sentiment or



36a

the wishes of a majority of voters. Cooper v. Aaron, 358 U.S. 1, 
12-13, 15-16.

“A citizen’s constitutional rights can hardly be infringed 
simply because a majority of the people choose that it be.” 
Lucas v. 44th Gen’l Assembly of Colorado, 377 U.S. 713, 
736-737.

11. Under the Constitution of the United States and the con­
stitution and laws of the State of Michigan, the responsibility for 
providing educational opportunity to all children on constitutional 
terms is ultimately that of the state. Turner v. Warren County 
Board of Education, 313 F. Supp. 380; Art. VIII, § § 1 and 2, 
Mich. Constitution; Dasiewicz v. Bd. o f Ed. o f the City o f Detroit, 
3 N.W. 2d 71.

12. That a state’s form of government may delegate the 
power of daily administration of public schools to officials with 
less than state-wide jurisdiction does not dispel the obligation of 
those who have broader control to use the authority they have 
consistently with the constitution. In such instances the constitu­
tional obligation toward the individual school children is a shared 
one. Bradley v. Sch. Bd., City o f  Richmond, 51 F.R.D. 139, 143. 13 * *

13. Leadership and general supervision over all public educa­
tion is vested in the State Board of Education. Art. VIII, § 3, 
Mich. Constitution of 1963. The duties of the State Board and 
superintendent include, but are not limited to, specifying the 
number of hours necessary to constitute a school day; approval 
until 1962 of school sites; approval of school construction plans; 
accreditation of schools; approval of loans based on state aid 
funds; review of suspensions and expulsions of individual students 
for misconduct [Op. Atty. Gen., July 7, 1970, No. 4705]; 
authority over transportation routes and disbursement of trans­
portation funds; teacher certification and the like. M.S.A.
15.1023(1). State law provides review procedures from actions of 
iocal or intermediate districts (See M.S.A. 15.3442), with author- 
4y in the State Board to ratify, reject, amend or modify the 
actions of these inferior state agencies. See M.S.A. 15.3467;
15-191 9 (61); 15.1919(68b); 15.2299(1); 15.1961; 15.3402;



37a

Bridgehampton School District No. 2 Fractional o f Carsonville, 
Mich. v. Supt. o f Public Instruction, 323 Mich. 615. In general, the 
state superintendent is given the duty “ [t] o do all things necessary 
to promote the welfare of the public schools and public educa­
tional instructions and provide proper educational facilities for the 
youth o f the state.”  M.S.A. 1 5.3252. See also M.S.A. 
15.2299(57), providing in certain instances for reorganization of 
school districts.

14. State officials, including all of the defendants, are charged 
under the Michigan constitution with the duty of providing 
pupils an education without discrimination with respect to race. 
Art, VIII, §2, Mich. Constitution of 1963. Art. I, §2, of the con­
stitution provides:

“No person shall be denied the equal protection of the laws; 
nor shall any person be denied the enjoyment of his civil or 
politicial rights or be discriminated against in the exercise 
thereof because of religion, race, color, or national origin. The 
legislature shall implement this section by appropriate legisla­
tion.”

15. The State Department of Education has recently estab­
lished an Equal Educational Opportunities . section having respon­
sibility to identify racially imbalanced school districts and develop 
desegregation plans. M.S.A. 15.3355 provides that no school or 
department shall be kept for any person or persons on account of 
race or color. 16

16. The state further provides special funds to local districts 
for compensatory education which are administered on a per 
school basis under direct review of the State Board. All other state 
aid is subject to fiscal review and accounting by the state. M.S.A. 
15.1919. See also M.S.A. 15.1919(68b), providing for special sup­
plements to merged districts “ for the purpose of bringing about un­
iformity of educational opportunity for all pupils of the district. 
The general consolidation law M.S.A. 15.3401 authorizes annexa­
tion for even noncontiguous school districts upon approval of the 
superintendent of public instruction and electors, as provided by 
law. Op. Atty. Gen., Feb. 5, 1964, No. 4193. Consolidation with



38a

respect to so-called “ first class” districts, i.e., Detroit, is generally 
treated as an annexation with the first class district being the sur­
viving entity. The law provides procedures covering all necessary 
considerations. M.S.A. 15.3184,15.3186.

17. Where a pattern of violation of constitutional rights is 
established the affirmative obligation under the Fourteenth 
Amendment is imposed on not only individual school districts, but 
upon the State defendants in this case. Cooper v. Aaron, 358, U.S. 
1; Griffin v. County School Board o f Prince Edward County, 337 
U.S. 218; U.S. v. State o f  Georgia, Civ. No. 12972 (N.D. Ga., 
December 17, 1970), rev’d on other grounds, 428 F.2d 377; 
Godwin v. Johnston County Board o f Education, 301 F. Supp. 
1337; Lee v. Macon County Board o f Education, 267 F. Supp. 
458 (M.D. Ala.), aff’d sub nom., Wallace v. U.S., 389 U.S. 215; 
Franklin v. Quitman County Board o f Education, 288 F. Supp. 
509; Smith v. North Carolina State Board o f Education, No. 
15,072 (4th Cir., June 14, 1971).

The foregoing constitutes our findings of fact and conclusions 
of law on the issue of segregation in the public schools of the City 
of Detroit.

Having found a de jure segregated public school system in 
operation in the City of Detroit, our first step, in considering what 
judicial remedial steps must be taken, is the consideration of 
intervening parent defendants’ motion to add as parties defendant 
a great number of Michigan school districts located out county in 
Wayne County, and in Macomb and Oakland Counties, on the 
principal premise or ground that effective relief cannot be achiev­
ed or ordered in their absence. Plaintiffs have opposed the motion 
to join the additional school districts, arguing that the presence 
°f the State defendants is sufficient and all that is required, even 
rfj in shaping a remedy, the affairs of these other districts will be
affected.

In considering the motion to add the listed school districts we 
Pause to note that the proposed action has to do with relief.

aving determined that the circumstances of the case require 
Judicial intervention and equitable relief, it would be improper for



39a

us to act on this motion until the other parties to the action have 
had an opportunity to submit their proposals for desegregation. 
Accordingly, we shall not rule on the motion to add parties at this 
time. Considered as a plan for desegregation the motion is lacking 
in specifity and is framed in the broadest general terms. The 
moving party may wish to amend its proposal and resubmit it as a 
comprehensive plan of desegregation.

In order that the further proceedings in this cause may be 
conducted on a reasonble time schedule, and because the views of 
counsel respecting further proceedings cannot but be of assistance 
to them and to the Court, this cause will be set down for pre-trial 
conference on the matter of relief. The conference will be held in 
our Courtroom in the City of Detroit at ten o ’clock in the 
morning, October 4, 1971.

DATED: September 27, 1971

M _______________________ _
Stephen J. Roth 

United States District Judge



40a

Proceedings had in the above-entitled matter before 
Honorable Stephen J. Roth, United States District Judge, at 
Detroit, Michigan on Monday, October 4, 1971.

[3] THE CLERK: Case No. 35257 Bradley versus Milliken. 
THE COURT: Are all the parties represented this morning? 
MR. LUCAS: Yes.
THE COURT: I take it they are.
As 1 indicated at the close of my opinion recently rendered, I 

thought it would be advisable for me to get together with counsel 
on this occasion so that we might chart our course from here on in 
these proceedings.

The Court has made its determination of things as they are, or 
as it found things in the public school system of the City of 
Detroit. Our concern now-to take a thought from Aristotle-is of 
things as they might be, or ought to be.

Before ordering the local and state school authorities to 
present desegregation plans, the Court thought it best to call this 
conference so that it might have the benefit of your views with 
respect to a timetable for further proceedings, and so that you 
might have the benefit of some of the thoughts of the Court.

As the Court indicated during the course of [4] the taking of 
proofs, it entertains serious reservations about a plan of 
integration, which encompasses no more than the public schools 
of the City of Detroit. It appears to us that perhaps only a plan 
which embraces all or some of the greater Detroit metropolitan 
area can hope to succeed in giving our children the kind of 
education they are entitled to constitutionally. And we note here 
that the metropolitan area is like a giant jig-saw puzzle, with the 
school districts cut into irregular pieces, but with the picture quite 
plainly that of racial segregation.

We need not recite the many serious problems such a plan 
entails, suffice it to say that a plan of such dimensions can hardly 
e conceived in a day, to say nothing of the time it will require for 

implementation. A large metropolitan area such as we have in our 
case can not be made the subject of instant integration. We must 
ear in mind that the task we are called upon to perform is a social



41a

one, which society has been unable to accomplish. In reality, our 
courts are called upon, in these school cases, to attain a social goal, 
through the educational system, by using law as a lever.

If a metropolitan plan is our best answer to the problem, its 
formulation and implementation with require both time and 
patience. As Senior Circuit Judge O’Sullivan said in the Knoxville, 
Tennessee school case:

[5] “The hope, or dream, that one day we will have become a 
people without motivations born of our differing racial beginnings 
will have a better chance of fulfillment if patience accompanies 
our endeavors.”

I would sum up our endeavors in developing a metropolitan 
plan as an embarkation on an uncharted course in strange waters 
in an effort to rescue disadvantaged children. It behooves us to 
take proper soundings and proceed with care. To use the 
vernacular “ Right on!” but steady as we go.

My comments respecting a metropolitan plan should not be 
understood to mean that there should be any pause in Detroit 
Board’s efforts to affirmatively desegregate its schools. The Court 
envisions no real conflict between early desegregation or 
integration of its schools and the possible adoption later of a 
metropolitan plan.

Earlier in this case the Court acceded to the wish of the Board 
to adopt the so-called Magnet Plan. We do not presently have 
before us enough information or evidence on the question of its 
worth or value in terms of experience. In this respect the Court 
wishes to be better informed.

If that plan is not delivering on its promise to provide an 
improved integrated quality education it should be abandoned, 
and the Board should consider putting before [6 ]  the Court an 
up-dated April 7 Plan, or such other plan as, in its judgment, will 
most effectively accomplish desegregation in its schools. If the 
Magnet Plan is proving itself then the Board might well consider 
whether features of the April 7 Plan, for example, the change to 
an east-west, rather than north-south orientation of attendance 
zones, can be incorporated in it in the interest of advancing 
integration.

What we have said are all generalities. They have to do with



42a

possible courses of action. My remarks, however, are not intended 
as a limitation on the Board or on the state authorities in 
discharging their duties to move as rapidly as possible toward the 
goal of desegregation.

I want to make it plain I have no preconceived notions about 
the solutions or remedies which will be required here. Of course, 
the primary and basic and fundamental responsibility is that of the 
school authorities. As Chief Justice Burger said in the recent case 
of Davis v Board of School Commissioners:

“—school authorities should make every effort to achieve 
the greatest possible degree of actual desegregation, taking 
into account the practicalities of the situation.”
Because these cases arise under different local conditions and 

involve a variety of local problems their [7] remedies likewise will 
require attention to the specific case. It is for that reason that the 
Court has repeatedly said, the Supreme Court, that each case must 
be judged by itself in its own peculiar facts.

As early as Brown II the court had this to say:
“Full implementation of these constitutional principles may 

require solution of varied local school problems. School 
authorities have the primary responsibility for elucidating, 
assessing, and solving these problems; courts will have to 
consider whether the action of school authorities constitutes 
good faith implementation of the governing constitutional 
principles.

“In fashioning and effectuating the decrees, the courts will 
be guided by equitable principles.... At stake is the personal 
interest of the plaintiffs in admission to public schools as soon 
as practicable on a nondiscriminatory basis.”
I might say in that regard, as you lawyers know the Supreme 

Court took a little over a year to implement Brown I and Brown 
IC So they themselves, with better minds than mine and to the 
number of nine, had difficulty in resolving the problems that those 
four cases presented.

I would like to hear from counsel with respect [8] to a 
timetable for the formulation and presentation of a plan of 
segregation; first by the Board of the City of Detroit and then



43a

by the state officials.
***

[26] THE COURT: Within thirty days the Detroit Board of 
Education should submit to the Court a concise report of progress 
on the Magnet Plan, and along with it an evaluation of its worth in 
helping to bring about a better and higher quality of education. 
Copies of both the report and also the [27] evaluation shall be 
made available to the other parties litigant at the same time.

Such other parties may have ten additional days in which to 
submit their views and evaluations of the progress under the 
Magnet Plan.

It is further ordered that the Detroit Board of Education 
submit its plan for desegregation of its schools within sixty days.

It is ordered that the State defendants submit a metropolitan 
plan of desegregation, perhaps in more or less skeletal form, within 
one hundred twenty (120) days.

Objections to each plan, city and metropolitan, may be filed 
by the other parties litigant not later than thirty days after the 
expiration of the time set. Such objections may be accompanied 
by alternate plans.

I want to underline something I already said and add to it a 
general observation to sum up. Lest there be some 
misunderstanding, because of the observations I made, let it be 
understood I had no preconceived notion about what the Board of 
Education should do in the way of desegregating its schools nor 
the outlines of a proposed metropolitan plan. The options are 
completely open.

With respect to matters of speed in having a plan or having 
plans and proceeding on them, I think you should [28] know 
something about my manner of working. In a case, particularly 
like this, I feel my way to a decision and I certainly don’t propose 
to jump to judgment.

I would remind counsel as I keep reminding myself in this 
case that our objective is quality education for all of our children. 
I am not too concerned about the parties litigant here. Depending 
on what we do, the winners or losers in this case will be the school 
children now living, as well as those yet to be born. I am reminded



44a

of that by Mr. Ritchie’s observation that he considers his plan one 
that will reach into the future.

With respect to remarks you gentlemen have made about 
other school districts, I am not going to make any definitive ruling 
at this time. We haven’t come to that pass yet. I don’t see much 
disagreement, Mr. Krasicky, between you and Mr. Lucas on that 
point. I don’t think Mr. Lucas said that they should not be heard. 
He is addressing himself to the matter of mechanics, how you do 
it, and, of course, as you well know it is overwhelming to consider 
joining 50, 60, or 80 other parties to this law suit, each of which is 
composed of superintendents and boards.

On the other hand I do not propose to stop the voice of 
anybody who is apt to be affected by the plan. So this is a matter 
of mechanics. When the time comes that [29] action has to be 
taken in that regard we will give it further thought and make a 
decision that we believe will be a fair one and yet will permit us to 
proceed with some dispatch in achieving some remedial effects and 
perhaps putting into effect some plans for desegregation.

The time table is understood, is it?
MR. BUSHNELL: Yes, sir.
MR. LUCAS: Yes.
THE COURT: I am not going to-unless you gentlemen 

want-to prepare an order, I am not going to prepare a formal 
order.

MR. BUSHNELL: I don’t believe it is necessary, your Honor. 
We understand the timetable.

THE COURT: Anybody disagree with that?
Anything further at this time, gentlemen, with respect to the 

matter before us?
MR. KRASICKY: I take it if there will be further hearings we 

will be notified in due time?
THE COURT: Yes. I have not come back to the point 

r°ught out by Mr. Bushnell. I don’t know what the report and 
Me evaluation by the Board and the criticisms that might be 
° ered by other parties litigant will amount to. Should it develop 

at I wish to have testimony on disputed points we may schedule



45a

them. That will just have to wait until I have received [30] the 
report and evaluations.

Gentlemen, thank you for your attendance and your 
assistance.

We will be in recess.



46a

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al„ )
Plaintiffs )

v- )
WILLIAM G. MILLIKEN, et al„ )

Defendants )
DETROIT FEDERATION OF TEACH- )
ERS, LOCAL NO. 231, AMERICAN FED- ) CIVIL ACTION 
ERATION OF TEACHERS, AFL-CIO, ) NO. 35257

Defendant- )
Intervenor )

and )
DENISE MAGDOWSKI, et al„ )

Defendants- )
Intervenor )

ORDER

At a session of said Court held in the Federal Building, City of 
Detroit, on this 4th day of OCTOBER, A.D. 1971.

PRESENT: HONORABLE STEPHEN J. ROTH 
United States District Judge

The Court having entered its findings of fact and conclusions 
0 law 011 the issue of segregation on September 27, 1971;

IT IS ORDERED that the Detroit Board of Education submit 
a report on and an evaluation of the so-called Magnet Plan within 

days; and that other parties litigant may within 10 days there- 
a ter file responses to such report and evaluation.

Ed ^ - ^  FURTHER ORDERED that the Detroit Board of
ucation submit a plan for the desegregation of its schools within 

ou days.



47a

IT IS FURTHER ORDERED that the State Defendants 
submit a metropolitan plan of desegregation within 120 days.

IT IS FURTHER ORDERED that as to both the Detroit and 
the State plans, other parties litigant shall have an additional 30 
days in which to submit objections and/or alternate plans.

I si STEPHEN J. ROTH________
UNITED STATES DISTRICT JUDGE

DATE: November 5, 1971. 
SIGNED:



48a

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al„ )
Plaintiffs )

v. )
WILLIAM G. MILLIKEN, et al„ )

Defendants )
DETROIT FEDERATION OF TEACH- ) 
ERS, LOCAL NO. 231, AMERICAN ) 
FEDERATION OF TEACHERS, AFL-CIO, )

Defendant- ) 
Intervenor )

and )
DENISE MAGDOWSKI, et al„ )

Defendants- )
Intervenor )

et al. )

CIVIL ACTION 
NO. 35257

RULING ON PROPRIETY OF CONSIDERING A METROPOLITAN 
REMEDY TO ACCOMPLISH DESEGREGATION OF THE PUBLIC 

SCHOOLS OF THE CITY OF DETROIT

In its prior ruling, “ Ruling on Issue of Segregation” 
(September 27, 1971), the court has found that segregation exists 
in the public schools of the City of Detroit because of, among 
other causes, the acts of the State of Michigan and the Detroit 
Board of Education. In the language of Swann, f 1 ] “ a right and a 
violation have been s h o w n . Given the constitutional violation, 
judicial authority, when properly invoked, must be exercised to 
right the wrong. In addressing itself to this task the Supreme Court 
has said that the “ scope of a district court’s equitable powers to 
remedy past wrongs is broad, for breadth and flexibility are



49a

inherent in equitable remedies.” ^ ]  And, it pointed out, “a school 
desegregation case does not differ fundamentally from other cases 
involving the framing of equitable remedies to repair the denial of 
a constitutional right.” [4] The task is to correct the condition 
which offends the Constitution. Illustrative of what was meant by 
the Supreme Court, see the legislative and congressional 
reapportionment cases.f^l

Under the circumstances of this case,[6] the question 
presented is whether the court may consider relief in the form of a 
metropolitan plan, encompassing not only the City of Detroit, but 
the larger Detroit metropolitan area which, for the present 
purposes, we may define as comprising the three counties of 
Wayne, Oakland and Macomb. It should be noted that the court 
has just concluded its hearing on plans submitted by the plaintiffs 
and the Detroit Board of Education for the intra-city 
desegregation of the Detroit public schools. A ruling has not yet 
been made on these plans, but in accordance with the mandate of 
the Court of Appeals that a hearing on the merits be concluded at 
the earliest possible time, we consider it necessary to proceed 
apace with a resolution of the issue before us, i.e., the propriety of 
weighing the legal availability of a metropolitan remedy for 
segregation.

The State defendants in this case take the position, as we 
understand it, that no “state action” has had a part in the 
segregation found to exist. This assertion disregards the findings 
already made by this court, and the decision of the Court of 
Appeals as well.[7] Additionally, they appear to view the



50a

delegation of the State’s powers and duties with respect to 
education to local governmental bodies as vesting the latter with 
sovereign powers which may not be disturbed by either the State 
or the court. This we cannot accept. Political subdivisions of the 
states have never been considered sovereign entities, rather “They 
have been traditionally regarded as subordinate governmental 
instrumentalities created by the state to assist it in carrying out of 
state governmental functions.” Reynolds v. Sims, 377 U.S. 533, 
575. Perhaps the clearest refutation of the State’s asserted lack of 
power to act in the field of education is Act 48 of 1970. The State 
cannot evade its constitutional responsibility by a delegation of 
powers to local units of government. The State defendants’ 
position is in error in two other respects: 1. The local school 
districts are not fully autonomous bodies, for to the extent it has 
seen fit the State retains control and supervision; and 2. It 
assumes that any metropolitan plan, if one is adopted, would, of 
necessity, require the dismantling of school districts included in 
the plan.

The main thrust of the objections to the consideration of a 
metropolitan remedy advanced by intervening school districts is 
that, absent a finding of acts of segregation on their part, 
individually, they may not be considered in fashioning a remedy 
for relief of the plaintiffs. It must be conceded that the Supreme 
Court has not yet ruled directly on this issue; accordingly, we can 
only proceed by feeling our way through its past decisions with 
respect to the goal to be achieved in school desegregation cases. 
Green v. County School Board, 391 U.S. 430, teaches us that it is 
our obligation to assess the effectiveness of proposed plans of 
desegregation in the light of circumstances present and the 
available alternatives; and to choose the alternative or alternatives 
which promise realistically to work now and hereafter to produce 
the maximum actual desegregation. As Chief Justice Burger said in 
Swann, “in seeking to define the scope of remedial power of 
courts in an area as sensitive as we deal with here, words are poor 
instruments to convey the sense of basic fairness inherent in 
equity.” Substance, not semantics, must govern.



51a

It seems to us that Brown is dispositive of the issue:

‘ 'In fashioning and effectuating the decrees, the courts will be 
guided by equitable principles. Traditionally, equity has been 
characterized by a practical flexibility in shaping its remedies 
and by a facility for adjusting and reconciling public and 
private needs. These cases call for the exercise of these 
traditional attributes of equity power. At stake is the personal 
interest of the plaintiffs in admission to public schools as soon 
as practicable on a nondiscriminatory basis. To effectuate this 
interest may call for elimination of a variety of obstacles in 
making the transition to school systems operated in 
accordance with the constitutional principles set forth in our 
May 17, 1954, decision. Courts of equity may properly take 
into account the public interest in the elimination of such 
obstacles in a systematic and effective manner. But it should 
go without saying that the vitality of these constitutional 
principles cannot be allowed to yield simply because of 
disagreement with them.”

❖  *  *

“ *** courts may consider problems related to administra­
tion, arising from the physical condition of the school plant, 
the school transportation systems, personnel, revision of 
school districts and attendance areas into compact units to 
achieve a system of determining admission to the public 
schools on a nonracial basis, and revision of local laws and 
regulations which may be necessary in solving the foregoing 
problems.”

We conclude that it is proper for the court to consider 
metropolitan plans directed toward the desegregation of the 
Detroit public schools as an alternative to the present intra-city 
desegregation plans before it and, in the event that the court finds 
such intra-city plans inadequate to desegregate such schools, the 
court is of the opinion that it is required to consider a 
metropolitan remedy for desegregation.



52a

The schedule previously established for the hearing on 
metropolitan plans will go forward as noticed, beginning March 
28, 1972.

DATE: March 24th, 1972.

h/_________________________
Stephen J. Roth 

United States District Judge

[1]
Swann v. Charlotte-Mecklenburg Bd. o f Ed., 402 U.S. 1.

[2]
Ibid., p. 15.

[31
Ibid., p. 15.

[4]
Ibid., pp. 15,16.

[5]
Reynolds v. Sims, 377 U.S. 533.

[6]
See “ Ruling on Issue o f Segregation,”  supra, indicating a black student 

projection for the school year 1980-81 of 80.7%.

[7]
See “ Ruling on Issue o f Segregation,”  supra; Bradley v. Milliken, 433 

F.2d 897.
[ 8 ]

Brown v. Bd. of Ed. of Topeka, 349 U.S. 294, at 300 and 301.



53a

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al., )
Plaintiffs )

v. )
WILLIAM G. MILLIKEN, et al., )

Defendants )
DETROIT FEDERATION OF TEACH- ) CIVIL ACTION 
ERS, LOCAL NO. 231, AMERICAN FED- ) NO: 35257 
ERATION OF TEACHERS, AFL-CIO, )

Defendant- )
Intervenor )

and )
DENISE MAGDOWSKI, et al., )

Defendants- )
Intervenor )

et al. )

FINDINGS OF FACT AND CONCLUSIONS OF LAW
ON

DETROIT-ONLY PLANS OF DESEGREGATION

In accordance with orders of the court defendant Detroit 
Board of Education submitted two plans, limited to the corporate 
limits of the city, for desegregation of the public schools of the 
City of Detroit, which we will refer to as Plan A and Plan C; plain­
tiffs submitted a similarly limited plan, which will be referred to as 
the Foster Plan. Hearings were had on said plans on March 14, 15, 
16, 17 and 21, 1972. In considering these plans the court does not 
limit itself to the proofs offered at the hearing just concluded; it 
considers as part of the evidence bearing on the issue ( i.e., City- 
Only Plans) all proofs submitted in the case to this point, and it 
specifically incorporates herein by reference the Findings and Con­
clusions contained in its “ Ruling on Issue of Segregation,” filed 
September 27, 1971.

The court makes the following factual findings:



54a

PLAN A.

1. The court finds that this plan is an elaboration and exten­
sion of the so-called Magnet Plan, previously authorized for imple­
mentation as an interim plan pending hearing and determination 
on the issue of segregation.

2. As proposed we find, at the high school level, that it offers 
a greater and wider degree of specialization, but any hope that it 
would be effective to desegregate the public schools of the City of 
Detroit at that level is virtually ruled out by the failure of the cur­
rent model to achieve any appreciable success.

3. We find, at the Middle School level, that the expanded 
model would affect, directly, about 24,000 pupils of a total of
140,000 in the grades covered; and its effect would be to set up a 
school system within the school system, and would intensify the 
segregation in schools not included in the Middle School program. 
In this sense, it would increase segregation.

4. As conceded by its author, Plan A is neither a desegre­
gation nor an integration plan.

PLAN C.

1. The court finds that Plan C is a token or part-time desegre­
gation effort.

2. We find that this plan covers only a portion of the grades 
and would leave the base schools no less racially identifiable.

PLAINTIFFS’ PLAN.

1. The court finds that Plaintiffs’ Plan would accomplish 
more desegregation than now obtains in the system, or would be 
achieved under Plan A or Plan C.

2. We find further that the racial composition of the student 
body is such that the plan’s implementation would clearly make 
the entire Detroit public school system- racially identifiable as 
Black.



55a

3. The plan would require the development of transportation 
on a vast scale which, according to the evidence, could not be 
furnished, ready for operation, by the opening of the 1972-73 
school year. The plan contemplates the transportation of 82,000 
pupils and would require the acquisition of some 900 vehicles, the 
hiring and training of a great number of drivers, the procurement 
of space for storage and maintenance, the recruitment of main­
tenance and the not negligible task of designing a transportation 
system to service the schools.

4. The plan would entail an overall recasting of the Detroit 
school system, when there is little assurance that it would not have 
to undergo another reorganization if a metropolitan plan is 
adopted.

5. It would involve the expenditure of vast sums of money 
and effort which would be wasted or lost.

6. The plan does not lend itself as a building block for a met­
ropolitan plan.

7. The plan would make the Detroit school system more 
identifiably Black, and leave many of its schools 75 to 90 per cent 
Black.

8. It would change a school system which is now Black and 
White to one that would be perceived as Black, thereby increasing 
the flight of Whites from the city and the system, thereby in­
creasing the Black student population.

9. It would subject the students and parents, faculty and 
administration, to the trauma of reassignments, with little likeli­
hood that such reassignments would continue for any appreciable 
time.

In summary, we find that none of the three plans would result 
in the desegregation of the public schools of the Detroit school 
district.



56a

CONCLUSIONS OF LAW

1. The court has continuing jurisdiction of this action for all 
purposes, including the granting of effective relief. See Ruling on 
Issue of Segregation, Sepember 27, 1971.

2. On the basis of the court’s finding of illegal school segre­
gation, the obligation of the school defendants is to adopt and 
implement an educationally sound, practicable plan of desegre­
gation that promises realistically to achieve now and hereafter the 
greatest possible degree of actual school desegregation. Green v. 
County School Board, 391 U.S. 430; Alexander v. Holmes County 
Board of Education, 396 U.S. 19; Carter v. West Feliciana Parish 
School Board, 396 U.S. 290; Swann v. Charlotte-Mecklenburg 
Board of Education, 402 U.S. 1.

3. Detroit Board of Education Plans A and C are legally insuf­
ficient because they do not promise to effect significant desegre­
gation. Green V. County School Board, supra, at 439-440.

4. Plaintiffs’ Plan, while it would provide a racial mix more in 
keeping with the Black-White proportions of the student popula­
tion than under either of the Board’s plans or as the system now 
stands, would accentuate the racial identifiability of the district as 
a Black school system, and would not accomplish desegregation.

5. The conclusion, under the evidence in this case, is 
inescapable that relief of segregation in the public schools of the 
City of Detroit cannot be accomplished within the corporate geo­
graphical limits of the city. The State, however, cannot escape its 
constitutional duty to desegregate the public schools of the City 
of Detroit by pleading local aurhority. As Judge Merhige pointed 
out in Bradley v. Richmond, (slip opinion p. 64):

“The power conferred by state law on central and local offi­
cials to determine the shape of school attendance units cannot 
be employed, as it has been here, for the purpose and with the 
effect of sealing off white conclaves of a racial composition 
more appealing to the local electorate and obstructing the 
desegregation of schools. The equal protection clause has



57a

required far greater inroads on local government structure 
than the relief sought here, which is attainable without devi­
ating from state statutory forms. Compare Reynolds v. Sims, 
377 U.S. 533; Gomillion v. Lightfoot, 364 U.S. 339; Serrano 
v. Priest, 40 U.S.L.W. 2128 (Calif. Sup. Ct. Aug. 30, 1971).

“ In any case, if political boundaries amount to insuperable 
obstacles to desegregation because of structural reason, such 
obstacles are self-imposed. Political subdivision lines are crea­
tions of the state itself, after all.”

School district lines are simply matters of political con­
venience and may not be used to deny constitutional rights. If the 
boundary lines of the school districts of the City of Detroit and 
the surrounding suburbs were drawn today few would doubt that 
they could not withstand constitutional challenge. In seeking for 
solutions to the problem of school segregation, other federal 
courts have not “ treated as immune from intervention the admini­
strative structure of a state’s educational system, to the extent 
that it affects the capacity to desegregate. Geographically or 
administratively independent units have heen compelled to merge 
or to inititate or continue cooperative operation as a single system 
for school desegregation purposes.” 1

That the court must look beyond the limits of the Detroit 
school district for a solution to the problem of segregation in the 
Detroit public schools is obvious; that it has the authority, nay 
more, the duty to (under the circumstances of this case) do so 
appears plainly anticipated by Brown II,2 seventeen years ago. 
While other school cases have not had to deal with our exact 
situation, 3 the logic of their application of the command of 
Brown II supports our view of our duty.

Date: MARCH 28th, 1972.

/s /______________________
Stephen J. Roth 

United States District Judge



58a

FOOTNOTES
[11
Bradley v. Richmond, supra [slip opinion p. 68].

[21
Brown v. Bd. o f Ed. o f Topeka, 349 U.S. 294, pp. 300-301. 3

[3]
Haney v. County Board o f Education of Sevier County, 410 F.2d 920 (8th 
Cir. 1969);Bradley v. School Board o f the City of Richmond, supra, slip 
opinion pp. 664-65; Hall v. St. Helena Parish School Board, 197 F. Supp. 649 
(E.D. La. 1961), aff’d. 287 F.2d 376 (5th Cir. 1961) and 368 U.S. 515 
(1962); Lee v. Macon County Bd. o f Educ., 448 F.2d 746, 752 (5th Cir. 
1971); Gomillion v. Lightfoot, 364 U.S. 339 (1960); Turner v. Littleton-Lake 
Gaston School Dist., 442 F.2d 584 (4th Cir. 1971); United States v. Texas 
447 F.2d 551 (5th Cir. 1971); Lemon v. Bossier Parish School Board, 446 
F.2d 911 (5th Cir. 1971).



59a

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al.,
Plaintiffs

WILLIAM G. MILLIKEN, et al.,
Defendants

and
DETROIT FEDERATION OF TEACHERS, 
LOCAL 231, AMERICAN FEDERA­
TION OF TEACHERS, AFL-CIO,

Defendant- 
In tervenor

and
DENISE MAGDOWSKI, et al.,

Defendants-
Intervenor

et al.

CIVIL ACTION NO 
35257

FINDINGS OF FACT AND CONCLUSIONS OF LAW 
IN SUPPORT OF RULING

ON DESEGREGATION AREA AND DEVELOPMENT OF PLANS

On the basis of the entire record in this action, including 
particularly the evidence heard by the court from March 28 
through April 14, 1972, the court now makes the following 
Supplementary Findings of Fact and Conclusions of Law. h



60a

should be noted that the court has taken no proofs with respect 
to the establishment of the boundaries of the 86 public school 
districts in the counties of Wayne, Oakland and Macomb, nor 
on the issue of whether, with the exclusion of the city of 
Detroit school district, such school districts have commited acts 
of de jure segregation.

INTRODUCTION

1. On September 27, 1971, this court issued its Ruling on 
Issue of Segregation. On October 4, 1971, this court issued 
from the bench guidelines to bind the parties in the submission 
of plans to remedy the constitutional violation found, i.e., 
school segregation; and in particular this court noted that the 
primary objective before us was to deveop and implement a 
plan which attempts to “ achieve the greatest possible degree of 
actual desegregation, taking into account the practicalities of 
the situation.” The same day this court reiterated these require­
ments by orders “ that the Detroit Board of Education submit a 
plan for the desegregation of its schools within 60 days” and 
“that the State defendants submit a metropolitan plan of de­
segregation within 120 days.” In response to these orders hear­
ings were held, and thereafter rulings issued, on Detroit-only 
plans (see Findings of Fact and Conclusions of Law on Detroit- 
Only Plans of Desegregation) and on the propriety of con­
sidering remedies which extend beyond the corporate 
geographic limits of the City of Detroit. (See Ruling on Pro­
priety of Considering a Metropolitan Remedy to Accomplish 
Desegregation of the Public Schools of the City of Detroit.) 
Between March 28, 1972 and April 14, 1972, hearings were 
held on metropolitan proposals for desegregation of the Detroit 
public schools.

2. From the initial ruling on September 27, 1971, to this 
day, the basis of the proceedings has been and remains the 
violation: de jure school segregation. Since Brown v. Board of 
Education the Supreme Court has consistently held that the 
remedy for such illegal segregation is desegregation. The racial 
history of this country is writ large by constitutional adjudica­
tion from Dred Scott v. Sanford to Plessy v. Ferguson to



61a

Brown. The message in Brown was simple: The Fourteenth 
Amendment was to be applied full force in public schooling. 
The Court held that “ state-imposed” school segregation 
immeasurably taints the education received by all children in 
the public schools; perpetuates racial discrimination and a his­
tory of public action attaching a badge of inferiority to the 
black race in a public forum which importantly shapes the 
minds and hearts of succeeding generations of our young 
people; and amounts to an invidious racial classification. Since 
Brown the Supreme Court has consistently, and with increasing 
force, held that the remedy upon finding de jure segregation is 
prompt and maximum actual desegregation of the public 
schools by all reasonable, feasible, and practicable means avail­
able. This court finds that there is nothing in the law, wisdom, 
or facts, and the particular circumstances and arguments, 
presented in this case which suggest anything except the affir­
mance of these principles in both fact and law.

3. The task before this court, therefore, is now, and, since 
September 27, 1971, has always been, how to desegregate the 
Detroit public schools. The issue, despite efforts of the inter- 
venors to suggest a new rationale for a return to the discredited 
“ separate but equal” policy, 1 is not whether to desegregate. 
That question has been foreclosed by the prior and settled com­
mands of the Supreme Court and the Sixth Circuit. Our duty 
now is to “ grapple with the flinty, intractable realities” - of 
implementing the constitutional commands.

4. In the most recent set of hearings, several issues were 
addressed generally, including appropriate methods of pupils 
reassignment to desegregate schools; quality and capacity of 
school facilities; transportation needs incident to school de­
segregation; the effects of new school construction, and 
judicially established controls thereon, on any plan of de­
segregation; the reassignment of faculty and restructuring ot 
facilities incident to pupil reassignment to accomplish school 
desegregation; appropriate and necessary interim and final 
administrative and financial arrangements; appropriate com­
munity, parental, staff, and pupil involvement in the deseg­
regation process; and attention to individual, cultural, an



62a

ethnic values, respect, dignity and identity. But the primary 
question addressed by these hearings, in the absence of submis­
sion of a complete desegregation plan by the state, remains the 
determination of the area necessary and practicable effectively 
to eliminate “ root and branch” the effects of state-imposed and 
supported segregation and to desegregate the Detroit public 
schools.

SUPPLEMENTARY FINDINGS OF FACT

A. The Desegregation Area

5. The State Board of Education filed six (6) “ plans” 
without recommendation or preference; intervening defendants 
Magdowski, et al., filed a proposal for metropolitan desegrega­
tion which included most of the tri-county area; the defendant 
Detroit Board of Education filed a proposal for metropolitan 
desegregation which included the entire tri-county area. 3 At 
the hearing plaintiffs presented a modification of the three pro­
posals which actually described areas within which pupil deseg­
regation was to be accomplished.

6. In the consideration of metropolitan plans of deseg­
regation of the Detroit public schools, the State defendants 
stand as the primary defendants. They bear the initial burden of 
coming forward with a proposal that promises to work. In the 
context of this case, they represent the “ school authorities ” 4 
to whom equity courts traditionally have shown deference in 
these matters. 5 Yet in its submission without recommendation 
of six (6) “ plans” the State Board of Education has failed to 
meet, or even attempt to meet, that burden and none of the 
other State defendants has filled the void.

7. The State Board refused to make any recommenda­
tions to the court about the appropriate area for desegregation. 
In State Defendant Porter’s words, the State Board “ didn’t 
make a decision, period.” Defendants Milliken and Kelley 
merely filed objections to all six (6) plans.

8. Three of the State “ plans” merely proposed concepts 
alternative to maximum actual desegregation. The Racial 
Proportion Plan described a statistical method of determining the



63a

number of transfers involved in achieving a particular racial 
ratio in each school once an area of desegregation had been 
chosen. The Equal Educational Opportunity and Quality 
Integration Plan was admitted to be a non-plan and described 
criteria for education which, in whole or part, might, or might 
not, be applicable to any school system.

9. Only one State “ plan,” the Metropolitan District Re­
organization Plan, attempted to describe an area within which 
desegregation should occur, called the “ initial operating zone” 
(sometimes referred to hereafter as the “ State Proposal” ). That 
“ plan,” however, was primarily concerned with discussing a new 
governance structure for the desegregation area. Pupil reassign­
ment was mentioned only in passing and no foundation was laid 
by State defendants for the particular area of desegregation 
described. Further, it suffered from the default of the State 
defendants by their stubborn insistence that under their self- 
serving, and therefore self-limiting, view of their powers they 
were free to ignore the clear order of this court and abdicate 
their responsibility vested in them by both the Michigan and 
Federal Constitution for supervision of public education and 
equal protection for all citizens.

10. From the very limited evidence in the record in sup­
port of the area in that state proposal, the primary foundation 
appears to be the particular racial ratio attained in that plan, 
approximately 65% black, 35% white, with the provision that 
the area could be expanded if “white flight” ensued. In the 
absence of any other persuasive foundation, such area is not 
based on any definable or legally sustainable criteria for either 
inclusion or exclusion of particular areas; and the concept of an 
“ initial operating zone” raises serious practical questions, which 
should be avoided if a more permanent solution is now possible. 
In short, the area described by the “ initial operating zone” does 
not appear to be based primarily on relevant factors, like elim­
inating racially identifiable schools; accomplishing maximum 
actual desegregation of the Detroit public schools; or avoiding, 
where possible, maintaining a pattern of schools substantially 
disproportionate to the relevant school community’s racial com­
position by force of deliberate action by public authority. Nor,



64a

on the evidence in this record, is the “ initial operating zone” 
based on any practical limitation of reasonable times and dis­
tances for transportation of pupils. These factors seem to have 
played little part in the creation of the “ initial operating zone” 
and are reflected less in its result.

11. At the hearings, moreover, the State defendants did 
not purport to present evidence in support, or even in opposi­
tion, to the State Proposal. The State, despite prodding by the 
court, presented only one witness, who merely explained what 
appeared on the face of the various State “Plans” submitted. 
The State’s cross examination of witnesses was of no assistance 
to the court in ascertaining any preference, legal or educational. 
Put bluntly, State defendants in this hearing deliberately chose 
not to assist the court in choosing an appropriate area for effec­
tive desegregation of the Detroit public schools. Their resistance 
and abdication of responsibility throughout has been consistent 
with the other failures to meet their obligations noted in the 
court’s earlier rulings. Indeed, some of the submissions spoke as 
clearly in opposition to desegregation as did the legislature in 
Sec. 12 of Act 48 ruled unconstitutional by the Sixth Circuit.

12. In such circumstances little weight or deference can be 
given to the unsupported submission of the State Board of 
Education. In light of the available alternatives and the facts 
produced at the hearing bearing on the issue, the court finds 
that State defendants offered no basis for ruling that the “ initial 
operating zone” is the appropriate area within which to effec­
tively desegregate the Detroit public schools.

13. Similarly, the newly intervening, defendant school dis­
tricts did not attempt at the hearing to assist the court in 
determining which area was appropriate to accomplish effective 
desegregation. They were given the opportunity, by express 
written order and several admonitions during the course of the 
hearings, to assist the court in the task at hand but chose in 
their best judgment instead, in the main, to suggest their view 
that separate schools were preferable. The failure of the group 
of 40 districts to even comment that the court should exclude 
certain districts under any number of available rationales may in



65a

part be explained by the awkward position chosen by them and 
their counsel of having single representation for districts on 
different sides of the various suggested perimeters.

14. The plans of intervening defendants Magdowski, et al, 
and the defendant Detroit Board of Education are similar. With 
slight variations they include the entire tri-county, metropolitan 
Detroit area, with that area divided into several regions or 
clusters to make the planning for accomplishing desegregation 
more manageable. Although both have as their main objective 
desegregation, their larger area arises primarily from a heavy 
emphasis on such factors as white flight and an appropriate 
socio-economic balance in each cluster and school. 6

15. The authors of the Detroit Board and Magdowski 
plans readily admit that the regions or clusters for pupil reas­
signment which involve Mt. Clemens and Pontiac are not direct­
ly related to desegregation of the Detroit public schools and 
may be disregarded without any substantial adverse effect on 
accomplishing our objective. No other party has expressed any 
disagreement with that view. And the court finds that these two 
regions or clusters, for purposes of pupil reassignment, need not 
be included at this time in the desegregation area.

16. With the elimination of these two clusters there are, 
then, three basic proposals to be considered for the desegrega­
tion area: the State Proposal; the Detroit Board Proposal, and 
the proposal of defendant-intervenors Magdowski, et al. In 
addition, as noted, plaintiffs filed a modification of these three 
proposals.

17. Each of these proposals starts from the same two 
premises: (1) the tri-county area  ̂ constitutes the relevant 
school community which can serve as an initial benchmark in 
beginning the evaluation of how to effectively eliminate the 
racial segregation of Detroit schools; (2) but in some instances 
reasonable time and distance limitations for pupil transporta­
tion, and in other instances the actual area required to eliminate 
the pattern of racially identifable schools, limit the area within 
which pupil reassignment should occur. In terms of proof, put­
ting aside arguments of impotence by the State defendants,



66a

there was absolutely no contradictory evidence on these two 
criteria. The entire tri-county area includes areas, pupils, and 
schools in 86 school districts; it includes approximately one 
million students, of whom approximately 20% are black. Based 
on the evidence concerning school and non-school factors, 8 
and reasonable time and distance limitations for pupil transpor­
tation, the court finds that both premises are accurate.^

18. The State Proposal includes the areas, pupils and 
school in 36 school districts, approximately 550,000 students 
are included of whom 36% are black. The Detroit Board Pro­
posal (excluding clusters 8 and 12) includes the areas, pupils, 
and schools in 69 school districts; approximately 850,000 stu­
dents are included, of whom 25% are minority. ^  The CCBE 
Proposal includes the areas, pupils, and schools in some 62 
school districts; approximately 777,000 students are included 
of whom 197,000 (25.4%) are black. Plaintiffs’ Proposal 
includes the areas, pupils, and schools in 54 school districts; 
approximately 780,000 students are included, of whom
197,000 (25.3%) are black.

19. The State Proposal approaches what may be con­
sidered a substantial disproportion in the context of this case. It 
is to be remembered that within any desegregation area, the 
racial composition of desegregated schools will vary from the 
area’s racial mix. Given the variations in school plant, demo­
graphic and geographic factors, limiting the desegregation area 
to the State Proposal would result in some schools being sub­
stantially disproportionate in their racial composition to the 
tri-county area, and other schools racially identifable, all with­
out any justification in law or fact. This finding is supported by 
the lack of any apparent justification for the desegregation area 
described by the State Proposal except a desire to achieve an 
arbitrary racial ratio. 20

20. Transportation of children by school bus is a common 
practice throughout the nation, in the state of Michigan, and in 
the tri-county area. Within appropriate time limits it is a con­
siderably safer, more reliable, healthful and efficient means of 
getting children to school than either car pools or walking, and 
this is especially true for younger children.



67a

21. In Michigan and the tri-county area, pupils often 
spend upwards of one hour, and up to one and one half hours, 
one-way on the bus ride to school each day. Consistent with its 
interest in the health, welfare and safety of children and in 
avoiding impingement on the educational process, state educa­
tional authorities routinely fund such transportation for school 
children. Such transportation of school children is a long­
standing, sound practice in elementary and secondary education 
in this state and throughout the country. And the court finds 
such transportation times, used by the state and recommended 
here, are reasonable in the circumstances here presented and 
will not endanger the health or safety of the child nor impinge 
on the educational process. For school authorities or private 
citizens to now object to such transportation practices raises the 
inference not of hostility to pupil transportation but rather 
racially motivated hostility to the desegregated school at the 
end of the ride.

22. The Plaintiffs’ Proposal made reference to P.M.8, 
based on the TALUS regional transportation and travel times 
study. Although there was dispute over the meaning of the 
study, such studies are deemed sufficiently reliable that major 
governmental agencies customarily rely on their projection for a 
variety of planning functions. When used by the plaintiffs, P.M. 
8, in conjunction with the Detroit Board’s survey of maximum 
school to school travel times, served as a rough guideline within 
which the plaintiffs’ modification of other proposals attempted 
to stay in an effort to provide maximum desegregation without 
any more transportation time than is required to desegregate. 
This court finds that the utilization of these two factors, and 
the lower travel time estimates which should result, is a reason­
able basis for the modification in the circumstances of this case. 
The court’s duty and objective is not to maximize transporta­
tion but to maximize desegregation and within that standard it 
will always be reasonable to minimize transportation. To that 
end the court has accepted the more conservative perimeter for 
the desegregation area suggested as a modification by plaintiffs 
because it provides no less effective desegregation.

23. Based on these criteria, the State Proposal is too nar­
rowly drawn.



68a

24. Based on these criteria, parts of the Detroit Board 
Proposal are too sweeping.

25. Based on these criteria, the CCBE Proposal and the 
Plaintiffs’ Proposal, roughly approximate the area so de­
scribed 11.

26. There is general agreement among the parties, and the 
court so finds, that on the west the areas, schools, and pupils in 
the Huron, Van Buren, Northville, Plymouth and Novi districts

(1) are beyond the rough 40-minute travel time line; (2) are 
not necessary to effectively desegregate schools involved in the 
regions and clusters abutting those schools; and, (3) at this 
writing, are not otherwise necessary, insofar as pupil assignment 
is concerned, to provide an effective remedy now and hereafter. 
(See Findings 63-69 below.)

27. In the southwest the school districts of Woodhaven, 
Gibralter, Flat Rock, Grosse lie and Trenton are within reason­
able time and distance criteria set forth above. These virtually 
all-white districts are included in the Detroit Board Proposal but 
excluded from the plaintiffs’ modification. The areas, schools 
and pupils in such school districts are similarly not necessary to 
effectively desegregate. (Clusters 13, 14, and 15 in Plaintiffs’ 
Proposal are 20.5%, 24.4% and 22.7% black respectively.) There 
is nothing in the record which suggests that these districts need 
be included in the desegregation area in order to disestablish the 
racial identifiability of the Detroit public schools. From the 
evidence, the primary reason for the Detroit School Board’s 
interest in the inclusion of these school districts is not racial 
desegregation but to increase the average socio-economic 
balance of all the schools in the abutting regions and clusters. In 
terms of what this court views as the primary obligation estab­
lished by the Constitution — racial desegregation — the court 
deems the proper approach is to be more conservative: the 
court finds it appropriate to confine the desegregation area to 
its smallest effective limits. This court weighs more heavily the 
judicially recognized concern for limiting the time and distance 
of pupil transportation as much as possible, consistent with the 
constitutional requirement to eliminate racially identifiable 
schools, than a concern for expanding the desegregation area to



69a

raise somewhat the average socio-economic balance of a rela­
tively few clusters of schools. 13

28. To the north and northeast, the only major disagree­
ment among the Detroit Board Proposal and plaintiffs’ 
modification relates to the areas, schools, and pupils in the 
Utica School District. This district is a virtually all-white, long, 
relatively narrow area extending several miles in a north-south 
direction away from the city of Detroit. Only the southern part 
of the district is within the rough, TALUS 40-minute travel 
time line.

29. The Detroit Board argues that Utica should be includ­
ed in order to raise the average socio-economic balance of the 
abutting clusters and schools. In this instance, however, the 
overall racial composition of the cluster, 27.0% black, may tend 
toward disproportionate black relative to the tri-county starting 
point.

30. Mr. Henrickson, the planner for the Board, also sug­
gested that Cluster 3 of Plaintiffs’ Proposal, because of its 
omission of Utica, might present some problems, which he 
admitted could be solved, in designing a plan of pupil reassign­
ment for the desegregation of schools. (See Findings 34-39 
below.)

31. In light of these relevant, and competing, considera­
tions the question presented by the Utica situation is close; 
however, at this writing, the court determines that the areas, 
schools, and pupils in the Utica School District need not be 
included, and therefore, should not be included in the deseg­
regation area. 14

32. The court finds that the appropriate desegregation 
area is described by plaintiffs’ modification of the three primary 
proposals. Within that area the racial identifiability of schools 
may be disestablished by implementation of an appropriate 
pupil desegregation plan. The area as a whole is substantially 
proportionate to the tri-county starting point. Within the area it 
is practicable, feasible, and sound to effectively desegregate all 
schools without imposing any undue transportation burden on 
the children or on the state’s system of public schooling. The



70a

time or distance children need be transported to desegregate 
schools in the area will impose no risk to the children’s health 
and will not significantly impinge on the educational process.

B. Clusters

33. The Detroit Board Proposal makes use of 16 regions 
or clusters. These clusters range from 36,000 to 105,000 pupils 
and from 17.5% to 29.7% “minority.” The clusters are arranged 
along major surface arteries and utilize the “ skip,” or non­
contiguous zoning, technique to minimize the time and distance 
any child need spend in transit. The use of these clusters basical­
ly subdivides the planning for pupil reassignment within the 
desegregation area into a series of smaller, manageable and 
basically independent plans. Thus, although as the new inter- 
venors suggest devising a desegregation plan for a system with 
some 800,000 pupils has never been attempted, the practical 
and manageable reality is that desegregation plans for systems 
with from 36,000 to 100,000 pupils has been done and such 
plans have been implemented.

34. Plaintiffs’ Proposal uses the same cluster technique 
and the same clusters, modified to fit the desegregation area. 
The 15 clusters range from 27,000 to 93,000 pupils and from 
20.5% to 30.8% black. Only three relevant objections were 
raised by Mr. Henrickson, to the clusters as modified.

35. First, Cluster 4 was challenged as “ concealing” a 
“problem,” namely effective desegregation of other schools 
resulting from the omission of Utica from plaintiffs’ modifica­
tion. On cross-examination Mr. Henrickson admitted that the 
“problem” of actual pupil desegregation for these other schools 
could be “ solved,” that all schools within Cluster 4 could be 
affectively desegregated, and that Cluster 4 was smaller than the 
Detroit Board Cluster 6. The objection was thus narrowed to 
the possibility that a suburban high school constellation feeder 
Pattern might have to be split between two Detroit high school 
constellation feeder patterns in order to desergregate. Several of 
the Detroit Board’s clusters, however, also contain two Detroit 
high school feeder patterns.



71a

36. This objection, splitting an existing feeder pattern, 
was raised directly in reference to Cluster 12. In neither 
instance, however, did Mr. Henrickson suggest that the time or 
distance of transportation involved was too long or that it would 
present administrative difficulty in devising a pupil assignment 
plan for either cluster. The objection relates solely to a matter 
of administrative convenience, namely the use of existing feeder 
patterns in preparing pupil assignments. For example, Mr. 
Henrickson previously admitted that in drawing a pupil assign­
ment plan, an alternative to use of existing feeder patterns 
would be to “ wipe the slate clean,” and disregard existing 
feeder patterns. In fact one of the State plans suggested use of 
census tracts as an alternative. 1 ̂  On numerous occasions in the 
past Mr. Henrickson himself has reassigned parts of one feeder 
pattern to another school in order to relieve overcrowding 
and/or accomplish desegregation. The objection to such 
practice, therefore, is admittedly insubstantial.

37. The thircTobjection relates to the exchange of Detroit 
Northern for Detroit Murray in Clusters 6 and 15 requiring that 
the students transported, if they proceed on their entire journey 
by way of the expressway, encounter an interchange which 
tends to be rather slow-moving. Such transportation time and 
distance, however, is well within the rough criteria for reason­
ableness and is shorter than or comparable to the maximum 
trips required in the Detroit Board’s clusters. In other instances, 
Mr. Henrickson admitted that pupils in the Detroit proposal 
might also have to travel through similar interchanges. More­
over, the objection to this particular increase in travel time must 
be weighed against the apparent general decrease in time which 
would be required in plaintiffs’ modified clusters as compared 
with the Detroit Board’s clusters. In any event the desegregation 
panel, based on its investigation of all aspects of pupil assign­
ment, remains free to suggest a modification of these clusters in 
order to reduce the time and number of children requiring 
transportation.

38. With that caveat, the court finds that plaintiffs’ 
modification of the Detroit Board’s clusters provides a 
workable, practicable, and sound framework for the design of a 
plan to desegregate the Detroit public schools.



72a

C. Pupil Assignment and Transportation.

39. Example of various methods of pupil assignment to 
accomplish desegregation have been brought to the attention of 
the court by the parties: pairing, grouping, and clustering of 
schools; various strip, skip, island, and non-contiguous zoning; 
various lotteries based on combinations of present school assign­
ment, geographic location, name, or birthday. Judicious use of 
these techniques — coupled with reasonable staggering of school 
hours and maximizing use of existing transportation facilities — 
can lead to maximum actual desegregation with a minimum of 
additional transportation.

40. Quite apart from desegregation, under any circum­
stances, transportation for secondary pupils living more than 1 Vi 
miles, and elementary pupils, living more than 1 mile from 
school, is often demanded by parents and should be provided. 
Moreoever, it is essential to the effectiveness of any desegrega­
tion plan that transportation be provided free to all students 
requiring it under that criteria. (Brewer v. Norfolk Board of 
Education,____F. 2d_____ (April 1972) (4th Cir.)

41. In the recent past more than 300,000 pupils in the 
tri-county area regularly rode to school on some type of bus; 
this figure excludes the countless children who arrive at school 
in car pools, which are many, many times more dangerous than 
riding on the school bus.

42. Throughout the state approximately 35-40% of all stu­
dents arrive at school on a bus. In school districts eligible for 
state reimbursement of transportation costs in the three 
affected counties, the percent of pupils transported in 1969-70 
ranged from 42 to 52%.

43. In comparison approximately 40%, or 310,000, of the
780,000 children within the desegregation area will require 
transportation in order to accomplish maximum actual deseg­
regation.

44. Hence, any increase in the numbers of pupils to be 
transported upon implementation of a complete desegregation 
plan over the number presently transported, relative to the state



73a

and the tri-county area, should be minimal. Indeed, any increase 
may only reflect the greater numbers of pupils who would be 
transported in any event but for the state practice, which af­
fected the segregation found in this case, and which denies state 
reimbursement to students and districts wholly within city 
limits regardless of the distance of the child from the school to 
which assigned. ^  (Ruling on Issue of Segregation at 14.) The 
greatest change is the direction of the buses.

45. There is uncontradicted evidence that the actual 
cost of transportation for a two-way plan of desegregation 
should be no greater than 50 to 60 dollars per pupil trans­
ported, comparable to the present costs per pupil through 
the state. Increases in the total costs of pupil transportation in 
the desegregation area, therefore, will result primarily from pro­
viding all children requiring transportation a free ride instead of 
imposing the costs of transportation for many on the families in 
districts which are ineligible for state reimbursement and which 
fail to provide transportation.

46. By multiple use of buses, careful routing, and econo­
mies of scale resulting from a comprehensive system of pupil 
transportation, it may be possible to achieve savings in per pupil 
costs. For example in 1969-1970 many school districts in the 
tri-county area which used the same bus for even two loads per 
day lowered their per pupil costs to $40 or less. In a co­
ordinated, urban pupil transportation system it may be possible 
to raise the bus use factor to three of more. (See “ First Report” 
State Survey and Evaluation.)

47. In the tri-county area in the recent past there were 
approximely 1,800 buses (and another 100 smaller vans) used 
for the transportation of pupils. Assuming a rough average of 50 
pupils per bus carrying three loads of students per day, this 
transportation fleet may prove sufficient to carry some 270,000 
pupils.

48. Various public transit authorities now transport an 
additional 60,000 pupils on their regular public runs.

49. The degree to which these plausible bus-use factors



74a

can be realized to their maximum, and whether these public 
transit facilities may be fully utilized in a plan of desegregation, 
must be answered upon careful investigation by a panel of ex­
perts.

50. There is no disagreement among the parties, and the 
court so finds, that additional transportation facilities, at least 
to the number of 350 buses, will have to be purchased to meet 
the increase in the number of students who should be provided 
transportation for either an interim or final plan of desegrega­
tion.

51. For all the reasons stated heretofore — including time, 
distance, and transportation factors — desegregation within the 
area described in physically easier and more practicable and 
feasible, than desegregation efforts limited to the corporate 
geographic limits of the city of Detroit.

52. The issue of transportation of kindergarten children, 
and their inclusion in part or in full in the desegregation plan, 
may require further study. There was general agreement among 
the experts who testified that kindergarten, but for “ political” 
considerations, should be included, if practicable, in the deseg­
regation plan. Kindergarten, however, is generally a half-day 
program. Transportation of kindergarten children for upwards 
of 45 minutes, one-way, does not appear unreasonable, harmful, 
or unsafe in any way. In the absence of some compelling justifi­
cation, which does not yet appear, kindergarten children should 
be included in the final plan of desegregation.

53. Every effort should be made to insure that transporta­
tion and reassignment of students to accomplish desegregation 
is “ two-way” and falls as fairly as possible on both races. 
Although the number of black and white children transported 
and reassigned at the outset will be roughly equal, it is 
inevitable that a larger proportion of black children will be 
transported for a greater proportion of their school years than 
white children, if transportation overall is to be minimized. To 
mitigate this disproportion, every effort should be made at the 
outset to randomize the location of particular grade centers. In 
the short term, full utilization of vastly under-capacity inner-



75a

city schools may also help to mitigate the disproportion for 
some black children; and in the long term, new school capacity, 
consistent with other constitutional commands and the overall 
needs of the desegregation area and the surrounding area, should 
be added in Detroit, in relative proximity to concentrations of 
black student residence.

D. Restructuring of Facilities and 
Reassignment of Teachers

54. In the reassignment of pupils to accomplish deseg­
regation the court finds that facilities must be substantially 
reallocated and faculty substantially reassigned by reason of the 
clustering, pairing and grouping of schools.

55. In order to make the pupil desegregation process fully 
effective the court finds that it is essential to integrate faculty 
and staff and to insure that black faculty and staff representa­
tion at every school is more than token. The court has pre­
viously found and reaffirms that “ a quota or racial balance in 
each school which is equivalent to the system-wide ratio and 
without more” is educationally unsound, and that the desid­
eratum is the balance of staff by qualifications for subject and 
grade level, and then by race, experience and sex. It is obvious, 
given the racial composition of the faculty and staff in the 
schools in the metropolitan plan area, and the adjusted racial 
composition of the students, that vacancies and increases and 
reductions in faculty and staff cannot effectively achieve the 
needed racial balance in this area of the school operation. 
Active steps must be taken to even out the distribution of black 
teachers and staff throughout the system.

56. In the desegration area approximately 16% of the 
faculty and 12% of the principals and assistant principals are 
black. In this context “ token” means roughly less than 10% 
black. Moreover, where there is more than one building adminis­
trator in any school, a bi-racial administrative team is required 
wherever possible.

57. Every effort should be made to hire and promote, and 
to increase such on-going efforts as there may be to hire and



76a

promote, additional black faculty and staff. Because of the 
systematic and substantial under-employment of black 
administrators and teachers in the tri-county area, an affirma­
tive program for black employment should be developed and 
implemented.

58. The rated capacity of classrooms in the Detroit public 
schools is 32; in some of the suburban districts the average rated 
capacity is as low as 24 or 25. Utilization should be redeter­
mined on a uniform basis.

59. In respect to faculty and staff, school facilities, and 
the utilization of existing school capacity, normal administra­
tive practice in handling the substantial reallocation and reas­
signment incident to pupil desegregation should produce 
schools substantially alike.

60. In the circumstances of this case, the pairing, grouping 
and clustering of schools to accomplish desegregation with 
minimum transportation often requires use of grade arrange­
ments such as K-4, K-5, or even K-6. In so planning pupil reas­
signments, it is sometimes necessary, and often administratively 
practicable, to include grades K-8 or even K-9 to achieve the 
maximum actual desegregation with the minimum trans­
portation. Grade structures in most elementary schools in the 
desegregation area is a basic K-6; however, almost all other 
combinations are found. They differ within and among various 
districts.

61. In the reassignments of pupils and teachers and the 
reallocation of equipment and facilities required to accomplish 
desegregation, the elementary grades and schools present rela­
tively few administrative difficulties, while the high school 
grades and facilities present the greater difficulties, particularly 
with respect to scheduling and curriculum.

62. For these reasons, if it develops that interim choices 
must be made because of the impossibility of immediate deseg­
regation of all grades, schools, and clusters in the desegregation 
area, the weight of the evidence is, and the court so finds, that 
desegregation should begin first at the earliest grades for entire



77a

elementary school groupings throughout as many clusters as 
possible.

E. School Construction

63. Relative to suburban districts the Detroit public 
schools, as a whole, are considerably over-capacity. (See also 
Finding 58, supra.) To alleviate this overcrowding equalize rated 
capacity and' minimize and equalize transportation burdens 
borne by black pupils in the city, needed new school capacity, 
consistent with other requirements of a desegregation plan, 
should be added on a priority basis in the city of Detroit.

64. Relevant to the court’s choice of a desegregation area 
more limited than the Detroit Board Proposal is the testimony, 
elecited on cross-examination from two of the primary authors 
of that proposal, related to the effects of controlling new school 
construction. The broader area in the Detroit proposal was 
chosen without any real consideration of the impact of control­
ling school construction in an area larger than the desegregation 
area. Upon reflection, both Dr. Flynn and Mr. Henrickson 
admitted that closely scrutinizing and limiting the addition of 
capacity to areas outside the desegregation area might lead them 
to re-evaluate the need, in the context of maintaining now and 
hereafter a unitary system, to include an area as sweeping as 
recommended by the Detroit Board Proposal.

65. In our Ruling on Issue of Segregation, pp. 8-10, this 
court found that the “ residential segregation throughout the 
larger metropolitan area is substantial, pervasive and of long 
standing” and that “governmental actions and inaction at all 
levels, Federal, State and local, have combined with those of 
private organizations, such as loaning institutions and real estate 
associations and brokerage firms, to establish and to maintain 
the pattern of associations and brokerage firms, to establish and 
to maintain the pattern of residential segregation through the 
Detroit metropolitan area.” We also noted that this deliberate 
setting of residential patterns had an important effect not only 
on the racial composition of inner-city schools but the entire 
School District of the City of Detroit. (Ruling on Issue of Seg­
regation at 3-10.) Just as evident is the fact that suburban



78a

school districts in the main contain virtually all-white schools. 
The white population of the city declined and in the suburbs 
grew; the black population in the city grew, and largely was 
contained therein by force of public and private racial discrim­
ination at all levels.

66. We also noted the important interaction of school and 
residential segregation: “Just as there is an interaction between 
residential patterns and the racial composition of the schools, so 
there is a corresponding effect on the residential pattern by the 
racial composition of schools.” Ruling on Issue of Segregation 
at 10. Cf Swann v. Charlotte-Mecklenberg, 402 U.S. 1, 20-21
(1971); “ People gravitate toward school facilities, just as 
schools as located in response to the needs of people. The loca­
tion of schools may thus influence the patterns of residential 
development of a metropolitan area and have important impact 
on composition of inner city neighborhoods.”

67. Within the context of the segregatory housing market, 
it is obvious that the white families who left the city schools 
would not be as likely to leave in the absence of schools, not to 
mention white schools, to attract, or at least serve, their chil­
dren. Immigrating families were affected in their school and 
housing choices in a similar manner. Between 1950 and 1969 in 
the tri-county area, approximately 13,900 “ regular classrooms,” 
capable of serving and attracting over 400,000 pupils, ^  were 
added in school districts which were less than 2% black in their 
pupil racial composition in the 1970-71 school year. (P.M. 14; 
P.M. 15).

68. The precise effect of this massive school construction 
on the racial composition of Detroit area public schools cannot 
be measured. It is clear, however, that the effect has been sub­
stantial. 20 Unfortunately, the State, despite its awareness of 
the important impact of school construction and announced 
policy to control it, acted “ in keeping generally, with the 
discriminatory practices which advanced or perpetuated racial 
segregation in these schools.” Ruling on Issue of Segregation at 
15; see also id., at 13.

69. In addition to the interim re-evaluation of new school



79a

construction required in the order, pursuant to the State 
Board’s own requirements, the final plan will consider other 
appropriate provisions for future construction throughout the 
metropolitan area.

F. Governance, Finance and Administrative Arrangements

70. The plans submitted by the State Board, the Detroit 
Board, and the intervening defendants Magdowski, et al., discuss 
generally possible governance, finance and administrative ar­
rangements 21 which may be appropriate for operation of an 
interim or final plan of desegregation. Without parsing in detail 
the interesting, and sometimes sensible, concepts introduced by 
each plan, it is sufficient to note that each contemplates over­
laying some broad educational authority over the area, creating 
or using some regional arrangement (with continued use or 
eventual redrawing of existing districts), and considerable input 
at the individual school level. The court has made no decision in 
this regard and will consider the matter at a subsequent hearing.

71. Each concept needs to be “ fleshed-ouf ’ in the hard 
prospect of implementation of a final plan of desegregation and 
what is necessary and essential, and only that, for the successful 
operation of that plan of school desegregation now on an 
interim basis and hereafter on a permanent footing.

72. There are now some 86 school districts in the tri­
county area of varying size, numbers of pupils, shapes, and 
wealth.

73. In another context, the State Board of Education 
found each related to a “metropolitan core city” (Detroit) as 
“ city,” “ town,” or “ urban fringe” districts.

74. The boundaries of these school districts in general 
bear no relationship to other municipal, county, or special dis­
trict governments, needs or services. 22

75. Some educational services are already provided to stu­
dents on an interdistrict, county, intercounty, or metropolitan 
basis: and many support services are provided by the inter­
mediate school districts and the State Department of



80a

Education. For various reasons many pupils already cross school 
district lines to attend school or receive educational services. 23

76. In many respects — patterns of economic life, work, 
play, population, planning, transportation, health services -  the 
tri-county area constitutes a rough series of interrelated com­
munities constituting, in the view of the United States Census 
Bureau, a single standard metropolitan statistical area.

77. Local units of government in the metropolitan area 
have in many instances joined together for the purpose of pro­
viding better solutions to problems confronting them. In such 
instances various units of government have either disregarded 
local boundaries or have concluded that the problems were such 
as to call for a metropolitan solution. In some cases they have 
created overlay organizations. SEMCOG, recreational autho­
rities, a metropolitan sewage system, SEMTA, and the Detroit 
Water System are examples of these metropolitan approaches.

78. Indeed, the State defendants at this very moment are 
attempting in state court to strike down one irrationality, and 
the discriminatory effect, of the existing school district arrange­
ment, i. e., finance, apparently in the hope of moving to a virtual 
state-wide assumption of costs.

79. In such circumstances there has been no showing that 
the existing school district boundaries are rationally related to 
any legitimate purpose; and the court finds that the particular 
welter of existing boundaries for 86 school districts is not 
necessary to the promotion of any compelling state interest. 80

80. On the basis of the present record, the court is of the 
view that the shifts in faculty, staff, resources and equipment 
and the exchanges of pupils necessary to accomplish maximum 
actual desegregation may be made, at least on an interim basis, 
by contractual agreements or otherwise among and between the 
existing school districts. The court has serious reservations, 
however, whether such procedures will inevitably threaten the 
continuing effectiveness of a plan of desegregation over the 
long-term. On these issues more evidence and further hearings 
will be necessary before reaching a final decision.



81a

81. The State defendants, and in particular the State 
Board of Education which is charged with the primary respon­
sibility for public education in Michigan, are the primary parties 
to be charged with responsibility to undertake that vital inquiry 
and return with recommendations about those governance, 
financial, and administrative arrangements which are necessary 
and essential to the successful implementation of a plan of de­
segregation on an interim and continuing basis.

G. Involvement of Affected Persons and Communities 
and Protection Against Racial Discrimination 

in the Desegregation Process

82. The court has received uncontroverted evidence in the 
plans filed by every party and in testimony, and advice in 
several briefs amicus curiae, and the court finds, that the follow­
ing additional factors are essential to implementation and 
operation of an effective plan of desegregation in the circum­
stances of this case:

(a) Bi-racial councils made up of the parents and staff, 
and, where appropriate, pupils, should be set up at 
each school; the persons most affected must be 
encouraged and given every opportunity to parti­
cipate in the implementation of desegregation.

(b) Curriculum content, and all curriculum materials and 
student codes, must be re-evaluated and reflect the 
diversity of ethnic and cultural backgrounds of the 
children now in the schools. As far as possible, those 
immediately affected by these decisions at the indi­
vidual school level should participate in that process.

(c) In-service training for faculty and staff for multi­
ethnic studies and human relations should be 
required; we must, after all, rely primarily on our 
teachers and children to respect, nurture, and deal 
with the diversity of students present in the deseg­
regated school.

(d) The entire grading, reporting, counselling, and testing 
program should be reviewed in light of desegregated



82a

schools compared to traditional schools and to avoid 
imposing the effects of past discrimination on the 
children. Tracking, whether so labeled or by any test, 
which has racial effects should not be utilized; within 
schools a pattern of classes which are substantially 
disproportionate in their racial composition from the 
relevant school or grade mix should be closely 
scrutinized and maintained only if necessary to pro­
mote a compelling educational objective.

83. In making the finding above, we remind the parties 
that this court’s task is to enforce constitutional rights not to 
act as a schoolmaster; the court’s task is to protect the con­
stitutional rights here found violated with as little intrusion into 
the education process as possible. The court’s objective is to 
establish the minimum constitutional framework within which 
the system of public schools may operate now and hereafter in 
a racially unified, non-discriminatory fashion. Within that 
framework the body politic, educators, parents, and most par­
ticularly the children must be given the maximum opportunity 
to experiment and secure a high quality, and equal, educational 
opportunity. However, experience has proven that specific 
goals, deadlines and methods of reporting and review must be 
required in all desegregation cases to insure compliance.

H. Timing

84. The burden remains with State defendants to show 
why desegregation for all schools, grades, classrooms, and pupils 
in the desegregation area should not proceed now, i.e., in the 
context of this litigation, for the 1972 fall term. The design and 
implementation of desegregation plans for all grades in 15 
clusters — including pupil assignments, necessary reassignment 
of faculty and restructuring of facilities, planning and acquiring 
the needed transportation facilities — is conceded by all parties 
to be a major undertaking. Yet next fall will already be a full 
year, not just four or six or even eight weeks, Cf. Carter v. West 
Feliciano Parish School Bd., 396 U.S. 290 (1970), after the 
initial ruling by this court of the need for maximum feasible 
desegregation “ now.” In such circumstances the burden to 
prove the infeasibility of implementation of complete relief is 
high.



83a

85. The desegregation panel, therefore, must make every 
effort to plan to implement as much actual desegregation, for as 
many clusters, schools, grades, classrooms, and students as pos­
sible.

86. At a minimum, there is agreement among, and 
evidence from, the experts that desegregating several grades, and 
more particularly entire elementary schools, within many, if not 
all, clusters may be accomplished in the fall.

87. In view of Findings 60 to 62, supra, if hard choices 
must be made for the fall, any interim plan should attempt to 
desegregate grades K-6, K-8, or K-9 in as many entire clusters as 
possible; and, in the absence of some other showing, there 
appears no reason why a complete plan may not be imple­
mented by fall 1973. 24

88. A heavy burden rests with those who seek delay in 
any way, shape, kind, degree or extent to convince the court 
that maximum actual desegregation cannot proceed effectively 
forthwith.

89. In view of the time constraints, the need to discharge 
this burden forthwith, the State defendants’ default in assisting 
this court to determine the appropriate desegregation area, and 
the State defendants’ asserted and evident lack of available plan­
ning capacity suited to the task, the court finds that some addi­
tional entity must be charged with the task of preparing a pupil 
assignment plan to accomplish maximum actual desegregation 
and a transportation plan within the framework this day 
established. To that end a panel of skilled experts, broadly re­
presentative of the parties and their interests, appointed by the 
court and assigned that task, is required to discharge effectively 
and promptly these two tasks. 90

90. State defendants remain charged with the duty, how­
ever, of coming forward with other necessary reports and plans 
concerning those governance, administrative, and financial ar­
rangements necessary and essential to the implementation of an 
effective plan of desegregation on an interim and on-going basis.



84a

I. The Plan

91. Based on the entire evidence amassed in this case, the 
court finds that an educationally sound, administratively fea­
sible, constitutionally adequate, practicable and effective plan 
of desegregation may be developed, implemented, and operated 
hereafter for the desegregation area as set forth in findings 1-90 
above.

CONCLUSIONS OF LAW

1. The court has continuing jurisdiction of this action for 
all purposes, including the granting of effective relief. Bradley v. 
Milliken, Ruling on Issue of Segregation, September 27, 1971; 
Findings of Fact and Conclusions of Law on Detroit-Only Plans 
of Desegregation, March 28, 1972.

2. A de jure segregation violation having been found, the 
minimum remedy is maximum actual desegregation, taking into 
account the practicalities of the situation. 25 Bradley v. Mil­
liken, Oral Order, October 4, 1971; Findings of Fact and Con­
clusions of Law on Detroit-Only Plans of Desegregation, March 
28, 1972; Brown v. Board o f Education, 347 U.S. 383 (1954), 
349 U.S. 294 (1954); Green v. County School Bd., 391 U.S. 
430 (1968); Alexander v. Holmes County Bd. o f Ed., 396 U.S. 
19 (1969); Carter v. West Feliciano School Bd., 396 U.S. 290
(1970) ; Swann v. Charlotte Mecklenberg Bd. o f Ed., 402 U.S. 1
(1971) ; Davis v. Board o f School Commissioners o f Mobile, 402 
U.S. 33 (1971); Davis v. School District o f City o f Pontiac, 443 
F. 2d 573, cert, denied, 925 U.S. 233 (1971).

3. The remedial obligation rests with school authorities, 
but where in any way they fail, or are unable because of the 
circumstances of the case, to fulfill any part of the obligation 
promptly and fully, the court has broad equity power, and the 
duty, to insure that demonstrable progress be made now; that a 
schedule for planning be adopted forthwith; and that necessary 
planning be specifically ordered and immediately undertaken in 
order that a constitutionally adequate plan may be fashioned 
and finally ordered implemented as soon as possible. Swann v. 
Charlotte-Mecklenberg Board o f Education, 311 F. Supp. 265 
(W.D.N.C. 1970), aff’d, 402 U.S. 1 (1971); Carter v. West



85a

Feliciano School Bd., 396 U.S. 226, 227-228 (1969), 396 U.S. 
290 (1970); Acree v. County Board o f Education, No. 72-1211 
(5th Cir. March 31, 1972); Rule 53, Fed. R. Civ. ?.,P.A.R.C. v. 
Pennsylvania, 334 F. Supp. 1247, 1266-7 , (E.D. Pa. 1971). 
Only then will the court in this case be apprised fully of the 
practicalities of the situation, and what is reasonable and fea­
sible, in order that a final order may issue. School authorities, 
of course, will be given an opportunity to (1) raise relevant 
objections, (2) make suggestions for modifications, (3) or pre­
sent an alternative plan of desegregation; and their judgment 
and expertise will be considered and given appropriate weight 
by the court.

4. Funds must either be raised or reallocated, where 
necessary, to remedy the deprivation of plaintiffs’ con­
stitutional rights and to insure that no such unconstitutional 
neglect recurs again. Shapiro v. Thompson, 397 U.S. 254, 
265-266 (1970); Boddie v. Connecticut, 91 S. Ct. 780, 788 
(1971); Griffin v. Illinois, 351 U.S. 12 (1956); Graham v. 
Richardson, 403 U.S. 365, 374-375 (1971); Mayer v. Chicago, 
404 U.S. 189, 197 (1971); Griffin v. Prince Edward County, 
377 U.S. 218 (1964); Hoosier v. Evans, 314 F. Supp. 316, 
320-321 (D. St. Croix, 1970); United States v. School District 
151, 301 F. Supp. 201, 232 (N.D. 111. 1969), aff’d as modified, 
432 F. 2d 1147 (7th Cir. 1970), cert, denied, 402 U.S. 943 
(1971); Plaquemines Parish School Board v. U.S., 415 F. 2d 319
(5th Cir. 1970); Bradley v. Richmond,______ F. Supp____ ,
(April 1971); Brewer v. Norfolk, No. 71-1900 (4th Cir., March 
7, 1972) (Slip op. at pp. 7-8). It would be a cruel mockery of 
constitutional law if a different rule were to be applied to 
school desegregation cases. After all schooling is this nation’s 
biggest industry and the most important tast of government left 
to the states by the Constitution. In this case, were a different 
rule to be applied, it would constitute a gigantic hypocrisy: 
After all the money which has been spent over the years 
creating and maintaining the segregated condition, the relatively 
small amounts of money required to undo that segregation can 
be found. The law, surely, requires at least that. And the ap­
plication of the commands of Swann does require that in almost 
every school desegregation case which has been brought to this 
court’s attention.



86a

5. In the substantial reassignment of faculty and re­
structuring of facilities required by the clustering, pairing, and 
grouping of schools to accomplish pupil desegregation, normal 
administrative practice should lead to schools with substantially 
like facilities, faculty and staff, and equipment. Swann, supra, 
402 U.S. at 18-20. Moreover, special care should be taken in the 
necessary reassignment of faculty to avoid creating or maintain­
ing the racial identification of schools “ simply by reference to 
the racial composition of teachers and staff.” Swann, supra, 402 
U.S. at 18. In any event, the equitable discretion of the court is 
broad enough to insure that those aspects of faculty deseg­
regation and equalization of facilities which are essential to the 
effective operation of a desegregation plan are included in the 
planning and final order, Swann, supra, 402 U.S. at 15; U.S. v. 
Montgomery County Board o f Ed., 395 U.S. 225 (1969);Hecht 
v. Bowles, 321 U.S. 329-330 (1944); and no contract, union 
agreement or otherwise, or Board policy or practice may 
impede these Fourteenth Amendment obligations. U.S. v. 
Greenwood Municipal Separate School District, 406 F. 2d 
1086, 1094 (5th Cir.), cert, denied, 395 U.S. 907 (1969); Berry 
v. Benton Harbor,_____ F. Supp_____ (W.D. Mich. 1971).

6. The Federal courts have repeatedly rejected plans 
exempting the lower grades from integration, relying less on 
educational data than upon the hard legal fact that segregation 
at any age is a denial of the equal protection of the law. See, 
e.g., United States v. Jefferson County Bd. o f Educ., 372 F.2d 
836 (9th Cir. 1966), aff’d on rehearing en banc, 380 F.2d 385 
(5th Cir. 1967). To leave grades K through 3 exempt from a 
desegregation plan is not to eliminate segregation “ root and 
branch.” Green v. County School Board o f New Kent County, 
391 U.S. 430(1968).

7. The consistent application of settled constitutional law 
invests this court with the equitable power, and the duty, to 
order preparation, and thereafter implementation, of a practic­
able and sound plan which embodies the principles set forth in 
these findings and conclusions and the attached memorandum 
and order. See, generally, Ruling on Propriety of Considering a 
Metropolitan Remedy to Accomplish Desegregation of the



87a

Public Schools of the City of Detroit, March 24, 1972; Findings 
of Fact and Conclusions of Law on Detroit-Only Plans, March 
24, 1972; oral ruling on offers of proof, April 13, 1972; and the 
cases cited therein.

8. School construction practices throughout the metro­
politan area have added to and reinforced the pattern of seg­
regation referred to. Although there were vacant seats through­
out the city to which students could have been assigned at lesser 
cost and with the achievement of integration, continued sums 
were expended for construction of new schools designed to 
service particular areas of racial concentration, and such schools 
opened as and have continued to be racially identifiable in 
violation of the Fourteenth Amendment. Swann v. Charlotte- 
Mecklenberg Bd. o f Educ., 402 U.S. 1, 18-20 (1971); United 
States V. School Dist. 151, 404 F.2d 1125, 1132-33 (7th Cir. 
1968); Davis v. School Dist. o f Pontiac, 309 F. Supp. 734, 
741-42 (E.D. Mich. 1970), aff’d, 443 F.2d 573 (6th Cir. 1971); 
Spangler v. Pasadena City Bd. o f Educ., 311 F. Supp. 501, 
517-18 (C.D. Calif. 1970); Johnson v. San Francisco Unified 
School Dist., Civ. No. C-70-1331 (N.D. Calif. April 28, 1971); 
Brewer v. School Board o f the City o f Norfolk, 397 F.2d 37, 42 
(4th Cir. 1968); Cf Sloan v. Tenth School Dist. o f Wilson
County,______ F.2d______(6th Cir. 1970); United States v.
Board o f Educ. o f Polk County,____F. 2d___ 4th Cir. 1968);
Kelley v. Altheimer,_____F.2d____ (8th Cir. 1967); Bradley v.
School Bd.,_______F. Supp_______(E.D. Va. 1971); Clark v.
Board o f Educ. o f Little Rock, 401 U.S. 971 (1971).

9. The legal effects o f racially discriminatory 
confinement to a school district are not different from the ef­
fects of such containment within a district. E.g., Lee v. Macon 
County Board o f Education, 558 F.2d 746 (5th Cir. 1971); 
Haney v. County Board Sevier, 410 F.2d 920 (8th Cir. 1969), 
429 F.2d 364 (8th Cir. 1970).

10. Where the actions of state defendants and local school 
authorities throughout the metropolitan area have had the 
natural, foreseeable, and actual effect of building upon, taking 
advantage of, and encouraging racially segregated demographic 
patterns deliberately fixed by governmental action at all levels



88a

with the effect of creating and maintaining racial segregation in 
the public schools, there is a present obligation to eliminate the 
continuing effects of such violation; and the District Court has 
the duty, upon default by school authorities, to intervene to 
secure compliance with the Constitution pursuant to the sound 
exercise of traditional equity powers consistent with the 
practicalities of the local situation. Swann v. Charlotte- 
Mecklenberg, 402 U.S. 1, 15-16, 20-21,31-32 (1971). Cf Find­
ings of Fact and Conclusions of Law on Detroit-Only Plans of 
Desegregation, p.5, Conclusion 4. In devising remedies where 
state-imposed segregation has been established, it is the respon­
sibility of school authorities and district courts to see to it that 
future school construction and abandonment is not used and 
does not serve to perpetuate or re-establish the violation. 
Swann, supra, 402 U.S. at 21.

11. Moreoever, where the State, and named defendants, 
are substantially implicated in the segregation violation found 
and are ultimately responsible for public schooling throughout 
the state, the consistent application of constitutional principles 
requires that this court take all steps necessary and essential to 
require them to desegregate the Detroit public schools ef­
fectively and maintain, now and hereafter, a racially unified, 
non-discriminatory system in the absence of a showing that the 
judicial intervention here contemplated will frustrate the pro­
motion of a legitimate and compelling state policy or interest. 
Reynolds v. Sims, 377 U.S. 533, 575 (1964);Hunterv. City of 
Pittsburg, 207 U.S. 1 61, 178- 179 (1907); Phoenix v. 
Kolodziejski, 399 U.S. 204, 212-213 (1970); Kramer v. Union 
Free School District, 395 U.S. 621, 633 (1969); Williams v. 
Illinois, 399 U.S. 235, 24445 (1970); Shelton v. Tucker, 364 
U.S. 479, 488 (1966); Green v. County School Bd., 391 U.S. 
430, 439 , 442; Swann v. Charlotte-Mecklenberg, 402 U.S. 1 
(1971); Davis v. Bd. o f School Commissioners, 402 U.S. 33 
(1971); Brown v. Board o f Education, 347 U.S. 483 (1954); 
Brown v. Board o f Education, 349 U.S. 292, 300 (1955); 
Monroe v. Board o f Commissioners, 391 U.S. 450, 459 (1968).



89a

FOOTNOTES

1. In the main such proof entirely misses the point: the 
violation here found has to do with school segregation caused in 
substantial part by force of public authority and action; yet the 
intervening defendants’ questions and offer of proof speak 
mainly to educational theory and recent and sometimes con­
tradictory research about narrowly measured educational ef­
fects, mostly on achievement test scores, of quite limited begin­
nings of racial, or socio-economic integration of various types 
and as compared with the effects of dollar or other resource 
inputs and continued segregation. This court does not under­
stand, however, that such research, from the Coleman report to 
its many reanalyses, formed the primary bases for the Brown 
decision or any of its progeny. See, e.g., Brunson v. Bd. of 
Trustees, 429 F.2d 820, 826 (4th Cir. 1970) (J. Sobeloff, con­
curring). In the context similar to newly intervening defendants’ 
objections to desegregation, the Supreme Court in Swann specifi­
cally held that such factors constitute an impermissible limit 
upon the duty to desegregate. 402 U.S. at 24, Fn. 8. Citation to 
such research, either in support or rejection of school deseg­
regation, misses the primary point: insofar as pupil assignments 
are concerned, the system of public schooling in every state 
must be operated in a racially non-discriminatory, unified 
fashion; until that objective is met, the very system of public 
schooling constitutes an invidious racial classification. The 
adoption of an education theory having the effect of main­
taining a pattern of de jure segregation is therefore clearly 
impermissible. (Whether such theories, research, or evidence on 
educational quality or inequality form the basis for requiring 
judicial intervention and relief in the absence of a finding of de 
jure segregation is a question this court need not face.)

In any event, the Court of Appeals for the Sixth Circuit 
held, on June 19, 1970, that greater, not less, desegregation is 
the proper manner to alleviate the problem of disparity in 
achievement. Monroe v. Board of Commissioners, Jackson, 
Tenn., 427 F.2d 1005, 1008 (C.A. 6, 1970).

2. Chief Justice Burger in Swann v. Charlotte-Mecklenberg 
Bd. ofEduc.,402 U.S. 1, 6.



90a

3. Defendants Magdowski, et al., originally opposed to de­
segregation, during the course of the taking of proofs on the 
issue of segregation, conceded that the public schools of the 
city of Detroit were in fact segregated, and took the early lead 
in suggesting that the only effective avenue for desegregation 
was a metropolitan plan. The Detroit Board of Education, while 
continuing to deny that it has been guilty of any act of seg­
regation, took the position that if desegregation were to be 
undertaken it could be done only on a metropolitan basis. So 
that now the white parents of the city of Detroit and its Board 
of Education — the parties most directly involved with the lot 
of the students in the Detroit school system — see no alternative 
to, and, for all practical purposes seek a metropolitan solution 
to the basic Detroit school problem.

4. In the context of this hearing, the defendant Detroit 
Board of Education is not in a position to act as the usual 
“school authority” primarily responsible for suggesting an ap­
propriate desegregation area simply because its authority does 
not extend beyond the geographic limits of the city of Detroit. 
The competence, knowledge of local conditions, and expertise 
of those schoolmen who helped prepare the Detroit Board’s 
proposal, however, may be utilized and given appropriate weight.

5. In Oliver v. Kalamazoo Board of Education, #K88-71, 
Judge Fox pointed out the primary responsibility of the state: 
“The State of Michigan is represented by two entities, but the 
entity is an agent of the State . . . [T]he Constitution says 
something about your [the State’s] responsibility.” The court 
went on to order the State to take an active role. Pre-trial order 
and transcript, May 1, 1972.

6. The Detroit Board plan places heavier reliance on white 
flight and socio-economic factors, while the Magdowski pro­
posal in addition places an emphasis on maintaining a minimum 
percentage black in each school. These considerations in no way 
determine the court’s choice of a desegregation area necessary 
to meet constitutional requirements. In fairness, however, it 
also should be noted that the desegregation area, which the 
court deems to best meet constitutional requirements, also 
happens in the main, to meet the other concerns expressed in



91a

these two proposals. That the Board’s interest in socio­
economic integration is largely met by racial desegregation is 
not surprising. There is uncontroverted evidence in the record, 
and the court so finds, that there is a high correlation between 
blacks and persons of a low socio-economic status, the result, in 
the main, of the cumulative effects of past and present racial 
discrimination including discrimination in education. At some 
point hereafter, of course, school authorities with responsibility 
for implementation and operation of the racially-unified non- 
discriminatory school system contemplated, or parts thereof, 
may and should include in its plan other educational goals and 
needs whether or not they are required by the law or any court. 
Swann v. Charlotte-Mecklenberg, 402 U.S. at 16.

7. If a state is constitutionally forbidden to institute a 
system of racial segregation by the use of artificial boundary 
lines, it is likewise forbidden to perpetuate a system whose 
effect is to maintain segregation. “There is no legally protected 
vested interest in segregation. If there were, then Brown v Board 
of Education and the numerous decisions based on that case 
would be pointless. Courts will not say in one breath that public 
school systems may not practice segregation, and in the next 
that they may do nothing to eliminate it.” Wanner v School Bd. 
of Arlington County, 357 F.2d 452, (Soboloff, Cir. J.), pp. 454 
and 455. The historic fact is that existing conditions are based 
on a design to segregate the races. To hold that segregation, 
once accomplished, is sacrosanct and beyond constitutional 
reach, is to say that the United States Constitution and its 
Amendments, and their provisions for equality, are mere 
rhetoric.

8. See Findings 70-78, infra.

9. The interplay of these two factors summarizes two 
other guideposts or starting points: maximum feasible deseg­
regation and eliminating racially identifiable schools. Factors 
such as time and distance limitations, together with the rough 
definitions of substantial disproportion with the relevant sch oo l 
community’s pupil racial composition, in turn largely determine 
the meaning of “ eliminating racially identifiable schools” and 
what constitutes “maximum feasible desegregation,” in the



92a

particular circumstances here present and in the context of a 
prior finding of segregation.

10. The Detroit Board Proposal contemplates desegrega­
tion on a “minority”-white basis. The proof in this cause, how­
ever, has been aimed at the segregation of black children and 
white children; similarly the remedy has been so defined, 
argued, and in the main presented by parties. The court finds, 
therefore, that the area, and further planning, should, in the 
main, be confined to a black-white breakdown.

11. To the Southwest, Plaintiffs’ Proposal falls on the side 
of less time in transit than the 40-minute guideline because 
inclusion of more area is not required to desegregate, (see Find­
ing 27, infra.)

12. Moreover, in the main, the areas, schools, and pupils 
in these districts are not as fully members of the greater Detroit 
school community: many are less urban; they are the furthest in 
terms of time, distance, and contact from the Detroit area’s 
economic and social acitivities [SIC] ; and many are more 
oriented, if anything, to urban areas other than Detroit, for 
example, the Ann Arbor - Ypsilanti area.

13. The court notes, however, that the range of average 
socio-economic status for the various regions or clusters in 
Plaintiffs’ Proposal is similar to that in the Detroit Board Pro­
posal: based on the Michigan Assessment the range in Plaintiffs’ 
Proposal happens to be 44.7 to 53.7, while in the Detroit Board 
Proposal the range is 46.3 to 53; and only three of the 15 
clusters of schools in Plaintiffs’ Proposal fall below 46.3.

14. Because of the closeness of the question, particularly 
as it relates to any problems which may arise hereafter in 
establishing a pupil desegregation plan, the court feels that some 
opportunity should be given to the expert panel to suggest a 
modification of this tentative resolution. See also Findings 
34-38 below.

15. A common practice in other cases is the use of “pupil
locator” maps. See Northcross v. School Board of City of 
Memphis,_____ F. 2d______ (6th Cir. 1971).



93a

16. For years these city-contained school districts, which 
include some suburban districts in the desegregation area, as 
well as the Detroit Public Schools, have demanded without suc­
cess that this inequitable state practice be changed so that all 
districts could be reimbursed on the same basis for pupil trans­
portation.

17. The figure almost twice that which appears in several 
of the State “plans” was based on the assumption that busing 
would be “ one-way” with black children being assigned to sub­
urban schools. Mr. Wagner, the state official in charge of pupil 
transportation, provided the information on which that esti­
mate was based and also informed his superiors that a two-way 
plan of desegregation and transportation would cost much less 
per pupil. The state defendants did not bring this important fact 
to the court’s attention in any of their submissions; it was un­
covered and fully explored in the disposition of Mr. Wagner 
taken by plaintiffs.

18. This phenomenon was noted in Swann, 402 U.S. 1, 
20-21. The principle was long known, and actively, supported 
by the F.H.A. For example, consider that public agency’s early 
understanding in its 1936 manual that white subdivision 
developments require white schools: “ if the children of people 
living in such area are compelled to attend school where the 
majority or a good number of the pupils represent a far lower 
level of society or an incompatible racial element, the neighbor­
hood under consideration will prove far less stable and desirable 
than if the condition did not exist.”

19. This figure assumes 30 children/regular classroom. 
Although rated capacities may be lower, the figure for regular 
classrooms does not include several types of instructional, 
recreational, laboratory, and other rooms which add overall 
pupil capacity to schools.

20. The resulting pattern is unmistakable: “ Residential 
segregation within the city and throughout the larger metro­
politan area is substantial, pervasive and of long standing. Black 
citizens are located in separate and distinct areas within the city 
and are not generally found in the suburbs. While the racially



94a

unrestricted choice of black persons and economic factors may 
have played some part in the development of this pattern of 
residential segregation, it is, in the main, the result of past and 
present practices and customs or racial discrimination, both 
public and private, which have and do restrict the housing op­
portunities of black people. Perhaps the most that can be said is 
that all of them [various governmental units], including school 
quthorities, are, in part, responsible for the segregated condition 
which exists.” Ruling on Issue of Segregation, 8 and 10. More­
over, an examination of PX 181, 192 and 185 shows that black 
children often remain isolated in predominately black schools in 
the few suburban school districts with any numbers of black 
pupils. In the last several weeks the local press has reported that 
the United States Office of Education cut off funds for one 
such district.

21. Included in this set of arrangements are contract rela­
tionships of various types concerning personnel, property and 
debts.

22. The defendant, William G. Milliken, Governor of the 
State of Michigan, in his amicus brief filed in the Supreme 
Court of the United States, No. 71-1332, San Antonio In­
dependent School District v. Demetrio P. Rodriquez, says, page

“ 1. Amici, whose individual and particular interests 
are set forth in more detail below, are the Governors of the 
above-listed States. As Governors and Chief executive of­
ficers of their respective States, Amici are responsible for 
upholding and carrying out the commands of the Con­
stitutions and laws of their various States, including the 
provisions thereof requiring the establishment of public 
schools and school districts and commanding the children 
of their States to attend school. Amici are responsible for 
financial decisions affecting all State operations, including 
those pertaining to support and financing of the public 
schools.

“Amici are deeply concerned about the ongoing and 
continuing crisis in public education and the difficulties



95a

facing public educational systems in their States and 
around the nation. Amici recognize that grave inequities 
exist because of variation in local property tax bases upon 
which local school districts must rely in order to support 
their school systems. Amici believe that these inequalities 
in educational resources violate the requirements of the 
Equal Protection Clause of the Fourteenth Amendment to 
the United States Constitution and that these inequalities 
must be eliminated* * * *”

The Governors’ amicus brief, speaking of the State of 
Texas, could as well be said of the State of Michigan, when 
it used these words:

“ It is also undisputed that the local school districts 
and their boundaries, and hence the aggregate value of 
the property they contain, are entirely the creation of and 
their maintenance is the responsibility of the State of 
Texas. Furthermore, the detailed regulation of public 
education financing in Texas * * * is a state not a local 
responsibility. Indeed, the school districts have the power 
to raise funds for education only as a result of delegation 
by the State of its own power to tax for the general wel­
fare.” (Page 8 of brief.)

“ Since the State could not discriminate directly 
against students residing in poorer localities, it should not 
be permitted to accomplish the same result by dividing its 
responsibility for equal education with local school 
districts and failing to supplement the funds raised by the 
school districts sufficiently to eliminate discrimination.” 
*(Page 11 of brief.)

*Compare Griffin v. County School Board, 377 U.S. 218 
(1964). While a State may delegate certain of its functions to 
smaller subdivisions such as cities or counties, it cannot escape 
accountability for their actions. Such subdivisions are “ created 
as convenient agencies for exercising such of the governmental 
powers of the State as may be entrusted to them * * * * The 
number, nature, and duration of [their] powers * * * and the 
territory over which they shall be exercised rests in the absolute



96a

discretion of the State.” Hunter v. City of Pittsburg, 207 U.S. 
161, 178 (1907).

23. For years black children in the Carver School District 
were assigned to black schools in the inner city because no 
white suburban district (or white school in the city) would take 
the children.

24. These findings are made on the basis of the present 
record and are subject to modification based on evidence which 
may be developed once the specific problems of actual deseg­
regation are faced in the planning process.

25. See, Kelley, et al. v. Metropolitan Bd. of Educ., CCA 
6, Nos. 71-1778-79, page 22, slip opinion, May 30, 1972:

“ Perhaps the primary thing that the Swann case 
decided was that in devising plans to terminate such 
residual effects, it is appropriate for the school system and 
the District Judge to take note of the proportion of white 
and black students within the area* and seek as practical a 
plan as may be for ending white schools and black schools 
and substituting therefor schools which are representative 
of the area in which the students live.”

*The area referred to in this case is all of Davidson 
County, including the City of Nashville, which is in­
cluded in the jurisdiction of defendant Metropolitan 
Board of Education.



97a

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al.,
Plaintiffs

WILLIAM G. MILLIKEN, et al.,
Defendants

and
DETROIT FEDERATION OF TEACHERS, 
LOCAL 231, AMERICAN FEDERA­
TION OF TEACHERS, AFL-CIO,

Defendant-
Intervenor

and
DENISE MAGDOWSKI, et al.,

Defendants-
Intervenor

et al.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO
35257

RULING ON DESEGREGATION AREA 
AND

ORDER FOR DEVELOPMENT OF 
PLAN OF DESEGREGATION

On September 27, 1971 the court made its Ruling on Issue 
of Segregation, holding that illegal segregation exists in the 
public schools of the City of Detroit as a result of a course of 
conduct on the part of the State of Michigan and the Detroit 
Board of Education. Having found a constitutional violation as 
established, on October 4, 1971 the court directed the school 
board defendants, City and State, to develop and submit plans 
of desegregation, designed to achieve the greatest possible de­
gree of actual desegregation, taking into account the practicali-



98a

ties of the situation. The directive called for the submission of 
both a “Detroit-only” and a “Metropolitan” plan.

Plans for the desegregation of the Detroit schools were 
submitted by the Detroit Board of Education and by the plain­
tiffs. Following five days of hearings the court found that while 
plaintiffs’ plan would accomplish more desegregation than now 
obtains in the system, or which would be achieved under either 
Plan A or C of the Detroit Board of Education submissions, 
none of the plans would result in the desegregation of the pub­
lic schools of the Detroit school district. The court, in its find­
ings of fact and conclusions of law, concluded that “relief of 
segregation in the Detroit public schools cannot be accom­
plished within the corporate geographical limits of the city,” 
and that it had the authority and the duty to look beyond such 
limits for a solution to the illegal segregation in the Detroit 
public schools. Accordingly, the court ruled, it had to consider 
a metropolitan remedy for segregation.

The parties submitted a number of plans for metropolitan 
desegregation. The State Board of Education submitted six - 
without recommendation, and without indicating any pre­
ference. With the exception of one of these, none could be con­
sidered as designed to accomplish desegregation. On the other 
hand the proposals of intervening defendant Magdowski, et al., 
the Detroit Board of Education and the plaintiffs were all good 
faith efforts to accomplish desegregation in the Detroit metro­
politan area. The three plans submitted by these parties have 
many similarities, and all of them propose to incorporate, geo­
graphically, most-and in one instance, all—of the three-county 
area of Wayne, Oakland and Macomb.

The hearing on the proposals have set the framework, and 
have articulated the criteria and considerations, for developing 
and evaluating an effective plan of metropolitan desegregation. 
None of the submissions represent a complete plan for the 
effective and equitable desegregation of the metropolitan area, 
capable of implementation in its present form. The court will 
therefore draw upon the resources of the parties to devise, pur­
suant to its direction, a constitutional plan of desegregation of 
the Detroit public schools.



99a

Based on the entire record herein, the previous oral and 
written rulings and orders of this court, and the Findings of 
Fact and Conclusions of Law filed herewith, IT IS ORDERED:

I .

A. As a panel charged with the responsibility of pre­
paring and submitting an effective desegregation plan in accor­
dance with the provisions of this order, the court appoints the 
following:

1. A designee of the State Superintendent of Public 
Instruction;*

2. Harold Wagner, Supervisor of the Transportation Unit 
in the Safety and Traffic Education Program of the 
State Department of Education;

3. Merle Henrickson, Detroit Board of Education;

4. Aubrey McCutcheon, Detroit Board of Education;

5. Freeman Flynn, Detroit Board of Education;

6. Gordon Foster, expert for plaintiffs;

7. R ichard  Morshead, representing defendant 
Magdowski, et al.;

8. A designee of the newly intervening defendants;*

9. Rita Scott, of the Michigan Civil Rights Commission.

Should any designated member of this panel be unable to 
serve, the other members of the panel shall elect any necessary 
replacements, upon notice to the court and the parties. In the

*The designees of the State Superintendent o f Public Instruction and 
newly intervening defendants shall be communicated to the court within 
seven days of the entry of this order. In the event the newly intervening 
defendants cannot agree upon a designee, they may each submit a nominee 
within seven days from the entry o f this order, and the court shall select 
one of the nominees as representative o f said defendants.



100a

absence of objections within five days of the notice, and pend­
ing a final ruling, such designated replacement shall act as a 
member of the panel.

B. As soon a possible, but in no event later than 45 days 
after the issuance of this order, the panel is to develop a plan 
for the assignment of pupils as set forth below in order to pro­
vide the maximum actual desegregation, and shall develop as 
well a plan for the transportation of pupils, for implementation 
for all grades, schools and clusters in the desegregation area. In­
sofar as required by the circumstances, which are to be detailed 
in particular, the panel may recommend immediate implementa­
tion of an interim desegregation plan for grades K-6, K-8 or K-9 
in all or in as many clusters as practicable, with complete and 
final desegregation to proceed in no event later than the fall 
1973 term. In its transportation plan the panel shall, to meet 
the needs of the proposed pupil assignment plan, make recom­
mendations, including the shortest possible timetable, for ac­
quiring sufficient additional transportation facilities for any in­
terim or final plan of desegregation. Such recommendations 
shall be filed forthwith and in no event later than 45 days after 
the entry of this order. Should it develop that some additional 
transportation equipment is needed for an interim plan, the 
panel shall make recommendations for such acquisition within 
20 days of this order.

C. The parties, their agents, employees, successors. 
[SIC] and all others having actual notice of this order shall 
cooperate fully with the panel in their assigned mission, includ­
ing, but not limited to, the provision of data and reasonable full 
and part-time staff assistance as requested by the panel. The 
State defendants shall provide support, accreditation, funds, 
and otherwise take all actions necessary to insure that local 
officials and employees cooperate fully with the panel. All 
reasonable costs incurred by the panel shall be borne by the 
State defendants; provided, however, that staff assistance or 
other services provided by any school district, its employees or 
agents, shall be without charge, and the cost thereof shall be 
borne by such school district.



101a

II.
A. Pupil reassignment to accomplish desegregation of the 

Detroit public schools is required within the geographical area 
which may be described as encompassing the following school 
districts (see Exhibit P.M. 12), and hereinafter referred to as the 
“ desegregation area” :

Lakeshore Birmingham Fairlane
Lakeview Hazel Park Garden City
Roseville Highland Park North Dearborn 

Heights
South Lake Royal Oak Cherry Hill
East Detroit Berkley Inkster
Grosse Pointe Ferndale Wayne
Centerline Southfield Westwood
Fitzgerald Bloomfield Hills Ecorse
Van Dyke Oak Park Romulus
Fraser Redford Union Taylor
Harper Woods West Bloomfield River Rouge
Warren Clarenceville Riverview
Warren Woods Farmington Wyandotte
Clawson Livonia Allen Park
Hamtramck South Redford Lincoln Park
Lamphere Crestwood Melvindale
Madison Heights Dearborn Southgate
Troy Dearborn Heights Detroit

Provided, however, that if in the actual assignment of 
pupils it appears necessary and feasible to achieve effective and 
complete racial desegregation to reassign pupils of another dis­
trict or other districts, the desegregation panel may, upon 
notice to the parties, apply to the Court for an appropriate 
modification of this order.

B. Within the limitations of reasonable travel time and 
distance factors, pupil reassignments shall be effected within the 
clusters described in Exhibit P.M. 12 so as to achieve the 
greatest degree of actual desegregation to the end that, upon 
implementation, no school, grade or classroom by substantially



102a

disproportionate to the overall pupil racial composition. The 
panel may, upon notice to the parties, recommend reorganiza­
tion of clusters within the desegregation area in order to mini­
mize administrative inconvenience, or time and/or numbers of 
pupils requiring transportation.

C. Appropriate and safe transportation arrangements 
shall be made available without cost to all pupils assigned to 
schools deemed by the panel to be other than “walk-in” 
schools.

D. Consistent with the requirements of maximum actual 
desegregation, every effort should be made to minimize the 
numbers of pupils to be reassigned and requiring transportation, 
the time pupils spend in transit, and the number and cost of 
new transportation facilities to be acquired by utilizing such 
techniques as clustering, the “ skip” technique, island zoning, 
reasonable staggering of school hours, and maximization of use 
of existing transportation facilities, including buses owned or 
leased by school districts and buses operated by public transit 
authorities and private charter companies. The panel shall de­
velop appropriate recommendations for limiting transfers which 
affect the desegregation of particular schools.

E. Transportation and pupil assignment shall, to the ex­
tent consistent with maximum feasible desegregation, be a two- 
way process with both black and white pupils sharing the re­
sponsibility for transportation requirements at all grade levels. 
In the determination of the utilization of existing, and the con­
struction of new, facilities, care shall be taken to randomize the 
location of particular grade levels.

F. Faculty and staff shall be reassigned, in keeping with 
pupil desegregation, so as to prevent the creation or continua­
tion of the identification of schools by reference to past racial 
composition, or the continuation of substantially disproportion­
ate racial composition of the faculty and staffs, of the schools 
in the desegregation area. The faculty and staffs assigned to the 
schools within the desegregation area shall be substantially dese­
gregated, bearing in mind, however, that the desideratum is the



103a

balance of faculty and staff by qualifications for subject and 
grade level, and then by race, experience and sex. In the context 
of the evidence in this case, it is appropriate to require assign­
ment of no less than 10% black faculty and staff at each school, 
and where there is more than one building administrator, every 
effort should be made to assign a bi-racial administrative team.

G. In the hiring, assignment, promotion, demotion, and 
dismissal of faculty and staff, racially non-discriminatory cri­
teria must be developed and used; provided, however, there 
shall be no reduction in efforts to increase minority group 
representation among faculty and staff in the desegregation 
area. Affirmative action shall be taken to increase minority 
employment in all levels of teaching and administration.

H. The restructuring of school facility utilization neces­
sitated by pupil reassignments should produce schools of sub­
stantially like quality, facilities, extra-curricular activities and 
staffs; and the utilization of existing school capacity through 
the desegregation area shall be made on the basis of uniform 
criteria.

I. The State Board of Education and the State Super­
intendent of Education shall with respect to all school construc­
tion and expansion, “ consider the factor of racial balance along 
with other educational considerations in making decisions about 
new school sites, expansion of present facilities * * * ” ; and 
shall, within the desegregation area disapprove all proposals for 
new construction or expansion of existing facilities when 
“housing patterns in an area would result in a school largely se­
gregated on racial * * * lines,” all in accordance with the 1966 
directive issued by the State Board of Education to local school 
boards and the State Board’s “ School Plant Planning Hand­
book” (see Ruling on Issue of segregation, p. 13.).

J. Pending further orders of the court, existing school 
district and regional boundaries and school governance arrange­
ments will be maintained and continued, except to the extent 
necessary to effect pupil and faculty desegregation as set forth 
herein; provided, however, that existing administrative, finan­



104a

cial, contractual, property and governance arrangements shall be 
examined, and recommendations for their temporary and per­
manent retention or modification shall be made, in light of the 
need to operate an effectively desegregated system of schools.

K. At each school within the desegregated area provision 
shall be made to insure that the curriculum, activities, and con­
duct standards respect the diversity of students from differing 
ethnic backgrounds and the dignity and safety of each indivi­
dual, students, faculty, staff and parents.

L. The defendants shall, to insure the effective desegre­
gation of the schools in the desegregation area, take immediate 
action including, but not limited to, the establishment or expan­
sion of in-service training of faculty and staff, create bi-racial 
committees, employ black counselors, and require be-racial and 
non-discriminatory extra-curricular activities.

Ill
The State Superintendent of Public Instruction, with the 

assistance of the other state defendants, shall examine, and 
make recommendations, consistent with the principles estab­
lished above, for appropriate interim and final arrangements for 
the (1) financial, (2) administrative and school governance, and
(3) contractual arrangements for the operation of the schools 
within the desegregation area, including steps for unifying, or 
otherwise making uniform the personnel policies, procedures, 
contracts, and property arrangements of the various school dis­
tricts.

Within 15 days of the entry of this order, the Super­
intendent shall advise the court and the parties of his progress in 
preparing such recommendations by filing a written report with 
the court and serving it on the parties. In not later than 45 days 
after the entry of this order, the Superintendent shall file with 
the court his recommendations for appropriate interim and final 
relief in these respects.

In his examination and recommendations, the Super­
intendent, consistent with the rulings and orders of this court,



105a

may be guided, but not limited, by existing state law; where 
state law provides a convenient and adequate framework for in­
terim or ultimate relief, it should be followed, where state law 
either is silent or conflicts with what is necessary to achieve the 
objectives of this order, the Superintendent shall independently 
recommend what hp deems necessary. In particular, the Super­
intendent shall examine and choose one appropriate interim 
arrangement to oversee the immediate implementation of a plan 
of desegregation.

IV.
Each party may file appropriate plans or proposals for 

inclusion in any final order which may issue in this cause. The 
intent of this order is to permit all the parties to proceed apace 
with the task before us: fashioning an effective plan for the de­
segregation of the Detroit public schools.

Fifteen days after the filing of the reports required herein, 
hearings will begin on any proposal to modify any interim plan 
prepared by the panel and all other matters which may be inci­
dent to the adoption and implementation of any interim plan of 
desegregation submitted. The parties are placed on notice that 
they are to be prepared at that time to present their objections, 
alternatives and modifications. At such hearing the court will 
not consider objections to desegregation or proposals offered 
“ instead” of desegregation.

Hearings on a final plan of desegregation will be set as cir­
cumstances require.

DATE: JUNE 14, 1972.

Is/
Stephen J. Roth 

United States District Judge



106a

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al, )
Plaintiffs, )

v- )
WILLIAM G. MILLIKEN, et al, )

Defendants, ) 
and )

DETROIT FEDERATION OF TEACH- ) Civil Action 
ERS, LOCAL 231, AMERICAN FEDERA- ) No. 35257 
HON OF TEACHERS, AFL-CIO, )

Defendant-Intervenor, ) 
and )

DENISE MAGDOWSKI, et al, )
Defendants-Intervenor, ) 

et al. )

ORDER
FOR ACQUISITION OF TRANSPORTATION

At a session of the United States District Court, Federal 
Building, Detroit, Michigan, on the 11th day of July, 1972.

The Court has received a recommendation from the Panel 
appointed under its previous orders that 295 buses, which it had 
determined are available, should be acquired for the purpose of 
providing transportation under an interim plan. The Court also 
had before it the still pending motion of Plaintiffs for the purchase 
of 350 buses. Having heard the arguments of counsel, IT IS HERE­
BY ORDERED:

1. The Defendant Detroit Board of Education shall acquire 
by purchase, lease or other contractual arrangement at least 295 
buses for use in the interim desegregation plan during the 1972-73 
school year. All financial obligations incurred as the result of this 
Order shall be the sole financial obligation of the State Defen­



107a

dants, including the added State Defendant State Treasurer Allison 
Green, as set forth below in Paragraph 2. Said order, lease, or 
other contract shall be entered into by negotiation and without 
the necessity for bids forthwith and in no event later than Thurs­
day, July 13, 1972.

2. The State Defendants shall bear the cost of this acquisi­
tion and State Defendants, including the added State Defendant 
Green, shall take all necessary steps utilizing existing funds and 
sources of revenue, to be acquired State funds, legislatively autho­
rized and funds directed by the State Constitution to the State 
School Aid Funds and by re-allocation of existing or newfundsto 
pay for said transportation acquisition either directly or through 
the Defendant Detroit Board.

United States District Judge



108a

NO. 72-8002
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

RONALD BRADLEY, et al,
Plain tiffs-Appellants )

)v.

)
)
)

) O R D E R

DETROIT FEDERATION OF TEACHERS 
LOCAL 231, AMERICAN FEDERATION 
OF TEACHERS, AFL-CIO,

Defendant-Intervenor
and

DENISE MAGDOWSKI, et al,
Defendants-Intervenors

Before: PHILLIPS, Chief Judge, EDWARDS and PECK, Circuit 
Judges.

The District Court has certified that certain orders entered by 
him in this case involve controlling questions of law, as provided 
by 28 U. S. C. § 1292(b), and has made a determination of finality 
under Rule 54(b), Fed. R. Civ. P.

This court concludes that among the substantial questions 
presented there is at least one difficult issue of first impression 
which never has been decided by this court or the Supreme Court. 
In so holding we imply nothing as to our view of the merits of this 
appeal. We conclude that an immediate appeal may materially 
advance the ultimate termination of the litigation. Accordingly, it 
is ORDERED that the motion for leave to appeal be and hereby is

It is further ORDERED that the appeal in this case be ad­
vanced on the docket of this court and scheduled for hearing 
Thursday, August 24, 1972, at 9 a.m. The appendix and simul­
taneous briefs of all parties shall be filed not later than 25 days

granted.



109a

after the entry of this order. Reply briefs shall be filed not later 
than August 21, 1972. Typewritten appendix and briefs may be 
filed in lieu of printed briefs, together with ten legible copies pro­
duced by Xerox or similar process. An appendix must be filed. The 
court will not entertain a motion to hear the appeal on the original 
record.

The motion for stay pending appeal having been considered, it 
is further ORDERED that the Order for Acquisition of Trans­
portation, entered by the District Court on July 11, 1972, and all 
orders of the District Court concerned with pupil and faculty 
reassignment within the Metropolitan Area beyond the geo­
graphical jurisdiction of the Detroit Board of Education, and all 
other proceedings in the District Court other than planning pro­
ceedings, be stayed pending the hearing of this appeal on its merits 
and the disposition of the appeal by this court, or until further 
order of this court. This stay order does not apply to the studies 
and planning of the panel which has been appointed by the Dis­
trict Court in its order of June 14, 1972, which panel was charged 
with the duty of preparing interim and final plans of desegre­
gation. Said panel is authorized to proceed with its studies and 
planning during the disposition of this appeal, to the end that 
there will be no unnecessary delay in the implementation of the 
ultimate steps contemplated in the orders of the District Court in 
event the decision of the District Court is affirmed on appeal. 
Pending disposition of the appeal, the defendants and the School 
Districts involved shall supply administrative and staff assistance 
to the aforesaid panel upon its request. Until further order of this 
court, the reasonable costs incurred by the panel shall be paid as 
provided by the District Court’s order of June 14, 1972.

Entered by order of the Court.

/s/ James A. Higgins
Clerk



Nos. 72-1809 -  72-1814

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Ronald Bradley, et al.,
Plaintiffs-Appellees,
v.

William G. Milliken, Governor of 
Michigan, etc.; Board of Educa­
tion of the City of Detroit,

Defendants-Appellants, 
and

Detroit Federation of Teachers 
Local 231, American Federation 
of Teachers, AFL-CIO,

Defendant-Intervenor-Appellee, 
and

Allen Park Public Schools, et al., 
Defendants-Intervenors- Appellants 

and
Kerry Green, et al.,

Defendants-Intervenors- Appellees.

A p p e a l  from the 
United States District 
Court for the Eastern 
District of Michigan, 
Southern Division.

Decided and Filed June 12, 1973.

Before Phillips, Chief Judge, Weick, Edwards, Celebrezze, 
Beck, McCree, Miller, Kent and Lively, Circuit Judges.

Phillips, C.J., delivered the opinion of the Court, in which 
Edwards, Celebrezze, Peck, McCree and Lively, JJ., joined. 
Weick> J. (pp. 82-111) and Miller, J. (pp. 130-131)' filed dis­
senting opinions and Kent, J., (pp. 112-129) filed a separate



111a

opinion concurring in part and dissenting in part. Judge Kent 
died May 28, 1973 after the opinions were in the hands of 
the printer.

Phillips, Chief Judge. This is a school desegregation case 
which, as originally filed, was directed against the school sys­
tem of Detroit, Michigan, but on this appeal involves both 
Detroit and school districts located in the surrounding met­
ropolitan area.

The present appeal is the fourth time that the case has been 
before this court since the complaint was filed August 18. 
1970. The earlier decisions of this court are reported at Brad­
ley v. Milliken, 433 F.2d 897 (1970); Bradley v. Milliken, 438 
F.2d 945 (1971); and Bradley v. Milliken, 468 F.2d 902, 
cert, denied, 409 U.S. 844 (1972). (On November 27, 1972 
the original panel dismissed for want of jurisdiction an 
“emergency motion” by the Detroit Board of Education 
that State officials be required to provide funds to keep the 
Detroit public schools operating for 180 regular days of
instruction during the current school year.----F.2d — )
On February 27, 1973, the Supreme Court denied re­
view in Bloomfield Hills School District v. Roth, West Bloom­
field School District v. Roth, and Birmingham School District
v. Roth, —  U.S.----, 41 U.S.L.W. 3460. In these cases this court
had denied applications for writs of mandamus or prohibition 
against District Judge Roth. The School Districts contended 
that the District Judge usurped jurisdiction by failing to con­
vene three-judge courts and by subjecting the School Districts : 
to his ruling and order in the school desegregation case in spite 
of the fact that the Districts were not parties to the desegre­
gation proceedings and had not been found to have committed 
any act of de jure segregation. The action of the Supreme 
Court was without prejudice to the right of the School Dis­
tricts to file application to intervene in the present action.)

Oral arguments were heard before a panel of this court 
on August 24, 1972. An opinion was announced by the panel 
on December 8, 1972, affirming two orders of the District 
Court, viz: (1) Ruling on Issue of Segregation, reported at

2 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-14



112a

338 F.Supp. 582, and (2) Findings of Fact and Conclusions 
of Law on “Detroit only” plans of desegregation, dated March 
28, 1972. The decision of the panel vacated the remaining 
three orders on appeal (enumerated below), but affirmed in 
principle the ruling of the District Court on the propriety of 
a metropolitan remedy to accomplish desegregation.

On January 16, 1973, this court granted rehearing in banc. 
Under the provisions of Rule 3(b) of the local rules of this 
court, the effect of granting rehearing in banc is “to vacate 
the previous opinion and judgment of the court, to stay the 
mandate and to restore the case on the docket as a pending 
appeal.”

Oral arguments before the court in banc were heard Feb­
ruary 8, 1973.

No specific desegregation plan has been ordered by the 
District Court. The procedural history of the litigation is set 
forth below.

Before this court at the present time are four interlocutory 
orders from which we have granted appeal pursuant to 28 
U.S.C. § 1292(b) and one final order, viz:

1. Ruling on Issue of Segregation, dated September 27, 
1971, reported at 338 F.Supp. 582;

2. Findings of fact and conclusions of law on “Detroit only” 
plans of desegregation, dated March 28, 1972;

3. Ruling on Propriety of a Metropolitan Remedy to Ac­
complish Desegregation of the Public Schools of the City of 
Detroit, dated March 24, 1972;

1. Ruling on Desegregation Area and Development of 
Plan, and Findings of Fact and Conclusions of Law in support 
thereof, dated June 14, 1972; and

5. Order dated July 11, 1972, directing Michigan State 
officials to purchase 295 school buses (which this court con­
siders to be a final order).

On July 13, 1972, following oral argument, the original panel 
granted a motion for a temporary stay of the District Court’s

Nos. 72-1809 -1 4  B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. 3



113a

order of July 11, 1972, ordering the purchase of 295 school 
buses.

On July 17, 1972, following oral argument, the original panel 
directed that its stay order remain in effect until entry by the 
District Court of a final desegregation order or until certification 
by the District Court of an appealable question as provided by 
28 U.S.C. § 1292(b).

Thereafter, on July 19, 1972, the District Court certified that 
the orders set forth above involve controlling questions of 
law, as provided by 28 U.S.C. § 1292(b), and made a deter­
mination of finality under Rule 54(b), Fed. R. Civ. P.

On July 20,1972, the original panel entered an order granting 
the interlocutory appeal concluding that:

“ [A]mong the substantial questions presented there is at 
least one difficult issue of first impression that never has 
been decided by this court or the Supreme Court. In so 
holding we imply nothing as to our view of the merits of 
this appeal. We conclude that an immediate appeal may 
materially advance the ultimate termination of the litiga­
tion.”

The motion for leave to appeal was granted and the case 
was advanced for oral arguments on the merits on August 
24, 1972.

The July 20, 1972 order of the original panel included the 
following stay order, which has remained in effect pending 
final disposition of the appeal on its merits:

“The motion for stay pending appeal having been con­
sidered, it is further ORDERED that the Order for Ac­
quisition of Transportation, entered by the District Court 
on July 11, 1972, and all orders of the District Court con­
cerned with pupil and faculty reassignment within the 
Metropolitan Area beyond the geographical jurisdiction 
of the Detroit Board of Education, and all other proceed­
ings in the District Court other than planning proceedings, 
be stayed pending the hearing of this appeal on its merits 
and the disposition of the appeal by this court, or until fur­
ther order of this court. This stay order does not apply 1°

4 B r a d l e y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-14



114a

the studies and planning of the panel which has been ap­
pointed by the District Court in its order of June 14, 
1972, which panel was charged with the duty of pre­
paring interim and final plans of desegregation. Said 
panel is authorized to proceed with its studies’ and plann­
ing during the disposition of this appeal, to the end that 
there will be no unnecessary delay in the implementation 
of the ultimate steps contemplated in the orders of the 
District Court in event the decision of the District Court 
is affirmed on appeal. Pending disposition of the appeal, 
the defendants and the School Districts involved shall 
supply administrative and staff assistance to the aforesaid 
panel upon its request. Until further order of this court, 
the reasonable costs incurred by the panel shall be paid 
as provided by the District Court’s order of June 14, 1972.”

This court also has granted leave to appeal to various in­
tervening parties and leave to file numerous amicus briefs. 
The briefs and arguments of all the parties have been con­
sidered in the disposition of this appeal.

We agree with two of the rulings of the District Court sum­
marized above: (1) The Ruling on the Issue of Segregation 
and (2) the Findings of Fact and Conclusions of Law on 
“Detroit-only” plans of desegregation. We hold that the find­
ings of fact of the District Court as set forth in these rulings 
are not clearly erroneous, Rule 52(a), Fed. R. Civ. P., but to the 
contrary are supported by substantial evidence.

As to the District Court’s third ruling pertaining to the pro­
priety of a Metropolitan remedy, we agree in part and re­
verse in part. We vacate this and the two remaining orders 
and remand to the District Court for further proceedings as 
hereinafter set forth in detail in this opinion.

I. Chronology of Proceedings
On April 7, 1970, the Detroit Hoard of Education adopted 

a plan to effect a more balanced distribution of black and 
white students in the senior high schools through enactment 
of changes in attendance zones involving some 12,000 pupils,

Nos. 72-1809 -1 4  B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. 5



115a

to become effective over a three year period. Three months 
later this modest effort was thwarted by the legislature of 
the State of Michigan through enactment of Act 48 of the 
Public Acts of 1970. Section 12 of the Act delayed implementa­
tion of the plan. The four members of the Board who sup­
ported the April 7 plan were removed from office through a 
citizen initiated recall election. The new members of the 
board and the incumbent members who had originally op­
posed the April 7 plan thereafter rescinded it.

The complaint in this case was filed by individual black 
and white school children and their parents, and the Detroit 
branch of the NAACP against the Board of Education of the 
City of Detroit, its members, and the then Superintendent 
of Schools, as well as the Governor, the Attorney General, 
the State Board of Education and the State Superintendent 
of Public Instruction of the State of Michigan. (The State 
of Michigan as such is not a party to this litigation. References 
thereto should be read as references to the public officials, 
State and local, through whom the State is alleged or shown 
to have acted.)

The complaint alleged that the Detroit public school system 
was and is segregated on the basis of race as the result of 
actions and policies of the Board of Education and of the 
State of Michigan. The complaint specifically challenged the 
constitutionality of Act 48 of the Public Acts of 1970 of the 
State of Michigan, which in effect repealed the April 7, 1970 
high school desegregation plan formulated by the Detroit 
Board.

The case was heard originally on plaintiffs’ motion for a 
preliminary injunction to restrain the enforcement of Act 
48. In response to this motion the District Judge denied a pre­
liminary injunction, did not rule on the constitutionality of Act 
48, but granted the motion of the Governor and Attorney Gen­
eral of Michigan for dismissal of the cause as to them. 0® 
appeal this court held that § 12 of Act 48 was an unconstitu­
tional interference with the lawful protection of Fourteenth 
Amendment rights, that there was no abuse of discretion in

6 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-14



116a

denying a preliminary injunction, and that the Governor 
and Attorney General should not have been dismissed as par­
ties defendant at that stage of the proceeding. The case was 
remanded to the District Court for an expedited trial on 
the merits. 433 F.2d 897.

On remand plaintiffs moved for immediate implementation 
of the April 7 plan. On December 3, 1970, following an 
evidentiary hearing on that plan and two updated plans, the 
District Court ordered implementation of the “Magnet” or 
“McDonald” plan effective at the beginning of the next full 
school year, pending ultimate disposition on the merits. Plain­
tiffs appealed and filed a motion for summary reversal. This 
court again held that the District Court had not abused its 
discretion in refusing to adopt the April 7 plan prior to an 
evidentiary hearing on the allegations of constitutional viola­
tions in the complaint. We remanded the case with in­
structions to proceed to trial expeditiously on the merits of 
plaintiffs’ allegations concerning the Detroit public school 
system. 438 F.2d 945. The trial of the case on the issue of 
segregation began April 6, 1971, and continued until July 
22, 1971, consuming 41 trial days. On September 27, 1971, 
the District Court issued its ruling on the issue of segrega­
tion, holding that the Detroit public school system was racially 
segregated as a result of unconstitutional practices on the part 
of the defendant Detroit Board of Education and the Michigan 
State defendants. 338 F.Supp. 582.

A decision on a motion to join a large number of suburban 
school districts as parties defendant was deferred on the 
ground that the motion was premature, in that no reasonably 
specific desegregation plan was before the court. The Detroit 
oard of Education was ordered to submit desegregation plans 
united to the City, while State defendants were directed 
0 submit plans encompassing the three-county metropolitan 
area' An effort was made to appeal these orders to this 
c°urt. On February 23, 1972, this court held the orders to be 
non-appealable and dismissed the appeal. 468 F.2d 902, cert, 
denied, 409 U.S. 844 (1972).

Nos. 72-1809 -1 4  B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. 7



117a

After further proceedings concerning proposals for a Detroit 
only desegregation remedy and the presentation of three plans 
therefor, the District Judge on March 24, 1972, issued a 
ruling entitled “Ruling on Propriety of Considering a Metro­
politan Remedy,” and on March 28, 1972, he issued “ Findings 
of Fact and Conclusions of Law on Detroit Only Plans of 
Desegregation.” He rejected all Detroit only plans, saying 
in part: “Relief of segregation in the public schools o f  the 
City of Detroit cannot be accomplished within the corporate 
geographical limits of the city.”

Subsequently, the District Court issued an order on June 
14, 1972, entitled “Ruling on Desegregation Area and Order 
for Development of Plan for Desegregation.” In this ruling 
and order the District Court established tentative boundaries 
for a metropolitan remedy and provided for a panel of nine 
members to design plans for integration of the Detroit school 
and those of 53 metropolitan school districts within certain 
guidelines.

The panel recommended preparatory purchases of school 
buses prior to implementation of an interim plan in Septem­
ber 1972. Following a hearing, the District Court on July 
11 ordered State defendants to purchase or otherwise acquire 
295 school buses.

In view of the intervening Congressional action by the en­
actment of the “Broomfield Amendment,” certification was 
made to the Attorney General of the United States that thej 
constitutionality of § 803 of the Education Amendments ol 
1972, Pub. L. No. 92-318, 86 Stat. 235, had been called into 
question. The Department of Justice intervened, filed a brief 
and participated in the oral arguments before this court.

II. The Issues

All of the parties to this litigation in one form or another 
present three basic issues which we phrase as follows:

1. Are the District Court’s findings of fact pertaining lJ 
constitutional violations resulting in system-wide racial segre-

8 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-14



118a

gation of the Detroit Public Schools supported by substan­
tial evidence or are they clearly erroneous?

2. Based on the record in this case, can a constitutionally 
adequate system of desegregated schools be established with­
in the geographic limits of the Detroit school district?

3. On this record does the District Judge’s order requiring 
preparation of a metropolitan plan for cross-district assign­
ment and transportation of school children throughout the 
Detroit metropolitan area represent a proper exercise of the 
equity power of the District Court?

III. The Constitutional Violations

(A) Constitutional violations found to have been committed 
by the Detroit Board of Education:

(1) Segregative zoning and assignment practices.
(a) The District Judge found that the Detroit 

Board of Education formulated and modified 
attendance zones to create or perpetuate racial 
segregation. He also found that the feeder sys­
tem for junior and senior high schools was de­
signed to maintain rather than eliminate black 
or white schools at the higher levels. Its prac­
tice of shaping school attendance zones on a 
north-south rather than an east-west orientation 
resulted in attendance zone boundaries con­
forming to racial dividing lines.

(b) He further found that the Detroit Board of 
Education’s policies involved a substantial 
number of instances of transporting black chil­
dren past white schools with available school 
space.

He also found that it was the policy of the Board
of Education to create optional attendance areas

Nos. 72-1809 -1 4  B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. 9



119a

which permitted white students to transfer to all 
white or predominately white schools located nearer 
the city limits.
The District Judge also found that the policies of 
the Detroit Board of Education (and State Board 
of Education) concerning school construction in 
some instances had the purpose of segregating stu­
dents on a racial basis and in many others resulted 
in maintaining or increasing segregation.

The District Judge’s findings of fact pertaining to al­
teration of zones and feeder patterns are as follows:

“The Board has created and altered attendance zones, 
maintained and altered grade structures and created and 
altered feeder school patterns in a manner which has 
had the natural, probable and actual effect of continuing 
black and white pupils in racially segregated schools. 
The Board admits at least one instance where it pur­
posefully and intentionally built and maintained a school 
and its attendance zone to contain black students, 
Throughout the last decade (and presently) school at­
tendance zones of opposite racial compositions have been 
separated by north-south boundary lines, despite the 
Board’s awareness (since at least 1962) that drawing 
boundary lines in an east-west direction would result in 
significant integration. The natural and actual effect of 
these acts and failures to act has been the creation and 
perpetuation of school segregation. There has never been 
a feeder pattern or zoning change which placed a pre­
dominantly white residential area into a predominantly 
black school zone or feeder pattern. Every school which 
was 90% or more black in 1960, and which is still in use 
today, remains 90% or more black.” 338 F.Supp. at 588.

The legal conclusion of the District Judge is as follows:
“5. The Board’s practice o f  shaping school attendance 

zones on a north-south rather than an east-west orienta­
tion, with the result that zone boundaries conformed to

10 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-14



120a

racial residential dividing lines, violated the Fourteenth 
Amendment. Northcross v. Board of Ed. of Memphis, 
6 Cir., 333 F.2d 661.” 338 F.Supp. at 592-93.

*  *  «

“9. The manner in which the Board formulated and 
modified attendance zones for elementary schools had 
the natural and predictable effect of perpetuating racial 
segregation of students. Such conduct is an act of de 
jure discrimination in violation of the Fourteenth Amend­
ment. United States v. School District 151, D.C., 286 F. 
Supp. 786; Brewer v. School Board of City of Norfolk, 4 
Cir., 397 F.2d 37.” 338 F.Supp. at 593.

There is, of course, other legal support for the con­
clusions set out above. Davis v. School District of Pontiac, 
443 F.2d 573, 576 ( 6th Cir.), cert, denied, 404 U.S. 913 (1971); 
United States v. Board of Education, Ind. School District No. 
1, 429 F.2d 1253, 1259 (10th Cir. 1970); United States v. 
Jefferson County Board of Education, 372 F.2d 836, 867-68 
(5th Cir. 1965), aff’d in banc, 380 F.2d 385 (5th Cir. 1966), 
cert, denied sub nom, Caddo Parish School Board v. United 
States, 389 U.S. 840 (1970); Clemons v. Board of Education, 
228 F.2d 853, 858 (6th Cir.), cert, denied, 350 U.S. 1006
(1956); Spangler v. Pasadena Board of Education, 311 F. 
Supp. 501, 522 (C.D. Cal. 1970).

Witness Charles Wells, defendant School Board’s assistant 
superintendent in charge of the Office of Pupil Personnel 
Services, read into the record and testified in support of the 
minutes of a meeting of the Citizens Association for Better 
Schools. Mr. Wells was the president of the Citizens As­
sociation at the time the meeting was conducted. His testi­
mony includes the following:

Q. (By Mr. Lucas) Go ahead, sir.
“A. ‘November 3, 1960.

TO: Honorable Nathan Kaufman, Chairman
Committee on Equal Education Opportunity.

Nos. 72-1809- 14 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. 11



121a

‘We should like to begin our presentation by reviewing 
with you briefly the development of our organization. We 
feel it is significant as it represents an attempt on the 
part of people who make up this organization to effective­
ly deal with the frustrations historically inherent in at­
tempting to provide for minority group children an ade­
quate education within the Detroit Public School System. 
A majority of the people of the Negro race moved into 
the now Center District from other school districts with­
in the limits of the City of Detroit. Although better 
housing conditions were but one of the motives for such 
a move, of equal importance was a desire to provide their 
children with a more equitable and enriched educational 
experience.

‘They were aware of the increased population within 
their new geographical area, and accepted the counselling 
of the then new administration of the Board of Edu­
cation, to the effect that additional tax monies would 
have to be made available if educational standards within 
the City of Detroit were to be improved, or even main­
tained. Consequently, each of them made a strong per­
sonal investment in the millage campaign of Spring 1959. 
In this campaign, initially, their efforts did not meet the 
wholehearted approval of the Negro community, since 
from past experience, particularly involving other millage 
campaigns, members of the Negro community had ob­
served that the results of the expenditures of monies 
obtained from additional taxes, had little effect on the 
facilities, the equipment, or the curriculum available to 
their children.

‘Despite this resistance, they were aware that there 
would be less justification for demanding adequate edu­
cational opportunities for their children if they did not 
accept their responsible share for the successful passing 
of the millage program. As a consequence of their ef­
forts, their respective schools voted overwhelmingly f°r 
the millage program, and they logically expected that 
positive results would follow their efforts.

12 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-14



122a

Their first disillusionment occurred only a few months, 
but yet a few weeks after the passage of the millage — 
they were rewarded with the creation of the present 
Center District. In effect this District, with a few minor 
exceptions, created a segregated school system. It ac­
complished with a few marks of the crayon on the map, 
the return of the Negro child from the few instances of 
an integrated school exposure, to the traditional pre­
dominantly uni-racial school system to which he had for­
merly been accustomed in the City of Detroit.

‘Their attempts to meet this threat to their children’s 
educational experience through existing school organiza­
tions met with little success. Their conferences with 
District and City-Wide administrators including the super­
intendent, Dr. Samuel Brownell, resulted in only ration­
alizations concerning segregated housing patterns, and 
denials of any attempts at segregation. When it was 
pointed out that regardless of motivation, that segrega­
tion was the result of their boundary changes, little com­
promise was effected, except in one or two instances, 
where opposition leadership was most vocal and ag­
gressive.

Concurrent with boundary changes, it was alarming­
ly noticeable that the school population within the Cen­
ter District was rapidly increasing, and that the priority 
building program would have little positive effect in 
dealing with the problem. Attempts to discuss this prob­
lem with school and district administration gave promise 
of only minimal relief.

Finally, it had been earlier noted by new residents 
moving into what is now the Center District that prior 
to and during its change from a uniracial (predominant­
ly white) to a biracial system and again to a uniracial 
(predominantly Negro) school system that the quality 
o their children s previous educational experiences did 
not eqiup them to compete on an equal basis with resi­
dent children in the same grade and classifications.

These experiences made them aware that no one or­
ganization composed of one or several schools, could ef-

Nos. 72-1809 -1 4  B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. 13



123a

fectively coordinate the mutual concern of the many 
parents residing within the Center District. Thus out of 
the several discussions of groups of people whose primary 
concern was the adequate and equitable education of their 
children, this organization was born. It is felt that no 
better description of its purpose, its objective, and its 
reason for being can be found than in the preamble to 
its Constitution, which is:

‘PREAMBLE: Our interest is in equal educational op­
portunities for all persons within the City of Detroit.

‘We do not believe that such opportunities are possible 
within a segregated school system.

‘We oppose a policy of containment of minority groups 
within specified boundaries, an example of which is the 
Center District. While the above is of utmost concern 
to us we are also aware that there is need for improve­
ment and enrichment of the standards within this district 
in practice as well as in theory.

‘We believe that once standards have become reason­
ably adequate, that such standards should be maintained. 
It should be further recognized that future population l 
shifts brought about by urban redevelopment will ad­
versely affect the above goals in the Center District, unless 
there is anticipation of the impact of this population 
growth upon this district.

‘Since the inception of our organization we have noted 
the following:

‘The public school system of the City of Detroit is 
divided into nine administrative districts, one of which 
is the Center District.

‘Yet, every day, when the children in this city leave . 
their homes to go forth to public schools, approximately 
one out of every four leaves a home in the Center District. 
Of the 154,969 children enrolled in public elementary 
schools as of September 30, 1960, 36,264 or 23.4 percent 
of these children leave a home in the Center District. .

14 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-11



124a

‘There are 221 elementary school buildings in the De­
troit Public School System. Of these 28 are in the Center 
District. This means, then, that the 23.4 percent of the 
total elementary school population is accommodated in 
12.7 percent of the buildings.

‘Fifteen percent of these children sit in classes of 40 to 
44 students per class. This is in comparison to:

Nos. 72-1809 - 14 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. 15

East .13 percent
North .05 percent
Northeast .04 percent
Northwest .08 percent
South .01 percent
Southeast .01 percent
West .05 percent

‘Sixty-two and one-half percent of all the children in 
the city’s elementary schools who sit in classes of 45 to 
49 are children in the Center District. These schools in 
the Center District find their capacities short by 6,352 
pupil stations. In other words, their capacities are over­
taxed to the extent of 16 percent; and the future build­
ing program, as set forth by the superintendent’s report 
of October 17, 1960, will make available only 11,189 ad­
ditional pupil stations within the next ten-year period. 
However, this will be insufficient to meet the demands of 
the Center District. Therefore, it is apparent that a 
school bussing program will have to become a permanent 
part of the school housing program. Thus the manner 
in which the bussing program is administered becomes a 
matter of acute concern.

‘Presently, children are being bussed by grades. Under 
this system a number of problems are created:

1) It makes necessary a reorganization of the 
bussing school, as well as the school into which the 
children are bussed.

2) They are not integrated into the school into 
which they are bussed, except in minor instances.



125a

3) There is a possibility of the separation of the 
family unit.

4) Parents are unable to establish a good rapport 
with the teachers and administrators in the new 
school since there exists a time limit in which these 
children will be members of that school.

‘It is recommended that a policy of bussing by geo­
graphical areas instead of by grades be instituted so as 
to eliminate the above problems.

‘The emphasis on curricula objective are not compara­
ble in the various school districts of the Detroit School 
System. There is a tendancy in the Center District to 
stereotype the educational capacity of the children. Tbs 
means that children entering the schools in this district 
whose background enables them to comprehend an en­
riched educational program, are not challenged.

‘For example, one student in the Hutchins Intermediate 
School who desired to prepare for entrance into an East­
ern college found that Latin was not offered, and only 
after considerable effort by members of the community, 
along with his family, was Latin placed back in the school 
curriculum. Many other instances can be cited upon 
request.

‘Conversely, children whose initial capacity is retarded 
by deprived socio-economic circumstances also go un­
challenged. The District Administrator has admitted that 
no program exists to take care of these children.

“The curriculum and counselling as they now exist, 
do not encourage students to achieve their maximum ca­
pacities. We feel that the responsibility for any inequities 
in the educational experience offered to any group of 
children within a given school system must be assumed 
by those p e rso n s  charged with the overall responsibility 
of administering that system.

‘Therefore, we recommend that strong policies be adopt­
ed by the top administration to erase inequities of the

16 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-14



126a

Detroit Public School System, and a policy of super­
vision through all levels of administration be instituted 
at all levels of administration to insure equal educational 
opportunities to all children.

‘The Citizens’ Association for Better Schools.’
Q. Do you join in that statement in submission to the 

committee?
“A. Yes, I did.”

Mr. Wells cited the example of the Center (administrative) 
District, where attendance boundaries were shaped in a gerry­
mandered fashion to conform to the racial residential pattern.

“Q. With regard to that same situation, you were ex­
pressing a problem which your committee had met in 
attempting to discuss this. Can you tell me how you 
came to be discussing this with the Board at that time?

A. It was not with the Board of Education, I be­
lieve it was with the administration of the school system.

“Q. The administrative staff?
A. Including the superintendent.

“Q. All right.
A. Our initial concern about the boundaries of the 

center district grew out of the concern we had in 1960 
about the changing of the attendance areas between the 
Central High School and the Mackenzie High School.

Q. Is that the optional attendance area also set up in 
that?

A. A part of that was optional. Well, let’s put it 
that way, a part of it had been optional, the proposal was 
to eliminate the option. In the process of eliminating the 
option what it would mean would be that by and large 
the few black children who had been attending Mackenzie 
would have been pulled back into the Central area.

Q. Mackenzie at that time was a majority white 
school?

(<A. Predominately white.
Q- Central by that time had become black?

Nos. 72-1809 - 14 B r a d l e y , e t  al. v. M il l ik e n , e t  al. 17



127a

“A. Predominately black.
“Q. So the cancellation of the optional area which 

had been there had the effect of preventing black chil­
dren choosing Mackenzie, is that correct?

“A. That is right.
“Q. Were there any other schools — there is a ref­

erence made to the establishment of the center district 
boundaries —. were there any other schools which had 
not previously been in certain feeder patterns that were 
drawn back into the center district?

‘A. I am trying to remember now as I said eleven 
years.

“Q. I understand.
“A. If I remember correctly, the Sherrill School which 

also had been a part of it, that portion north of Tireman 
had been attending Mackenzie and they in turn, the total 
school then would have been returned to the Chadsey 
area.

Q. What about Tappan and that area, are you fa­
miliar at all with changes that took place?

A. Tappan was the junior high school in which Win­
terhalter, the elementary school in the area south of 
Davison just west of Ewald Circle attended. At that , 
time the students from that area attended Tappan and 
ah students from Tappan attended Mackenzie.

The new change would mean that the students from 
Winterhalter, and I think McKerrow which is just below 
Winterhalter would have attended Tappan through the 
9th grade, but then had been pulled back into the center 
district to attend Central High School.

The other students in Tappan would have gone to 
Mackenzie.

“Q. The other students in Tappan, were they pre­
dominately white students?

A. Yes. Our concern about this region really at that 
time was that we could draw a line which separated the 
black residents from the white residents and almost to 
the alley and that in effect was the boundary line of 
the center district.”

18 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-14

I



128a

There was evidence that school feeder patterns were changed 
so as to make particular junior high schools or senior high 
schools either generally white or generally black, as shown 
in the following testimony:

“MR. CALDWELL: Your Honor, I have copies of
the Mumford High School district in 1959 which is taken 
from Plaintiff s Exhibit 78-A, and this makes it easier to 
see the schools.

“Q. Let’s get back to the 1962-’63 overlay.
“Prior to the 1962-’63 — first of all, will you point out 

to the Court where the Vandenberg and Vemor Schools 
are.

“A. This triangle to the northwest corner of this area, 
(indicating)

“Q. Prior to 1962-63 where did the Vemor and Van- 
derburg youngsters go to high school?

“A. Mumford High School.
“Q. A boundary change was made in 1962-63?
“A. That’s right.
“Q. Where did those youngsters go to school in that 

year?
“A. Ford High School.
Q. How long did that feeder pattern continue?
A. Until 1966-67 when they returned to Mumford.

“Q. All right.
MR. CALDWELL: Plaintiffs’ Exhibit 128-A, your

Honor, reflects that in 1960 Vandenburg and Vemor were 
0 percent black. Mumford was 16.1 black, Ford was .1 
percent black. With regard to Vandenburg and Vemor, 
there was a gradual increase in the black population until 
1966 when Vandenburg was 39.5 percent black and Ver­
nor was 39.8 percent black.

Then in 1967 the change was made taking Vandenburg 
and Vernor back into Mumford. Vandenburg had be­
come 70 percent black, Vernor had become 63.2 percent 
black. That year the change was made and Mumford 
was 78.1 percent black, Ford was 4.1 percent black.

Nos. 72-1809 -1 4  B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. 19



129a

“Q. I believe that feeder pattern continued into tie 
current school year?

“A. That is right.
“Q. Those schools now feed back into Ford High 

School this year?
“A. That is right.”

The effect of such a policy was attested to by Dr. Gordot 
Foster of the University of Miami, director of the Florida 
School Desegregation Consulting Center:

“Q. The effect, Doctor, then, of the removal of Van- 
denberg and Vemor from the Ford feeder pattern into 
the Mumford feeder pattern, what was the effect in terms 
of race?

“A. The effect of this move in 1967-68 of the transfer 
back of the two elementary schools was to increase tie 
segregation at Mumford, to take blacks from the Ford 
High School and, therefore, increase the segregated pat­
tern there, and, in my opinion, it reinforced inevitably 
the perception that Ford would be kept white as i 
matter of basic policy and that Mumford would be a 
racially contained isolated high school attendance area.

Similar testimony regarding the segregative effect of alter­
ing school feeder patterns was given with respect to tie 
Jefferson and Hutchins Junior High Schools, Garfield and 
Spain Junior High Schools, Burton and Irving Elementary 
Schools, Higginbotham Elementary School, Jackson and Foci, 
Junior High Schools, Stellwagen, Keating and Clark Elem® 
tary Schools, Cleveland and Nolan Junior High Schools, Coal­
ville Elementary School, Ford and Brooks Junior High Schools 

Osborne and Pershing High Schools, Parkman Elementary 
School, the Ellis, Sills, Newberry and Sampson Elementary 
Schools, and Northwestern and Chadsey High Schools.

The District Judge made the following findings of f®| 
pertaining to busing black children to black schools pJSi 

white schools:

20 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-H

)



130a

The Board, in the operation of its transportation to 
relieve overcrowding policy, has admittedly bused black 
pupils past or away from closer white schools with avail­
able space to black schools. This practice has continued 
in several instances in recent years despite the Board’s 
avowed policy, adopted in 1967, to utilize transporta­
tion to increase integration.

“With one exception (necessitated by the burning of 
a white school), defendant Board has never bused white 
children to predominantly black schools. The Board has 
not bused white pupils to black schools despite the enor­
mous amount of space available in inner-city schools. 
There were 22,961 vacant seats in schools 90% or more 
black.” 338 F.Supp. at 588.

The legal conclusion of the District Judge follows:
8. The practice of the Board of transporting black 

students from overcrowded black schools to other identi- 
fiably black schools, while passing closer identifiably white 
schools, which could have accepted these pupils, 
amounted to an act of segregation by the school authori­
ties. Spangler v. Pasadena City Bd. of Ed., D.C., 311 
F.Supp. 501.” 338 F.Supp. at 593.

Additional support for the District Judge’s legal conclusion 
includes: United States v. School District 151, 286 F.Supp. 786, 
798 (N.D. 111. 1967), afd, 404 F.2cl 1125, 1131 (7th Cir. 
1968), on remand, 301 F.Supp. 201, 211, 222 (N.D. 111. 1969), 
4 ’d, 432 F.2d 1147, 1150 (7th Cir. 1970), cert, denied, 402 
U.S. 943 (1971); United States v. Board of School Commis­
sioners, Indianapolis, Ind., 332 F.Supp. 655, 669 (S.D. Ind. 
1971) afd  474 F.2d 81 (7th Cir. 1973).

The following testimony pertains to busing black children 
from overcrowded black schools past white schools with 
available pupil capacity to other black schools:

Q. I am trying to anticipate, Mr. Ritchie’s question. 
Have you noted some examples of the bussing of black 
children from black schools to other black schools?

Nos. 72-1809 -1 4  B ra d ley , e t  al. v. M illik en , e t  al. 21



131a

“A. I have.
“Q. Could you give us a couple illustrations?
“MR. BUSHNELL: While Dr. Foster is looking

through his notes, might I make the request that we 
made yesterday that on conclusion of his testimony we 
have access to the notes made?

“MR. LUCAS: At the conclusion, yes. We have no
objection to that.

“A. In 1960-61, and we don’t have any record for 
’61-62 so I am not certain as to that year, students were 
transported from Angell to Greenfield Park. This has 
already been part of our testimony, I believe, 186 students 
and students from Angell to Higginbotham, 118 students. 
In 1969 -

“Q. Excuse me, Doctor, let me ask you if the Angell- 
Higginbotham — were there white schools available with 
space, from your examination of the records?

“A. Yes, there were.
“Q. Between Angell and Higginbotham?
“A. Yes, sir, I believe I testified to that before.
“Q. All right.
“A. In 1969 the Ruthruff Elementary School which 

was 99 percent black transported 143 children to Herman 
Elementary, 55 percent black.

* * *
“Q. (By Mr. Lucas, continuing) Dr. Foster, would 

you step to the map.
“I think we were talking about the Ruthruff-Herman 

Schools.
“A. Yes. We were testifying at recess about trans­

portation of blacks past white schools. In 1969 we stated 
that Ruthruff Elementary which is here in the south­
eastern portion of the Mackenzie High School zone on 
the large 1970-71 attendance area map, in 1969 trans­
ported 143 children to Herman Elementary School which 
is just below the blue area on the undermap here -  
Herman Elementary School (indicating). Herman in 
1969 was 55.6 percent black. Ruthruff was 99.1 percent 
black and I think it is important to note that the access

22 B ra d ley, e t  al. v. M illik en , e t  al. Nos. 72-1809-14



132a

to Herman goes right past the Parkman Elementary 
School which at that time had 136 spaces available and 
according to their capacity figures -  

Q. Parkman was what percentage?
“A. Parkman I don’t have the figure for ’69 and ’70. 

Parkman was 12.8 percent black.”
*  *  «

A. Another example was the Parker Elementary 
School which is in the general center of the Mackenzie 
High School zone. Parker in 1970 was 79.4 black; 61 
children were bussed from Parker again to the Herman 
Elementary School which at that time was 58.5 percent 
black and again past the Parkman Elementary which in 
1970 was 12.8 percent black.

“Q. Did Parkman have capacity at that time, Doctor?
A. Parkman in ’70, according to my data, had 121 

spaces.
*  *  *

‘‘Q. Excuse me, would you give us the A. L. Homes. 
„MR. BUSHNELL: I thought the Court ruled on that?
THE COURT: He says he is pursuing a non-cumula-

tive matter here. If that be true he may go ahead.
A. A. L. Holmes School, children were bussed from 

this school over to the McGraw School which is in the 
south end of the Northwestern District in center city. 
In 1970-71 the Post Junior High School, which is lo­
cated —

MR. EUSHNELL: If the Court please, Mr. Lucas
just pointed out the location of Post which the witness 
obviously couldn t find on the map.

THE COURT: Well, he hasn’t moved it.
“A. I noted the west section of Cooley instead of the 

east. The Post Junior High School and Clinton Schools, 
winch are in the east section of the Cooley High School 
attendance zone transported 54 students to the Jefferson 
School which is now in the Murray zone and it is lo­
cated in the eastern section of the Murray High School 
attendance area. I think it is important to note that

Nos. 72-1809 - 14 B ra d ley , e t  al. v. M illik en , e t  al. 23



133a

these students who were bussed came from a consider­
able distance north and there were several possibilities -

“Q. Excuse me, were the Post children in a black 
school or white school?

“A. The Post School this year, 1970-71 was 99.3 per­
cent black. The Clinton School from which they also 
came was 97 percent black.

“Q. What about Jefferson?
“A. Jefferson was 87.6 percent black. There were two 

or three other possibilities much closer to the Post-Clinton 
area. One would have been in the western portion of the 
Mackenzie district here (indicating).

“Q. What is the racial composition?
“A. At this time it had 35.4 percent black with a ca­

pacity of 109 stations available. Another possibility would 
have been the Vetal School in the Redford zone, the 
southern portion of the Redford High School zone, which 
at this time was 2 percent black with vacancies of 203 
pupil stations and a third alternative could have been 
the Coffey School to the east of the Ford attendance area 
which at this time was 29 percent black with 69 pupil 
stations available.

“Q. Did you say to the east was part of the Ford 
attendance area or outside of that, Doctor?

“A. It’s in the Ford attendance area.# « *

“THE COURT: Well, to save time why don’t we pro­
ceed on the assumption that that was his testimony. 
But if it proves otherwise we will strike it.

“MR. LUCAS: Thank you, sir.
Q- (By Mr. Lucas) Doctor, I understand that the 

policy of the district is that bussing to relieve overcrowd­
ing would be done in such a manner as to improve in­
tegration at the receiving school. From your examine- , 
tion of the current bussing examples which you have 
given, do you have an opinion as to whether o r not that 
policy has or has not been followed?

“A. Well, I think from the examples I have given so 
far it would give an indication that integration could

24 B ra d ley, e t  al. v. M illik en , e t  al. Nos. 72-1809-14



134a

have been effected in a much better way if the children, 
instead of going to the schools would have been dropped 
off at other schools where the racial balance was quite 
different.

* * *

Q. Are there any white schools from your examina­
tion of data, Doctor Foster, between Angell and Higgin­
botham which had capacity at that time?

A. Yes, there were several which were a good deal 
closer to Angell than Higginbotham. The effect of this 
sort of zoning pattern was to provide segregated student 
ratios at all three of the elementary schools, and in 
terms of things that could be done or could have been 
done at tnat particular time to correct the segregated 
situation, it is my opinion that, first of all, the students 
being bussed from Angell could have been dropped off 
at any number of places on the way to Higginbotham, 
schools which had the space and had a better racial 
composition for this sort of input. This having been 
done, zone lines could have been redrawn at these three 
schools to have approached a racial balance situation 
which, in my opinion, would have helped to stabilize the 
situation at that time. This would have also assisted in 
the overcrowding at Pasteur and a couple of classrooms 
extra at Higginbotham.

Q. Do you have an opinion, Doctor, as to the per­
ception created by the maintenance of the Higginbotham 
School under those circumstances, including the transpor­
tation of black students from Angell into it?

A. Well, it is obvious that if you transport black 
children past white schools to an all black school that the 
community is going to perceive this as a segregated in­
tent, a segregated action. If you have a boundary situa­
tion which isolates and enforces black students to a par­
ticular area when the boundary lines could be changed 
to effectuate a better pattern racially, then it seems to 
me that community perception would also be that the 
school is not doing what it could in terms of integration 
and equal opportunity.

Nos. 72-1809- 14 B ra d ley , et al. v. M illikan, et a l  25



135a

“Q. Doctor, from your examination of the data in 
1960 are there any administrative reasons, any administra­
tive problems which would indicate to you a reason 
why this boundary was maintained rather than drawn 
in some other fashion?

“A. In terms of school capacity there are none, no.”

Defendant’s witness (Mr. Henrickson) admitted instances 
of busing black students past closer white schools to black 
schools:

“Q. We find on the under and over capacity map in 
the Higginbotham area that there were three schools sur­
rounding Higginbotham. Vernor, which is listed as be­
ing 121 over capacity; MacDowell, 103, is it? Pasteur, 
90. At the same time we find that Higginbotham was 
489 under capacity. Is that what the exhibit shows, sir?

“A. Yes.
“Q. We also know, do we not, that Pasteur, Mac­

Dowell and Vernor were white schools?
“A. Both Pasteur and MacDowell at that time, as I 

recall, had some beginning of black students as a result 
of the growth of the settlement of the Higginbotham 
area.

“Q. They were predominately white schools at that 
time?

“A. Yes.
“Q. Higginbotham was all or virtually all black?
“A. Yes.
“Q. Indeed, it had been the same in 1950, had it not?
“A. Yes.
“Q. At the same time that we are talking about you 

were transporting youngsters from Angell to Higgin­
botham, is that correct?

“A. Yes.
“Q. Those were black kids being transported from 

Angell to Higginbotham?
“A. Yes.
“Q. We also know on that exhibit that they were

26 B ra d ley, e l  al. v. M illik en , e t  al. Nos. 72-1809-14



136a

transported past such schools as Fitzgerald and Clinton 
which had more than enough capacity to handle them?

“A. We have made no denial of that.”

For some years it was a Board of Education policy to trans­
port classrooms of black children intact to white schools where 
they were educated in segregated classes.

Testimony as to the intact busing practice follows:
“Q. (By Mr. Lucas, continuing) Will you go into the 

Detroit system, Doctor, on transportation.
“A. Answering it generally, counsellor, my answer 

would be that the intact bussing is the practice of trans­
porting classrooms of children intact from one school to 
another and leaving them intact when they are educated 
at the receiving school.

Q. Doctor, when such transportation occurs from a 
school which is 90 percent or more black to a school which 
is predominantly a white school, what effect, if any, does 
this have in terms of racial segregation on those chil­
dren?

A. This would lead to what we call classroom seg­
regation or segregation within a particular school. It 
could be sometimes resegregation, but essentially it is a 
segregated situation within a school which could be seg­
regated or not segregated generally.

“Q. Doctor, in your experience with school segregation 
and school desegregation plans, is this a technique which 
you have had to deal with in the past?

A. On occasion, yes, sir.
‘Q. Doctor, did you examine data or relevant informa­

tion with respect to the transportation practices in the 
Detroit school system in connection with this type of 
bussing, intact bussing?

“A. Yes, sir.
Q- What did your examination reveal, Doctor?

“A. It is my understanding from the data that there 
was intact bussing generally in the late ’50’s, as I said, 
and early ’60s.

Nos. 72-1809 -14 B ra d ley , e t  al. v. M illik en , e t  al. 27



137a

“Q. How did that intact transportation operate, Doc­
tor?

“A. It involved transporting classrooms in whole from 
one school to another receiving school and at the receiv­
ing school the classrooms were kept intact for instructional 
purposes.

“Q. Was this policy changed at any time, Doctor, as 
far as you know?

“A. It is my understanding it was changed in the 
middle ’60’s but I don’t remember the exact date.

“Q. What would the change be, Doctor? What type 
of bussing would result in terms of relieving overcrowd­
ing?

“A. You simply gather children up on a geographical 
basis and transport them and assign them at random 
to whatever grade they are in the receiving school rather 
than keeping them in an intact classroom.”

Segregating children by race within schools has been held 
repeatedly to be unconstitutional. Jackson v. Marvell School 
District No. 22, 445 F.2d 211, 212 (8th Cir. 1970); Johnson 
v. Jackson Parish School Board, 423 F.2d 1055 (5th Cir. 1970).

The record indicates that in at least one instance Detroit 
served a suburban school district by contracting with it to 
educate its black high school students in a Detroit high school 
which was overwhelmingly black by transporting them away 
from nearby suburban white high schools and past Detroit 
high schools which were predominately white.

The District Judge found on this score that for years black 
children in the Carver School District were assigned to black 
schools in the inner city because no white suburban district 
(or white school in the city) would take the children.

This finding is supported by the testimony of Detroit School 
Superintendent Drachler, which follows:

“Q. When was the Carver District in existence as a 
separate entity?

“A. The Carver District? The Carver is not in De­
troit.

28 B ra d ley, e t  al. v. M illik en , e t  al. Nos. 72-1809-14



138a

“Q. Is it a separate school district whose students at­
tended some Detroit high schools, in particular Northern?

“A. Oh, I see what you’re referring to. I am told that 
back in ’57, ’58, at that time I was not in Central Office, 
there were some students from Carver District who did 
not have a place for adequate high school facilities. An 
arrangement was made with Detroit for the Carver stu­
dents to come in on buses and go to Northern High 
School. Now, the nearest school to Carver was Mum- 
ford at the time. And they did go past Mumford towards 
Northern.

“Q. Is Carver a black district?
“A. Yes, black and very poor.
“Q. Has Carver District subsequently merged with 

Detroit?
“A. Oak Park.
“Q. With Oak Park?
“A. That’s right.
“Q. And at that time the transportation was termi­

nated?
“A. That’s right. By the way, as a result of those 

youngsters coming, there was a rumor spread that De­
troit children were being bussed, say, from the Higgin­
botham, which is north — Higginbotham area which is 
north of Mumford High School area but in Detroit, that 
they were being bussed to Northern, too, because they 
were black students, people saw black students from the 
Eight Mile area coming down. But to the best of my 
knowledge these were outside students.

“Q. There were black children being bussed to Hig­
ginbotham, weren’t they?

“A. There were black children being bussed to Hig­
ginbotham.

“Q. From Angell?
‘A. From Angell past some white schools. And when 

the issue was brought to Doctor Brownell’s attention by 
me in about ’59 or ’60 — there were a series of instances

Nos. 72-1809 - 14 B ra d ley , e t  al. v. M illik en , e t  al. 29



139a

like that. There was the Angell, there was from the 
military fort in the southwest, they were bussing their 
own children up to the Noble, and Doctor Brownell, as 
soon as it was brought to his attention, abolished that 
as well as the optional areas.

“Q. Was this so-called intact bussing, that is a class 
being brought as a unit?

“A. Generally speaking, yes. That policy of changing 
to geographic bussing occurred about ’62-’63 as a result 
of the Equal Education Opportunities Committee.

“Q. Was all of the bussing done in the City of De­
troit of an intact nature until the Equal Opportunities 
study?

“A. To the best of my knowledge it was. I know 
when my children were being bussed, they were bussed 
intact.”

(2) Optional Areas.
The record demonstrates that in many instances when 

neighborhoods in Detroit began to experience some inmigra­
tion of black families, it was Board of Education policy to 
create optional attendance zones, thereby allowing white stu­
dents to change schools to all white or predominately white 
schools, generally located farther toward the city limits. For 
many years the record indicates this practice to have been 
pervasive. It continued in at least one instance up to the 
1970-71 school year.

As to optional attendance zones, the District Judge found:
“During the decade beginning in 1950 the Board cre­

ated and maintained optional attendance zones in neigh­
borhoods undergoing racial transition and between high 
school attendance areas of opposite predominant racial 
compositions. In 1959 there were eight basic optional 
attendance areas affecting 21 schools. Optional attendance 
areas provided pupils living within certain elementary 
areas a choice of attendance at one of two high schools. 
In addition there was at least one optional area either 
created or existing in 1960 between two junior high

30 B ra d ley, e t  al. v. M illik en , e t  al. Nos. 72-1809-11



140a

schools of opposite predominant racial components. All 
of the high school optional areas, except two, were in 
neighborhoods undergoing racial transition (from white 
to black) during the 1950s. The two exceptions were: 
(1) the option between Southwestern (61.6% black in 
1960) and Western (15.3% black); (2) the option be­
tween Denby (0% black) and Southeastern (30.9% black). 
With the exception of the Denby-Southeastem option 
(just noted) all of the options were between high schools 
of opposite predominant racial compositions. The South­
western-Western and Denby-Southeastem optional areas 
are all white on the 1950, 1960 and 1970 census maps. 
Both Southwestern and Southeastern, however, had sub­
stantial white pupil populations, and the option allowed 
whites to escape integration. The natural, probable, fore­
seeable and actual effect of these optional zones was to 
allow white youngsters to escape identifiably ‘black’ 
schools. There had also been an optional zone (elimi­
nated between 1956 and 1959) created in ‘an attempt 
. . .  to separate Jews and Gentiles within the system,’ 
the effect of which was that Jewish youngsters went to 
Mumford High School and Gentile youngsters went to 
Cooley. Although many of these optional areas had 
served their purpose by 1960 due to the fact that most 
of the areas had become predominantly black, one op­
tional area (Southwestern-Western affecting Wilson Jun­
ior High graduates) continued until the present school 
year (and will continue to effect 11th and 12th grade 
white youngsters who elected to escape from predominant­
ly black Southwestern to predominantly white Western 
High School). Mr. Henrickson, the Board’s general fact 
witness, who was employed in 1959 to, inter alia, elimi­
nate optional areas, noted in 1967 that: ‘In operation 
Western appears to be still the school to which white 
students escape from predominantly Negro surrounding 
schools.’ The effect of eliminating this optional area 
(which affected only 10th graders for the 1970-71 school 
year) was to decrease Southwestern from 86.7% black in 
1969 to 74.3% black in 1970.” 338 F.Supp. at 587-88.

Nos. 72-1809 -14 B ra d ley , e t  al. v. M illik en , e t  al. 31



141a

From these facts the District Judge arrived at the following 
legal conclusion:

“7. The Board’s policy of selective optional attendance 
zones, to the extent that it facilitated the separation of 
pupils on the basis of race, was in violation of the Four­
teenth Amendment. Hobson v. Hansen, D C., 269 F.Supp. 
401, aff’d sub nom., Smuck v. Hobson, 408 F.2d 175. 
[(D.C. Cir. 1969)].” 338 F.Supp. at 593.

Additional support for the District Judge’s legal con­
clusion includes: United States v. Texas Education
Agency, 467 F.2d 848 (5th Cir. 1972); Northcross v. Board 
of Education of Memphis, 333 F.2d 661, 665-66 (6th 
Cir. 1964) (different but analogous situation); United States 
v. Board of School Commissioners of Indianapolis, 332 F. 
Supp. 655, 668 (S.D. Ind. 1971) affd 474 F.2d 81 (7th Cir.
1973); Spangler v. Pasadena City Board of Education, 311 
F.Supp. 501, 502 (C.D. Cal. 1970).

The effect of use of optional zones was described in Dr. 
Foster’s testimony:

“The first method or technique 1 might cite that is 
used to maintain segregation would be the use of op­
tional zones.

“Would it be possible for me to step to the board to 
illustrate?

“Q. Please do.
(The witness proceeded to the blackboard.)
“A. Optional zones are sometimes also referred to as 

dual zones or dual overlapping zones. I think it will 
be easier for me to illustrate this briefly.

(The witness drew a sketch on the board.)
“A. If you have, let’s say, two high school districts, 

District X and District Y, frequently when you set up 
an optional zone you carve the zone out of one district, 
occasionally two, but assume we carve it out of District 
Y and the children in this optional zone are then per­
mitted to go to either high school X or high school Y,

32 B ra d ley , e t  al. v. M illik en , e t  al. Nos. 72-1809 -11



142a

this becomes in a sense an overlapping zone because 
if we refer to the boundaries of school District X at 
this point it not only includes the previous boundary but 
also takes in the optional zone.

“District Y in turn would include its previous bound­
aries, also including the optional zone. I think this may 
explain the origin of the connotation of the word ‘over­
lapping’.

“Essentially optional zones are set up for two or three 
reasons, one is to allow white students or black students 
the option of attending one of the two attendance areas 
which make up the boundaries of the zone and another 
is for, occasionally for religious purposes to provide al­
ternatives for persons of different religions. Sometimes 
these are set up for socio-economic reasons and I have 
on occasion seen them set up by boards of superin­
tendents as political gimicks in order to help pass a bond 
issue or one thing or another or a school board or super­
intendent will set up temporary optional zones as a favor 
to certain constituents in return for assistance in helping 
the school board with one thing or another.

“I think in the frame work in which we operate they 
are used primarily for maintaining segregated patterns. 

* « *
“Q. Dr. Foster, have you made a study and analysis 

of optional zones in the Detroit school system?
“A. Yes, I have.”

Dr. Foster’s analysis of the purpose and effect of each op­
tional zone in existence in the Detroit School District is 
exemplified in his testimony on the Mackenzie-Central option.

“Q. Doctor Foster, do you have an opinion as to the 
administrative use of the optional attendance zone in 
1960 between and prior to that in Mackenzie-Central 
area?

A. Yes. I think it was used primarily — you mean 
as to the purpose of it?

Q. Well, as to whether or not it had any administra­
tive value that you know of, Doctor, aside from race?

Nos. 72-1809 - 14 B ra d ley , et al. v. M iflik en , et. al. 33



143a

“A. In terms of assignment I can see no advantage to 
it. # * #

“Q. Do you have an opinion as to its use in terms of 
segregation or desegregation, Doctor Foster?

“A. In my opinion it was used as an optional zone 
to allow whites during the period it was in existence in 
the ’50’s and also until such time as it was done away 
with in 1962 to be assigned to predominantly white Mac­
kenzie High School.

“Q. Doctor Foster, from your examination of the 1950 
census and in turn the 1960 census exhibits, do you have 
an opinion as to the effect of such an optional zone on 
the community residence pattern in the community?

* * *
“A. Community people and residents in a situation 

such as this generally have a perception that there is 
something wrong with their school, that the whites need 
an optional zone to get out into a less black situation and, 
therefore, this increases their perception of racial isola­
tion and, in fact, physical containment.

“Q. Does this have an effect, Doctor, in terms of the 
residence pattern? I believe you testified in 1950 the 
optional area was entirely white or zero to 4.9 per cent 
white.

«  O #

“A. In my opinion this tends to increase the instability 
of the community because they generally feel this is an ad 
hoc temporary interim situation and it increases white 
flight in this sort of situation.

S  *

“Q. Doctor Foster, does the use of these techniques in 
some areas have an effect in terms of the perception of 
the community of schools besides the actual two schools 
to which the option was involved?

«  *  »

“A. Thank you. Yes, I think the perception is not only

34 B r a d le y ,  e t  al. v. M ilU k e n ,  e t  al. Nos. 72-1809 -14



144a

of rank and file community residents, but people of con­
siderable influence in the community, along with School 
Board administration people, School Board members, 
School Board officials. In many cases they have sub­
stantiated this perception that I have recounted; that the 
optional zones did lead to greater pupil segregation 
and a feeling of frustration that the school authorities 
were not doing what was called for in terms of desegre­
gation, and it had a generally debilitating effect on the 
image of the schools as far as all of these groups were 
concerned.”

Mr. Henrickson, defendant School Board’s principal wit­
ness and divisional director of planning and building studies 
in the School Housing Division, did not deny the discriminatory 
effect of at least some of these optional zones.

“Q. In 1959 optional areas frustrated integration, did 
they not?

“MR. BUSHNELL: Objection to the form of the ques­
tion.

“THE COURT: He may answer.
“A. Some of these areas in 1959 had no effect what­

ever with movement of black or white students. They 
were either all black or all white. Some of them such 
as the Western-Southwestern area can be said to have 
frustrated integration and continued over the decade.”

(3) Building Construction.
The District Judge found and the record contains evidence 

that the Detroit Board of Education practices in school con­
struction generally tended to have segregative effect; the great 
majority of schools were built in either overwhelming all 
black or all white neighborhoods so that the new schools 
opened as one race schools.

The District Judge’s school construction findings were as 
follows:

Nos. 72-1809 - 14 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. 35



145a

“In 1966 the defendant State Board of Education and 
Michigan Civil Rights Commission issued a Joint Policy 
Statement on Equality of Educational Opportunity, re­
quiring that

‘Local school boards must consider the factor of racial 
balance along with other educational considerations 
in making decisions about selection of new school 
sites, expansion of present facilities . . . .  Each of 
these situations presents an opportunity for inte­
gration.’

Defendant State Board’s ‘School Plant Planning Hand­
book’ requires that

‘Care in site locations must be taken if a serious 
transportation problem exists or if housing patterns 
in an area would result in a school largely segregated 
on racial, ethnic, or socio-economic lines.’

The defendant City Board has paid little heed to these 
statements and guidelines. The State defendants have 
similarly failed to take any action to effectuate these 
policies. Exhibit NN reflects construction (new or ad­
ditional) at 14 schools which opened for use in 1970-71; 
of these 14 schools, 11 opened over 90% black and one 
opened less than 10% black. School construction costing 
$9,222,000 is opening at Northwestern High School which 
is 99.9% black, and new construction opens at Brooks 
Junior High, which is 1.5% black, at a cost of $2,500,000. 
The construction at Brooks Junior High plays a dual seg- 
regatory role: not only is the construction segregated, it 
will result in a feeder pattern change which will remove 
the last majority white school from the already almost 
all-black Mackenzie High School attendance area.

“Since 1959 the Board has constructed at least 13 small 
primary schools with capacities of from 300 to 400 pupds- 
This practice negates opportunities to integrate, con­
tains’ the black population and perpetuates and com­
pounds school segregation.” 338 F.Supp. at 588-89.

36 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-14



146a

Other eases in which such findings have been held to con­
stitute a de jure act of segregation include: Swann v. Charlotte- 
Mecklenburg Board of Education, 402 U.S. 1, 21 (1971)- 
Cisneros v. Corpus Christi Independent School Dist., 467 F.2d 
142 (5th Cir. 1972), pet. for cert, filed, 41 U.S.L.W. 3225 (Oct. 
31, 1972); Kelly v. Guinn, 456 F.2d 100 (9th Cir. 1972) 
petition for cert, filed, 41 U.S.L.W. 3114 (U.S. Aug. 28, 1972); 
Davis v. School District of Pontiac, 443 F.2d 573, 576 (6th 
Cir.), cert, denied 402 U.S. 913 (1971); Sloan v. Tenth School 
District, 433 F.2d 587, 590 (6th Cir. 1970); United States 
v. Board of Education of Tulsa, 429 F.2d 1253, 1259 (10th 
Cir. 1970); Brewer v. School Board of Norfolk, 397 F.2d 
37, 42 ( 4th Cir. 1968); United States v. Board of Public 
Instruction, 395 F.2d 66, 69 (5th Cir. 1968); Kelley v. Alt- 
heimer, Arkansas Public School Dist. No. 22, 378 F.2d 483, 
496-97 (8th Cir. 1967); Johnson v. San Francisco Unified School 
District, 339 F.Supp. 1315, 1326, 1341 (N.D. Cal. 1971); 
United States v. Board of School Commissioners of Indianapolis 
332 F.Supp. 655 (S.D. Ind. 1971) affd 474 F.2d 81 
(7th Cir. 1973); Spangler v. Pasadena City Board of 
education, 311 F.Supp. 501, 522 (C.D. Cal. 1970); 
United States v. School District 151, 286 F.Supp. 786, 798 
(N.D. 111.), aff’d, 404 F.2d 1125 (7th Cir. 1968); Lee v. Macon 
bounty Board of Education, 267 F.Supp. 458, 472 (M.D. Ala.), 
ajfd per curiam sub nom., Wallace v. United States 389 U S 
215 (1967).

Record evidence pertaining to Detroit Board of Education 
building construction practices and their results include:

Q. Doctor Foster, I show you a document in evi- 
ence, Plaintiffs Exhibit 70. I direct your attention to 

Page 15 of the exhibit. The exhibit is School Planning 
Handbook, Bulletin 412, revised, January, 1970, Michigan 

epartment of Education. Directing your attention to 
apter 2, the School Site, and the last full paragraph in 

the left-hand column on page 15, Doctor, would you read 
that paragraph?

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147a

“A. ‘Care in site location must be taken if a serious 
transportation problem exists or if housing patterns in 
an area would result in a school largely segregated on 
racial, ethnic or socio-economic lines.’

“Q. Doctor, would you step down to the map, please? 
Do you have a copy, Doctor, of Plaintiff’s Exhibit 79?

“A. Yes, I do.
“Q. Doctor, would you examine Plaintiff’s Exhibit 153, 

which shows new school construction, 1960 to 1970? Per­
haps you had better step back here. Doctor, the black 
squares on here represent schools opening 80 to 100 per 
cent black in pupil enrollment. Would you direct your 
attention to the Drew Junior High School on the map 
and examine the exhibit and tell me when Drew was 
opened?

“A. According to the exhibit, the Drew Junior High 
School was opened in 1970.

“Q. And what was it opened as in terms of its en­
rollment, Doctor?

“A. 1,587 students.
“Q. And its percent black?
“A. 95 per cent black.
“Q. And the Eileen Primary School, Doctor, can you 

locate it on the map?
“A. The Eileen Primary is in the Cooley High School 

zone, I believe.
“Q. And when did it open, Doctor?
“A. 1970.
“Q. And what was its enrollment and its pupil popula­

tion in terms of black?
“A. 333 students. The per cent black was 99.1.
“Q. Would you examine the map and locate the E.

M. Turner Primary?
“A. Yes.
“Q. What year was that opened, Doctor?
“A. The Turner Primary was opened in 1969.
“Q. And its enrollment of pupil population?
“A. 362 pupils, 97.5 percent black.

38 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809 -14



148a

“Q. Can you find the Stewart School on there, Doc­
tor?

‘A. The Stewart School is in the same general area 
as Turner, a little to the south.

“Q. What year was it opened?
“A. 1970.
“Q. Its population and percent black?
“A. 766 enrollment, 98.8 percent black.
“Q. Marxhausen Primary, Doctor, can you locate that 

on the map?
“A. Marxhausen is in the Finney zone.
“Q. Is that near or far away from the A. L. Holmes 

School, Doctor?
“A. As I remember, rather close to the Holmes School.
Q. Can you locate the Holmes School with reference 

to that?
“A. The Holmes School is the next one to the north­

west.
Q. And what was its pupil population when it 

opened?
“A. Marxhausen was opened in 1970 with a pupil 

population of 302, 92.4 percent black.
Q. Would you locate Mack Primary, Doctor?

“A. Mack Primary is also in the Finney zone.
“Q. And when did it open?
‘A. Mack opened in 1970 with an enrollment of 173, 

98.8 percent black.
Q. Could you locate the Angell Primary area, Doc­

tor?
A. The Angell area is in the Northwestern attendance 

zone.
(Q- And what was its enrollment and percent black?
A. Angell was 1,282 students when it opened in 

1970. The percent black was 99.9
Q. Is there an asterisk by that particular school, 

Doctor?
A. On the exhibit?

“Q. Yes.
A. Yes, there is.

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149a

“Q. Would you refer to the cover and tell us what 
that asterisk indicates?

“A. It says, ‘The racial count data included in ex­
isting school with the same name.’

“Q. Can you locate the Stark School, Doctor?
“A. The Stark School is in the Southeastern zone. 
“Q. And what was its enrollment?
“A. The enrollment was 822 when it opened in 1969. 
“Q. And the percent black?
“A. 98.4 percent black.
“Q. Can you locate the new King Senior High School, 

Doctor?
“A. The new King Senior High School?
“Q. Yes!
“A. Here.
“Q. When did it open?
“A. It opened in 1968.
“Q. What was its enrollment?
“A. 1,897 pupils.
“Q. And its percent black?
“A. 98.8 percent black.
“Q. Can you locate the Field Annex, Doctor?
“A. Just to the northeast of King, the Field Annex, 
“Q. And what was its enrollment?
“A. 461.
“Q. Its per cent black?
“A. 90.5 per cent black.
“Q. Can you locate the Glazer School, Doctor Foster? 
“A. The Glazer School is in the Central zone.
“Q. And when did it open?
“A. In 1967.
“Q. And what was its enrollment, Doctor?
“A. 850 students.
“Q. What was its per cent black?
“A. 100 per cent black.”

Similar testimony was given with respect to the Stevenson, 
Cortez, Beaubien, Sander, St. Clair Annex, Murray, Kettering, 
Krolik, Joy, Tendler, Belleville, McGraw, Knudsen, Keidan,

40 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  at. Nos. 72-1809-14



150a

Jamieson, Butzel, Woodward, Tendler and Norvell Schools. 
White schools built to accommodate white residential areas in­
cluded Fox, Lessenger, Murphy, Taft, Fleming, Earhart, 
Reeves, Brooks and McKenny Annex.

“Q. Thank you, Doctor.
“Doctor Foster, from your examination of the pattern 

of construction in this school system, 1960 to 1970, do you 
have an opinion as to the effect of that pattern of con­
struction on segregation in the Detroit School System?

“A. My opinion is that construction practices were 
followed in such a way as to increase segregation. I 
say this because of the large number of schools that were 
opened that were either all black or all white or with 
a disproportionate number of one race or the other upon 
opening.

«  *  $

“Q. (By Mr. Lucas) Does the location of a school 
in a particular place have a long term effect on a school 
system?

“A. In terms of the nature of the pupils assigned to 
the school, do you mean?

“Q. Yes, sir.
“A. Yes, it does.
“Q. Are there alternatives in schoolhouse construction 

which can or should be considered by a school district 
in terms of affecting the racial composition of student 
bodies?

“A. In terms of site selection there are, yes.
“Q. What are some of the alternatives which can or 

should be utilized, in your opinion, Doctor?
“A. It is customary in this day and age to consider 

the problem of integration or segregation very carefully 
in selecting sites for school buildings and, well, this was 
pointed out, I believe, in the bit I read from the Michigan 
State Department.

“Q. What effect in terms of perception of the com­
munity does it have when a school is opened with an 
overwhelming enrollment of one race or the other?

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151a

“A. Generally the community perceives, in my opin­
ion, that the school has been thought of as being, going 
to be an all white school or all black school and in either 
case generally that it is racially isolated.”

(B) The constitutional violations found to have been committed 
by the State of Michigan.

(1) School districts in the State of Michigan are instru­
mentalities of the State and subordinate to its State Board of 
Education and legislature. (See §V (A), pp. 56-62, infra.) 
Hence, the segregative actions and inactions of the Detroit 
Board of Education previously outlined are the actions of an 
agency of the State of Michigan.

(2) In 1970 the Detroit School Board undertook implemen­
tation of its April 7 desegregation plan applicable to its high 
schools. On meeting considerable resistance thereto, it none­
theless proceeded. At that point the State Legislature inter­
vened by Act 48 of the Public Acts of 1970 specifically over­
ruling the Detroit Board of Education’s desegregation plan, 
While this statute has since been invalidated by judgment of 
this court, 433 F.2d 897, its contribution to preventing desegre­
gation and to continuing and increasing segregation of the De­
troit school system cannot be overlooked.

(3) Under Michigan law, M.S.A. § 15.1961, school build­
ing construction plans must be approved by the State Board of 
Education. Prior to 1962 the State Board also had specific 
statutory authority to supervise school site selection. The 
proofs concerning the effect of Detroit’s school construction 
program are therefore largely applicable to show State re­
sponsibility for the segregative results.

(4) During the critical years covered by this record the 
School District of Detroit was denied any allocation of State 
funds for pupil transportation, although such funds were made 
generally available for students who lived over a mile and 
a half from their assigned schools in rural Michigan.

42 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-11



152a

(5) Finally, the cross-district transportation of black high 
school students from the Carver School, located in Ferndale 
school district, to a black high school in Detroit could not 
have taken place without the approval, tacit or express, of the 
State Board of Education. ( See supra pp. 28-30).

The District Judge’s findings pertaining to constitutional 
violations by the State of Michigan are as follows:

“The State and its agencies, in addition to their gen­
eral responsibility for and supervision of public education, 
have acted directly to control and maintain the pattern 
of segregation in the Detroit schools. The State refused, 
until this session of the legislature, to provide authoriza­
tion or funds for the transportation of pupils within 
Detroit regardless of their poverty or distance from the 
school to which they were assigned, while providing in 
many neighboring, mostly white, suburban districts the 
full range of state supported transportation. This and 
other financial limitations, such as those on bonding and 
the working of the state aid formula whereby suburban 
districts were able to make far larger per pupil expendi­
tures despite less tax effort, have created and perpetuated 
systematic educational inequalities.

“The State, exercising what Michigan courts have held 
to be is ‘plenary power’ which includes power ‘to use a 
statutory scheme, to create, alter, reorganize or even 
dissolve a school district, despite any desire of the school 
district, its board, or the inhabitants thereof,’ acted to 
reorganize the school district of the City of Detroit.

“The State acted through Act 48 to impede, delay and 
minimize racial integration in Detroit schools. The first 
sentence of Sec. 12 of the Act was directly related to 
the April 7, 1970 desegregation plan. The remainder of 
the section sought to prescribe for each school in the eight 
districts criterion of ‘free choice’ (open enrollment) and 
‘neighborhood schools’ ( ‘nearest school priority accep­
tance’ ), which had as their purpose and effect the main­
tenance of segregation.

Nos. 72-1809 -1 4  B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. 43



153a

“In view of our findings of fact already noted we think 
it unnecessary to parse in detail the activities of the local 
board and the state authorities in the area of school con­
struction and the furnishing of school facilities. It is our 
conclusion that these activities were in keeping, generally, 
with the discriminatory practices which advanced or per­
petuated racial segregation in these schools.” 338 F. 
Supp. at 589.

The District Judge arrived at the following legal conclusions:

“II. Under the Constitution of the United States and 
the constitution and laws of the State of Michigan, the 
responsibility for providing educational opportunity to 
all children on constitutional terms is ultimately that of 
the state. Turner v. Warren County Board of Education, 
D.C., 313 F.Supp. 380; Art. VIII, §§ 1 and 2, Mich. Con­
stitution; Daszkiewicz v. Detroit Bd. of Ed. of City of 
Detroit, 301 Mich. 212, 3 N.W.2d 71.

“12. That a state’s form of government may delegate 
the power of daily administration of public schools to 
officials with less than state-wide jurisdiction does not 
dispel the obligation of those who have broader control 
to use the authority they have consistently with the con­
stitution. In such instances the constitutional obligation 
toward the individual school children is a shared one. 
Bradley v. Sch. Bd. of City of Biclimond, D.C., 51 F.R.D. 
139, 143.

“13. Leadership and general supervision over all pub­
lic education is vested in the State Board of Education. 
Art. VIII, § 3, Mich. Constitution of 1963. The duties 
of the State Board and superintendent include, but are 
not limited to, specifying the number of hours necessary 
to constitute a school day; approval until 1962 of school 
sites; approval of school construction plans; accreditation 
of schools; approval of loans based on state aid funds; 
review of suspensions and expulsions of individual stu­
dents for misconduct [Op.Atty.Gen., July 7, 1970, No. 
4705]; authority over transportation routes and disburse-

44 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-14



154a

ment of transportation funds; teacher certification and 
the like. M.S.A. 15.1023( 1), M.C.L.A. § 388.1001. State 
law provides review procedures from actions of local 
or intermediate districts (see M.S.A. 15.3442, M.C.L.A. 
§340.442), with authority in the State Board to ratify, 
reject, amend or modify the actions of these inferior state 
agencies. See M.S.A. 15.3467; 15.1919(61); 15.1919(68 
b); 15.2299(1); 15.1961; 15.3402, M.C.L.A. §§340.467, 
388.621, 388.628(a), 388.681, 388.851, 340.402; Bridge- 
hampton School District No. 2 Fractional of Carsonville, 
Mich. v. Supt. of Public Instruction, 323 Mich. 615, 36
N.W.2d 166. In general, the state superintendent is 
given the duty ‘[t]o do all things necessary to promote 
the welfare of the public schools and public educational 
instructions and provide proper educational facilities for 
the youth of the state.’ M.S.A. 15.3252, M.C.L.A. 
§340.252. See also M.S.A. 15.2299(57), M.C.L.A. 
§ 388.717, providing in certain instances for reorganiza­
tion of school districts.

“14. State officials, including all of the defendants, 
are charged under the Michigan constitution with the 
duty of providing pupils an education without discrimina­
tion with respect to race. Art. VIII, § 2, Mich. Constitu­
tion of 1963. Art. I, § 2, of the constitution provides:

‘No person shall be denied the equal protection 
of the laws; nor shall any person be denied the en­
joyment of his civil or political rights or be discrimi­
nated against in the exercise thereof because of re­
ligion, race, color or national origin. The legislature 
shall implement this section by appropriate legisla­
tion.’ ” 338 F.Supp. at 593-94

Some of the evidence in this record supporting the District 
Judge’s findings of State acts which discriminatorily affected 
the Detroit Board of Education and contributed to pupil 
segregation follows. The State statutory scheme of support of 
transportation for school children directly discriminated against 
Detroit. Dr. John W. Porter, the State Superintendent of

Nos. 72-1809 - 14 B r a d le y ,  e t  al. v. A lil l ik en ,  e t  al. 45



155a

Public Instruction in Michigan, testified as to the State trans­
portation aid formula:

“Q. (By Mr. Lucas) Dr. Porter, does the State pay 
the cost of pupil transportation in the State of Michigan?

“A. The State pays roughly 75 percent of the cost. 
Last year the appropriation was $29 million.

“Q. Do you know what percent of the school children 
in the State of Michigan are transported to the school 
at public expense?

“A. Yes, I do. 40 percent of all students in Michigan 
are transported. That equates out to about 833,000 stu­
dents last year.

“Q. Dr. Porter, is there some formula in terms of 
distance which makes a child eligible for transportation 
that would be aided by the state?

“A. Yes. It is a very complicated formula that 197 
computations, and we are in the process right now of 
reducing this —

“Q. (Interposing) You mean the financial formula is 
complicated. But, in terms of distance from his home 
to the school —

“A. A mile and a half outside the city limits. Until 
this year the legislature amended the Act based upon the 
recommendations of the State Board of Education to allow 
for in-city transportation which we had never had before* 
The legislature did not appropriate funds for that. So, 
now the funds that are now used are basically for rural 
areas and suburban areas where the students live a mile 
and a half from the school.

“Q. When you say ‘city,’ is there some limitation? 
For instance, would Grosse Pointe, Harper Woods, areas 
like that that surround the City of Detroit, are they 
eligible for transportation?

“A. In the in-city. But, if the students come across 
the city boundary lines they live more than a mile ana 
a half, which is quite prevalent throughout the state, 
then they are eligible for the funds.

46 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-14



156a

“Q. Well, I think my question may have been con­
fusing. Is there some type of city — is it just anyplace 
incorporated as a city that is differentiated from the rural 
areas, or certain cities eligible for this state aid at the 
present time and receive the funds —

“THE COURT: I think what Mr. Lucas is trying to
get at is whether under the old practice whether any 
city has ceased state aid for transportation within the 
city.

“A. Yes, we have a number of instances where the city 
would be receiving aid for transportation, because the 
law says that if the bus in order to get the students to 
the school crosses outside of the city boundary, the city 
is then eligible for aid, and we, and we have a number 
of instances where that exists.

“THE COURT: In other words, where the student
originates his ride outside the city limits transportation is 
assisted?

“A. That’s right, or where the student lives in the 
city but the bus has to go outside of the city and come 
back he is also eligible. This, however, does not negate 
local city officials, school board officials from providing 
transportation. There is no prohibition against that.

Q. (By Mr. Lucas) You said the legislature changed 
the law but didn’t provide the money. Now, they are 
eligible for state aid but it is unfunded now, is that what 
you are saying?

A. The law was changed last year to permit in-city 
bus transportation but in changing the law the legislature 
said our department had to disburse the funds to the 
eligible existing areas which meant that since they did 
not increase the amount of funds appropriated we could 
not provide for in-city transportation.

Q. If a child lives in the city and lives more than a 
mile and a half from the school to which he is assigned 
he may not receive the state aid because it is unfunded 
at the present time?

A. That is correct.

Nos. 72-1809 - 14 B r a d l e y , e t  al. v. M il l ik e n ,  e t  al. 47



157a

“Q. But if he lives the same distance away and lived 
outside the City of Detroit, for example, then he could 
receive state aide?

“A. That is correct, or any other area.”

The clearest example of direct State participation in en­
couraging the segregated condition of Detroit public schools, 
however, is that of school construction in Detroit and the 
surrounding suburban areas. Until 1962 the State Board of 
Education had direct statutory control over site planning 
for new school construction. During that time, as was pointed 
out above, the State approved school construction which 
fostered segregation throughout the Detroit Metropolitan area 
(See supra pp. 35-42). Since 1962 the State Board has con­
tinued to be involved in approval of school construction plans.

IV. Conclusion as to Constitutional Violations

The discriminatory practices on the part of the Detroit 
School Board and the State of Michigan revealed by this record 
are significant, pervasive and causally related to the substan­
tial amount of segregation found in the Detroit school system 
by the District Judge.

There is, of course, a significant distinction between this 
record and those school segregation cases which have flooded 
the courts since Brown v. Topeka, supra. This distinction is 
that Michigan has never enforced segregation by State laws 
which provided for separate black and white school systems, 
as was the pattern prior to 1954 in many other States. As 
a consequence, there always have been some instances of 
actual school integration in Detroit and still more instances 
of token school integration.

Defendants seek to insulate themselves from remedial action 
by federal courts by pointing to the long standing public policy 
of Michigan, as expressed in its statutes, of integration of 
public education. However, this court is not blind to the 
fact that governments can act only through the conduct of

48 B r a d le y ,  e t  al. v. M iU ik cn .  e t  al. Nos. 72-1809-11



158a

their officials and employees and that unconstitutional actions 
of individuals can be redressed. See, e.g., Clemons v. Board 
of Education, 228 F.2d 853 (6th Cir.), cert, denied, 350 U.S. 
1006 (1956).

The record in this case amply supports the findings of the 
District Court of unconstitutional actions by public officials 
at both the local and State level.

Historically de jure segregation has come about through 
statutory command explicitly establishing dual school systems. 
Michigan’s declared public policy is urged as a controlling 
distinction. No matter how important this distinction may 
be, it does not in our judgment negate the de jure segregation 
findings entered in this case by the District Judge. As said 
in United States v, The Board of School Commissioners of 
the City of Indianapolis, 474 F.2d 81, 83 (7th Cir. 1973): 
[T]he actions of the Board of School Commissioners and its 

duly-appointed representatives and agents may be sufficient 
to constitute de jure segregation without being based on state 
law, or even if they are in derogation of state law forbidding 
segregation.”

The record contains substantial evidence to support the find­
ing of the District Court that the segregation of the Detroit 
public schools, however rooted in private residential segrega­
tion, also was validated and augmented by the Detroit Board 
of Education and Michigan State Board action of pervasive in­
fluence through the system. Even if the segregation practices 
were a bit more subtle than the compulsory segregation statutes 
of Southern States, they were nonetheless effective.

It is our view that the findings of fact pertaining to actions 
°f the Detroit Board of Education and the State of Michigan 
which caused or contributed to Detroit school segregation 
are not clearly erroneous and that the District Court was 
therefore authorized and required to take effective measures 
to desegregate the Detroit Public School System. Brown v. 
B°ard of Education of Topeka [I], 347 U.S. 483 (1954); Brown 
v' hoard of Education of Topeka [II], 349 U.S. 294 (1955);

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159a

Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 
1 (1971); Davis v. Board of Commissioners, 402 U.S. 33 
(1971).

This record contains a substantial volume of testimony con­
cerning local and State action and policies which helped 
produce residential segregation in Detroit and in the metro­
politan area of Detroit. In affirming the District Judge's 
findings of constitutional violations by the Detroit Board of 
Education and by the State defendants resulting in segregated 
schools in Detroit, we have not relied at all upon testimony 
pertaining to segregated housing except as school construction 
programs helped cause or maintain such segregation.

V. The District Court’s Ruling that no Detroit 
Only Desegregation Plan is Possible

Subsequent to the entry of its findings of constitutional 
violations on the part of the Detroit Board of Education and 
the State of Michigan resulting in system-wide segregation of 
Detroit public schools, the District Court requested plans for 
Detroit only desegregation. His findings of fact pertaining 
to these plans warrant repetition:

“FINDINGS OF FACT AND CONCLUSIONS OF LAW
ON

DETROIT-ONLY PLANS OF DESEGREGATION

“In accordance with orders of the court defendant 
Detroit Board of Education submitted two plans, limited 
to the corporate limits of the city, for desegregation 
of the public schools of the City of Detroit, which we 
will refer to as Plan A and Plan C; plaintiffs submitted 
a similarly limited plan, which will be referred to as the 
Foster Plan. Hearings were had on said plans on March 
14, 15, 16, 17 and 21, 1972. In considering these plans 
the court does not limit itself to the proofs offered at the 
hearing just concluded; it considers as part of the evidence 
bearing on the issue (i.e., City-Only Plans) all proofs sub­
mitted in the case to this point, and it specifically incor­

50 B r a d l e y ,  e t  a l .  v. M i l l i k e n ,  e t  al. Nos. 72-1809 -14



160a

porates herein by reference the Findings and Conclusions 
contained in its “Ruling on Issue of Segregation,” filed 
September 27, 1971.

“The court makes the following factual findings:

“PLAN A.

“1. The court finds that this plan is an elaboration and 
extension of the so-called Magnet Plan, previously au­
thorized for implementation as an interim plan pending 
hearing and determination on the issue of segregation.

“2. As proposed we find, at the high school level, 
that it offers a greater and wider degree of specialization, 
but any hope that it would be effective to desegregate 
the public schools of the City of Detroit at that level is 
virtually ruled out by the failure of the current model to 
achieve any appreciable success.

“3. We find, at the Middle School level, that the 
expanded model would affect, directly, about 24,000 
pupils of a total of 140,000 in the grades covered; and 
its effect would be to set up a school system within the 
school system, and would intensify the segregation in 
schools not included in the Middle School program. In 
this sense, it would increase segregation.

“4. As conceded by its author, Plan A is neither a 
desegregation nor an integration plan.

“PLAN C.

“1. The court finds that Plan C is a token or part-time 
desegregation effort.

“2. We find that this plan covers only a portion of 
the grades and would leave the base schools no less 
racially identifiable.

“PLAINTIFFS’ PLAN

“1. The court finds that Plaintiffs’ Plan would accom­
plish more desegregation than now obtains in the system, 
or would be achieved under Plan A or Plan C.

Nos. 72-1809 - 14 B r a d l e y ,  e t  al. v. M il l i k e n ,  e t  al. 51



161a

“2. We find further that the racial composition of 
the student body is such that the plan’s implementation 
would clearly make the entire Detroit public school system 
racially identifiable as Black.

“3. The plan would require the development of trans­
portation on a vast scale which, according to the evidence, 
could not be furnished, ready for operation, by the open­
ing of the 1972-73 school year. The plan contemplates 
the transportation of 82,000 pupils and would require 
the acquisition of some 900 vehicles, the hiring and train­
ing of a great number of drivers, the procurement of space 
for storage and maintenance, the recruitment of main­
tenance and the not negligible task of designing a trans­
portation system to service the schools.

“4. The plan would entail an overall recasting of the 
Detroit school system, when there is little assurance that 
it would not have to undergo another reorganization if a 
metropolitan plan is adopted.

“5. It would involve the expenditure of vast sums of 
money and effort which would be wasted or lost.

“6. The plan does not lend itself as a building block 
for a metropolitan plan.

“7. The plan would make the Detroit school system 
more identifiably Black, and leave many of its schools 
75 to 90 per cent Black.

“8. It would change a school system which is now 
Black and White to one that would be perceived as 
Black, thereby increasing the flight of Whites from the 
city and the system, thereby increasing the Black student 
population.

“9. It would subject the students and parents, faculty 
and administration, to the trauma of reassignments, wit 
little likelihood that such reassignments would continue 

for any appreciable time.
“In summary, we find that none of the three plans 

would result in the desegregation of the public schoos 
of the Detroit school district.

B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-14



162a

“CONCLUSIONS OF LAW
“1. The court has continuing jurisdiction of this action 

for all purposes, including the granting of effective relief. 
See Ruling on Issue of Segregation, September 27, 1971.

“2. On the basis of the court’s finding of illegal school 
segregation, the obligation of the school defendants is to 
adopt and implement an educationally sound, practicable 
plan of desegregation that promises realistically to achieve 
now and hereafter the greatest possible degree of actual 
school desegregation. Green v. County School Board, 
391 U.S. 430; Alexander v. Holmes County Board of 
Education, 396 U.S. 19; Carter v. West Feliciana Parish 
School Board, 396 U.S. 290; Swann v. Charlotte-Mecklen- 
burg Board of Education, 402 U.S. 1.

“3. Detroit Board of Education Plans A and C are 
legally insufficient because they do not promise to effect 
significant desegregation. Green v. County School Board, 
supra, at 439-440.

4. Plaintiffs Plan, while it would provide a racial mix 
more in keeping with the Black-White proportions of the 
student population than under either of the Board’s plans 
or as the system now stands, would accentuate the racial 
identifiability of the district as a Black school system, 
and would not accomplish desegregation.

‘5. The conclusion, under the evidence in this case, 
is inescapable that relief of segregation in the public 
schools of the City of Detroit cannot be accomplished 
within the corporate geographical limits of the city. The 
State, however, cannot escape its constitutional duty to 
desegregate the public schools of the City of Detroit by 
pleading local authority.

*  *  *

“School district lines are simply matters of political con­
venience and may not be used to deny constitutional 
rights. If the boundary lines of the school districts of 
the City of Detroit and the surrounding suburbs were 
drawn today few would doubt that they could not with-

Nos. 72-1809 -1 4  B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. 53



163a

stand constitutional challenge. In seeking for solutions 
to the problem of school segregation, other federal courts 
have not “treated as immune from intervention the ad­
ministrative structure of a state’s educational system, to 
the extent that it affects the capacity to desegregate. Geo­
graphically or administratively independent units have 
been compelled to merge or to initiate or continue co­
operative operation as a single system for school de­
segregation purposes.”1

“That the court must look beyond the limits of the 
Detroit school district for a solution to the problem of 
segregation in the Detroit public schools is obvious; that 
it has the authority, nay more, the duty to (under the 
circumstances of this case) do so appears plainly an­
ticipated by Brown II,2 seventeen years ago. While 
other school cases have not had to deal with our exact 
situation,3 the logic of their application of the command 
of Brown II supports our view of our duty.

“FOOTNOTES

54 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-14

“ 1 Bradley v. Richmond, supra [slip opinion p. 68].
“ 2 Brown v. Bd. of Ed. of Topeka, 349 U.S. 294, pp. 3 00-301.
“ 3 Haney v. County Board of Education of Sevier County, 

410 F.2d 920 (8th Cir. 1969); Bradley v. School Board of the 
City of Richmond, supra, slip opinion pp. 664-65; Hall v. St 
Helena Parish School Board, 197 F.Supp. 649 (E.D. La. 1961), 
aff’d. 287 F.2d 376 (5th Cir. 1961) and 368 U.S. 515 ( 1962); Lee 
v. Macon County Bd. of Educ., 448 F.2d 746, 752 (5th Cir. 1971), 
Gomillion v. Lightfoot, 364 U.S. 339 (1960); Turner v. Littleton- 
Lake Gaston School Dist., 442 F.2d 584 (4th Cir. 1971); United 
States v. Texas 447 F.2d 551 (5th Cir. 1971); Lemon v. Bossier 
Parish School Board, 446 F.2d 911 (5th Cir. 1971).”

The District Judge’s finding that no Detroit only plan 
can achieve desegregation of the Detroit public school system 
points up another substantial distinction between this case 
and the classical school segregation case. This record presents 
a wholly new fact pattern in a school segregation case so far 
as this Circuit is concerned. This court never before has been 
confronted by a finding that any less comprehensive a solution



164a

than a metropolitan area plan would result in an all black school 
system immediately surrounded by practically all white subur­
ban school systems, with an overwhelmingly white majority 
population in the total metropolitan area.

Relevant to and supportive of the District Judge’s findings 
are these school census figures showing trends toward segre­
gation in the Detroit schools during the last decade:

1960 100 of 251 schools were 90% or more white
71 of 251 schools were 90% or more black 
68% of all schools were 90% or more one race.

1970 69 of 282 schools were 90% or more white
133 of 282 schools were 90% or more black 
71.6% of all schools were 90% or more one race.

1960-61 65.8% of the total number of black students in
regular schools were in 90% or more black schools.

1970-71 74.9% of the total number of black students in
regular schools were in 90% or more black schools.

This record reflects a present and expanding pattern of 
all black schools in Detroit (resulting in part from State ac­
tion) separated only by school district boundaries from near­
by all white schools. We cannot see how such segregation 
can be any less harmful to the minority students than if the 
same result were accomplished within one school district.

The boundaries of the Detroit School district are identical to 
the geographical boundaries of the City of Detroit. This means 
t at the Detroit school district, like the City, contains with- 
ln its boundaries two entirely separate cities (and school 
districts), Hamtramck and Highland Park, and surrounds a 
t ird City (and school district), Dearborn, on three sides, 
immediately adjacent to the boundaries of the Detroit school 
istrict are seventeen school districts. An overwhelming ma- 

10r'ty of these districts, other than Detroit, Highland Park,

Nos. 72-1809 -1 4  B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. 55



165a

River Rouge and Hamtramck, are entirely white or contain 
only a token number of black students.

Like the District Judge, we see no validity to an argument 
which asserts that the constitutional right to equality before the 
law is hemmed in by the boundaries of a school district.

A. Status of School Districts under Michigan Law

This conclusion is supported by the status of school districts 
under Michigan law and by the historical control exercised 
over local school districts by the legislature of Michigan and 
by State agencies and officials, which we now discuss.

As held by the District Court, it is well established under the 
Constitution and laws of Michigan that the public school 
system is a State function and that local school districts are 
instrumentalities of the State created for administrative con­
venience.

The Northwest Ordinance of 1787 governing the Territory 
of Michigan provided:

“Religion, morality and knowledge, being necessary to 
good government and the happiness of mankind, schools 
and the means of education shall forever be encouraged.” 
Art. III.

With this genesis, Michigan’s four Constitutions have clearly 
established that the public school system in that State is solely 
a State function. The Constitution of 1835 in Article X, 
Section 3, provided, in part: “The legislature shall provide 
for a system of common schools . . .” The Constitution of 
1850, Article XIII, Section 4, provided, in part: “The legis­
lature shall . . . provide for and establish a system of primary 
schools . . .” Section 1 of the same Article provided, ■ ■ 
the Superintendent of Public Instruction shall have general 

supervision of public instruction . . .”
The Constitution of 1908 in Article XI, Section 2, provided 

that the Superintendent of Public Instruction “shall have

56 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-14



166a

general supervision of public instruction in the State.” Article 
XI, Section 9, provided, in part as follows:

The legislature shall continue a system of primary 
schools, whereby every school district in the State shall 
provide for the education of pupils without charge for 
tuition . . .”

The Constitution of 1963, the present Constitution of the 
State of Michigan, in Article VIII, Section 2, provides, in part, 
as follows:

“The legislature shall maintain and support a system 
of free public elementary and secondary schools as defined 
by law.”

Nos. 72-1809 - 14 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. 57

In interpereting the above educational provisions of the 
Constitution of 1850, the Michigan Supreme Court stated: 
The school district is a State agency. Moreover, it is of 

legislative creation . . .” Attorney General v. Lowrey, 131 
Mich. 639, 644, 92 N.W. 289, 290 (1902). Again, interpreting 
the Constitution of 1850, the Supreme Court of Michigan in 
Attorney General v. Detroit Board of Education, 154 Mich. 
584, 590, 118 N.W. 606, 609 (1908), adopted lower court 
language which read:

“Education in Michigan belongs to the State. It is no 
part of the local self-government inherent in the township 
or municipality, except so far as the legislature may chose 
to make it such. The Constitution has turned the whole 
subject over to the legislature . . .”

The Supreme Court of Michigan interpreted Article XI, 
Section 9, of the Constitution of 1908 to mean:

The legislature has entire control over the schools 
of the State subject only to the provisions above referred 
to. The division of the territory of the State into districts, 
the conduct of the school, the qualifications of teachers,



167a

the subjects to be taught therein are all within its con­
trol.” Child Welfare v. Kennedy School Dist., 220 Mick 
290, 296, 189 N.W. 1002, 1004 (1922).

In the leading case concerning construction of this section 
of the Michigan Constitution of 1963, the Michigan Supreme 
Court said:

“It is the responsibility of the State board of education 
to supervise the system of free public schools set up by 
the legislature and, as a part of that responsibility, to 
promulgate regulations specifying the number of hours 
necessary to constitute a school day for elementary school 
students as well as for other classifications or groupings 
of students, to determine the curricula and, in general, 
to exercise leadership and supervision over the public 
school system.” Welling v. Livonia Board of Education, 
382 Mich. 620, 624, 171 N.W.2d 545, 546 (1969). See also 
Governor v. State Treasurer, 389 Mich. 1, 13, 203 N.W.2d 
457 (1972).

Michigan has not treated its school districts as sacrosanct 
To the contrary, Michigan always has regarded education as 
the fundamental business of the State as a whole. Local 
school districts are creatures of the State and act as instru­
mentalities of the State under State control. Cf. Senghas v, 
L’Anse Creuse Public Schools, 368 Mich. 557, 118 N.W.2d 
975 (1962); McLaughlin v. Board of Education, 255 Mich. 
667, 239 N.W. 374, (1931).

The record discloses a number of examples of State control 
over local public education in Michigan.

1. Following the holding of Welling v. Livonia Board of 
Education, supra, that there was no minimum length of day 
required under the 180-day school attendance rule absent a 
State Board of Education regulation, the Michigan State 
Board of Education, acting under its Constitutional mandate 
without legislative authority, established an administrative 
rule requiring local school boards to provide a minimum

58 B r a d le y ,  e t  al. v. M tt l ik e n ,  e t  al. Nos. 72-1809-14



168a

number of hours per school year. See, School Districts Child 
Account for Distribution of State Aid, Bulletin No. 1005, 
Michigan State Department of Education (1970).

2. Public Act 289 of 1964 (MSA § 15.2299 (1 ) et seq., 
MCLA § 388.681 et seq.) required Michigan school districts 
to operate K-12 systems. When Public Act 289 became ef­
fective, 1,438 public school districts existed in Michigan. By 
the beginning of 1968, this figure had been reduced to 738, 
meaning that 700 school districts in Michigan have disap­
peared since 1964 through reorganization. Annual Beport, 
Committee on School District Reorganization, 1968 Journal 
of the Senate 422-423 (March 1, 1968).

3. Pursuant to Act 289 of 1964, supra, the State Board of 
Education ordered the merger of the Brownstown No. 10, 
Hand, Maple Grove and Carson school districts, all in Wayne 
County. The action is best explained by the fact that Browns­
town was, at that time, the wealthiest school district in the 
State, indeed, with a property valuation of $340,000 backing 
each child, perhaps the wealthiest district in the nation, while 
the other three districts were extremely poor.

4. When the Sumpter School District was on the verge of 
bankruptcy in 1968, the State Board of Education, acting 
under Public Act 239 of 1967 (MSA § 15.2299(51) et seq., 
MCLA § 388.691 et seq.), merged the district with four 
adjoining districts, including the Airport School District. 
Significantly, though Sumpter was in Wayne County, Airport 
was in Monroe County, showing that county lines are not 
inviolate in Michigan.

5. The Nankin Mills School District in Wayne County was 
beset with financial problems and had no high school. Again, 
pursuant to Act 239, the State Board of Education in 1969 
ordered this school district to merge with the Livonia, Garden 
City and Wayne Community schools.

6. When the Inkster School District in Wayne County was 
on the verge of financial bankruptcy, the Michigan legislature

Nos. 72-1809 -1 4  B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. 59



169a

passed Public Act 32 of 1968 (MSA § 15.1916 et seq., MCLA 
§ 388.201 et seq.) enabling the district to borrow $705,000 
but on the condition that if the district could not balance its 
budget, the State Board of Education could reorganize, merge 
or annex the district. The legislative history of Act 32 indicates 
at least two legislators voted against the bill in the House of 
Representatives because of the excessive control given to the 
State Board of Education:

“I voted No on House Bill No. 3332 because in setting 
up the machinery to bail out distressed districts, it takes 
from the local communities the control over their own 
educational system by providing for excessive arbitrary 
reorganization powers in the hands of the Board of 
Education. .

“This bill certainly sets up the State Board of Educa­
tion to be a dictator of all school districts that run into 
financial problems.” 1968 Journal of the House of Repre­
sentatives 1965.

7. Too small and too poor to operate a high school, the all­
black Carver School District in suburban Oakland County 
reached a crisis in 1960 when other surrounding white districts 
refused to accept Carver pupils on a tuition basis. The Carver 
district was merged with Oak Park.

8. The State Board of Education and Superintendent of 
Public Instruction may withhold State aid for failure to 
operate the minimum school year. MSA § 15.3575, MCLA 
§ 340.575. In 1970, funds were withheld from the City of 
Grand Rapids School District. 17 Michigan School Board 
Journal 3 (March, 1970). For Attorney General O p i n i o n s  
holding that State aid may be withheld by the State Board of 
Education from school districts for hiring uncertified teachers, 
defaulting on State loans and for other reasons, see Op. Atty. 
Gen. No. 880, 1949-1950 Report of the Attorney General 104 
(January 24, 1949, Roth); No. 2333, 1955 Report of the At­
torney General 561 (October 20, 1955, Kavanaugh); No.

60 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-11



170a

4097, 1961-1962 Report of the Attorney General 553 (October 
8, 1962, Kelley).

9. The State of Michigan contributes, on the average, 34% 
of the operating budgets of the 54 school districts included in 
the proposed Metropolitan Plan of Integration. In eleven of the 
54 districts, the State’s contribution exceeds 50% and in eight 
more, it exceeds 40%. State aid is appropriated from the Gen­
eral Fund, revenue raised through state-wide taxation, and 
is distributed annually to the local school districts under a 
formula devised by the legislature. See, e. g., Public Act 134 
(1971), MSA §15.1919(51), MCLA § 388.611.

Though the local school districts obtain funds from the 
assessment of local property, the ultimate authority in insur­
ing equalized property valuations throughout the State is the 
State Tax Commission. MSA § 7.631, et seq., MCLA § 209.101, 
et seq.; MSA § 7.206, MCLA § 211.148; MSA § 7.52, MCLA 
§211.34. The State’s duty to equalize is required by the 
Michigan Constitution, Article IX, Section 3. This “State 
equalized valuation” serves as the basis for calculating local 
revenue yields. See, Ranking of Michigan Public High School 
-  School Districts by Selected Financial Data, 1970, Bulletin 
1012, Michigan State Department of Education (1971).

10. The Michigan School Code reaffirms the ultimate con­
trol of the State over public education. Local school districts 
must observe all State laws relating to schools,1 hold school a 
minimum number of days per year,2 employ only certified 
teachers,3 teach civics, health and physical education and 
drivers’ education,4 excuse students to attend religious instruc-

Nos. 72-1809 - 14 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. 61

'M SA § 1 5 . 3 2 5 2 ( c ) ,  MCLA § 340.252(c).
2 MSA § 15.3575, MCLA § 340.575.

3 MSA §§ 15.1023(10) (a), 15.3570, MCLA §§ 388.1010(a ), 340.570.
, 4 MSA §§ 15.1951,15.3361, MCLA §§ 388.371, 340.361; MSA §§ 15.3781- 
15 3782, MCLA §§ 340.781-340.782; MSA § 9.2511(c), MCLA § 257.811



171a

tion classes,5 observe State requirements when teaching sex 
education,6 make annual financial and other reports to the 
Superintendent of Public Instruction,7 adopt only textbooks 
which are listed with the Superintendent of Public Instruc­
tion8 and must follow all rules and regulations of the State 
Department of Education.

Local school districts, unless they have the approval of 
the State Board of Education or the Superintendent of Public 
Instruction, cannot consolidate with another school district,9 
annex territory,10 11 divide or attach parts of other districts,” 
borrow monies in anticipation of State aid,12 or construct, re­
construct or remodel school buildings or additions to them.13

The power to withhold State aid, of course, effects enormous 
leverage upon any local school district, since on the average 
34 per cent of the operation budget of the 54 school districts 
included in the proposed Metropolitan Plan is paid for by the 
State.

In the instance of the City of Detroit, the State exhibited 
its understanding of its power over the local school district 
by the adoption of Act 48 of the Public Acts of 1970 which 
repealed a high school desegregation plan previously adopted 
by the Detroit Board of Education. See 433 F.2d 897.

5 MSA § 15.3732(g), MCLA § 340.732(g).

<5 MSA § 15.3789, MCLA § 340.789.

7 MSA §15.3612, MCLA §340.612; M SA §§ 15.3616, 15.3688, MCLA 
§§ 340.616, 340.688.

8 MSA § 15.3887(1), MCLA § 340.887(1).

9 MSA § 15.3402, MCLA § 340.402.

lOMSA § 15.3431, MCLA § 340.431.

11 MSA § 15.3447, MCLA § 340.447.

12 MSA § 15.3567(1), MCLA § 340.567(a).

'3 MSA §15.1961, MCLA § 388.851, Op. Atty. Gen. No. 1837, 1952- 
1954 Report of the Attorney General 440 (Nov. 8 1954).

62 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-14



172a

B. D e Jure Acts of Segregation

Thus, the record establishes that the State has committed 
de jure acts of segregation and that the State controls the 
instmmentalities whose action is necessary to remedy the 
harmful effects of the State acts. There can be little doubt 
that a federal court has both the power and the duty to 
effect a feasible desegregation plan. Indeed, such is the 
essence of Brown II. Brown v. Board of Education, 349 U.S. 
294, 300-01 (1955). In the instant case the only feasible 
desegregation plan involves the crossing of the boundary lines 
between the Detroit School District and adjacent or nearby 
school districts for the limited purpose of providing an effective 
desegregation plan. The power to disregard such artificial 
barriers is all the more clear where, as here, the State has 
been guilty of discrimination which had the effect of creating 
and maintaining racial segregation along school district lines. 
See Section III B, pp. 42-48, supra. United States v. Scotland 
Heck Board of Education, 407 U.S. 484, 489 (1972); Wright 
v. City of Emporia, 407 U.S. 451, 463 (1972); United States v. 
State of Texas, 447 F.2d 441, 443-44 (5th Cir. 1971); Haney v. 
County Board of Education of Sevier County, 429 F.2d 364, 
368 ( 8th Cir. 1970). See also Davis v. Board of School Com­
missioners, 402 U.S. 33, 36-38 (1971).

There exists, however, an even more compelling basis for 
the District Court’s crossing artificial boundary lines to cure 
the State’s constitutional violations. The instant case calls 
up haunting memories of the now long overruled and dis­
credited “separate but equal doctrine” of Plessy v. Ferguson, 
163 U.S. 537 (1896). If we hold that school district bound- 
uries are absolute barriers to a Detroit school desegregation 
plan, we would be opening a way to nullify Brown v. Board 
°j Education which overruled Plessy, supra.

This court in considering this record finds it impossible 
lo declare “clearly erroneous” the District Judge’s conclusion 
that any Detroit only desegregation plan will lead directly

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173a

to a single segregated Detroit school district overwhelmingly 
black in all of its schools, surrounded by a ring of suburbs and 
suburban school districts overwhelmingly white in composition 
in a State in which the racial composition is 87 per cent 
white and 13 per cent black.

We deal with a record which demonstrates more than 
ample support for the District Judge’s findings of unconstitu­
tional segregation by race resulting in major part from action 
and inaction of public authorities, both local and State. This 
segregation is found in the school system of the inner city 
of a metropolitan area 81% white against 19% nonwhite. Under 
this record a remedial order of a court of equity which left 
the Detroit school system overwhelmingly black ( for the fore­
seeable future) surrounded by suburban school systems over­
whelmingly white cannot correct the constitutional violations 
herein found.

64 B r a d l e y , e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809 -14

V I. The District Judge’s Order to Prepare A 
Metropolitan Area Desegregation Plan

The third major issue in this case pertains to the validity 
of the District Judge’s ruling on desegregation area and order 
for development of a plan of desegregation dated June 14, 
1972, accompanied by a statement of findings of facts and 
conclusions of law in support thereof.

At the outset it is obvious from what we have said pertain­
ing to the inadequacy of any Detroit only desegregation plan 
that this court feels that some plan for desegregation beyond 
the boundaries of the Detroit School District is both within 
the equity powers of the District Court and essential to a 
solution of this problem. We reiterate this, keeping in mind 
the admonition from Chief Justice Marshall:

“The government of the United States has been 
emphatically termed a government of laws, and not or



174a

men. It will certainly cease to deserve this high appel­
lation, if the laws furnish no remedy for the violation 
of a vested legal right.” Marbury v. Madison, 5 U.S. 
(1 Cranch) 137, 163 (1803).

We reject the contention that school district lines are 
sacrosanct and that the jurisdiction of the District Court to 
grant equitable relief in the present case is limited to the 
geographical boundaries of Detroit. We reiterate that school 
districts and school boards are instrumentalities of the State. 
See Cooper v. Aaron, 358 U.S. 1, 16 (1958). As early as 
Brown II the Supreme Court pointed out that:

“[T]he courts may consider problems related to ad­
ministration, arising from the physical condition of the 
school plant, the school transportation system, person­
nel, revision of school districts and attendance areas into 
compact units to achieve a system of determining admis­
sion to the public schools on a nonracial basis, . . . 349
U.S. at 300-01.

The Supreme Court has held that school boundary lines 
cannot be changed or new school systems created where the 
result is a larger imbalance in racial ratios in school systems 
where all vestiges of enforced racial segregation have not been 
eliminated. United States v. Scotland Neck Board of Edu­
cation, 407 U.S. 484 (1972); Wright v. Council of the City 
of Emporia, 407 U.S. 451 (1972). This is true regardless of 
dominant purpose.” Wright v. City of Emporia, 407 U.S. at 

462.

If school boundary lines cannot be changed for an uncon­
stitutional purpose, it follows logically that existing boundary 
fines cannot be frozen for an unconstitutional purpose.

We therefore conclude that the District Court in the present 
case is not confined to the boundary lines of Detroit in fash­
ioning equitable relief.

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175a

Bradley v. School Board of the City of Richmond, 462 F.2d 
1058 (4th Cir. 1972), aff’d by an equally divided court, — 
U.S. —  (May 21, 1973), is distinguishable in several respects. 
In that case the District Court ordered an actual consolidation 
of three separate school districts, all of which the Court of 
Appeals for the Fourth Circuit declared to be unitary. In 
the instant case the District Court has not ordered consolida­
tion of school districts, but directed a study of plans for the 
reassignment of pupils in school districts comprising the met­
ropolitan area of Detroit. In the Richmond case the court 
found that neither the Constitution nor statutes of Virginia 
previously or presently in effect, would have permitted the 
State Board of Education, acting alone, to have effected a 
consolidation of the three school districts into a single system 
under the control of a single school board. The Fourth Circuit 
held that compulsory consolidation of political subdivisions 
of the State of Virginia was beyond the power of a federal 
court because of the Tenth Amendment to the Constitution 
of the United States. The decisions which now are under 
review did not contemplate such a restructuring.

Furthermore, the court in the Richmond case cited provisions 
of the Constitution and statutes of Virginia in support of its 
holding that —

66 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-14

“The power to operate, maintain and supervise public 
schools in Virginia is, and always has been, within the 
exclusive jurisdiction of the local school boards and not 
within the jurisdiction of the State Board of Education,” 
462 F.2d at 1067

The record in the present case amply supports the finding 
that the State of Michigan has not been subject to such limi­
tations in its dealings with local school boards.



176a

VII. Rights of Other School Districts To Be 
Made Parties and To Be Heard

In his “Ruling on Propriety of Considering a Metropolitan 
Remedy” the District Court defined the metropolitan area 
“for the present purposes” to comprise the three counties of 
Wayne, Oakland and Macomb. In his “Findings of Fact and 
Conclusions of Law in Support of Ruling on Desegregation 
Area and Development Plans” the District Court noted that 
“the court has taken no proofs with respect to the establish­
ment of the boundaries in the counties of Wayne, Oakland 
and Macomb.” In his “Ruling on Desegregation Area and 
Order for Development of Plan of Desegregation” the District 
Court defined the desegregation area to include some 53 
school districts. Certain of these school districts have inter­
vened in this case, but have not yet been afforded an oppor­
tunity to offer proof. Some of the other school districts are 
not parties to the litigation.

In United States v. Texas Education Agency, 467 F.2d 848, 
873 (5th Cir. 1972), the Court said:

“The discriminatory acts of the school authorities in­
fect the entire school system; they are particularly obvi­
ous in the so-called ‘pockets’. Some schools may be the 
result’ of state-imposed segregation even though no spe­
cific discriminatory school board action may be shown 
as to those schools. Had the school authorities not spe­
cifically segregated the minority students in certain 
schools, other schools may have developed as desegregated 
facilities. Thus, though they may not be ‘pockets of 
discrimination’, these schools are the ‘results’ of discrimi­
nation.”

Under the authorities heretofore discussed, these school
istricts are arms and instrumentalities of the State of Michi­

gan. Nevertheless, under Michigan law, they may sue and 
be sued. See M.S.A. §§ 15.3154, 15.3192.

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177a

68 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-14

Rule 19, Fed. R. Civ. P. provides that a person who is 
subject to service of process shall be joined as a party to 
the action if “in his absence complete relief cannot be ac­
corded among those already parties.” Under this rule joinder 
of necessary parties is required if jurisdiction over them can 
be obtained and if joinder will not defeat federal jurisdiction 
of the case.

We hold that school districts which are to be affected by 
the decree of the District Court are “necessary parties” under 
Rule 19. As a prerequisite to the implementation of a plan 
in this case affecting any school district, the affected district 
first must be made a party to this litigation and afforded an 
opportunity to be heard.

While agreeing with the District Court in its conclusion that 
it can consider a metropolitan remedy, we express no views 
as to the desegregation area set forth in the orders of the 
District Court.

We vacate the order of March 28, 1972, entitled “Ruling 
on Propriety of a Metropolitan Remedy to Accomplish De­
segregation of the Public Schools of Detroit.”

This Court recognizes that, as set forth above, the legisla­
ture of the State of Michigan has power to provide a com­
plete remedy for the unconstitutional segregation disclosed 
in this record. It, too, has responsibility for following the 
great mandates of the United States Constitution.

If, however, the legislature fails to act, or if it acts in a 
manner inconsistent with the expeditious and efficient elimina­
tion of the unconstitutional practices and conditions described 
in this opinion, the District Court shall proceed to fashion 
such a remedy, including an interim remedy if found to be 
necessary, as it shall determine to be appropriate within the 
guidelines of this opinion.

On remand, any party against whom relief is sought, in­
cluding school districts which heretofore have intervened an 
school districts which hereafter may become parties to this



178a

litigation, shall be afforded an opportunity to offer additional 
evidence, and to cross-examine available witnesses who previ­
ously have testified, on any issue raised by the pleadings, in­
cluding amendments thereto, as may be relevant and ad­
missible to such issues. The District Court may consider 
any evidence now on file and such additional competent evi­
dence as may be introduced by any party. However, the 
District Court will not be required to receive any additional 
evidence as to the matters contained in its Ruling on the 
Issue of Segregation, dated September 27, 1971, and reported 
at 338 F. Supp. 582, or its Findings of Fact and Conclusions 
of Law on the “Detroit-only” plans of desegregation, dated 
March 28, 1972. We hold that the findings of fact contained 
in these rulings are not clearly erroneous, Rule 52(a), Fed.
R. Civ. P., but to the contrary are supported by substantial 
evidence.

Upon remand, the plaintiffs and other parties shall be per­
mitted to amend their pleadings to conform to the evidence 
(see Rule 15(b), Fed. R. Civ. P.), to add additional parties 
and to ask for any additional appropriate relief, the details 
of such amendments to be under the continuing supervision of 
the District Court.

We also vacate the District Court’s Ruling on Desegrega­
tion Area and Development Plan, dated June 14, 1972, except 
those parts of the order appointing a panel charged with the 
duty of preparing interim and final plans of desegregation. 
The panel appointed by the District Court is authorized to 
proceed with its studies and planning under the direction of 
the District Court. Pending further orders of the District 
Court or this Court, the defendants and school districts in­
volved will continue to supply administrative and staff assist­
ance to the panel upon its request. Until further order of 
the court, the reasonable costs incurred by the panel will be 
paid as provided by the District Court’s order of June 14, 1972.

The order of the District Court directing the purchase of 
school buses, dated July 11, 1972, also is vacated, subject to the

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179a

right of the District Court, in its discretion, to consider the 
entry of another order requiring the purchase of school buses 
at the appropriate time.

VIII. Equitable Relief

In this opinion we have emphasized the broad powers of 
a District Court to fashion equitable relief in school desegre­
gation cases. For the guidance of the District Court on remand, 
we now review the decisions on this subject in further depth,

1) The Fundamental Constitutional Holding:
“We conclude that in the field of public education the 

doctrine of ‘separate but equal’ has no place. Separate 
educational facilities are inherently unequal. Therefore, 
we hold that the plaintiffs and others similarly situated 
for whom the actions have been brought are, by reason 
of the segregation complained of, deprived of the equal 
protection of the laws guaranteed by the Fourteenth 
Amendment.” Brown v. Board of Education, 347 U.S, 
483, 495 (1954).

2) The Supreme Court’s Initial Description of the Equitable 
Remedy:

“In fashioning and effectuating the decrees, the courts 
will be guided by equitable principles. Traditionally, 
equity has been characterized by a practical flexibility in 
shaping its remedies4 and by a facility for adjusting and 
reconciling public and private needs.5 These cases call 
for the exercise of these traditional attributes of equity 
power. At stake is the personal interest of the plaintiffs 
in admission to public schools as soon as practicable on a 
nondisci'iminatory basis. To effectuate this interest may 
call for elimination of a variety of obstacles in making 
the transition to school systems operated in accordance 
with the constitutional principles set forth in our May17 
1954, decision. Courts of equity may properly take into

4 See A lexander  v. Hillman, 296 U.S. 222, 239.
s See H echt Co. v. Bowles, 321 U.S. 321, 329-330.

70 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-14



180a

account the public interest in the elimination of such 
obstacles in a systematic and effective manner. But it 
should go without saying that the vitality of these con­
stitutional principles cannot be allowed to yield simply 
because of disagreement with them.

“While giving weight to these public and private con­
siderations, the courts will require that the defendants 
make a prompt and reasonable start toward full compli­
ance with our May 17, 1954, ruling. Once such a start 
has been made, the courts may find that additional time 
is necessary to carry out the ruling in an effective man­
ner. The burden rests upon the defendants to establish 
that such time is necessary in the public interest and is 
consistent with good faith compliance at the earliest 
practicable date. To that end, the courts may consider 
problems related to administration, arising from the 
physical condition of the school plant, the school trans­
portation system, personnel, revision of school districts 
and attendance areas into compact units to achieve a 
system of determining admission to the public schools on 
a nonracial basis, and revision of local laws and regula­
tions which may be necessary in solving the foregoing 
problems. They will also consider the adequacy of any 
plans the defendants may propose to meet these prob­
lems and to effectuate a transition to a racially nondis- 
criminatory school system. During this period of 
transition, the courts will retain jurisdiction of these cases.” 
Brown v. Board of Education of Topeka [II], 349 U.S. 
294, 300-01 (1955)

3) Delay Is No Longer Tolerable:
“In determining whether respondent School Board met 

that command by adopting its ‘freedom-of-choice’ plan, 
it is relevant that this first step did not come until some 
11 years after Brown I was decided and 10 years after 
Brown II directed the making of a ‘prompt and reason­
able start.’ This deliberate perpetuation of the uncon­
stitutional dual system can only have compounded the

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181a

harm of such a system. Such delays are no longer toler­
able, for ‘the governing constitutional principles no longer 
bear the imprint of newly enunciated doctrine.’ Watson 
v. City of Memphis, supra, at 529; see Bradley v. School 
Board, supra; Rogers v. Paul, 382 U.S. 198. Moreover, 
a plan that at this late date fails to provide meaningful 
assurance of prompt and effective disestablishment of a 
dual system is also intolerable. ‘The time for mere 
“deliberate speed” has run out,’ Griffin v. County School 
Board, 377 U.S. 218, 234; ‘the context in which we must 
interpret and apply this language [of Brown II] to plans 
for desegregation has been significantly altered.’ Goss 
v. Board of Education, 373 U.S. 683, 689. See Calhoun 
v. Latimer, 377 U.S. 263. The burden on a school board 
today is to come forward with a plan that promises 
realistically to work, and promises realistically to woi 
now.” Green v. County School Board, 391 U.S. 430, 438- 
39 (1968) (Emphasis added.)

4) State Imposed Segregation Must be Completely Removed 
at Earliest Practicable Date:

“The obligation of the district courts, as it always lias 
been, is to assess the effectiveness of a proposed plan 
in achieving desegregation. There is no universal answer 
to complex problems of desegregation; there is obvious­
ly no one plan that will do the fob in every case. The 
matter must be assessed in light of the circumstances 
present and the options available in each instance. It 
is incumbent upon the school board to establish that its 
proposed plan promises meaningful and immediate 
progress toward disestablishing state-imposed segregation. 
It is incumbent upon the district court to weigh that 
claim in light of the facts at hand and in light of any 
alternatives which may be shown as feasible and more 
promising in their effectiveness. Where the court finds 
the board to be acting in good faith and the proposed 
plan to have real prospects for dismantling the state- 
imposed dual system ‘at the earliest practicable date, . 
then the plan may be said to provide effective relief.

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182a

Of course, the availability to the board of other more 
promising courses of action may indicate a lack of good 
faith; and at the least it places a heavy burden upon the 
board to explain its preference for an apparently less 
effective method. Moreover, whatever plan is adopted 
will require evaluation in practice, and the court should 
retain jurisdiction until it is clear that state-imposed seg­
regation has been completely removed. See No. 805, 
Raney v. Board of Education, post, at 449.” Green v. 
County School Board, 391 U.S. 430, 439 (1968) (Empha­
sis added.)

5) The Court Has The Power and The Duty to Eliminate 
Effects of Past Discrimination:

“We hear in mind that the court has not merely the 
power but the duty to render a decree which will so far 
as possible eliminate the discriminatory effects of the 
past as well as bar like discrimination in the future.” 
Louisiana v. United States, 380 U. S. 145, 154 (1965) 
(Emhasis added). Compare the remedies discussed in, 
e. g., NLRB v. Newport News Shipbuilding & Dry Dock 
Co., 308 U. S. 241 (1939); United States v. Crescent 
Amusement Co., 323 U. S. 173 (1944); Standard Oil Co. v. 
United States, 221 U. S. 1 (1911). See also Griffin v. 
County School Board, 377 U. S. 218, 232-234 (1964). 
Green v. County School Board, 391 U.S. 430, n. 4 at 438 
(1968) (relating to the remedial command of Brown II)

6) Resegregation is Impermissible:
Like the transfer provisions held invalid in Goss v. Board 

of Education, 373 U.S. 683, 686, ‘ [i]t is readily apparent 
that the transfer [provision] lends itself to perpetuation 
of segregation.’ While we there indicated that ‘free- 
transfer plans under some circumstances might be valid, 
we explicitly stated that ‘no official transfer plan or 
provision of which racial segregation is the inevitable 
consequence may stand under the Fourteenth Amend­
ment. Id., at 689. So it is here; no attempt has been

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183a

made to justify the transfer provision as a device de­
signed to meet ‘legitimate local problems,’ ibid.; rather 
it patently operates as a device to allow resegregation 
of the races to the extent desegregation would be 
achieved by geographically drawn zones. Respondent’s 
argument in this Court reveals its purpose. We are 
frankly told in the Brief that without the transfer option 
it is apprehended that white students will flee the school 
system altogether. ‘But it should go without saying 
that the vitality of these constitutional principles cannot 
be allowed to yield simply because of disagreement with 
them.’ Brown II, at 300.

“We do not hold that ‘free transfer’ can have no place 
in a desegregation plan. But like ‘freedom of choice,’ 
if it cannot be shown that such a plan will further rather 
than delay conversion to a unitary, nonracial, nondis- 
criminatory school system, it must be held unacceptable. 
See Green v. County School Board, supra, at 439-441.

“We conclude, therefore, that the Board ‘must be re­
quired to formulate a new plan and, in light of other 
courses which appear open to the Board, . . . fashion 
steps which promise realistically to convert promptly to 
a system without a ‘white’ school and a ‘Negro’ school, 
but just schools.” Id., at 442. Monroe v. Board of Com­
missioners, 391 U.S. 450, 459-60 (1968) (Emphasis 
added.)

7) The Remedial Tools:

In Swann v. Board of Education, 402 U.S. 1, 15 (1971), 
Chief Justice Burger, writing for a unanimous Court, said:

“If school authorities fail in their affirmative obligations 
under these holdings, judicial authority may be invoked . 
Once a right and a violation have been shown, the scope 
of a district court’s equitable powers to remedy past 
wrongs is broad, for breadth and flexibility are in h e re n t 
in equitable remedies.

74 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  at. Nos. 72-1809-14



184a

‘The essence of equity jurisdiction has been the 
power of the Chancellor to do equity and to mould 
each decree to the necessities of the particular case. 
Flexibility rather than rigidity has distinguished it. 
The qualities of mercy and practicality have made 
equity the instrument for nice adjustment and recon­
ciliation between the public interest and private 
needs as well as between competing private claims.’ 
Hecht Co. v. Bowles, 321 U.S. 321, 329-330 (1944), 
cited in Brown II, supra, at 300.”

a) The Flexible Ratio:
“As the voluminous record in this case shows, the 

predicate for the District Court’s use of the 71%-29% 
ratio was twofold: first, its express finding, approved by 
the Court of Appeals and not challenged here, that a 
dual school system had been maintained by the school 
authorities at least until 1969; second, its finding, also 
approved by the Court of Appeals, that the school board 
had totally defaulted in its acknowledged duty to come 
forward with an acceptable plan of its own, notwithstand­
ing the patient efforts of the District Judge who, on 
at least three occasions, urged the board to submit plans. 
As the statement of facts shows, these findings are 
abundantly supported by the record. It was because of 
this total failure of the school board that the District 
Court was obliged to turn to other qualified sources, and 
Dr. Finger was designated to assist the District Court to 
do what the board should have done.

“We see therefore that the use made of mathematical 
ratios was no more than a starting point in the process 
of shaping a remedy, rather than an inflexible require­
ment. From that starting point the District Court pro­
ceeded to frame a decree that was within its discre­
tionary powers, as an equitable remedy for the particu­
lar circumstances. As we said in Green, a school authori­
ty s remedial plan or a district court’s remedial decree is 
to be judged by its effectiveness. Awareness of the racial

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185a

composition of the whole school system is likely to be 
a useful starting point in shaping a remedy to correct 
past constitutional violations. In sum, the very limited 
use made of mathematical ratios was within the equitable 
remedial discretion of the District Court.” Swann v, 
Board of Education, 402 U.S. 1, 24-25 (1971).

b) Noncontiguous School Zoning:

“The maps submitted in these cases graphically dem­
onstrate that one of the principal tools employed by 
school planners and by courts to break up the dual school 
system has been a frank — and sometimes drastic -  
gerrymandering of school districts and attendance zones. 
An additional step was pairing, ‘clustering,’ or ‘grouping’ 
of schools with attendance assignments made deliberate­
ly to accomplish the transfer of Negro students out of 
formerly segregated Negro schools and transfer of white 
students to formerly all-Negro schools. More often than 
not, these zones are neither compact nor contiguous; 
indeed they may be on opposite ends of the city. As an 
interim corrective measure, this cannot be said to be 
beyond the broad remedial powers of a court.

“Absent a constitutional violation there would be no 
basis for judicially ordering assignment of students on a 
racial basis. All things being equal, with no history of 
discrimination, it might well be desirable to assign pupils 
to schools nearest their homes. But all things are not 
equal in a system that has been deliberately constructed 
and maintained to enforce racial segregation. The reme­
dy for such segregation may be administratively awkward, 
inconvenient, and even bizarre in some situations and 
may impose burdens on some; but all awkwardness and 
inconvenience cannot be avoided in the interim period 
when remedial adjustments are being made to eliminate 
the dual school systems.

“No fixed or even substantially fixed guidelines can 
be established as to how far a court can go, but it most

76 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-14



186a

be recognized that there are limits. The objective is 
to dismantle the dual school system. ‘Racially neutral’ 
assignment plans proposed by school authorities to a dis­
trict court may be inadequate; such plans may fail to 
counteract the continuing effects of past school segrega­
tion resulting from discriminatory location of school sites 
or distortion of school size in order to achieve or main­
tain an artificial racial separation. When school authori­
ties present a district court with a ‘loaded game board,’ 
affirmative action in the form of remedial altering of 
attendance zones is proper to achieve truly non-discrim- 
inatory assignments. In short, an assignment plan is not 
acceptable simply because it appears to be neutral.

“In this area, we must of necessity rely to a large ex­
tent, as this Court has for more than 16 years, on the 
informed judgment of the district courts in the first in­
stance and on courts of appeals.

“We hold that the pairing and grouping of noncontigu­
ous school zones is a permissible tool and such action is 
to be considered in light of the objectives sought. Judicial 
steps in shaping such zones going beyond combinations 
of contiguous areas should be examined in light of what 
is said in subdivisions (1), (2), and (3) of this opinion 
concerning the objectives to be sought. Maps do not 
tell the whole story since noncontiguous school zones 
may be more accessible to each other in terms of the 
critical travel time, because of traffic patterns and good 
highways, than schools geographically closer together. 
Conditions in different localities will vary so widely that 
no rigid rules can be laid down to govern all situations.” 
Swann v. Board of Education, supra, at 27-29. (Empha­
sis added.)

c) Transportation of Students:
“The scope of permissible transportation of students as 

an implement of a remedial decree has never been de­
fined by this Court and by the very nature of the problem 
it cannot be defined with precision. No rigid guidelines

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187a

as to student transportation can be given for application 
to the infinite variety of problems presented in thousands 
of situations. Bus transportation has been an integral 
part of the public education system for years, and was 
perhaps the single most important factor in the transi­
tion from the one-room schoolhouse to the consolidated 
school. Eighteen million of the Nations public school 
children, approximately 39%, were transported to their 
schools by bus in 1969-1970 in all parts of the country.

“The importance of bus transportation as a normal and 
accepted tool of educational policy is readily discernible 
in this and the companion case, Davis, supra. The Char­
lotte school authorities did not purport to assign students 
on the basis of geographically drawn zones until 1965 
and then they allowed almost unlimited transfer privi­
leges. The District Court’s conclusion that assignment 
of children to the school nearest their home serving their 
grade would not produce an effective dismantling of the 
dual system is supported by the record.

“Thus the remedial techniques used in the District 
Court’s order were within that court’s power to pro­
vide equitable relief; implementation of the decree is 
well within the capacity of the school authority.

“The decree provided that the buses used to implement 
the plan would operate on direct routes. Students would 
be picked up at schools near their homes and trans­
ported to the schools they were to attend. The trips 
for elementary school pupils average about seven miles 
and the District Court found that they would take ‘not 
over 35 minutes at the most.’ This system compares 
favorably with the transportation plan previously operated 
in Charlotte under which each day 23,600 students on 
all grade levels were transported an average of 15 miles 
one way for an average trip requiring over an hour. In 
these circumstances, we find no basis for holding that the 
local school authorities may not be required to employ 
bus transportation as one tool of school desegregation.

78 B r a d le y , e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-14



188a

Desegregation plans cannot be limited to the walk-in 
school.

“An objection to transportation of students may have 
validity when the time or distance of travel is so great 
as to either risk the health of the children or significantly 
impinge on the educational process. District courts must 
weigh the soundness of any transportation plan in light 
of what is said in subdivisions (1), (2), and (3) above. 
It hardly needs stating that the limits on time of travel 
will vary with many factors, but probably with none 
more than the age of the students. The reconciliation of 
competing values in a desegregation case is, of course, a 
difficult task with many sensitive facets but fundamentally 
no more so than remedial measures courts of equity have 
traditionally employed.” Swann v. Board of Education, 
supra, at 29-31. (Emphasis added.)

In North Carolina v. Swann, 402 U.S. 43, 46 (1971), the Chief 
Justice said: “As noted in Swann, supra, at 29, bus transporta­
tion has long been an integral part of all educational sys­
tems, and it is unlikely that a truly effective remedy could 
be devised without continued reliance on it.”

d) Equity Power to Require Payment of Tax Funds for 
Integrated Schools:

In the exercise of its equity powers, a District Court may 
order that public funds be expended, particularly when such 
an expenditure is necessary to meet the minimum requirements 
mandated by the Constitution. Griffin v. County School Board 
of Prince Edward County, 377 U.S. 218, 233 (1964); Eaton v. 
kew Hanover County Board of Education, 459 F.2d 684 (4th 
Cir. 1972); Brewer v. School Board of City of Norfolk, 456 
F-2d 943, 947, 948 (4th Cir.), cert, denied, 406 U.S. 933
(1972); Plaquemines Parish School Board v. United States, 
415 F.2d 817 (5th Cir. 1969).

This opinion heretofore has emphasized that the Legisla­
ture of Michigan has an opportunity to determine the or-

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189a

ganizational and governmental structure of an enlarged de­
segregation area to remedy the unconstitutional segregation 
results set forth in this opinion. In the event the Legislature 
fails to act effectively and expeditiously, the foregoing and other 
cases cited in this opinion outline the broad scope of equitable 
relief that may be fashioned by the District Court in this case 
on remand after all school districts to be affected are afforded 
an opportunity to be heard as hereinabove provided.

IX. Other Issues

Numerous other issues are presented which do not require 
discussion.

We do not consider it necessary to construe the “Broom­
field Amendment,” Pub. L. No. 92-318, 86 Stat. 235, § 803, 
known as the Education Amendments of 1972, since no final 
desegregation order has been entered.

Deal v. Cincinnati Board of Education, 419 F.2d 1387, 1392 
(6th Cir. 1969), cert, denied, 402 U.S. 962 (1971) is not con­
trolling. There the District Court made findings of fact that 
there had been no unconstitutional conduct on the part of 
the Cincinnati Board of Education. This court held that 
these findings of fact were not clearly erroneous. Rule 52(a), 
Fed. R. Civ. P.

All other contentions presented by the parties contrary 
to the conclusions reached in this opinion have been considered 
and are found to be without merit.

X. Conclusion

1. The Ruling of the District Court on the Issue of Segre­
gation, dated September 27, 1971, and reported at 338 F.Supp. 
582, is affirmed.

2. The findings of fact and conclusions of law on “Detroit- 
only” plans of desegregation, dated March 28, 1972, are af­
firmed.

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190a

Nos. 72-1809 -14 Bradley, et al. v. Milliken, et al. 81

3. The Ruling on Propriety of a Metropolitan Remedy to 
Accomplish Desegregation of the Public Schools of the City 
of Detroit, dated March 24, 1972, is affirmed in part, but 
vacated for the reasons set forth above.

4. The Ruling on Desegregation Area and Development 
of Plan, dated June 14, 1972, is vacated except as hereinabove 
prescribed.

5. The order dated July 11, 1972, directing the purchase 
of school buses is vacated.

The case is remanded to the District Court for further 
proceedings not inconsistent with this opinion.

No costs are taxed. Each party will bear his own costs.

Edwards, C e le b r e zze , Pec k , M cC ree , and L iv e l y , JJ., 
concur.



191a

Weick, Circuit Judge, dissenting: Eighty-seven years before 
the landmark decision of the Supreme Court in Brown v. 
Board of Education, 347 U.S. 483 (1954) was announced, the 
legislature of the State of Michigan, in Public Acts of Michigan, 
1867, Act 34 § 28, had abolished segregation in the public 
school system which had prohibited Negro children from 
attending the same public schools as white children. This 
statute in relevant parts reads as follows:

“All residents of any district shall have an equal right 
to attend any school therein. . .

The Supreme Court of Michigan, in an opinion written for 
the court by Chief Justice Cooley, construed the statute in 
1869 and held it applicable to Detroit and that Detroit con­
stituted one school district. In granting a writ of mandamus 
requiring the school board to admit a Negro child who had 
been denied admission, Chief Justice Cooley said:

“It cannot be seriously urged that with this provision in 
force, the school board of any district which is subject to 
it may make regulations which would exclude any resident 
of the district from any of its schools, because of race or 
color, or religious belief, or personal peculiarities. It is too 
plain for argument that an equal right to all of the schools, 
irrespective of such distinctions, was meant to be estab­
lished.” People, ex rel. Workman v. Board of Education 
of Detroit, 18 Mich. 399, 409 (1869).

The issues in this case do not concern the right of any 
Negro child in Detroit to attend any school he desires in 
that City. They do involve the authority of a district judge to 
adopt a so-called metropolitan plan designed to integrate the 
Negro school children living in Detroit with white children 
living in three adjoining counties and attending public schools 
in fifty-two additional school districts, eighteen of which dis­
tricts have never been made parties to this lawsuit. Condi­
tions were imposed on the districts allowed to intervene which 
rendered their intervention ineffective.

82 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-14



192a

The District Judge followed the pattern of Judge Merhige 
in the Richmond case whose decision was reversed by the 
Fourth Circuit in Bradley v. School Board of the City of Rich­
mond, 462 F.2d 1068 ( 4th Cir. 1972), aff’d by equally divided 
Court, —  U.S. —  (Nos. 72-549, 72-550, May 21, 1973), 41 
U.S.L.W. 4685. The fact that Richmond involved dismantling 
of a dual system was regarded as unimportant by the District 
Judge.

In an unprecedented opinion, a panel of this Court and now 
a majority of the en banc Court have upheld findings of the 
District Court that segregation exists in Detroit and that it 
cannot be dismantled with a Detroit-only plan of desegregation 
and the District Court may consider and adopt a metropolitan 
plan.1

Just to start such a plan involves the expenditure of about 
$3,000,000 for the purchase of 295 buses and untold millions 
of dollars to operate them and for other expenses. It will in­
volve about 780,000 children and, if ordered by the court, will 
force the busing of black children, against their will and with­
out the consent of their parents, from the inner city of Detroit 
to one or more of the fifty-three different school districts in 
four counties, and the white children of these districts will be 
forcibly bused to the inner city. None of these children have 
committed any offense for which they should be so punished. 
It will disnipt the lives of these children and their parents. The 
metropolitan plan was ill conceived and is a legal monstrosity. 
However, such a plan will achieve a racial balance or quota in 
the desegregation area, which is what plaintiffs are seeking.

The District Court made no findings that any of the fifty- 
two school districts outside of Detroit had practiced desegrega-

' While the present undefined desegregation area consists of three 
additional counties and 53 school districts, this could, of course, be 
expanded so as to include as many as the District Judge may order. 
Ihe plan seeks to achieve a racial balance or quota in each public 
school in the system of 75% white and 25% black in a state which 
is 87% white and 13% black. The Plan violates Public Acts of 
Michigan, 1867, Act 34 § 28, by ordering children living in one district 
t0 attend school in another district.

Nos. 72-1809 -14 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. 83



193a

tion tactics against Negro children in their districts or in any 
other district, or that they were in any wise responsible for the 
concentration of Negroes or their segregation in Detroit.

These fifty-two school districts have been created by the 
legislature as separate and independent corporate units with 
power to sue and be sued. They are governed by locally- 
elected Boards of Education. In each district, the real estate 
of the people living therein is taxed for the support of their 
public schools.

The school districts were established by neutral legislation 
when the cities were incorporated. There was not an iota of 
evidence in the record that the boundaries of the Detroit 
school district, or any other school district in Michigan, were 
established for the purpose of creating, maintaining or per­
petuating segregation of the races. No such claim was ever 
made by the plaintiffs.

In 1910, long after the districts were created, the black 
population of Detroit was only 1.2% of the total population of 
the City. By 1970 it had increased to 43.9% of the total popula­
tion of 1,511,000. It is obvious that the great influx of blacks, 
as well as whites, to Detroit was influenced by the favorable 
industrial climate existing in Michigan and the ability of its 
industry, principally automotive, to provide jobs.

In the school year 1970-1971, there was 285,512 students in 
the public school system in Detroit of which 168,200 or 63.82 
were black and 117,312 or 37.2% where white. The School 
Board of Detroit ought not to be blamed for the heavy con­
centration of blacks in the inner City, for housing conditions, 
or for discrimination by public or private agencies or in­
dividuals and ought not be be saddled with the duty to dis­
mantle the concentration. These same conditions exist in other 
cities throughout the country regardless of the type of 
school system in effect — whether de jure or de facto. Nor 
should the adjoining three counties and the fifty-two school 
districts be penalized because they are located near Detroit.

In his book Negroes in Cities, Dr. Karl Taeuber states

84 B r a d le y ,  e t  ah  v. M il l ik e n ,  e t  al. Nos. 72-1809-14



194a

that residential segregation exists “regardless of the character 
of local laws and policies and regardless of other forms of 
discrimination”. He said substantially the same thing in his 
article “Residential Segregation” in the August, 1965 issue of 
Scientific American.

In Bradley v. School Board of City of Richmond, 462 F.2d 
1058 ( 4th Cir. 1972), aff’d by equally divided Court, —  U.S. 
—  (Nos. 72-549, 72-550, May 21, 1973), 41 U.S.L.W. 4685, 
the Court said:

"The root causes of the concentration of blacks in the 
inner city are simply not known. . .

And:
“Whatever the basic causes, it has not been school 

assignments and school assignments cannot reverse that 
trend.”

The District Court was motivated in its decision by social 
considerations. In a pretrial conference on October 4, 1971 the 
District Court stated:

“We need not recite the many serious problems such a 
plan entails, suffice it to say that a plan of such dimensions 
can hardly be conceived in a day, to say nothing of the 
time it will require for implementation. A large metro­
politan area such as we have in our case can not be 
made the subject of instant integration. We must bear in 
mind that the task we are called upon to perform is a 
social one, which society has been unable to accomplish. 
In reality, our courts are called upon, in these school cases, 
to attain a social goal, through the educational system, by 
using law as a lever.” App. IV, pp. 454, 455.

This is incredible!

It is submitted that the courts are not called upon to in­
tegrate the school system, using law as a lever. Nor should 
judges assume to act as legislators, for which they are neither

Nos. 72-1809 -14 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  a l  85



195a

fitted nor qualified. It is enough for judges to perform their 
judicial function and to abide by the separation of powers 
doctrine provided by our Constitution.

The thesis of the panel which wrote the original opinion in 
this appeal is best stated in its own words in its slip opinion:

“This court in considering this record finds it impossible 
to declare ‘clearly erroneous’ the District Judge’s con­
clusion that any Detroit only desegregation plan will lead 
directly to a single segregated Detroit school district over­
whelmingly black in all of its schools, surrounded by a 
ring of suburbs and suburban school districts overwhelm­
ingly white in composition in a State in which the racial 
composition is 87 per cent white and 13 per cent black. 
Big city school systems for blacks surrounded by suburban 
school systems for whites cannot represent equal protec­
tion of the law.” Slip Opin. p. 65.

The majority opinion adopts all of the paragraph except the 
last sentence which reads as follows:

“Big city school systems for blacks surrounded by 
suburban school systems for whites cannot represent equal 
protection under the law.”

In my opinion, the retained part of the paragraph expresses 
the same thought as the sentence which has been deleted.

No decision of the Supreme Court or any other court con­
struing the Constitution supports this thesis and it is not our 
province to rewrite the Constitution.

The majority opinion sharply conflicts with Spencer v. Kug- 
ler, 326 F.Supp. 1235 (D. N.J. 1972), affirmed, 404 U.S. 1027
(1972). In Spencer the black students sued the Attorney 
General of the State of New Jersey, the Commissioner of Edu­
cation and the State Board of Education alleging that they 
failed to achieve a racial balance among several districts of a 
state system of public schools. New Jersey, like Michigan, 
did not operate a dual system and the alleged imbalance was 
characterized as de facto segregation.

86 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809 -14



196a

The three-judge Court which heard the case stated:
“In none of the schools of which the plaintiffs complain 
is any black pupil ‘segregated’ from any white pupil. 
Indeed, complaint is made that the blacks who reside in 
the school district served predominate over the whites, 
thus affording an example of complete desegregation 
which was the expressed object of the court in the Brown 
case. At page 487 of the Opinion at page 688 of 74 S.Ct. 
in Brown it is stated that:

‘In each of the cases [from Kansas, South Carolina, 
Virginia and Delaware] minors of the Negro race, 
through their legal representatives, seek the aid of 
the courts in obtaining admission to the public 
schools of their community on a nonsegregated basis. 
In each instance, they had been denied admission to 
schools attended by white children under laws re­
quiring or permitting segregation according to race.’

Such is not the basis upon which each of the plaintiffs in 
the present case seeks relief in this cause. On the con­
trary plaintiffs would have a substantial portion of the 
pupils now in attendance in their respective schools or­
dered by the court removed from these schools and as­
signed to a school in another district. Alternatively 
plaintiffs would have the court abolish the respective 
districts in which their schools are located and assign 
them to other districts in which the disproportion between 
white and black students is reduced in one direction or 
the other. If, as plaintiffs contend, the proportionate black 
attendance in their respective schools adversely affects 
the degree of excellence of education which they can 
receive there must be a point at which any excess of 
blacks over whites is likely to impair the quality of the 
education available in that school for the black pupils. No­
where in the Appendix filed by the plaintiffs or in the facts 
involved in any of the judicial precedents which they cite 
are we informed of the specific racial proportions which

Nos. 72-1809 -1 4  B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. 87



197a

are likely to assure maximum excellence of the educational 
advantages available for the whites. Assuming further 
that efforts to achieve the ideal interracial proportion 
necessarily include the alteration of the population factor 
determinative of the redistricting, there can be no assur­
ance that the population factor will remain static. If so, 
it would be necessary to successively reassign pupils to 
another district as the rate of births and graduations alters 
the racial proportions creating the demand for the educa­
tional facilities as it changes from term to term. In sum, 
the difficulty complained of does not amount to uncon­
stitutional segregation.” (Id. at 1239-1240).

Speaking of school district boundaries, the Court stated:
“It is clear that these legislative enactments prescribe 
school district boundaries in conformity with municipal 
boundaries. This designation of school district zones is 
therefore based on the geographic limitations of the 
various municipalities throughout the State. Nowhere in 
the drawing of school district lines are considerations of 
race, creed, color or national origin made. The setting of 
municipalities as local school districts is a reasonable 
standard especially in light of the municipal taxing author­
ity. The system as provided by the various legislative en­
actments is unitary in nature and intent and any pur­
ported racial imbalance within a local school district 
results from an imbalance in the population of that mu­
nicipality-school district. Racially balanced municipalities 
are beyond the pale of either judicial or legislative inter­
vention.” (Id. at 1240).

Spencer is on “all fours” with our case.
The majority opinion conflicts with prior decisions of this 

Court with the unfortunate result that acts which do not 
violate the Constitution in Cincinnati, are held to be uncon­
stitutional in Detroit.

The two decisions with which the majority opinion is in

88 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809 -14



198a

irreconcilable conflict are Deal v. Cincinnati Board of Educa­
tion, 419 F.2d 1387 ( 6th Cir. 1969), cert, denied, 402 U.S. 
962 (1971); Deal v. Cincinnati Board of Education, 369 F.2d 
55 (6th Cir. 1966), cert, denied, 389 U.S. 847 (1967), affirming, 
244 F.Supp. 572. Twice the Supreme Court was afforded the 
opportunity to review Deal and as late as 1971 it refused to 
do so, with only one Justice dissenting.

More than eighty-two years ago Ohio, like Michigan, by 
statute had abolished segregation in the public schools in the 
State. The neighborhood school system, however, was provided 
by statute so that schools would be constructed at such places 
as will be convenient for the attendance of the largest number 
of children. Ohio Rev. Code § 3313.48. It was not then be­
lieved that neighborhood schools were obnoxious. Nevertheless, 
in Cincinnati the races were imbalanced in the public school 
system.

Some schools were attended entirely by Negroes and others 
entirely by whites, while others were attended in varying pro­
portions by both white and Negroes. Some Negro schools 
were racially identified. The segregation was allegedly caused 
by gerrymandered school-zone lines, by housing discrimination 
by public and private agencies, by discrimination in job op­
portunities, and school construction.

We held in Deal I that the Board of Education had no 
constitutional duty to eliminate racial imbalance not caused or 
created by it, and upheld the neighborhood plan adopted by 
the State Legislature.

The District Judge had excluded evidence of discrimination 
in the public and private housing markets. We held this ruling 
was correct on the ground that the discrimination, if it existed, 
was caused by persons not parties to that case and the Board 
of Education had no power to rectify that situation. We said: 
[If] appellants have any valid claim for infringing their 

rights by public-housing or urban-renewal officials, they may 
obtain appropriate relief against them under the Fourteenth 
Amendment. With respect to private actions amounting to dis-

Nos. 72-1809 -14 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. 89



199a

criminatory practices, while there is no federal constitutional 
right available to appellants, they may seek relief from the 
state Civil Rights Commission, or in the state courts, if relief 
is denied under the provisions of the Ohio Fair Housing Law.2 
Deal I, 369 F.2d at 60 fn. 4.

The majority opinion also conflicts with Bradley v. School 
Board of Richmond, supra, and Swann v. Board of Education, 
402 U.S. 1 (1971).

Swann stated that: “[The] objective is to dismantle the dual 
school system.” Id. at 28. Here there has been no dual school 
system to dismantle. Although not racially balanced, Detroit 
for many years had achieved a unitary school system in which 
no student was precluded from attending any school in the 
district. Alexander v. Holmes County Board of Education, 396 
U.S. 19 (1969). There are limits as to how far a district court 
can go. Swann at 28.

Swann also stated:
“If we were to read the holding of the District Court to 

require, as a matter of substantive constitutional right, any 
particular degree of racial balance or mixing, that ap­
proach would be disapproved and we would be obliged to 
reverse.” 402 U.S. at p. 24.

The metropolitan plan violates this principle which was 
applicable only to dual systems. It is even worse when the 
District Court applies broader orders to a unitary system than 
have ever been applied to dismantling of a dual system.

Swann, is violated by overloading the school system with 
excess “baggage.” Id. at 22.

90 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-14

2 The Supreme Court in Jones v. Mayer Co., 392 U.S. 409 (1968), 
has since held that Section 1982 of 42 U.S.C. applies to all discrimina­
tion in the sale or rental of property. . ,

The majority distinguishes Deal I on the ground that the Uistnc 
Court made findings of fact that there had been no unconstituuon 
conduct on the part of the Cincinnati Board of Education. In ora - 
ley, the District Judge had found similar facts to constitute a viola­
tion of the Constitution. Both District Court decisions, although i 
consistent, have now been affirmed.



200a

THE DETROIT ONLY PLAN

The finding of the District Court that a Detroit only plan 
could not accomplish desegregation is not supported by the 
evidence and are clearly erroneous. The percentage of black 
and white children in the public schools in 1970-1971 was 
63.8% and 37.2% respectively. The racial composition of the 
state is 87% white and 13% black.

In Wright v. Council of City of Emporia, 407 U.S. 451 
(1972), the Supreme Court approved a pairing plan for the 
City and County which had a racial composition of 34% white 
and 66% black. The existing ratios in Detroit are practically 
the same.

But the District Court in our case was concerned about its 
own forecast of population trends that the percentage of black 
students would increase from 63.8% in 1970 to 72% in 1980, and 
in 1992 would be all black. This forecast is wholly speculative.

Such an unsupported and speculative forecast cannot be 
made the basis for a metropolitan cross-district order. Even if 
true, which it is not, the Board of Education is not responsible 
for the population remaining static, or for the mobility of the 
races. This was made clear in Spencer, supra, id. at 1239, 1240, 
and also in Swann, supra, id. at 31, 32. Nor is the Board re­
quired from time to time to adopt plans to meet shifting 
population trends. Spencer, supra; Swann, supra.

Significantly, all that the plaintiffs are complaining about is 
the operation of the Detroit school system and the failure of 
the State defendants to properly supervise, control or finance 
it. Plaintiffs cannot complain about school district lines be­
cause those lines were neutrally drawn with the incorporation 
of the cities long before the Negroes had migrated north in 
large numbers. If school-zone lines in Detroit have not been 
properly drawn or if there are imbalances of black and white 
students, or imbalances on faculty or staffs in the Detroit 
schools, or if school buildings have been improperly located, or 
if plaintiffs have been discriminated against in any other

Nos. 72-1809 - 14 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. 91



201a

respect, these inequities can all be remedied in the Detroit 
school system without forcibly moving Negroes and whites 
against their will across district lines into other counties and 
districts. An order requiring the adoption of a metropolitan 
plan under the facts of this case, merely to dismantle the con­
centration of blacks in the inner city, violates constitutional 
rights of both races and constitutes a flagrant abuse of judicial 
power.3 Swann recognized a limitation on the power of Dis­
trict Judges. Id. at 28. Chief Justice Vinson, in writing the 
opinion for the court in Oyama v. California, 332 U.S. 633, 646 
(1948), stated:

“But assuming, for the purposes of argument only, that 
the basic prohibition is constiutional, it does not follow 
that there is no constitutional limit to the means which 
may be used to enforce it.”

Thus, the District Court may not enter orders in school 
desegregation cases which impinge upon and violate the con­
stitution rights of other persons.

Many Negroes as well as whites are opposed to integration 
of the races in the public school system by enforced busing.4 
A busing order directed at “benefiting” black students in 
Detroit (by distributiing the black student population through­
out the entire metropolitan area) produces a head-on clash of 
constitutional principles. Blacks are given an (alleged) benefit 
when other citizens “similarly situated”, i.e., other minority- 
group students and even inner-city white students, are not 
given such benefits but are discriminated against. This result, 
of course, is a classic denial of the equal protection of the

92 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-14

3 Indeed, there is no finding by the District Court of any pattern 
of purposeful segregation by the School Board or finding of any 
causal relationship between any alleged segregative acts of the 
Board of Education and the concentration of blacks in the inner 
city.

« At the National Black Political Convention held in Gary, Indiana 
(March, 1972), mandatory busing and school integration were con­
demned as racist and as preserving a black minority structure.



202a

laws. Barbier v. Connolly, 113 U.S. 27, 32 (1885); Truax v. 
Corrigan, 257 U.S. 312, 333 (1921).

In a very recent thought-provoking article, appended hereto 
as Appendix A and entitled “Reverse Discrimination”, Dr. 
Morton Teicher, Dean of the School of Social Science of the 
University of North Carolina, discussed the problems of de­
prived groups and remedies for past discrimination including 
quota systems. Since opinions of sociologists were relied upon 
in Brown I, it is important that they not be overlooked here. 
See also the discussion entitled “Busing: A Review of ‘The 
Evidence’ ”, The Public Interest No. 30 Winter 1973; “The 
Evidence on Busing,” The Public Interest No. 28 Summer 
1972; Ross, “Why Quotas Won't Work,” Reader’s Digest, Feb. 
1973, p. 51.

The District Court’s metropolitan cross-district order, an 
order purportedly directed at furthering the purposes of the 
equal protection clause, itself clashes with this constitutional 
principle.

The metropolitan busing remedy ordered by the Court is, 
however, unconstitutional on a more fundamental level. It 
invalidly assumes that the equal protection clause of the 
Fourteenth Amendment protects groups and not individuals. 
The entire thrust of the District Court’s order is that the 
rights of blacks as a group must be redressed and that, in the 
process, the rights of individual black children (and non-black 
children) may be disregarded.

Consider the burden on the individual students who are 
bused in order to achieve a “racial balance” throughout the 
entire Detroit Metropolitan Area. Individual black and white 
students who formerly walked to a nearby school would be 
forced to travel substantial distances to other schools. These 
are not individuals who are burdened because their parents 
have chosen to reside far from the nearest school in the district 
or because they have special educational needs attended to in 
but a single school in the district. These are individual chil-

Nos. 72-1809 - 14 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. 93



203a

dren who are burdened with being bused solely because they 
are black or white, as the case may be.

Parenthetically, it should be noted that if there were any 
question that busing involves a substantial burden on the 
individual who cannot attend his neighborhood school, that 
question has been dispelled by the urgings of desegregation- 
case plaintiffs that black children can not be “unequally bur­
dened” by being the only students bused, the white students 
being permitted to attend their neighborhood schools, See e.g., 
Haney v. County Bd. of Education of Sevier Co., 429 Fid 
364, 371-372 ( 8th Cir. 1970); Brice v. Landis, 314 F.Supp. 974, 
978-979 (N.D. Calif. 1969).

Yet in proposing a remedy for black students as a group 
based on a head count, the District Court entirely disregards 
these individual black and white students and their right not be 
burdened solely on account of their race.

The equal protection clause of the Fourteenth Amendment 
states:

94 B r a d le y , e t  al. v. M il l ik e n ,  e t  a l  Nos. 72-1809-14

“. . . nor shall any state . . . deny to any person within 
its jurisdiction the equal protection of the laws.” (Em­
phasis added.)

The Supreme Court has recognized the individual nature of 
the equal protection clause on a number of occasions.5 In

s Of course, merely because equal protection is an individual right 
does not mean, as implied in United States v. Jefferson Co. Bd. 
of Education, 372 F.2d 836 (5th Cir. 1966), that a class action will 
not be available under Rule 23 (a) for redress of discrimination. 
A class action lies where a number of persons have similar indi­
vidual rights infringed.

On the other hand, it does not follow that simply because a class 
action is available to redress discrimination individual rights can 
be obliterated by superimposing the “rights” of the class.

The individual plaintiffs, who charge in their Complaint the main­
tenance of a desegregated school system in Detroit, were all Negroes 
except one. Nevertheless, the District Court in determining the 
class held “that the plaintiffs in their action represent all school 
children in the City of Detroit, Michigan, and all Detroit resident



204a

Shelley v. Kraemer, 334 U.S. 1, 22 (1948), the Court was ex­
plicit:

“The rights created by the first section of the Fourteenth 
Amendment [the equal protection clause] are, by its 
terms, guaranteed to the individual. The rights estab­
lished are personal rights. [Court’s n.29.] McCabe v. 
Atchison, Topeka & Santa Fe R. Co., 235 U.S. 151, 161-162 
(1914); Missouri ex rel. Gaines v. Canada, 305 U.S. 337 
(1938); Oyama v. California, 332 U.S. 633 (1948).”

It simply defies logic to have a “constitutionally required” 
remedy for a group of individuals which, in turn, uncon­
stitutionally denies equal protection to the individuals in the 
group as well as individuals in other groups, and which remedy 
unconstitutionally imposes burdens on students within and 
without the group solely because of their race. Yet this is pre­
cisely what the District Court has held. The Court states (cor­
rectly) that discrimination against the black race in Detroit 
must be remedied, but then orders massive interdistrict busing 
of students to achieve racial balances, denying individual 
blacks (and non-blacks) their right not to be substantially 
burdened solely on account of their race.

But the fundamental error of the District Court order was 
in treating the Michigan school system as a dual system when 
it was not, and in proposing the dismantling of concentration 
of blacks in Detroit and distributing them in fifty-two other 
school districts in three other counties. Virtually all of the 
cases relied upon by the plaintiffs to support the District 
Court’s rulings involved dual school systems.

Nos. 72-1809 - 14 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. 95

Parents who have children of school age, . . . .” Thus white and 
black children and their parents, who are not situated similarly with 
the plaintiffs and may violently disagree with plaintiffs’ position, are 
arbitrarily placed in the same class. It will also be noted that 
the Complaint sought only the desegregation of the Detroit schools 
and made no claim against other counties and other school districts.



205a

DUE PROCESS VIOLATIONS OF FIFTH AND 
FOURTEENTH AMENDMENTS TO THE 

CONSTITUTION
Although, as stated by the majority, this is the fourth time 

that the case has been before us, the District Court has not 
as yet adopted any specific plan for desegregation; instead 
the District Court has entered a number of interlocutory or­
ders some of which are now before us for review under 28 
U.S.C. § 1292(b). These include rulings on the issue of Seg­
regation, findings of fact and conclusions of law on Detroit 
Only Plan of Desegregation, propriety of a Metropolitan 
remedy to desegregate Detroit Schools, Desegregation Area, 
and Order directing Michigan State officials to purchase 295 
school buses.

This procedure is unprecedented. Usually school desegre­
gation cases are reviewed on appeal only after a plan of de­
segregation has been adopted. It appears to us that the 
District Court has placed the cart before the horse. It has 
entered a number of far-reaching piecemeal interlocutory or­
ders from which no appeal could be taken without the court’s 
permission, and which would bring about a fait accompli of 
a metropolitan plan without affording the defendants their 
right of appeal. This was in the absence of necessary and 
indispensable parties and to the prejudice of intervening school 
districts which had been denied effective participation in the 
proceedings.

The Complaint, which has never been amended, sought 
only the desegregation of the Detroit school system. There was 
no allegation that any other school district would be affected. 
As soon as it was determined that other school districts might 
be adversely affected, the District Court should have required 
the plaintiffs to make them parties defendant with a full 
opportunity to be heard on the merits of the case. These school 
districts were necessary and indispensable parties. This is the 
correct procedure, and was followed in Bradley v. School 
Board of the City of Richmond, 338 F.Supp. 67 (E.D. Va.

96 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809 -14



206a

1971) , reversed on other grounds, 462 F.2d 1058 (4th Cir.
1972) , aff’d by equally divided Court, —  U.S. —  (Nos. 72- 
549, 72-550, May 21, 1973), 41 U.S.L.W. 4685.

All school districts whose borders were being invaded were 
entitled, as a matter of right and not of mere grace, to 
be made parties defendant in the case and to be accorded 
the same rights as any other defendants. They were entitled 
to be heard on all issues in the case which affected them, 
and were entitled to participate effectively in the proceedings. 
They were entitled to be heard on the issues of segregation, the 
“Detroit-Only plan” and the “Metropolitan plan”. They had 
the right to offer evidence and endeavor to prove that there 
was no causal connection between any act or omission of the 
Detroit Board of Education (or of the State) and the concen­
tration of blacks in the inner City, and that whatever consti­
tutional violations of the rights of the plaintiffs may have oc­
curred, such violations could be remedied within the Detroit 
school district without invading other districts which were 
not in any manner responsible for conditions in Detroit. These 
rights were denied to the intervenors.

While the orders of the District Court on these three issues 
were interlocutory, the judgment entered by the majority is 
final and the issues may not be relitigated on remand. Thus 
judgment has been entered against the absent school districts 
as well as those allowed to intervene, in violation of their 
due process rights to a fair and impartial trial. The orders 
affirmed are far reaching; they will require the expenditure of 
untold millions, and will disrupt the lives of hundreds of 
thousands of children and their parents.

However, in its opinion the majority did provide for amend­
ment of pleadings on remand, making new party defendants, 
for intervention, and for offering additional testimony. These 
provisions are wholly illusory with respect to the issues of 
segregation, the “Detroit-Only plan” and the “Metropolitan 
plan”, as the opinion expressly excludes these issues from 
reconsideration upon the remand. The only remedy available

Nos. 72-1809 -14 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. 97



207a

to the intervening school districts is to petition the Supreme 
Court for certiorari. The eighteen school districts, as well 
as any additional school districts which the District Court 
may add to the desegregation area upon the remand, are with­
out any remedy. Since they have never been made parties, 
they may not petition the Supreme Court for a writ of certi­
orari. They have surely been deprived of their property rights, 
not only without due process of law, but without any process 
of law.

The majority opinion, with its disapproval of the “Detroit- 
Only” plan and its order to the District Court to consider 
and adopt a so-called “Metropolitan” plan invading the borders 
of three counties and the boundaries of fifty-two school dis­
tricts, completely destroys local control of the public school 
system along with all of its advantages. Local control is a 
traditional concept of the American public school system. Its 
merit and value were recognized by the Supreme Court in two 
very recent decisions. San Antonio Independent School Dist. 
v. Rodriguez, —  U.S. —  (No. 71-1332, 41 U.S.L.W. 4407, 
decided March 21, 1973); and Wright v. Council of the City 
of Emporia, 407 U.S. 451 (1972).

In San Antonio Independent School District, supra, Mr. Jus­
tice Powell, wrote the opinion for the Court, cited and quoted 
from opinions of Chief Justice Burger and Justice Potter Stew­
art in Wright, stating:

“The Texas system of school finance is responsive to 
these two forces. While assuring a basic education for 
every child in the State, it permits and encourages a large 
measure of participation in and control of each district’s 
schools at the local level. In an era that has witnessed 
a consistent trend toward centralization of the func­
tions of government, local sharing of responsibility for 
public education has survived. The merit of local con­
trol was recognized last Term in both the majority and 
dissenting opinions in Wright v. Council of the City of 
Emporia, 407 U.S. 451 (1972). Mk Ju stic e  Ste w a r t  stated 
there that ‘[djirect control over decisions vitally affecting

98 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809 -14



208a

the education of one’s children is a need that is strongly 
felt in our society.’ Id., at 469. T h e  C h ie f  Ju stic e , in his 
dissent, agreed that ‘[ljocal control is not only vital 
to continued public support of the schools, but it is of 
overriding importance from an educational standpoint as 
well.’ Id., at 478.

“The persistence of attachment to government at the 
lowest level where education is concerned reflects the 
depth of commitment of its supporters. In part, local 
control means, as Professor Coleman suggests, the free­
dom to devote more money to the education of one’s 
children. Equally important, however, is the opportunity 
it offers for participation in the decision-making process 
that determines how those local tax dollars will be spent. 
Each locality is free to tailor local programs to local needs. 
Pluralism also affords some opportunity for experimenta­
tion, innovation, and a healthy competition for educa­
tional excellence. An analogy to the Nation-State rela­
tionship in our federal system seems uniquely appropriate. 
Mr. Justice Brandeis identified as one of the peculiar 
strengths of our form of government each State’s free­
dom to ‘serve as a laboratory . . . and try novel social 
and economic experiments.’ No area of social concern 
stands to profit more from a multiplicity of viewpoints and 
from a diversity of approaches than does public educa­
tion.” (41 U.S.L.W. at 4422)

As we have pointed out, the facts of the present case furnish 
no basis whatsoever for the Court to destroy local control of 
our public school system.

Unreasonable and intolerable conditions, however, were im­
posed by the Court on the intervention by the school districts.6

Nos. 72-1809 -1 4  B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. 99

6 “The interventions granted this day shall be subject to the 
■Mowing conditions:

1- No intervenor will be permitted to assert any claim or defense 
pr®vi°usly adjudicated by the court.
„ ■ . No intervenor shall reopen any question or issue which has 
Previously been decided by the court.

'*■ The participation of the intervenors considered this day shall



209a

The school districts filed objections to the conditions which 
were never ruled on by the Court. These conditions alone 
constituted a denial of due process to the intervenors who were 
precluded from raising questions necessary for their own pro­
tection and who were denied the right to be heard fully on 
the merits of the case.

The type of intervention permitted by the District Court 
is graphically illustrated in the brief filed by counsel for the 
intervenors in which he complains about the following incidents 
with citation of supporting record references:

“Seven days after allowing appellants to intervene, as 
a matter of right but subject to oppressive conditions, 
[27] the trial court required the filing of written briefs 
on the legal propriety of a metropolitan plan of desegre- * 6 7 * 9

100 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809 -14

be subordinated to that of the original parties and previous in­
tervenors. . . .  ,. „„

4. The new intervenors shall not initiate discovery proceedings 
except by permission of the court upon application in writing, ac­
companied by a showing that no present party plans to or is willing 
to undertake the particular discovery sought and that the particular 
matter to be discovered is relevant to the current stage of the pro-

5. No new intervenor shall be permitted to seek a delay of any
proceeding in this cause; and he shall be bound by the brief an 
hearing schedule established by the court’s Notice to Counsel, issued 
March 6, 1972. . . . . .6 New intervenors will not file counterclaims or cross-compiainp,
nor will they be permitted to seek the joinder of additional parties 
or the dismissal of present parties, except upon a showing that suen 
action will not result in delay. „

7 New intervenors are granted intervention for two principal 
purposes: (a) To advise the court, by brief, of the legal propriety 
or impropriety of considering a metropolitan plan; (b) to rev 
any plan or plans for the desegregation of the so-called larger 
Detroit Metropolitan area, and submitting objections, modifications o 
alternatives to it or them, and in accordance with the requirement 
of the United States Constitution and the prior orders of this court.

8. New intervenors shall present evidence, if any they nave, 
through witnesses to a number to be set, and limited, if necessary, 
by the court, following conference.

9 With regard to the examination of witnesses, all new mie 
venors shall among themselves select one attorney per witness 
act for them, unless one or more of the new intervenors show cause 
otherwise. These conditions of intervention shall remain suDjeu 
to change or modification by the court in the interest of timeiy 
disposition of the case.

DATE: March 15, 1972.” App. at 408-410.



210a

gation. (A. Ia397) The court did not require or permit 
oral argument. Less than 36 hours later the court issued 
its ‘Ruling on Propriety of Considering a Metropolitan 
Remedy to Accomplish Desegregation of the Public 
Schools of the City of Detroit’ (A. Ia439) rejecting the 
contentions of Intervenor School Districts. Testimony 
regarding metropolitan plans commenced four days later 
(a weekend and Motion day falling between) at 10:10 
A.M. Prior to the noon recess, just two hours after In­
tervenor School District counsel had first appeared in 
the District Court and before completion of testimony 
of a single witness, the District Judge announced that 
counsel could stop by his office and pick up his ‘Findings 
of Fact and Conclusions of Law on Detroit-only Plans 
of Desegregation’ (A. Ia456) wherein the court announced 
its intention to seek a more desirable racial mix by means 
of a Metropolitan Plan.

Thus, without any opportunity for oral argument, with­
out opportunity to examine or cross-examine one witness, 
without opportunity to present one shred of evidence, 
and indeed, without opportunity to obtain copies of previ­
ous pleadings and testimony (let alone read same), the 
Intervenor School Districts had been effectively fore­
closed from protecting their interests. [28].”

He further complains about the fact that the Court per­
mitted him to take the deposition of Dr. David Armor, a soci­
ologist of Harvard University, and then refused to receive it 
in evidence.

Dr. Armor was a well-qualified expert. He had previously 
written an article entitled “The Evidence on Rusing” pub­
lished in The Public Interest No. 28, Summer 1972, which ex­
ploded some of the existing theories on educational achieve­
ment resulting from busing.

In a subsequent article by Dr. Thomas F. Pettigrew and 
associates, they responded to Dr. Armor’s article on busing and 
quoted from Judge Roth’s ruling excluding his deposition as 
follows:

Nos. 72-1809 - 14 B r a d le y ,  e t  al. v. M il l ik e n . e t  a l  101



211a

“This fundamental fact was dramatically demonstrated 
by the judicial reaction to Armor’s deposition in the De­
troit school case, a deposition based on an earlier draft 
of ‘The Evidence on Busing.’ On June 12, 1972, U.S. 
District Court Judge Stephen H. Roth ruled the deposition 
inadmissible as evidence on the grounds of irrelevancy. 
The deposition, in Judge Roth’s view, represented ‘a new 
rationale for a return to the discredited “separate but 
equal policy . . . .’ ”7 The Public Interest No. 30, Winter 
1973.

In an article entitled “The Double Double Standard ap­
pearing in the same issue at page 119, Dr. Armor replied to 
the Pettigrew article stating among other things:

“The double standard here is obvious. One willingly 
applies social science findings to public policy if they are 
in accordance with one’s values, but declares them irrele­
vant if they contradict one’s values. . . .” Id. at 130.

The Supreme Court in Brown I relied heavily on testimony 
of sociologists as to the adverse effect of segregation on the 
educational achievement of Negro children. It is inconceiva­
ble that the District Court would hold contrary testimony of 
a sociologist irrelevant and exclude it. This was prejudicial 
error. In a court of justice not merely one side but both 
sides are entitled to offer evidence.

The District Court quashed a subpoena duces tecum is­
sued by the intervenors for Charles Wells, an employee of 
the Detroit Board of Education, to bring with him “all rec­
ords of the past two (2) years concerning incidents involving 
damage to property, safety of pupils or staff (whether perpe­
trated by other pupils, staff or outsiders) criminal activities, 
or fires in or on school property as regards each school in the 
Detroit public school system.”

r  Judge Roth’s language is not understandable in view of the 1869 
decision of the Supreme Court of Michigan in People, ex rel. W , 
man v. Board of Education of Detroit, supra, upholding the rign 
Negro children to attend any school in their district.

102 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-14



212a

Although the Court had previously received the testimony of 
Freeman Flynn, offered by plaintiffs on the subject of safety, 
it denied permission to the Intervenors to offer evidence on 
the same subject by quashing the subpoena. The Court was 
not that technical in admitting into evidence Exhibit 16, al­
though it was not properly identified, stating that the Court 
decided to follow Justice of the Peace Cane’s rule: “We will 
let it in for what it is worth.” Indeed, he did, but did not 
apply Justice Cane’s rule to the deposition.

Due process required an opportunity to be heard which 
must be granted at a meaningful time and in a meaningful 
manner. Jenkins v. McKeithen, 395 U.S. 411 (1969); In Re 
Gault, 387 U.S. 1, 19-21 (1967); Armstrong v. Mango, 380 
U.S. 545, 552 (1965); In Re Oliver, 333 U.S. 257 (1948).

As well stated in Railroad Commisison of California v. Pa­
cific Gas & Electric Co., 302 U.S. 388, 393 (1938):

“The right to a fair and open hearing is one of the 
rudiments of fair play assured to every litigant by the 
Federal Constitution as a minimal requirement. Ohio Bell 
Telephone Co. v. Public Utilities Comm’n, 301 U.S. 292, 
304, 305.”

The intervenors were entitled to the effective assistance of 
counsel, to have a reasonable time to examine the papers in 
the case and to prepare for trial, and to offer evidence in sup­
port of their contentions before the case is decided against 
them.

One other matter is worthy of comment. The District 
Court appointed a nine-member panel to set up a metropolitan 
plan of desegregation. Three members of the panel were 
from Detroit. Only one member was appointed to represent 
the fifty-two school districts whose school population exceeds 
that of Detroit by more than two times. This is a plain ex­
ample of unfairness.

The Detroit Board of Education, although vigorously deny- 
fflg the commission of any purposeful segregative acts com-

Nos. 72-1809 -14 B r a d l e y , e t  al. v. M il l ik e n ,  e t  al. 103



213a

mitted against Negroes and contending that plaintiffs have 
not proven their case, has taken an unusual and extraordinary 
position. It supports the plaintiffs on the issue of a metro­
politan plan contending that if a constitutional violation has 
been shown, only such a drastic remedy will rectify it. It 
is obvious that the Detroit Board was motivated by its con­
cern that a 63.8%-black and a 37.27-white quota was too heavi­
ly weighted with black pupils, and that it owed a constitu­
tional duty to dilute that quota and to distribute the black- 
pupil population of Detroit into the other three counties and 
fifty-two additional school districts, in order to effectuate a 
quota of about 257-black and 757-white children in each school.

It is submitted that no such constitutional duty exists and 
that the District Court erred in ordering it; Swann, supra.

THE ELEVENTH AMENDMENT TO THE 
CONSTITUTION PROSCRIBES SUITS AGAINST 

THE STATE OF MICHIGAN, AND IT HAS 
SOVEREIGN IMMUNITY

The plaintiffs have attempted to sue the State of Michigan 
by making the Governor, the Attorney General, and the Act­
ing Superintendent of Schools parties defendant. Later, when 
the District Court issued an order prior to the adoption of 
any plan for desegregation, to purchase 295 buses, it made 
the Treasurer of the State a party defendant in order to se­
quester funds in his hands.

It was the theory of the plaintiffs that under the doctrine 
of vicarious liability the state was liable for the acts and con­
duct of the Detroit Board of Education and of other political 
subdivisions, and that since the State is a party defendant it 
really was not necessary to make the Detroit School Board, 
or the school boards in the other districts, parties to the case. 
This theory has no legal support and is unsound. Each school 
district is a separate and independent corporate unit with 
power to sue and to be sued, and has separate taxpayers whose

104 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809 -14



214a

property is taxed for the support of the schools as well as for 
the payment of the district’s bond issues.

If, as plaintiffs contend, the State has been made a party 
defendant, then such an action against the State is proscribed 
by the Eleventh Amendment.

The most recent decision of the Supreme Court upholding 
sovereign immunity of a state is Krause v. State of Ohio, 
—  U.S. —  (1972).

To the same effect is Ex Parte State of New York, 256 U.S. 
490 (1921), where the court made it clear that the applica­
bility of the Eleventh Amendment “is to be determined not by 
the mere names of the titular parties but by the essential 
nature and effect of the proceeding as it appears from the 
entire record.” Id. at 500.

The general rule was stated in Dugan v. Rank, 372 U.S. 
609 (1963), as follows:

“The general rale is that a suit is against the sovereign 
if ‘the judgment sought would expend itself on the pub­
lic treasury or domain or interfere with the public ad­
ministration,’ Land v. Dollar, 330 U.S. 731, 738 (1947), or 
if the effect of the judgment would be ‘to restrain the 
Government from acting, or to compel it to act.’ Larson 
v. Domestic & Foreign Corp., supra, at 704; Ex parte New 
York, 256 U.S. 490, 502 (1921).”

The Civil Rights Act has not yet been construed as an ex­
ception to the Eleventh Amendment.

The order issued against the State defendants provided:
“1. The Defendant Detroit Board of Education shall ac­
quire by purchase, lease or other contractual arrange­
ment at least 295 buses for use in the interim desegrega­
tion plan during the 1972-73 school year. All financial ob­
ligations incurred as the result of this Order shall be the 
sole financial obligation of the State Defendants, includ­
ing the added State Defendant State Treasurer Allison 
Green, as set forth below in Paragraph 2. Said order,

Nos. 72-1809 -14 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. 105



215a

lease, or other contract shall be entered into by negotia­
tion and without the necessity for bids forthwith and in 
no event later than Thursday, July 13, 1972.

2. The State Defendants shall bear the cost of this 
acquisition and State Defendants, including the added 
State Defendant Green, shall take all necessary steps 
utilizing existing funds and sources of revenue, to be 
acquired State funds, legislatively authorized and funds 
directed by the State Constitution to the State School 
Aid Funds and by re-allocation of existing or new funds 
to pay for said transportation acquisition either directly 
or through the Defendant Detroit Board.” App. at 576, 
577.

This order imposed a personal liability on the State de­
fendants and would require them, if they complied with 
it, to misappropriate and misapply State funds in violation 
of state law. If they did not comply with it they could 
be punished for contempt.

In addition, the State defendants were ordered to pay the 
cost of the nine-member panel appointed by the Court to 
devise the Metropolitan Plan, (1 Ba 538). This cost was 
estimated at $22,500. All defendants were ordered to hire 
black counsellors and provide in-service training for teachers 
in the fifty-three school district desegregation area. The in­
itial cost of the in-training was about $3,000,000.

The District Court was without authority to impose a per­
sonal liability on the State defendants or to order them to 
misapply and misappropriate State funds in violation of State 
law.8

The legislature of Michigan is not likely to act on the sug­
gestion of the majority, accompanied by a veiled threat if it 
fails to so act, that it change school district boundary lines

8 The orders entered by the District Court have certainly been ex­
pended on the public treasury, have interfered with public administra­
tion, have restrained the State from acting, and have compelled it 
to act, which is the test for determining whether the action is against 
the State, under Dugan v. Rank, supra. Such an action is clearly 
proscribed by the Eleventh Amendment.

106 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-14



216a

Nos. 72-1809 - 14 Bradley, et al. v. Milliken, et al. 107

to benefit a few at the expense of many, and thereby violate 
the constitutional rights of many. School district lines may 
not be changed for an unconstitutional purpose. United States 
v. Scotland Neck City Board of Education, 407 U.S. 484 (1972); 
Wright v. Council of the City of Emporia, 407 U.S. 451 (1972). 
Since an adequate remedy already exists within the Detroit 
school district to correct any constitutional violation therein, 
there is no occasion for the legislature to alter the existing 
neutral, non-discriminatory school district boundaries.

RELIEF
Because of prejudicial errors of constitutional magnitude 

committed by the District Court, each of the orders from which 
an appeal has been taken should be reversed and a new trial 
granted with instructions to consider and adopt a Detroit- 
only desegregation plan to remedy any constitutional viola­
tions which it may find to exist in said City.

The Governor, the Attorney General and the Treasurer of 
the State should be dismissed, as they are unnecessary parties 
to a determination of the issues of the case.



217a

APPENDIX A

108 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-14

REVERSE DISCRIMINATION
The development of “affirmative action” programs for minori­
ty groups is posing some intractable problems. These prob­
lems arise from the existence of conflicting, fundamentally in­
compatible values. On the one hand, we social workers value 
righting the wrongs perpetrated for too long on minority 
groups. On the other hand, we value the right of all persons 
to be treated equally.

Distributive justice requires the dissemination of benefits 
to all without depriving any individual or group of something 
it values. This is far more in keeping with fairness and equity 
than the idea of redistributive justice, which confers benefits 
on one group at the expense of others. Redistributive justice, 
then, leads to reverse discrimination.

Redistributive justice is advocated to atone for our failure 
to live up to the belief in the capacity and the dignity of 
each human being. This failure does not negate the sound­
ness of that belief. Rather, it should spur us to correct the 
failure—not the belief. When practices fail to reflect princi­
ples, then we should change our practices, not our principles.

For social workers, the issue has come to the forefront in 
agency and university hiring practices and admissions policies 
of schools of social work. Social agencies, especially those 
serving ghetto populations, are giving preference to minority 
group members in employment. Universities, beset by pres­
sures from the U.S. Department of Health, Education, and 
Welfare, are similarly giving preference to women and minori­
ty groups. Some schools of social work have adopted quota 
systems in dealing with candidates for admission.

These practices conflict with the fundamental social work 
belief in individual human dignity and the libertarian belief 
that each person is entitled to be judged and valued as an in­
dividual. Quota systems and preferential treatment are arti-



218a

ficial restrictions on this right because they substitute irrele­
vant group characteristics such as race or religion for con­
sideration of an individual’s capacity and potential. Respect 
for the individual is a basic part of social work’s credo and 
commitment. We cannot reconcile this conviction with treating 
people only as representatives of a racial group.

When we try to eliminate discrimination and compensate 
for past wrongs by quota systems, we substitute one injustice 
for another. We deny the inherent equality of all people and 
undermine the proposition that each individual should have 
the same opportunity to achieve and to be judged according 
to his merits. We pit group against group and destroy the 
possibility of harmonious interaction. Quotas are pernicious 
instruments; they represent an unacceptable means for achiev­
ing a desirable end. “Preferential quotas are condescending, 
divisive and detrimental to the integrity of a university.”1

A quota system institutionalizes discrimination and must 
be vigorously opposed. Ultimately, it is a form of segrega­
tion. The progressive democratization of the university 
through the elimination of any criterion for admission other 
than merit has been one of the success stories of America. Now 
some of the benighted beneficiaries of that victory ally them­
selves with those antilibertarian forces that would have blocked 
their own access to education. They are ready to eradicate 
the victory of equal opportunity over discriminatory quotas, 
for which their forebears fought so hard. That victory has 
only been partially won. We cannot falter now by substituting 
a host of irrelevant and inappropriate considerations for merit. 
The test a university must apply to each candidate is merit— 
not inherited status.

Some advocates of quota systems believe that quotas will 
redress wrongs and thus produce equal opportunity, when 
actually they eliminate equal opportunity. Quotas have his­
torically been used for exclusion. They were an insidious man-

1 ’ Editorial, “Discrimination by HEW,” New York Times, March 2,

Nos. 72-1809 - 14 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. 109



219a

ifestation of institutionalized bigotry, covertly designed to ex­
clude unwanted groups. They were wrong in the past and 
they are wrong now, even though they are now designed to 
achieve inclusion, rather than exclusion. Discriminatory prac­
tices are wrong, no matter what their intent. Whether they 
are for or against particular groups, quota systems are morally 
indefensible.

For social workers, the distinctions among people based 
on race, ethnic background, religion, or creed that inhere in 
quota systems are particularly abhorrent. Our regard for the 
individual and our objection to hereditary caste as a status de­
terminant should make quota systems especially impossible for 
us to accept.

For schools of social work, the argument that quotas for 
admission will produce student bodies that represent the pro­
portion of racial, ethnic, or religious groups in society is a curi­
ous expression of bigotry. Proportional representation on a 
group basis is highly discriminatory. What taxonomy shall 
be used to categorize the groups that should be represented? 
Among the characteristics that defy classification are the fol­
lowing: cultural, economic, ethnic, gender, geographic, linguis­
tic, national, occupational, racial, religious, social class, and 
tribal.

Some minority groups include the following: the aged, 
American Indians, Asian-Americans, Blacks, capitalists, Catho­
lics, Chicanos, easterners, factory workers, farmers, German- 
Americans, Hispanic Americans, Hungarian-Americans, im­
migrants, Irish-Americans, Italian-Americans, Jews, the lower 
class, migrants, nomads, northerners, Polish-Americans, the 
poor, Puerto Ricans, slum-dwellers, southerners, Swedish- 
Americans, the upper class, w asps, westerners, and youths.

Who is not a member of a minority group? Who cannot 
find a place among this woefully incomplete list of minorities?

We are all minorities. Each of us comes from a distinctive 
racial, religious, or ethnic stock. Each of us is a newcomer or 
a descendant of newcomers. Even the native Americans—the

110 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-14



220a

Nos. 72-1809 -14 Bradley, et al. v. Milliken, et al. I ll

Indians—came to North America from across the Bering Straits
25,000 years ago. Each of us has ties to our own roots. Each 
of us has pride in our origins. Each minority contributes to 
America—to its building, its evolution, and its maintenance.

M orton  T e ic h e r

Morton Teicher, Ph.D., is Dean, School of Social Work, Uni­
versity of North Carolina, Chapel Hill, North Carolina.



221a

K e n t , Circuit Judge, concurring in part and dissenting in 
part:

While I cannot concur in the majority opinion in these cases 
I am in accord with certain of the conclusions announced in 
that opinion.

To narrow the scope of this dissent it should be stated at 
the outset that I am in complete agreement with the majori­
ty’s conclusion that on the record as presented and because 
of the concessions made by counsel for the School District 
of the City of Detroit during oral argument it appears without 
question that the Detroit city schools were unconstitutionally 
segregated and that an order for integration of those schools 
must be fashioned by the District Court. I am further in ac­
cord with the conclusion of the majority that the District 
Court’s order for the purchase of buses for use in effectuating 
a plan of integration covering the metropolitan Detroit area 
is premature and must be stayed until an appropriate plan 
has been approved by the District Court. I agree that each 
of the suburban school districts which may be affected by 
any proposed metropolitan plan is a necessary party to the 
litigation within the meaning of Rule 19, Federal Rules of 
Civil Procedure, as found by the majority and that the plead­
ings must be amended to join such school districts and bring 
all parties before the Court.

It is at this point that I separate from the majority and 
find myself compelled to state the reasons why I cannot join 
in the majority opinion. The majority opinion approves the 
District Court’s conclusion that a Detroit only integration plan 
would be insufficient to cure the unconstitutional segregation 
found to have been imposed in the Detroit city schools. Those 
who join in such a conclusion appear to me to have a mis­
apprehension of the record in this case.

As stated by the Court in Swann v. Charlotte-Mecklenburg 
Board of Education, 402 U.S. 1 (1971), at page 22:

“The constant theme and thrust of every holding from 
Brown I to date is that state-enforced separation of races

112 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-14

I



222a

in public schools is discrimination that violates the Equal 
Protection Clause. The remedy commanded was to dis­
mantle dual school systems.”

The “state-enforced separation of races” to which refer­
ence is made in the quoted material was not found to exist 
in the metropolitan Detroit area. While the District Judge 
made comments about the segregation of the races with ref­
erence to the situation existing within the City of Detroit 
as related to at least some of the suburban communities with­
in the counties of Wayne, Oakland and Macomb, which com­
ments have been quoted with approval and adopted by the 
majority of this Court, we cannot escape the conclusion of the 
District Judge, as stated in his formal opinion, 345 F.Supp. 914 
(E.D. Mich. 1972), at page 920, where the Court said:

It should be noted that the court has taken no proofs 
with respect to the establishment of the boundaries of the 
86 public school districts in the counties of Wayne, Oak­
land and Macomb, nor on the issue of whether, with the 
exclusion of the city of Detroit school district, such school 
districts have committed acts of de jure segregation.”

With such a statement in the record it is beyond the com­
prehension of this writer to understand how the majority 
can approve the conclusion of the District Court which re­
quires that at least some of the 86 public school districts out­
side the City of Detroit should be embraced within a metro­
politan school district for the purpose of desegregating the 
Detroit city schools, the only district which has been found 
from the evidence to have “committed acts of de jure segre­
gation.” Without proof with regard to segregatory activities 
within the other school districts or in regard to district bound­
aries any conclusion by the District Court or by this Court that 
school district boundaries of other districts had the effect of 
maintaining or creating unconstitutionally segregated schools 
within the City of Detroit is obviously based on irrelevant, 
unsubstantial evidence or totally unsupported assumptions.

Nos. 72-1809 -1 4  B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. 113



223 a

I am in accord with the application of the statement of the 
Court of Appeals for the Fifth Circuit (though not in the 
limitation to specific schools) in United States v. Texas Educa­
tion Agency, 467 F.2d 848 (5th Cir. 1972), en banc, where 
at page 883 the majority opinion quoted the statement in 
Swann that “the nature of the violation determines the scope 
of the remedy,” and then proceeded to conclude at page 884:

“The power of the district court will depend first upon 
a finding of the proscribed discrimination in the school 
system. Swann, 402 U.S. at 16, 91 S.Ct. 1267, 28 L.Ed. 
554. In determining the fact of discrimination vel non, 
whether imposed by statute or as a result of official action, 
the district court must identify the school or schools which 
are segregated as a result of such discrimination. This 
identification must be supported by findings of fact. The 
importance of such a determination will be seen in some 
populous school districts embracing large geographical 
areas. There may be segregated schools which are the 
result of unconstitutional statutes or of official action. 
There may be other one race schools which are the product 
of neutral, non-discriminatory forces.”

If we accept the premise that “the nature of the violation de­
termines the scope of the remedy,” as announced by the 
United States Supreme Court, then, clearly, the remedy pro­
posed by the District Court, and approved by a majority of 
this Court, goes far beyond the “nature of the violation” since 
the District Court has already stated as a conclusion that no 
evidence was taken as to any violation with regard to any 
suburban school district.

While the minority in the Texas Ediwation Agency case 
disapproved of the suggestion of the majority that specific 
schools within a system must be found to have been segre­
gated, and treated separately, (476 F.2d 888 where the minori­
ty speaks through Judge Wisdom), yet the minority does 
not find nor even suggest that it would be appropriate to 
expand the order for relief beyond the system found to have

114 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809 -14



224a

committed acts which violated the constitutional rights of the 
plaintiffs in the action.

Through the majority’s opinion runs the thread which holds 
it together. That thread is the unwillingness apparent in 
the minds of the majority to sanction a black school district 
within a city which it concludes will be surrounded by white 
suburbs. While the majority does not now state that such 
a demographic pattern is inherently unconstitutional, never­
theless, I am persuaded that those who subscribe to the ma­
jority opinion are convinced, as stated in the slip opinion 
of the original panel, “big city school systems for blacks sur­
rounded by suburban school systems for whites cannot rep­
resent equal protection of the law.” While that statement 
has been removed from the opinion of the majority, yet the 
premise upon which the statement was obviously based must 
necessarily form the foundation for the conclusions reached 
in the majority opinion. It may be that such will become 
the law, but such a conclusion should not receive our approval 
on a record such as exists in this case.

As has been pointed out in the other opinions, the bound­
aries of the school district of the City of Detroit have been 
co-terminus with the boundaries of the City of Detroit for 
more than 100 years. Those lines were laid out at a time 
when there was a minimal black population in the metropolitan 
area of Detroit, if there was such metropolitan area at the 
time the boundary lines were established.

The District Judge and the majority make much of the 
fact that “if the boundary lines of the school districts of the 
City of Detroit and the surrounding suburbs were drawn today 
few would doubt that they could not withstand constitutional 
challenge.” This interesting statement provides a fertile field 
for speculation but certainly has no validity. A proposal to 
adopt an amendment to the Constitution of the United States 
>n the same manner and with the same people voting as 
adopted the Constitution of the United States would be stricken 
immediately. I know of no one who would suggest that be-

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225a

cause of changes in the methods of electing the membership 
of state legislatures that the Constitution of the United States 
thereby becomes unconstitutional. The quoted statement is 
to me a complete non sequitur.

I know of no authority which would permit a Court to 
announce a conclusion, based upon a violation of the Con­
stitution, absent the taking of proofs to establish such con­
stitutional violation, which proofs the District Judge stated 
he did not take in this case.

Absent proofs, which clearly were not taken, to establish 
a violation of the constitutional rights of these plaintiffs by 
the suburban school district personnel and by the State of 
Michigan in laying out suburban school district lines it would 
appear that we are in complete and absolute conflict with 
the prior decisions of this Court. In Deal v. Cincinnati Boati 
of Education, 369 F.2d 55 (6th Cir. 1966), cert, denied 389 
U.S. 847 (1967) (Deal I), this Court rejected the contention 
that the state had an affirmative obligation to balance schools 
racially (in that case within the City of Cincinnati) “to 
counteract the variety of private pressures that now operate 
to restrict the range of choices presented to each school child.’ 
369 F.2d at 59.

Deal I was cited with approval by this Court in Davis v, 
School District of City of Pontiac, 443 F.2d 573 (6th Cir. 1971), 
cert, denied 404 U.S. 913 (1971). The Court said at page 575;

“Appellants correctly contend that under Deal v. Cin­
cinnati Bd. of Educ., 369 F.2d 55 (6th Cir. 1966), cert 
denied, 389 U.S. 847, 88 S.Ct. 39, 19 L.Ed.2d 114 (1967), 
a school district has no affirmative obligation to achieve a 
balance of the races in the schools when the existing im­
balance is not attributable to school policies or practices 
and is the result of housing patterns and other forces over 
which the school administration had no control.”

The majority, while refusing to overrule Deal I and Dads, 
creates without evidence an obligation to achieve a balance 
of the races in schools not in a school district but in a metro-

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226a

politan area, and does so while denying to the vast ma­
jority of the school districts involved in such metropolitan 
area the opportunity to offer evidence to establish that they 
had not been used for or guilty of any segregative practices. 
Many other appellate courts have agreed with Deal and Davis. 
Downs v. Board of Education of Kansas City, 336 F.2d 988, 
998 (10th Cir. 1964):

“Appellants also contend that even though the Board 
may not be pursuing a policy of intentional segregation, 
there is still segregation in fact in the school system and 
under the principles of Brown v. Board of Education, 
supra, the Board has a positive and affirmative duty to 
eliminate segregation in fact as well as segregation by 
intention. While there seems to be authority to support 
that contention, the better rule is that although the Four­
teenth Amendment prohibits segregation, it does not com­
mand integration of the races in the public schools and 
Negro children have no constitutional right to have white 
children attend school with them.”

Keyes v. School District No. 1, Denver, Colorado, 445 F.2d 
990,1005 (10th Cir. 1971), cert, granted 404 U.S. 1036 (1972):

“Our reluctance to embark on such a course stems 
not from a desire to ignore a very serious educational 
and social ill, but from the firm conviction that we are 
without power to do so. Downs v. Board of Education, 
336 F.2d at 998. Before the power of the federal courts 
may be invoked in this kind of case, a constitutional 
deprivation must be shown. Brown v. Board of Educa­
tion, 347 U.S. 483, 493-495, 74 S.Ct. 686, 98 L.Ed. 873 
(1954) held that when a state segregates children in 
public schools solely on the basis of race, the Fourteenth 
Amendment rights of the segregated children are violated. 
We never construed Brown to prohibit racially imbalanced 
schools provided they are established and maintained on 
racially neutral criteria, and neither have other circuits 
considering the issue. Deal v. Cincinnati Board of Edu-

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227a

cation, 369 F.2d 55 (6th Cir. 1966); 419 F.2d 1387 
(1969); Springfield School Committee v. Barksdale, 348 
F.2d 261 (1st Cir. 1965); Bell v. School City of Gary, 
Indiana, 324 F.2d 209 (7th Cir. 1963).”

United States v. Board of School Commissioners of City of 
Indianapolis, Indiana, 474 F.2d 81, 83, 84 (7th Cir. 1973):

“Appellants first assert that there is no constitutional 
duty to remedy the effects of racial imbalance or to main­
tain any particular racial balance in the public schools. 
The Government does not quarrel with this assertion, and, 
indeed, insofar as it relates to purely de facto segrega­
tion, unaided by any state action, it is the law of this 
circuit, Bell v. School City of Gary, Indiana, 324 F.2d 
209 ( 7th Cir. 1963), aff’g 213 F.Supp. 819 (N.D.Ind. 
1963).”

A similar prayer for re-districting was before the District 
Court in Spencer v. Kugler, 326 F.Supp. 1235 (D.N.J. 1971), 
and was rejected. The Supreme Court affirmed without opin­
ion, 404 U.S. 1027 (1972) with Mr. Justice Douglas dissenting.

While the Fifth Circuit in Cisneros v. Corpus Christi In­
dependent School District, 467 F.2d 142 (5th Cir. 1972), en 
banc, sustained a finding of unconstitutional segregation re­
sulting from a neighborhood school policy which effectively 
segregated Mexican-Americans within a school district it did 
so based upon competent evidence.

The majority here announces, “If school boundary lines 
cannot be changed for an unconstitutional purpose, it follows 
logically that existing boundary lines cannot be frozen for 
an unconstitutional purpose.” (Pg. 65). Again it may be 
that this will become the law. Clearly, the cases cited have 
reached this conclusion as to the attendance lines existing 
within a specific school system. I know of no case which 
permits such a conclusion as to boundary lines existing be­
tween school districts, and while the conclusion that existing 
boundary lines cannot be frozen for an unconstitutional pur-

118 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-14



228a

pose may flow logically from the premise announced it should 
be based upon competent evidence justifying a finding of 
fact that such boundary lines have been frozen for an un­
constitutional purpose, and the District Judge in this case 
announced that he took no evidence on that issue.

I do not understand how the majority can reach a conclu­
sion as to an appropriate remedy without evidence of any 
violation, particularly when in Deal I and Deal II a contrary 
conclusion has been reached. As stated at 369 F.2d, page 59:

“If the state or any of its agencies has not adopted im­
permissible racial criteria in its treatment of individuals 
then there is no violation of the Constitution.”

and again in Davis this Court framed the issues as follows:
“Accordingly, the principal question before us is 

whether there is sufficient evidence in the record to sup­
port the determination of the District Judge that appel­
lants are responsible for the existing racial imbalance in 
the Pontiac School System.” 443 F.2d at 575. (Emphasis 
supplied).

and in responding to that issue this Court said:
‘Although, as the District Court stated, each decision 

considered alone might not compel the conclusion that the 
Board of Education intended to foster segregation, taken 
together, they support the conclusion that a purposeful 
pattern of racial discrimination has existed in the Pontiac 
school system for at least 15 years.” 443 F.2d at 576.

Thus, the cases in this Court, prior to this case, appear 
conclusively to have been decided on the basis of discrimina­
tory intent, and unless we specifically reverse our previous 
decisions we cannot reach the conclusion announced by the 
majority in a case where the District Court specifically stated 
that it did not take any evidence to establish any discriminatory 
mtent on the part of the suburban school districts who were

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229a

not parties to the action or on the part of the State in the 
structure of the suburban school districts.

Other circuits have also required the establishment of a 
discriminatory intent. Keyes v. School District No. 1, Denver, 
Colorado, 445 F.2d 990 (10th Cir. 1971), cert, granted 404 
U.S. 1036 (1972); Bell v. School City of Gary, Indiana, 324 
F.2d 209 (7th Cir. 1963), cert, denied 377 U.S. 924 (1964); 
United States v. School District 151 Cook County, 111., 404 
F.2d 1125 (7th Cir. 1968), cert, denied 402 U.S. 943 (1971); 
United States v. Board of School Commisisoners of Indianapolis, 
Indiana, 474 F.2d 81 (7th Cir. 1973); Spencer v. Kuglet, 
326 F.Supp. 1235 (D.N.J. 1971), affd. 400 U.S. 1027 (1972). 
But see: United States v. Texas Education Agency, 467 Fid 
848 (5th Cir. 1972).

The evidence in regard to building of school buildings with­
in the City of Detroit and lack of state aid for transportation 
of pupils within the City of Detroit may have demonstrated 
that these factors contributed to racial segregation within 
the City of Detroit. Clearly, if the Court took no proofs with 
respect to the commission of acts causing segregation of the 
races as between the City of Detroit and the suburban school 
districts it would be inappropriate to include those school 
districts within any remedy to be adopted to eliminate segre­
gation within the City of Detroit. The cases cited by the 
District Court and by the majority of this Court are in­
applicable. In each case cited the school district involved and 
against which a remedial order was granted was found to 
have been guilty of segregative practices. In every instance, 
as we read the cases, that finding was supported by substan­
tial evidence after an adversary proceeding in which all the 
interested parties were represented. Such is not the case 
here.

It seems obvious to me that the majority and the District 
Court have become confused and are unable to distinguish 
between violation and remedy. As stated by the District 
Court no evidence was taken as to any violation in the fixing

120 B r a d l e y , e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-14



230a

of the boundaries of the suburban school systems nor as to 
any violation because of the relationship between the subur­
ban school systems and the schools of the City of Detroit.

The errors to which we have already alluded were brought 
about by the failure on the part of the District Court to re­
quire that all interested parties be brought into the case at 
the earliest appropriate moment. A review of this record 
reveals that on March 22, 1971, a group of white Detroit 
residents, who were parents of children enrolled in the De­
troit public schools, were permitted to intervene as parties 
defendant. On June 24, 1971, the District Judge alluded 
to the possibility of a metropolitan school system, App. Vol. 
IV, pgs. 259, 260, and in that connection stated: “As I have 
said to several witnesses in this case: how do you desegregate 
a black city, or a black school system.” App. Vol. IV, pg. 
260. Subsequently, and on July 17, 1971, the white parents 
filed a motion in an effort to require the joinder of the 85 
suburban school districts as parties defendant and gave the 
following reasons:

“1. That said suburban school districts are agents of 
the State of Michigan and subject to the jurisdiction and 
supervision of the State Board of Education.

“2. That said school districts are white segregated 
school districts.

“3. That questions of law and fact common to the 
defendant, School District of the City of Detroit, and 
proposed additional suburban school districts have been 
presented to this Court.

“4. In the event that this Court rules for the plain­
tiff, in the absence of joinder of the proposed school dis­
tricts, complete relief cannot be awarded the plaintiff, 
and in addition would impose an unconstitutional burden 
on the intervening defendant, in that the resulting school 
district of the City of Detroit would be and will remain 
as established by the proofs already submitted an in­
ferior school district.” App. I at 142-3.

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231a

The trial court did not rule upon this motion, but in the 
course of the proceedings discussed it in September, 1971, and 
concluded that the motion should not be considered at that 
time because “in considering the motion to add the listed 
school districts we pause to note that the proposed action has 
to do with relief.” App. Vol. I, pg. 215, 338 F.Supp. 582, at 
595.

Between February 9 and February 17, 1972, four parties, 
Grosse Pointe Public Schools, Allen Park Public Schools, et 
al.,1 Southfield Public Schools and the School District for the 
City of Royal Oak, made motions for leave to intervene. These 
motions were finally granted on March 15, 1972, during the 
second day of hearing on the plans for desegregation in­
volving only the Detroit school system. Intervention, ac­
cording to the District Judge, was permitted under Rule 24 
(a), “Intervention of Right,” and also under Rule 24(b), 
“Permissive Intervention.” Before permitting such interven­
tion and on March 6, 1972, the District Judge set up a time­
table for the consideration of plans already submitted, which 
timetable was as follows:

“1. Hearing on desegregation intra-city plans will pro­
ceed, beginning at 10:00 a.m., Tuesday, March 14, 1972.

“2. Recommendations for ‘conditions’ of intervention 
to be submitted not later than 10:00 a.m., March 14, 
1972.

“3. Briefs on propriety of metropolitan remedy to be 
submitted not later than March 22, 1972.

“4. Tentatively and unless the court rules otherwise, 
hearings on metropolitan remedy to commence 10:00 a.m., 
March 28, 1972.” App. I at 397.

When intervention was granted, the District Judge placed 
strict limitations upon the part which the intervenors would 
be permitted to play. The order provides:

1 The others referred to included 38 additional suburban school 
districts.

122 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809 -14



232a

“The interventions granted this day shall be subject to 
the following conditions:

1. No intervenor will be permitted to assert any 
claim or defense previously adjudicated by the court.

2. No intervenor shall reopen any question or 
issue which has previously been decided by the court.

3. The participation of the intervenors consid­
ered this day shall be subordinated to that of the 
original parties and previous intervenors.

4. The new intervenors shall not initiate dis­
covery proceedings except by permission of the 
court upon application in writing, accompanied by 
a showing that no present party plans to or is willing 
to undertake the particular discovery sought and that 
the particular matter to be discovered is relevant 
to the current stage of the proceedings.

5. No new intervenor shall be permitted to seek 
a delay of any proceeding in this cause; and he 
shall be bound by the brief and hearing schedule 
established by the court’s Notice to Counsel, issued 
March 6, 1972. 6 7

6. New intervenors will not file counterclaims or 
cross-complaints; nor will they be permitted to seek 
the joinder of additional parties or the dismissal of 
present parties, except upon a showing that such 
action will not result in delay.

7. New intervenors are granted intervention for 
two principal purposes: (a) To advise the court, by 
brief, of the legal propriety or impropriety of con­
sidering a metropolitan plan; (b) To review any 
plan or plans for the desegregation of the so-called 
larger Detroit Metropolitan area, and submitting ob­
jections, modifications or alternatives to it or them, 
and in accordance with the requirements of the 
United States Constitution and the prior orders of 
this court.

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233a

8. New intervenors shall present evidence, if any 
they have, through witnesses to a number to be 
set, and limited, if necessary, by the court, follow­
ing conference.

9. With regard to the examination of witnesses, 
all new intervenors shall among themselves select one 
attorney per witness to act for them, unless one or 
more of the new intervenors show cause otherwise.

These conditions of intervention shall remain sub­
ject to change or modification by the court in the 
interest of timely disposition of the case.” App. Ia 
408-410.

124 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-14

We point out that the intervening school districts (42 out 
of 85) came into the case while the court was already con­
sidering the Detroit only plans, were permitted a total of 
less than one week to prepare briefs in regard to a metropoli­
tan remedy, and found themselves faced with a ruling favor­
able to the consideration of such remedy within two days 
after the date on which their briefs were due. All of this 
despite the fact that an effort had been made to bring the 
suburban school districts into the case almost eight months 
prior to the mlings in regard to the Detroit only plans and 
the metropolitan plan. The majority finds no fault witn 
this timetable. It affirms the conclusions of the District Court 
in regard to the Detroit only plan and the need for a metro­
politan plan without affording to the suburban school districts 
any opportunity to be heard.

Those suburban school districts which are not yet parties 
to this action, 43 in number, have had no opportunity to be 
heard with respect to any alleged constitutional vio­
lation within their respective school districts or with 
respect to the existence of their respective school district 
boundaries. Of course, the pleadings do not assert any 
such violations but under the majority opinion a remedy 
will be imposed which will drastically affect the future scboo



234a

ing of their children without granting to them any oppor­
tunity to be heard with regard to any reasons which might 
support the adoption of such a remedy. The suburban school 
districts which were belatedly made parties to this action 
assert that because they have not been afforded the oppor­
tunity to offer evidence to demonstrate that they have not 
been guilty of any constitutional violation they have been 
denied the fundamental requirements of due process. The 
response of the appellee to the claimed rights of the suburban 
school districts is that there is no denial of “life, liberty or 
property” within the meaning of the Fifth Amendment. They 
also claim that the interests of the suburban school districts 
were adequately represented by “their parent state defendant.”

An examination of the record in this case will effectively dis­
pose of any claim that the interests of the suburban school 
districts were represented by the state defendants. Clearly, 
the state defendants were defending against the claims of 
the plaintiffs that the state had by its actions created racial 
segregation within the school district of the City of Detroit. 
As I examine the record it does not appear that any defendant 
felt compelled to offer evidence in defense of an unasserted 
claim that the existence of suburban school districts was with­
out other evidence a violation of the constitutional rights of the 
students in the schools of the City of Detroit. Had the state 
defendants comprehended that the District Court intended to 
impose a metropolitan school district upon the schools of 
three counties the writer is confident that they would have 
joined in the earlier motion to require the suburban school 
districts to be named as parties defendant.

As to the first argument of the appellees it is clear from 
the language of the Court in Bolling v. Sharpe, 347 U.S. 497 
(1954), that the segregation of schools is a denial of due process 
within the meaning of the Fifth Amendment. If segregation 
is a denial of the Fifth Amendment due process then clearly 
orders eliminating such segregation are a part of the due 
process rights. In that case the Court said:

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235a

“Although the Court has not assumed to define ‘liberty’ 
with any great precision, that term is not confined to mere 
freedom from bodily restraint. Liberty under law ex­
tends to the full range of conduct which the individual 
is free to pursue, * 9 V ’ 347 U.S. at 499.

Even earlier, in Pierce v. Society of Sisters, 268 U.S. 510 (1925), 
the Supreme Court found a violation of the Fourteenth 
Amendment in matters relating to the liberty of parents to 
direct the upbringing and education of children under their 
control. Had we any doubt, it would have been settled in 
Wisconsin v. Yoder, 406 U.S. 205 (1972), where the Court 
permitted parents to withdraw their children from the state 
public school system and found a constitutional right in par­
ents to control the upbringing and religious training of their 
children. That the right under the Fifth Amendment ap­
plies to the states was recognized in Griswold v. Connecticut, 
381 U.S. 479 (1965), where the court noted at page 482:

“By Pierce v. Society of Sisters, supra, the right to edu­
cate one’s children as one chooses is made applicable to 
the States by the force of the First and Fourteenth 
Amendments.”

Being convinced that the interest of parents in the educa­
tion of their children represents a right protected by the Con­
stitution as to all parents and not only those parents whose 
children are required to attend segregated schools, we then 
reach the question of the application of due process to that 
right.

As pointed out by the Court in Armstrong v. Manzo, 380 
U.S. 545, 552 (1965):

“A fundamental requirement of due process is ‘the op­
portunity to be heard.’ 9 9 9 It is an opportunity which 
must be granted at a meaningful time and in a meaning­
ful manner.”

126 B r a d le y , e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-14



236a

and in greater detail we find the same principal in Boddie 
v. Connecticut, 401 U.S. 371, 377-8 (1971), where Mr. Justice 
Harlan, speaking for the Court, stated:

“Prior cases establish, first, that due process requires, 
at a minimum, that absent a countervailing state interest 
of overriding significance, persons forced to settle their 
claims of right and duty through the judicial process 
must be given a meaningful opportunity to be heard. 
Early in our jurisprudence, this Court voiced the doc­
trine that ‘[wjherever one is assailed in his person or his 
property, there he may defend,’ Windsor v. McVeigh, 
93 U. S. 274, 277 (1876). See Baldwin v. Hale, 1 Wall. 
223 (1864); Hovey v. Elliott, 167 U. S. 409 (1897). The 
theme that ‘due process of law signifies a right to be 
heard in one’s defence,’ Hovey v. Elliott, supra, at 417, has 
continually recurred in the years since Baldwin, Windsor, 
and Hovey. Although ‘[mjany controversies have raged 
about the cryptic and abstract words of the Due Process 
Clause,’ as Mr. Justice Jackson wrote for the Court in 
Midlane v. Central Hanover Tr. Co., 339 U. S. 306 (1950), 
there can be no doubt that at a minimum they require 
that deprivation of life, liberty or property by adjudi­
cation be preceded by notice and opportunity for hear­
ing appropriate to the nature of the case.’ ” Id., at 313.

Thus, each party to a lawsuit should be advised as to the 
claims asserted by the other parties to the lawsuit and have an 
opportunity to be heard in respect to all such claims.

In this case no pleading has ever been filed suggesting any 
wrongdoing on the part of any suburban school district, none 
suggesting that the suburban schools and the schools of the 
City of Detroit constituted a dual school system or even 
intimating any possibility of a need for a metropolitan school 
district to eliminate the segregated conditions alleged to have 
existed in the schools of the City of Detroit. We can 
only speculate upon the timing of the first suggestion of a 
metropolitan district but it appears that the District Judge

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237a

seized upon the suggestion without requiring any amend­
ments to the pleadings or the adding of any parties.

I question whether the suburban school districts have any 
interest in being heard as to the claim of segregation within 
the City of Detroit, and there can be no question as to the 
right of the trial court to place certain limitations upon the 
part which any intervening school district would be permitted 
to play. Had all of this, in regard to metropolitan school dis­
tricts, come up at the eleventh hour as suggested by the ap­
pellees one might, although it is doubtful, accept the condi­
tions imposed by the District Judge. Such was not the case 
here. The motion to require the joinder of the suburban school 
districts was made almost eight months before consideration 
was given to the Detroit only plans.

The Advisory Committee on the Rules anticipated that limi­
tations and conditions might be placed upon intervention as a 
matter of right under Rule 24(a):

“An intervention of right under the amended rule may 
be subject to appropriate conditions or restrictions respon­
sive among other things to the requirements of efficient 
conduct of the proceedings.” 3R Moore’s Federal Prac­
tice If 24.01J10], at 24-18 (2d Ed.).

and see also Galbreath v. Metropolitan Trust Co. of California, 
134 F.2d 569, 570 (10th Cir. 1943); Chavis v. Whitcomb, 
305 F.Supp. 1359, 1363 (S.D.Ind. 1969). The situation in 
this case is pointed up by the language found at 3B Moore’s 
Federal Practice H 24.16[4], 2d Ed.

“It would be meaningless to give him an absolute right 
to intervene in order to protect his interest, if once in 
the proceeding he were barred from raising questions 
necessary to his own protection.”

What we have said in regard to intervention under Rule 
24 sets forth without the necessity of repetition those mat­
ters which should be considered by any court in determining

128 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809 -14



238a

the part which is to be played by one who is joined as a 
party under Rule 19, as well as one who intervenes as a party, 
aspects of this case which are almost completely ignored by 
the majority and the District Court.

In conclusion I am constrained to say that I do not suggest 
that a metropolitan remedy is totally beyond the realm of 
consideration in this case upon an appropriate record. My 
whole purpose in writing this opinion is to point out that the 
majority and the District Court have fallen into a state of 
confusion in failing to distinguish between violation and reme­
dy and in failing to recognize the necessity for the finding of 
violation before the trial court embarks upon that broad field 
of equity which permits a trial judge to devise a remedy which 
will adequately overcome the violation previously found to 
be in existence. I have also written because I am satisfied that 
the District Judge in failing to consider the necessity for join­
ing the suburban school districts pursuant to a motion filed 
more than a year before the disposition of the case was in 
error. The suggestion by the District Court that the subur­
ban school districts were only involved in the remedy points 
up the trap into which both the District Court and the ma­
jority of this Court have fallen in failing to recognize the 
necessity for finding a violation before a remedy may be im­
posed.

I would reverse the District Court and remand the case 
with instructions to require the joinder of the suburban school 
districts of the counties of Wayne, Oakland and Macomb 
with permission to the representatives of those districts, with 
reasonable limitations, to participate in all aspects of this law­
suit which may affect the suburban school districts, and with 
particular attention to the necessity for finding a constitutional 
violation which would justify the imposition of a metropolitan 
remedy.

Nos. 72-1809 -1 4  B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. 129



239a

Miller, Circuit Judge, dissenting.
It is my firm conviction that it is premature at this time 

for the Court to adjudicate any of the questions arising from 
the various orders of the district court from which this ap­
peal is taken. This is true for the reason that school districts 
and parties to be affected by a metropolitan plan or remedy 
have not been afforded an opportunity to be heard or to pre­
sent evidence upon all of the issues involved.

The majority opinion does indeed state:
On remand, any party against whom relief is sought, 

including school districts which heretofore have inter­
vened and school districts which hereafter may become 
parties to this litigation, shall be afforded an opportunity 
to offer additional evidence, and to cross-examine avail­
able witnesses who previously have testified, on any issue 
raised by the pleadings, including amendments thereto, 
as may be relevant and admissible to such issues. The 
District Court may consider any evidence now on file 
and such additional competent evidence as may be in­
troduced by any party.

The effect of this conclusion is, in my opinion, vitiated by 
the two succeeding sentences:

However, the District Court will not be required to 
receive any additional evidence as to the matters con­
tained in its Ruling on the Issue of Segregation, dated 
September 27, 1971, and reported at 338 F. Supp. 582, 
or its Findings of Fact and Conclusions of Law on the 
“Detroit-only” plans of desegregation, dated March 28, 
1972. We hold that the findings of fact contained in 
these rulings are not clearly erroneous, Rule 52(a), 
Fed. R. Civ. P., but to the contrary are supported by 
substantial evidence.

Parties to be affected and against whom relief is sought 
should be accorded, in compliance with basic principles of

130 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. Nos. 72-1809-14



240a

due process, an opportunity to be heard at a meaningful time 
and in a meaningful manner not only with respect to the 
ultimate scope of the remedy to be fashioned, but also with 
respect to important, significant and perhaps even controlling 
issues, including the issue of segregation, a “Detroit only” 
school plan and the propriety of a metropolitan remedy. If 
any one of these issues is resolved in favor of parties out­
side the Detroit School District, the nature and scope of a 
remedy embracing outlying districts would not be reached. 
Hence the outlying districts have a vital interest in each 
issue separately and should be heard on each in a true 
adversary sense. Until this is done our expression of view 
on the merits of the several questions is uncalled for and ill- 
advised. To permit these additional parties to be heard only 
in the restricted sense set forth in the majority opinion is to 
deny them basic rights guaranteed not only by Rule 19, Fed­
eral Rules of Civil Procedure, but by the Constitution itself.

I would, therefore, vacate all orders appealed from the dis­
trict court, remand the action for the joinder of all parties to be 
affected, and direct the district court to afford the parties a 
proper opportunity to be heard and to present evidence on 
the issues indicated above.

Nos. 72-1809 - 14 B r a d le y ,  e t  al. v. M il l ik e n ,  e t  al. 131



241a

Nos. 72-1809 
through 
72-1814

J A M E S  A .  H I G G I N S
CLERK

OFFICE OF THE CLERK

U N ITE D  S TA TE S  C O U R T O F APPEALS
FOR THE SIXTH CIRCUIT 

C I N C I N N A T I ,  O H I O  4 S Z 0 2

June 12,1973
Mr. Frank J. Kelley 
Mr. Louis R. Lucas 
Mr. George T. Roumell, Jr.
Mr. William M. Saxton 
Mr. Douglas H. West 
Mr. Richard P. Condit 
Mr. Kenneth B. McConnell 
Mr. Robert J. Lord 
Mr. Robert A. Derengoski 
Mr. Alexander B. Ritchie 
Mr. J. Harold Flannery 
Mr. Jack Greenberg 
Mr. E. Winther McCroom 
Mr. Nathaniel R. Jones
Mr. Bruce Miller <
Mr. Ralph B. Guy, Jr.
Mr. Theodore Sachs 
Mr. William T. Downs 
Mr Theodore W. Swift 
Mr. Irwin Ellman

Re: Ronald Bradley, et al., Plaintiffs-Appellees,
vs. >
William G. Milliken, Governor of Michigan, et al., 
Defendants-Appellants.
Case Nos. 72-1809, 72-1810, 72-1811, 72-1812, 
72-1813, 72-1814 

Gentlemen:
Enclosed is a copy of the Court’s opinion which was an-' 

nounced today in the above-entitled cases.
A judgment in conformity with the opinion has been entereu 

today as required by Rule 36.
Yours very truly, 
James A. Higgins, Clerk,'

/si GRACE KELLER. 
Chief Deputy

Enclosure



242a

Excerpt from proceedings had in the above-entitled matter 
before Honorable Stephen J. Roth, United States District Judge, 
at Detroit, Michigan on Thursday, June 24, 1971.

❖  * *

THE COURT: I want briefs, proposed findings and 
conclusions to be filed not later than July 26th. This is in no way 
conditioned on when we finish with the proofs, but I expect by 
that time we will have finished with the proofs.

Now, there will be some housekeeping matters to take care of. 
First of all the construction injunction which is pendente lite, so 
you both might want to give some consideration to that, and I will 
welcome any suggestions any of the parties have with respect to 
what if anything need be done pending my resolution of the basic 
issue on segregation here. And what I’m thinking about is this, so 
you will share my thinking: I think that those who are involved in 
this lawsuit ought to be preparing for eventualities, and I mean 
within the limits, the maximum and the minimum, so that if the 
time comes for judicial intervention, and Mr. Reporter, that is not 
interference. It may be so classified by counsel, but the word is 
intervention — [4003] it would be well for the parties to be 
prepared if that develops because I am mindful of the time pres­
sures that I am under, and I am going to pass the pressure on. And 
that means that I don’t want the parties to be saying: “Well, we 
didn’t know you were going to hold this way.” I want everybody 
to think in terms of what may happen and time accordingly. Let 
me be more specific. I have just indicated that I denied the motion 
of the State defendants to have this action dismissed against them.

I am not going to take the time at the present time to outline 
my reasons for it. If that becomes necessary in due course I will. I 
have my reasons, and I am aware of them without taking the time 
to put them down in a formal ruling. If the Court in this case finds 
that the situation calls for some other judicial action then the 
School Board ought to be preparing themselves to meet that 
eventuality. But the State defendants too. I don’t think that the 
State defendants should hide, put their heads in the sand and 
avoid considering what may happen if certain developments 
already made plain in this case take shape.



243a

Mr. Ritchie has made some points along that line, and I have, 
and to repeat mine as I have said to several witnesses in this case: 
“How do you desegregate a black city, or a black school system;” 
That is why I was [4004] interested in the projections of the 
student population of the city. We end up with student population 
of Detroit of 80 to 85 percent black. How do you integrate, or, if 
I find segregation, to put it another way, how do I desegregate. 
Now, State defendants, particularly School Board as well, ought to 
be thinking in these terms indeed if that’s what develops.

I throw these out so that I am putting people on notice. I 
don’t know whether Mr. Young or Mr. Krasicky — is Mr Young in 
town?



244a

UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

Nos. 72 -1809-72 -1814

RONALD BRADLEY, et al.,
Plain tiffs-Appellees,

vs.
WILLIAM G. MILLIKEN, GOVERNOR OF MICHIGAN, ETC; 
BOARD OF EDUCATION OF THE CITY OF DETROIT,

Defendants-Appellants,
and

DETROIT FEDERATION OF TEACHERS LOCAL 231, AMERI­
CAN FEDERATION OF TEACHERS, AFL-CIO,

Defendan t-Interven or-Appellee,
and

ALLEN PARK PUBLIC SCHOOLS, et al.,
Defendan ts-Intervenors-Appellants, 
and

KERRY GREEN, et al.,
Defendan ts-Intervenors-Appellees.

BEFORE: PHILLIPS, Chief Judge, WEICK, EDWARDS,
CELEBREZZE, PECK, McCREE, MILLER, KENT 
and LIVELY, Circuit Judges.

JUDGMENT

APPEAL from the United States District Court for the East­
ern District of Michigan.

THIS CAUSE came on to be heard on the record from the 
United States District Court for the Eastern District of Michigan 
and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now here ordered 
and adjudged by this Court that:

1. The Ruling of the District Court on the Issue of Seg­
regation, dated September 27, 1971, and reported at 338 
F.Supp. 582, is affirmed.



245a

2. The findings of fact and conclusions of law on 
“Detroit-only” plans of desegregation, dated March 28, 1972, 
are affirmed.

3. The Ruling on Propriety of a Metropolitan Remedy 
to Accomplish Desegregation of the Public Schools of the 
City of Detroit, dated March 24, 1972, is affirmed in part, 
but vacated for the reasons set forth in the majority opinion 
of the Court.

4. The Ruling on Desegregation Area and Development 
of Plan, dated June 14, 1972, is vacated except as prescribed 
in the majority opinion of the Court.

5. The order dated July 11, 1972, directing the pur­
chase of school buses is vacated.
The case is remanded to the District Court for further pro­

ceedings not inconsistent with this opinion.
No costs are taxed. Each party will bear his own costs.

Entered by order of the Court.

JAMES A. HIGGINS
Clerk

COSTS: NONE







irtpnmtT ©curt cf %  States
October Term, 1973

I n  t h e

No. 73-434
William G. Milliken, et al.,

P etition ers,
vs.

Ronald G. Bradley, e t  al.

No. 73-435
Allen Park Public Schools, et al.,

P etition ers , 
vs.

Ronald G. Bradley, e t al.

No. 73-436
The Grosse Pointe Public School System, et al.,

P etition ers,
vs.

Ronald G. Bradley, e t  al.

MEMORANDUM IN OPPOSITION TO 
PETITIONS FOR WRITS OF CERTIORARI

Jack Greenberg 
Norman J. Chachkin 

10 Columbus Circle 
New York, New York 10019

Paul R. D imond 
210 East Huron Street 
Ann Arbor, Michigan 48108

Lotus R. Lucas 
William E. Caldwell 

525 Commerce Title Bldg. 
Memphis, Tennessee 38103

Nathaniel R. J ones 
1790 Broadway 
New York, New York 10019

Elliott Hall 
950 Guardian Building 
Detroit, Michigan 48226

J. Harold Flannery
Robert Pressman

Larsen Hall, Appian Way 
Cambridge, Mass. 02138

A tto rn ey s  fo r  R espondents  
R onald B rad ley , et al., 
Plaintiffs B elow





I n  t h e

§u jm w  Court o! tfjr Imtrft i>tatra
October Term, 1973

No. 73-434
W illiam G. Milliken, et al.,

Petitioners,
vs.

Ronald Cf. Bradley, et al.

No. 73-435
Allen P ark P ublic Schools, et al.,

Petitioners,
vs.

Ronald G. Bradley, et al.

No. 73-436
The Grosse P ointe P ublic School System, et al.,

Petitioners,
vs.

Ronald G. Bradley, et al.

MEMORANDUM IN OPPOSITION TO 
PETITIONS FOR WRITS OF CERTIORARI

As set forth hereafter, respondents Bradley, et al. (plain­
tiffs in this cause), submit that this school segregation case



2

is not in an appropriate posture for Supreme Court re­
view.1

Basically, the petitioners seek review of interlocutory 
remedial orders in advance of the framing and adoption of 
a remedial plan and evidentiary hearings in the trial court. 
No actual plan of desegregation has been approved or even 
considered by the courts below; no defendant has been 
ordered to do anything except to participate fully in plan­
ning and to join in the hearing in the district court. The 
Court of Appeals has affirmed the findings of constitutional 
violation and of inadequacy of relief limited to the Detroit 
school system, directed that plaintiffs amend their com­
plaint to conform to the evidence, required joinder of any 
school district potentially affected by any plan, and ordered 
that a full hearing on remedy be held and that the Legisla­
ture of the State of Michigan be given an opportunity to 
act before any plan of desegregation is devised and ap­
proved by the district court.

Proceedings are underway in the district court in com­
pliance with these directions. The court has ordered that 
school districts (and the chief school officials of districts) 
which may possibly be affected by any plans eventually 
adopted, be joined as parties defendant so that they may 
be heard. Plaintiffs have filed an amended complaint to 
conform to the evidence and seeking full relief; the opinion 
of the Court of Appeals has been formally transmitted by 
the petitioner Attorney General to the Michigan Legisla­
ture for its consideration.

1 We have chosen not to submit a lengthy Brief in Opposition to 
Certiorari correcting petitioners’ various omissions of fact and mis- 
charaeterizations. In our view, the real issues, if any remain, will 
appear only after the actions and hearings directed by the Court 
of Appeals are concluded, and a decision has been rendered by the 
district court and reviewed by the Court of Appeals.



3

In such circumstances, this court cannot properly con­
sider the very issues which are essential to review in a case 
like this. As yet, there are no plans, nor hearing on remedy, 
nor findings and conclusions thereon by the district court, 
nor review of any remedial orders by the Court of Appeals. 
This Court is in no position to evaluate the practicalities of 
the local situation, the constitutional effectiveness of al­
ternative plans of remedy, the extent and form of the 
remedy, the extent of transportation and administrative 
reorganization required, and the precise manner in which 
school district boundaries need be permeated for the limited 
purpose of accomplishing complete relief.

Petitioners, and all other school districts which may be 
affected by any plan, as well as all other parties to this 
litigation, and the Michigan state officials, now have the 
opportunity in the courts below to present evidence and ar­
gument which will shape a complete record in this cause.2

2 In remanding this case the Court of Appeals directed the dis­
trict court to afford to “ any party against whom relief is sought, 
including school districts which heretofore have intervened and 
school districts which hereafter may become parties . . .  an oppor­
tunity to offer additional evidence, and to cross-examine available 
witnesses who previously have testified, on any issue raised by the 
pleadings, including amendments thereto, as may be relevant and 
admissible to such issues.”  This direction is in accord with the tra­
ditional legal principles under which federal courts have always 
afforded parties litigant an opportunity to be heard upon a proper 
showing of the relevance and admissibility of evidence. C f. K elley  
v. M etropolitan C ounty Bd. o f  E duc., 463 F.2d 732, 745-46 (6th 
Cir.), cert, denied, 409 U.S. 1001 (1972). We respectfully suggest 
that the district court should and will allow the added defendants 
to_ develop all relevant evidence necessary for decision and deter­
mination of the issues both of violation and of remedy. Petitioners 
correctly note that the Court of Appeals held that the district 
court “need not” consider evidence with respect to constitutional 
violation. However, the Court did not direct the district court to 
refuse to consider such evidence if offered. We believe that peti­
tioners and others added as parties may, upon a proper showing, 
present evidence on this issue; but in light of this Court’s decision 
in K eyes  v. School D ist. No. 1, D e n v e r ,------ U .S .-------- (1973), and



4

No one can foretell what contested issues will thereafter 
remain among the parties, nor what record evidence will 
define those issues.3 It may well be that after the hearings 
in the district court, the form, scope and indeed the source 
of the remedy would be markedly different from that de­
scribed in the petitions.4 Under these circumstances, deci­
sion of the issues presented in the petitions at this stage 
of the proceedings would virtually require an advisory 
opinion. Judicial economy and the established practice of 
this Court require that the district court decide, and the 
Court of Appeals review, these issues based on the relevant 
evidence presented by all of the parties, prior to this 
Court’s review.

There is no reason to depart from this Court’s established 
practice of refusing to review school segregation cases in

of the evidence already introduced documenting the use by Detroit 
and Michigan school officials of virtually all of the classic segre­
gating techniques which have been identified by this and other 
Courts, and since petitioners lack the power to rewrite history, the 
district court’s findings of violation seem likely to be reaffirmed. 
To date, the original intervening school districts have never sug­
gested what evidence they can or would present on this issue.

3 The district court will of course consider the evidence already 
introduced in this record at the lengthy trial; similarly, it will 
evaluate any other evidence to be presented by the parties which 
might lead it to modify, amend or supplement its original rulings. 
New evidence concerning the practicality and efficacy of proposed 
specific remedial techniques will of necessity be presented by all 
parties, including (if they so desire), evidence by petitioners in­
tended to demonstrate the impracticality of any remedy extending 
beyond the present boundaries of the Detroit school district.

4 For example, in a report to the district court, petitioner State
Superintendent of Public Instruction recommended the exchange 
of pupils by contract among existing school districts, at least as an 
interim measure. Plaintiffs supported this recommendation below 
as a workable method of proceeding to accomplish complete relief 
from the constitutional violations with as little intrusion as pos­
sible into the State’s existing internal structures for administering 
public education. Com pare B rad ley  v. S tate Bd. o f  E duc., 462 F.2d 
1058, 1066-67 (4th Cir. 1972), aff’ d by an equally divided court, 
—  U.S. ------  (1973).



5

the absence of a plan, especially when remedial proceedings 
are underway below, the final outcome is uncertain, and the 
resolution of issues depends upon the evidentiary contribu­
tions both of petitioners and of newly added parties. No 
substantial harm will be visited upon petitioners should 
this Court decline review. I f after the completion of the 
proceedings below, any party is still dissatisfied with the 
final determination and orders, recourse may be had to the 
Court of Appeals, and if necessary, to this Court. With the 
benefit of the rulings of the lower courts, this Court could 
better determine whether any remaining disputed issue pre­
sented by the completed record is worthy of review.

Wh erefo re, for the foregoing reasons, these respondents 
Bradley, et al. respectfully pray that the petitions for writs 
of certiorari be denied.

CONCLUSION

Respectfully submitted,

Jack Greenberg Nath a n iel R. J ones 
1790 Broadway 
New York, New York 10019

Norman J. Ch a ch kin  
10 Columbus Circle 
New York, New York 10019

E llio tt H all 
950 Guardian Building 
Detroit, Michigan 48226

Paul R. D imond 
210 East Huron Street 
Ann Arbor, Michigan 48108

J. H arold F lannery
Louis R. L ucas 
William E. Caldw ell 

525 Commerce Title Bldg. 
Memphis, Tennessee 38103

Robert Pressman
Larsen Hall, Appian Way 
Cambridge, Mass. 02138

A tto rn ey s  fo r  R espondents  
R onald B rad ley , e t  al., 
Plaintiffs B elow











MEILEN PRESS INC. — N. Y. C. 219



IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 1973

No, 73-434 
No. 73-435 
No. 73-436

WILLIAM G. MILLION, Governor o f the State o f Michigan; FRANK J. KELLEY, 
Attorney General o f the State of Michigan; MICHIGAN STATE BOARD OF EDU­
CATION, a constitutional body corporate, and JOHN W, PORTER, Superintendent 
of Public Instruction, o f the State o f Michigan: ALLISON GREEN. Treasurer of the 
State of Michigan; ALLEN PARK PUBLIC SCHOOLS, SCHOOL DISTRICT OF 
THE CITY OF BERKLEY, BRANDON SCHOOLS, CENTERLINE PUBLIC 
SCHOOLS. CHERRY HILL SCHOOL DISTRICT, CHIPPEWA VALLEY PUBLIC 
SCHOOLS, SCHOOL DISTRICT OF THE CITY OF CLAWSON, CRESTWOOD 
SCHOOL DISTRICT. DEARBORN PUBLIC SCHOOLS, DEARBORN HEIGHTS 
SCHOOL DISTRICT NO. 7, EAST DETROIT PUBLIC SCHOOLS, SCHOOL DIS­
TRICT OF THE CITY OF FERNDALE, FLAT ROCK COMMUNITY SCHOOLS,

(Continued on Inside Front Cover) 
-vs-

RONALD BRADLEY and RICHARD BRADLEY, bv their Mother and Next Friend, 
VERDA BRADLEY; JEANNE GOINGS, by her Mother and Next Friend, BLANCH

(Continued on Inside Front Cover) * 720

BRIEF IN OPPOSITION TO 
PETITIONS FOR WRITS OF CERTIORARI 

TO THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

RILEY AND ROUMELL

GEORGE T. ROUMELL, JR,

JOHN F. BRADY 
THOMAS M. J. HATHAWAY 
GREGORY P. THEOKAS
C. NICHOLAS REVELOS, o f  counsel

720 Ford Building 
Detroit, Michigan 48226

Counsel for Respondents,
BOARD OF EDUCATION FOR THE SCHOOL 

DISTRICT OF T HE CITY OF DETROIT, 
a school district o f the first class,
Pa t r ic k  McDo n a l d ,
JAMES HATHAWAY and 
CORNELIUS GOLIGHTLY, 

members o f the Board of 
Education of the City o f Detroit, and 

NORMAN DRACHLER, Superintendent 
of the Detroit Public Schools



GARDEN CITY PUBLIC SCHOOLS, GIBRALTAR SCHOOL DISTRICT SCHMi 
DISTRICT OF THE CITY OF HARPER WOODS SCHOOL DISTRICT OFtBF 
CITY O f HAZEL PARK. INTERMEDIATE SCHOOL DISTRICT OF THE COP 
TY OF MACOMB, LAKE SHORE PUBLIC SCHOOLS, LAKEVIFW PLBii: 
SCHOOLS, THE LAMPHFRE SCHOOLS, LINCOLN PARK PUBLIC SCHOOL' 
MADISON DISTRICT PUBLIC SCHOOLS. MELVINDALE NORTH ALIEN tie ' 
SCHOOL DISTRICT. SCHOOI DISTRICT OF NORTH DEARBORN HFIGHTI ■
FORD AREA COMMUNITY SCHOOLS, REDFORD UNION SCHOOL D1STRIC 
NO i RICHMOND COMMUNITY SCHOOLS, SCHOOL DISTRICT OF THE CIT 
OF RIVER ROUGE, RIVERViEW COMMUNITY SCHOOL DISTRICT ROSE 
VILLE PUBLIC SCHOOLS, SOUTH LAKE SCHOOLS, TAYLOR SCHOOL D» 
TRIC T, WARREN CONSOLIDATED SCHOOLS, WARREN WOODS PUBUf 
SCHOOLS, WAYNE-WESTLAND COMMUNITY SCHOOLS, WOODHAVE 
SCHOOL DISTRICT, and WYANDOTTE PUBLIC SCHOOLS, CROSSE POINT' 
PUBLIC SCHOOLS; SOUTHFIELD PUBLIC SCHOOLS; and SCHOOL DISTRICT 
OF THE CITY OF ROYAL OAK,

Petitions

GOINGS: BEVERLY LOVE, JIMMY LOVE and DARRELL LOVE, bv 
Mother and Next Friend, CLARISSA LOVE: CAMILLE BURDEN, PIERRE 
DEN, AVA BURDEN, MYRA BURDEN, MARC BURDEN and STEVEN BUR 
by their Father and Next Friend. MARCUS BURDEN: KAREN WILLIAMS as 
KRISTY WILLIAMS, by their Father and Next Friend. C WILLIAMS; RAY LIT! 
and MRS. WILBUR BLAKE, parents; all parents having children attending the 
lie schools of the City of Detroit, Michigan, on their own behalf and on be 
their minor children, all on behalf of any person similarly situated; and NAT! 
ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, DETRi 
BRANCH; BOARD OF EDUCATION OF THE CITY OF DETROIT, a school is 
trict of the first class; PATRICK McDONALD, JAMES HATHAWAY and CORNEL 
IUS GOLIGHTLY, members of the Board of Education o f the City of Detroit;!:: 
NORMAN DRACHLER, Superintendent of the Detroit Public Schools; DEijjP 
FEDERATION OF TEACHERS, LOCAL 231, AMERICAN FEDERATION 
TEACHERS, AFL CIO; DENISE MAGDOWSKI and DAVID MAGDOWSKI. 
their Mother and Next Friend, JOYCE MAGDOWSKI: DAVID V1BTTI b? 
Mother and Next Friend, VIOLET VIETTI. and the CITIZENS COMMITTEE 
BETTER EDUCATION OF THE DETROIT METROPOLITAN AREA, a Mi. 
non-profit Corporation; KERRY GREEN and COLLEEN GREEN, by their Fi 
and Next Friend, DONALD G. GREEN, JAMES, JACK and KATHLEEN R' 
MARY, by their Mother and Next Friend, EVELYN G, ROSEMARY. T* 
DORAN, by her Mother and Next Friend, BEVERLY DORAN, SHE 
KEITH, JEFFREY' and GREGORY' COULS, by their Mother and Next F 
SHARON COULS, EDWARD and MICHAEL ROMESBURG. by their Father 
Next Friend, EDWARD M. ROMESBURG, JR , TRACEY and GREGORY A* 
LEDGE, by their Mother and Next Friend, AILEEN ARLEDGE, SHERYL J* 
RUSSELL PAUL, by their Mother and Next Friend, MARY LOU PAUL, TRAP 
QUIGLEY, by her Mother and Next Friend, JANICE QUIGLEY, IAN. STEPHANS 
KARL and JAAKO SUNI, by their Mother and Next Friend, SHIRLEY SUNT® 
TRI-COUNTY CITIZENS FOR INTERVENTION IN FEDERAL SCHOOL ACTIO' 
NO 35257; MICHIGAN EDUCATION ASSOCIATION; and PROFESSIONAL FE> 
SONNEl OF VAN DYKE,

Responded



ALLEN PARK PUBLIC SCHOOLS, SCHOOL DISTRICT OF THE CITY OF BERK­
LEY BRANDON SCHOOLS, CENTERLINE PUBLIC SCHOOLS, CHERRY HILL 
SCHOOL DISTRICT, CHIPPEWA VALLEY PUBLIC SCHOOLS, SCHOOL DIS­
TRICT OF THE CITY OF CLAWSON, CRESTWOOD SCHOOL DISTRICT, DEAR­
BORN PUBLIC SCHOOLS, DEARBORN HEIGHTS SCHOOL DISTRICT NO. 7, 
EAST DETROIT PUBLIC SCHOOLS, SCHOOL DISTRICT OF THE CITY OF 
FERNDALE, FLAT ROCK COMMUNITY SCHOOLS, GARDEN CITY PUBLIC 
SCHOOLS, GIBRALTAR SCHOOL DISTRICT, SCHOOL DISTRICT OF THE 
CITY OF HARPER WOODS, SCHOOL DISTRICT OF THE CITY OF HAZEL 
PARK, INTERMEDIATE SCHOOL DISTRICT OF THE COUNTY OF MACOMB, 
LAKE SHORE PUBLIC SCHOOLS, LAKEVIEW PUBLIC SCHOOLS, THE LAMP- 
HERE SCHOOLS, LINCOLN PARK PUBLIC SCHOOLS, MADISON DISTRICT 
PUBLIC SCHOOLS, MELVINDALE-NORTH ALLEN PARK SCHOOL DISTRICT, 
SCHOOL DISTRICT OF NORTH DEARBORN HEIGHTS, NOVI COMMUNITY 
SCHOOL DISTRICT, OAK PARK SCHOOL DISTRICT, OXFORD AREA COM­
MUNITY SCHOOLS, REDFORD UNION SCHOOL DISTRICT NO. 1, RICHMOND 
COMMUNITY SCHOOLS, SCHOOL DISTRICT OF THE CITY OF RIVER 
ROUGH, RIVERVIEW COMMUNITY SCHOOL DISTRICT, ROSEVILLE PUBLIC 
SCHOOLS, SOUTH LAKE SCHOOLS, TAYLOR SCHOOL DISTRICT, WARREN 
CONSOLIDATED SCHOOLS, WARREN WOODS PUBLIC SCHOOLS, WAYNE- 
WESTLAND COMMUNITY SCHOOLS, WOODHAVEN SCHOOL DISTRICT, and 
WYANDOTTE PUBLIC SCHOOLS; SOUTHFIELD PUBLIC SCHOOLS; and 
SCHOOL DISTRICT OF THE CITY OF ROYAL OAK,

Petitioners,

RONALD BRADLEY and RICHARD BRADLEY, by their Mother and Next Friend, 
VERDA BRADLEY; JEANNE GOINGS, by her Mother and Next Friend, BLANCH 

i GOINGS; BEVERLY LOVE, JIMMY LOVE and DARRELL LOVE, by their Mother 
and Next Friend, CLARISSA LOVE; CAMILLE BURDEN, PIERRE BURDEN,

I AVA BURDEN, MYRA BURDEN, MARC BURDEN and STEVEN BURDEN, by 
their Father and Next Friend, MARCUS BURDEN; KAREN WILLIAMS and 
KRISTY WILLIAMS, by their Father and Next Friend, C. WILLIAMS; RAY LITT 
and MRS. WILBUR BLAKE, parents; all parents having children attending the pub­
lic schools of the City of Detroit, Michigan, on their own behalf and on behalf of 
their minor children, all on behalf of any person similarly situated; and NATIONAL 

1 ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, DETROIT 
BRANCH; WILLIAM G. MILLIKEN, Governor of the State of Michigan and ex-of- 
ficio member of the Michigan State Board of Education; FRANK J. KELLEY, 
Attorney General of the State of Michigan; MICHIGAN STATE BOARD OF EDU­
CATION, a constitutional body corporate, and JOHN W. PORTER, Superintendent 
°f Public Instruction, Department of Education of the State of Michigan; ALLISON 
GREEN, Treasurer of the State of Michigan;BOARD OF EDUCATION OF THE CITY 
OF DETROIT, a school district of the first class; PATRICK McDONALD, JAMES 

, HATHAWAY and CORNELIUS GOLIGHTLY, members of the Board of Education 
the City of Detroit; and NORMAN DRACHLER, Superintendent of the Detroit 

Public Schools; DETROIT FEDERATION OF TEACHERS, LOCAL 231, AMERI­
CAN FEDERATION OF TEACHERS, AFL-CIO; DENISE MAGDOWSKI and 
DAVID MAGDOWSKI, by their Mother and Next Friend, JOYCE MAGDOWSKI; 
DAVID VIETTI, by his Mother and Next Friend, VIOLET VIETTI, and the CITI- 

j ZJNS COMMITTEE FOR BETTER EDUCATION OF THE DETROIT METRO­
POLITAN AREA, a Michigan non-profit Corporation; KERRY GREEN and 
COLLEEN GREEN, by their Father and Next Friend, DONALD G. GREEN, 
jAMES,JACK and KATHLEEN ROSEMARY, by their Mother and Next Friend, 

| EVELYN G. ROSEMARY, TERRI DORAN, by her Mother and Next Friend,
I BEVERLY DORAN, SHERRILL, KEITH, JEFFREY and GREGORY COULS, by

(Continued on Reverse Side)



their Mother and Next Friend, SHARON COULS, EDWARD and MICHAEl 
ROMESBURG, by their Father and Next Friend, EDWARD M. ROMESBURG.Ji 
TRACEY and GREGORY ARLEDGE, by their Mother and Next Friend, AILEEN 
ARLEDGE, SHERYL and RUSSELL PAUL by their Mother and Next Friend 
MARY LOU PAUL, TRACY QUIGLEY, by her Mother and Next Friend, JANICE 
QUIGLEY, IAN, STEPHANIE, KARL AND JAKOO SUNI, by their Mother ani 
Next Friend, SHIRLEY SUNI; and TRI-COUNTY CITIZENS FOR INTERVES 
TION IN FEDERAL SCHOOL ACTION NO. 35257; MICHIGAN EDUCATION AS 
SOCIATION; PROFESSIONAL PERSONNEL OF VAN DYKE, and THE GROSS! 
POINTS PUBLIC SCHOOLS,

)



THE G R O S S E  P O IN T E  P U B L IC  S C H O O L  S Y S T E M ,

Petitioner,
vs.

RONALD BRADLEY and RICHARD BRADLEY, by their Mother and Next 
Friend, VERDA BRADLEY; JEANNE GOINGS, by her Mother and Next 
Friend, BLANCH GOINGS; BEVERLY LOVE, JIMMY LOVE and 
DARRELL LOVE, by their Mother and Next Friend, CLARISSA LOVE; 
CAMILLE BURDEN, PIERRE BURDEN, AVA BURDEN, MYRA BUR­
DEN, MARC BURDEN and STEVEN BURDEN, by their Father and Next 
Friend, MARCUS BURDEN; KAREN WILLIAMS and KRISTY WIL­
LIAMS, by their Father and Next Friend, C. WILLIAMS; RAY LITT and 
MRS. WILBUR BLAKE, parents; all parents having children attending the 
public schools of the City of Detroit, Michigan, on their own behalf and on 
behalf of their minor children, all on behalf of any person similarly situ­
ated; and NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF 
COLORED PEOPLE, DETROIT BRANCH; DETROIT FEDERATION OF 
TEACHERS, LOCAL 231, AMERICAN FEDERATION OF TEACHERS, 
AFL-CIO; BOARD OF EDUCATION OF THE CITY OF DETROIT, a 
school district of the first class; PATRICK McDONALD, JAMES HATHA­
WAY and CORNELIUS GOLIGHTLY, members of the Board of Educa­
tion of the City of Detroit; and NORMAN DRACHLER, Superintendent 
of the Detroit Public Schools; WILLIAM G. MILLIKEN, Governor of the 
State of Michigan and ex-officio member of the Michigan State Board of 
Education; FRANK J. KELLY, Attorney General of the State of Michigan; 
MICHIGAN STATE BOARD OF EDUCATION, a constitutional body 
corporate, and JOHN W. PORTER, Superintendent of Public Instruction, 
Department of Education of the State of Michigan, ALLISON GREEN, 
State Treasurer; ALLEN PARK PUBLIC SCHOOLS, SCHOOL DISTRICT 
OF THE CITY OF BERKLEY, BRANDON SCHOOLS, CENTERLINE 
PUBLIC SCHOOLS, CHERRY HILL SCHOOL DISTRICT, CHIPPEWA 
VALLEY PUBLIC SCHOOLS, SCHOOL DISTRICT OF THE CITY OF 
CLAWSON, CRESTWOOD SCHOOL DISTRICT, DEARBORN PUBLIC 
SCHOOLS, DEARBORN HEIGHTS SCHOOL DISTRICT NO. 7, EAST 
DETROIT PUBLIC SCHOOLS, SCHOOL DISTRICT OF THE CITY OF 
FERNDALE, FLAT ROCK COMMUNITY SCHOOLS, GARDEN CITY 
PUBLIC SCHOOLS, GIBRALTAR SCHOOL DISTRICT, SCHOOL 
DISTRICT OF THE CITY OF HARPER WOODS, SCHOOL DISTRICT 
OF THE CITY OF HAZEL PARK, INTERMEDIATE SCHOOL DISTRICT 
OF THE COUNTY OF MACOMB, LAKE SHORE PUBLIC SCHOOLS, 
LAKEVIEW PUBLIC SCHOOLS, THE LAMPHERE SCHOOLS, LINCOLN 
PARK PUBLIC SCHOOLS, MADISON DISTRICT PUBLIC SCHOOLS, 
MELVINDALE-NORTH ALLEN PARK SCHOOL DISTRICT, SCHOOL 
DISTRICT OF NORTH DEARBORN HEIGHTS, NOVI COMMUNITY 
SCHOOL DISTRICT, OAK PARK SCHOOL DISTRICT, OXFORD AREA 
COMMUNITY SCHOOLS, REDFORD UNION SCHOOL DISTRICT NO.
1. RICHMOND COMMUNITY SCHOOLS, SCHOOL DISTRICT OF THE 
CITY OF RIVER ROUGE, RIVERVIEW COMMUNITY SCHOOL 
DISTRICT, ROSEVILLE PUBLIC SCHOOLS, SOUTH LAKE SCHOOLS, 
TAYLOR SCHOOL DISTRICT, WARREN CONSOLIDATED SCHOOLS, 
WARREN WOODS PUBLIC SCHOOLS, WAYNE-WESTLAND COM­
MUNITY SCHOOLS, WOODHAVEN SCHOOL DISTRICT and WYAN­
DOTTE PUBLIC SCHOOLS; KERRY and COLLEEN GREEN, by their 
Father and Next Friend, DONALD G. GREEN; JAMES, JACK and KATH­
LEEN ROSEMARY, by their Mother and Next Friend, EVELYN G.

(Continued on Reverse Side)



ROSEMARY; TERRI DORAN, Mother and Next Friend, BEVERLY 
DORAN; SHERRILL, KEITH, JEFFREY and GREGORY COULS, by 
their Mother and Next Friend, SHARON COULS; EDWARD and 
MICHAEL ROMESBURG, by their Father and Next Friend, EDWARD M 
ROMESBURG, JR.; TRACEY and GREGORY ARLEDGE, by their 
Mother and Next Friend, AILEEN ARLEDGE; SHERYL and RUSSELL 
PAUL, by their Mother and Next Friend, MARY LOU PAUL; TRACY 
QUIGLEY, by her Mother and Next Friend, JANICE QUIGLEY; IAN, 
STEPHANIE, KARL and JAAKO SUNI, by their Mother and Next Friend, 
SHIRLEY SUNI; and TRI-COUNTY CITIZENS FOR INTERVENTION IN 
FEDERAL SCHOOL ACTION NO. 35257; DENISE MAGDOWSKI and 
DAVID MAGDOWSKI, by their Mother and Next Friend, JOYCE 
MAGDOWSKI; DAVID VIETTI, by his Mother and Next Friend, VIOLET 
VIETTI; and the CITIZENS COMMITTEE FOR BETTER EDUCATION 
OF THE DETROIT METROPOLITAN AREA, a Michigan non-Profit 
Corporation; SCHOOL DISTRICT OF THE CITY OF ROYAL OAK; 
SOUTHFIELD PUBLIC SCHOOLS,

R esp on d en ts.



1

INDEX

Introductory Prayer ............................................................................... 1

Opinions and Orders B elow  .................................................................  2

Jurisdiction ................................................................................................. 3

Questions Presented ..............................................................................  3

Constitutional Provisions, Statutes and Rules Involved ........... 4

Statement o f  the Case ............................................................................ 5

Summary o f  the Argum ent .................................................................  1 1

Reasons for Denying the Writs .......................................................... 13

1. Certiorari should be denied as this is not an appeal from
a final decision since the Sixth Circuit has rem anded the 
case to the district cou rt to  determ ine what type o f  
remedy should be ordered, and what districts, if  any, 
should be included in that rem edy............................................  13

2. Certiorari should be denied because this H onorable
Court cannot properly assess the propriety o f  a m ulti­
district rem edy when all factual aspects o f  the rem edy 
are hypothetical and speculative and their im pact, i f  
any, upon each Petitioner is unknow n at this tim e............  1 7

3. The m etropolitan desegregation rem edy ordered by  the
courts below  is based on  specific Michigan public school 
law, set in the con text o f  the relevant m etropolitan 
D etro it com m unity , and thus certiorari should be 
denied.................................................................................................... 19

4. Certiorari should be denied as the courts below  did not 
err in ordering a m etropolitan  rem edy, w ithout regard 
to artificial c ity  or boundary lines, to  eliminate uncon ­
stitutional, racially identifiable schools in the m etropoli­
tan Detroit com m unity , since the State o f  Michigan, in 
and o f  itself, has sole responsibility for education  within
its boundaries.....................................................................................  27

5. Since this H onorable C ourt has encouraged district 
courts to  fashion broad, tailor-m ade, equitable remedies 
for the elim ination o f  constitutional violations in each

PAGE



11

PAGE

given situation, there is nothing unconstitutional in the 
instant remedy, pursuant to established Michigan public 
school law, so as to justify certiorari.............................. 40

6. The courts below found systematic acts of segregation
affecting the constitutional rights of black children for 
which the State Defendants are responsible...................  47

7. The Petitioner school districts have not been denied
due process of law since they are agencies of the State 
Board of Education which has been a party to this 
litigation from its inception, and which has adequately 
protected the interests of the Petitioner school dis­
tricts.............................................................................  53

Conclusion ........................................................................  55
Appendix............................................................................  laa



Ill

TABLE OF AUTHORITIES

American Construction Company v. Jacksonville T & K.W.R. 
Company, 148 U.S. 372 (1893) ...................................... 13

Attorney General, ex rel Kies v. Lowrey, 131 Mich. 639 
(1902), aff’d, 199 U.S. 233 (1905).................................. 19

Baker v. Carr, 369 U.S. 186 (1962) .......................................  36
Bradley et al. v. Milliken et al., 433 F2d 897 (6th Cir., 1971) . 2, 7
Bradley et al. v. Milliken et al., 438 F2d 945 (6th Cir., 1971) . 2, 7
Bradley et al. v. Milliken et al., 468 F2d 902 (6th Cir., 1972),

cert, denied, 409 U.S. 874 (1972).................................... 2

PAGE

Bradley v. Milliken, Nos. 72-1809-1814 (6th Cir., June 12,
1973)...............................................................................  54

Bradley v. School Board o f the City o f Richmond, 51 F.R.D.
139 (D.C. Va. 1970).........................................................  53

Bradley v. School Board o f the City o f Richmond, 462 F.2d
1058 (4th Cir., 1972), aff’d____U.S____ , 93 S.Ct. 1952
(1973) ............................... .........................................  26, 42

Brotherhood o f Locomotive Firemen and Enginemen v. 
Bangor & Aroostook R. Co., 389 U.S. 327 (1967).............  14

Brown v. Board of Education o f Topeka, 347 U.S. 483 
(1954) .........................................................................  28, 31

Brown v. Board of Education o f Topeka, 349 U.S. 294 
0955) ...................................................................  17, 31, 45

Burleson v. County Board o f Election Commissioners of 
Jefferson County, 308 F.Supp. 352 (E.D. Ark. 1970), 
aff’d per curiam, 432 F.2d 1356 (8th Cir. 1970)............ 41

Catlin v. U.S., 324 U.S. 229 (1945)...................................... 13
Clark v. Board of Education o f Little Rock School District,

426 F.2d 1035 (8th Cir. 1970) .......................................  35
Cooper v. Aaron, 358 U.S. 1 (1958) ...................................  50
Davis v. Board of School Commissioners o f Mobile County,

402 U.S. 33 (1971) ...............................................  33, 34,40
Dickinson v. Petroleum Conversion Corp., 338 U.S. 507 

(1950) .......... 14



IV

Gillespie v. U.S. Steel Corporation, 379 U.S. 148 (1964). . . .  14
Goldberg v. Kelly, 397 U.S. 254 (1970) .............................  54
Gomillion v. Lightfoot, 364 U.S. 339 (1960) .................. 36, 40
Goss v. Board of Education o f the City o f Knoxville, Civil 

Nos. 72-1766-1767 (6th Cir. July 18, 1973)...................  43
Green v. County School Board o f New Kent County, 391 

U.S. 430 (1968)  ..................................................... 17,36
Griffin v. School Board o f Prince Edward County, 377 U.S.

218 (1964) ....................................................................   51
Hall v. St. Helena Parish School Board, 197 F.Supp. 649 

(E.D. La. 1961), aff’d, 287 F.2d 376 (5th Cir. 1961 ),aff’d 
per curiam, 368 U.S. 515 (1962)...................................  41

Hamilton-Brown Shoe Co. v. Wolf Bros., 204 U.S. 251 (1916) 14
Haney v. County Board o f Education o f Sevier County, 410

F.2d 920 (8th Cir. 1969) .................................................  41
Hatton v. County Board o f Education o f Maury County, 422 

F.2d 457 (6th Cir. 1970)................................................... 54
Higgins v. Board of Education, City o f Grand Rapids, No. 

6386 (D.C. W.D. Mich., July 18, 1973).............................  53
Isdaner v. Beyer, 53 F.R.D. 4 (D.C. Pa. 1971).....................  53
Jenkins v. Township o f Morris School District, 58 N.J. 483,

279 A.2d 619 (1971) ...................................................  43

PAGE

Kelley v. Metropolitan County Board o f Education of Nash­
ville and Davidson County, 463 F.2d 732 (1972), cert.
denied, 409 U.S. 1001 (1972)........................................  33

Keyes v. School District No. 1, Denver,___U.S___ , 37 L.Ed.
2d 548 (1973) .................................................  47, 48, 49, 50

Lee v. Macon County Board of Education, 448 F.2d 746 (5th 
Cir. 1971) ....................................................................... 40

Lemon v. Bossier Parish School Board, 446 F.2d 911 (5th 
Cir. 1971) ....................................................................... 33

Lindsey v. Normet, 405 U.S. 56 (1972) .............................  54
Louisiana v. United States, 380 U.S. 145 (1965).................  35
Morgan v. 77xompson, 124 F. 203 (8th Cir. 1903) ...............  13



V

PAGE

Northcross v. Board o f Education o f Memphis, 420 F.2d 546 
(1969), aff’d per curiam, 397 U.S. 232 (1970)............... 28

Owenby v. Morgan, 256 U.S. 94 (1921) .............................. 54
Raney v. Board o f Education o f Gould School District, 391 

U.S. 443 (1968) .............................................................  28
Reynolds v. Sims, 377 U.S. 533 (1964)................................ 40
San Antonio Independent School District v. Rodriguez, 411 

U.S. 1 (1973) .................................................................  50
Spencer v. Kugler, 326 F.Supp. 1235(D.N.J. 1971),aff’d,404 

U.S. 1027 (1972) ............................................................ 43
St. Louis, I.M. and S.R.R. v. Southern Express Company,

108 U.S. 24(1883) .........................................................  13
Swann v. Charlotte-Mecklenburg Board o f Education, 318 

F.Supp. 786 (W.D. N.C. 1970) ......................................... 51
Swann v. Charlotte-Mecklenburg Board o f Education, 402 

U.S. 1 (1971) ................ 11, 17, 27, 28, 33, 34, 35, 44, 45
Taylor v. Board of Education o f New Rochelle, 288 F.2d 600 

(1961) .............................................................................  14
Turner v. Warren County Board o f Education, 313 F.Supp.

380 (E.D. N.C. 1970) .....................................................  41
United States v. Scotland Neck City Board o f Education, 407

U.S. 484 (1972) ............................................. .......... 28,41
United States v. State o f Texas, 447 F.2d 441 (5th Cir. 1971) 41 
Wright v. Council o f City o f Emporia, 407 U.S. 451 (1972)28, 41
U.S. Const, amend. X I ......................................... 4, 50, 51, laa
U.S. Const, amend. X IV ................................ 4, 35, 42, 51, laa
U.S. Const, amend. X V ............................................. 4, 35, laa
Michigan Const, art. VIII, § 2 ......................................4, 6, laa
Judicial Code, 28 U.S.C. § 1292(b) ............................4, 9, 2aa
Act 48, Sec. 12, Mich. Pub. Acts of 1970 ............ 4, 7, 48, 2aa
Fed. R. Civ. P.19 ..................................................... 4, 53, 3aa
Fed. R. Civ. P.24(a)(2) ........................................... 4, 54, 4aa



1

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1973

No. 73-434 
No. 73-435 
No. 73-436

WILLIAM G. MILLIKEN, et al„

-vs-

RONALD BRADLEY, et al„

ALLEN PARK PUBLIC SCHOOLS, et al„

-vs-

RONALD BRADLEY, et al„

GROSSE POINTE PUBLIC SCHOOL SYSTEM,

-vs-

RONALD BRADLEY, et al„

Petitioners,

Respondents.

Petitioners,

Respondents,

Petitioner,

Respondents.

BRIEF IN OPPOSITION TO PETITIONS FOR 
WRITS OF CERTIORARI TO THE 

UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

R espondents, the Board o f  E ducation fo r  the School District 
o f  the City o f  D etroit, a sch oo l district o f  the first class, Patrick 
M cDonald, James Hathaway, Cornelius G olightly and Norm an  
Drachler, respectfully pray that these Petitions fo r  Writs o f Cer­
tiorari should be denied.



2

OPINIONS AND ORDERS BELOW
The opinion of the Sixth Circuit, not yet reported, appears in 

the Appendix, at 110a-240a.l Other opinions delivered in the 
courts below are:

United States District Court for the 
Eastern District of Michigan, Southern Division

September 27, 1971, Ruling on Issue of Segregation, 338 
F.Supp. 582. (17a-39a).

November 5, 1971, Order [for submission of Detroit-only 
and metropolitan desegregation plan], not reported. (46a-47a).

March 24, 1972, Ruling on Propriety of Considering a Metro­
politan Remedy to Accomplish Desegregation of the Public 
Schools of the City of Detroit, not reported. (48a-52a).

March 28, 1972, Findings of Fact and Conclusions of Law on 
Detroit-only Plans of Desegregation, not reported. (53a-58a).

June 14, 1972, Ruling on Desegregation Area and Order for 
Development of Plan, and Findings of Fact and Conclusions of 
Law in Support of Ruling on Desegregation Area and Develop­
ment of Plan, 345 F.Supp. 914. (59a-105a).

July 11, 1972, Order for Acquisition of Transportation, not 
reported. (106a-107a).

United States Court of Appeals for the 
Sixth Circuit

July 20, 1972 Order [granting leave to appeal], not reported. 
(108a-109a).

Other opinions of the Sixth Circuit rendered at prior stages 
of the present proceedings are reported in 433 F.2d 897, 438 F.2d 
945 and 468 F.2d 902, cert, den., 409 U.S. 844 (1972).

[1] Hereinafter references to the Petitioners’ Appendix already filed herein 
will be indicated by page numbers enclosed in parentheses and desig­
nated by the letter “ a” . Appendix references followed by the letters 
“aa”  refer to the Appendix to this Brief commencing at page laa 
hereof.



3

JURISDICTION
There is no jurisdiction in this Honorable Court because the 

decision of the district court is not final and is not at an appropri­
ate stage for review.

QUESTIONS PRESENTED
1. Should certiorari be denied since this is not an appeal from 

a final decision and since the Sixth Circuit has remanded the case 
to the district court to determine what type of remedy should be 
ordered, and what districts, if any, should be included in that 
remedy?

2. Should certiorari be denied because this Honorable Court 
cannot properly assess the propriety of a multidistrict remedy 
when all factual aspects of the remedy are hypothetical and specu­
lative and their impact, if any, upon each Petitioner is unknown at 
this time?

3. Should certiorari be denied where the metropolitan de­
segregation remedy ordered by the courts below is based on spe­
cific Michigan public school law, set in the context of the relevant 
metropolitan Detroit community?

4. Should certiorari be denied when the courts below did 
not err in ordering a metropolitan remedy, without regard to arti­
ficial city or municipal boundary lines, to eliminate unconstitu­
tional racially identifiable schools in the metropolitan Detroit 
community, since the State of Michigan, in and of itself, has sole 
responsibility for education within its boundaries?

5. Should certiorari be denied where this Honorable Court 
has encouraged district courts to fashion broad, tailor-made, equit­
able remedies for the elimination of constitutional violations in 
each given situation, and where there is nothing unconstitutional 
in the instant remedy, pursuant to established Michigan public 
school law? 6

6. Should certiorari be denied where the courts below 
found systematic acts of segregation affecting the constitutional 
rights of black children for which the State Defendants are respon­
sible?



4

7. Should certiorari be denied where the Petitioner school 
districts have not been denied due process of law since they are 
agencies of the State Board of Education, which has been a 
party to this litigation from its inception, and which has ade­
quately protected the interests of the Petitioner school districts?

CONSTITUTIONAL PROVISIONS,
STATUTES AND RULES INVOLVED

The constitutional provisions, statutes and rules relevant to 
the issues in this case are: U.S. Constitution Amendment XI; U.S. 
Constitution Amendment XIV; U.S. Constitution Amendment 
XV; Michigan Constitution Art. VIII, Sec. 2; Judicial Code, 28 
U.S.C. § 1292(b); Fed. R. Civ. P. 19 and 24(a) (2); and Michigan 
Public Acts of 1970, Act 48, Sec. 12, which are set forth in 
relevant part in the Appendix to this Brief in Opposition to Peti­
tions for Writs of Certiorari.



5

STATEMENT OF THE CASE

The School District of the City of Detroit is one of 85 school 
districts in the metropolitan Detroit community and one of about 
600 school districts in the State of Michigan. Unlike most of the 
school districts in Michigan, the Detroit School District is coter­
minous with a political boundary (z. e. the city limits of Detroit)̂  
At the time the district court rendered its decision on the issue of 
segregation, September 27, 1971, the Detroit School District ser­
viced some 280,000 school children, 180,000 of whom were 
black. (20a). This resulted in a school population ratio of approxi­
mately 65% black and 35% white, though the City of Detroit itself 
had a population ratio of 56% white and 44% black. (21a). With 
some exceptions, the surrounding school districts in the metro­
politan Detroit community have overwhelmingly white student 
populations. (66a).

The City of Detroit is part of the metropolitan Detroit 
community which is intensely interrelated in terms of social and 
economic activities. The metropolitan Detroit community is 
viewed by the United States Census Bureau as a single standard 
metropolitan statistical area. Metropolitanization has become a 
growing hallmark of government services in the metropolitan 
Detroit community. There is a metropolitan transit system 
(SEMTA), a metropolitan park authority (Huron-Clinton Metro­
politan Authority), a metropolitan water system, a metropolitan 
sewage system and a metropolitan council of governments (SEM- 
COG). (80a).

[21 At least the following Petitioner school districts are not coterminous 
with political boundary lines of any municipality or county, to wit: 
Brandon Schools, Cherry Hill School District, Chippewa Valley Public 
School District, Crest wood School District, Dearborn Heights School 
District No. 7, Flatrock Community Schools, Lakeshore Public Schools, 
Lakeview Public Schools, The Lamphere Schools, Melvindale-North 
Allen Park School District, Allen Park Public Schools, School District of 
North Dearborn Heights, Oxford Area Community Schools, Redford 
Union School District No. 1, Richmond Community Schools, South 
Lake Schools, Warren Consolidated Schools, Warren-Woods Public 
Schools, Wayne-Westland Community Schools, Grosse Pointe Public 
Schools.



6

In the field of education, children in the metropolitan 
Detroit community have crossed school district lines to attend 
school or to receive educational services. Some educational 
services in the metropolitan Detroit community are already 
provided to students on an inter-district, inter-county, or metro­
politan basis by county-wide intermediate school districts and the 
State Department of Education. (79a). Education in Michigan has 
been a function of the State since the Northwest Ordinance of 
1787 which governed the then Territory of Michigan, (165a). The 
current Constitution of Michigan, the Constitution of 1963, Ar­
ticle VIII, Section 2, provides in part as follows:

“The legislature shall maintain and support a system of free
public elementary and secondary schools as defined by law.”

The Michigan legislature, exercising the aforementioned constitu­
tional mandate, which was also found in Michigan’s preceding 
three constitutions, established numerous school districts. These 
school districts under Michigan law are creatures of the State of 
Michigan and act as instrumentalities of the Michigan legislature 
under the control of the State Board of Education. (167a). School 
district boundaries in Michigan are not sacrosanct. (167a). This is 
evidenced by the fact that the State Board of Education had 
between 1964 and 1968, eliminated 700 school districts. (168a). 
Since that time the State Board of Education has eliminated 
additional school districts.

Detroit is located in Wayne County, where a number of 
school districts have been merged and consolidated by the State 
Board of Education primarily for financial and educational service 
reasons. (168a). The pervasiveness of State control over its school 
districts is further illustrated by the fact that the State provides 
massive State financing, dictates the number of school days, re­
quires certain courses to be taught, controls the use of particular 
text books, and imposes many other details of regulatory control. 
(170a-l 71a).

On April 7, 1970, the Detroit Board of Education adopted a 
desegregation plan for its high schools. (17a). However, before the 
Detroit Board of Education could implement its April 7, 1970 
desegregation plan, the State of Michigan exercising its plenary



7

powers of control over local school districts enacted Act 48 of 
Public Acts of 1970 which automatically invalidated the April 7, 
1970 plan, thereby frustrating the execution and operation of the 
Detroit School Board’s attempts to desegregate. (151a).

It was this action of the State of Michigan that precipitated the 
complaint filed herein by plaintiffs alleging acts of de jure segrega­
tion on the part of the Board of Education for the School District 
of the City of Detroit, as well as the Superintendent of Public 
Instruction for the State of Michigan, the Michigan State Board of 
Education, the Governor of the State and its Attorney General. 
Although Michigan does have a procedure whereby the Attorney 
General may render opinions as to the legality of legislation and 
the Governor is accorded the privilege of addressing the legislature 
on matters of public importance, there is nothing in the record 
below to indicate that the Attorney General or the Governor took 
any action as State officers to advise the legislature of the uncon­
stitutional aspects of Act 48 in depriving black children of their 
constitutional rights. The same is true as to the Superintendent of 
Public Instruction and the State Board of Education.

The plaintiffs originally filed their preliminary injunction to 
reinstate the Detroit Board’s April 7, 1970 plan which had been 
thwarted by Act 48. The district court denied the injunction. On 
appeal, the Sixth Circuit affirmed the denial of the injunction 
while properly holding that Act 48 was unconstitutional insofar as 
it nullified the implementation of the Detroit Board’s April 7th 
Plan. 433 F.2d 897 (1971).

On remand, the plaintiff sought implementation of a tempor­
ary plan of desegregation. The district court permitted the 
Detroit Board to introduce three temporary desegregation plans, 
one of which, the so-called Magnet Plan was approved by the 
court for implementation pending the trial on the merits.

Plaintiff again appealed this order of the district court, but 
the Sixth Circuit remanded with instructions that the case “beset 
forthwith and heard on its merits.” 438 F.2d 945, 946 (1971).

The trial on the merits began on April 6, 1971 and lasted 
forty-one trial days through the spring and summer, 1971. All 
parties were ably represented by counsel, had the opportunity to



8

present evidence and fully participate in the trial. On September 
27, 1971, the district court issued its Findings of Fact and Con­
clusions of Law, (17a), holding inter alia that the State of Michigan 
was guilty of de jure segregation committed directly by bodies or 
officers with state-wide jurisdiction and by its local subordinate 
agent, the Detroit Board of Education. The State Defendants and 
the Detroit Board appealed these Findings, but the Sixth Circuit, 
dismissed the Appeal as being untimely.

Subsequently, the district court ordered the Detroit Board 
to present Detroit-only desegregation plans and the State De­
fendants to present metropolitan plans of desegregation. After 
such plans had been presented to the trial court, a hearing on 
plans of desegregation limited to the geographic boundaries of the 
City of Detroit commenced. The State Defendants vigorously 
urged a Detroit-only remedy.

On March 28, 1972 the district court issued its ruling on the 
Detroit-only plan. The district court properly concluded that no 
Detroit-only plan could constitutionally desegregate the Detroit 
school system, because of this stark reality: without some
700,000 white students in the surrounding metropolitan Detroit 
community, any desegregation plan directed towards the 180,000 
black school children and the 100,000 white school children with­
in the Detroit School District would have resulted in unconstitu­
tional black racially identifiable schools, encircled by schools ra­
cially identifiable as white, thereby continuing to racially isolate 
black children in the metropolitan Detroit community. The Chief 
Education Officer of Michigan, the Chief Executive of the State of 
Michigan and the Chief Legal Officer of the State of Michigan 
could not convince the district court otherwise though they at­
tempted to do so.

It should be noted that the State Defendants were parties 
throughout this litigation who adequately represent the interests 
of their subordinate agents, the local school districts. Despite mas­
sive publicity received by this litigation, Petitioner school districts 
were apparently satisfied that their interests were properly repre­
sented for it was not until February 9, 16 and 17, 1972 that the 
Petitioner school districts asked for the right to intervene. The 
district court granted intervention on March 15, 1972. In passing



9

it should be noted that the publicity of the case resulted in the 
Detroit Federation of Teachers and a group representing home 
owners within the City of Detroit intervening as party defendants 
even prior to the trial on the issue of segregation.

The Petitioner districts had every opportunity to participate 
in the hearing on metropolitan plans and were not denied the right 
to present any evidence as to metropolitan plans. As proof of that 
fact, several school districts prevailed in limiting the metropolitan 
desegregation plan to exclude their school districts.

The district court, on June 14, 1972, (97a), adopted certain 
basic guidelines for metropolitan desegregation plans designed to 
eliminate the isolation of black children within the metropolitan 
Detroit community. The court used the guidelines announced by 
this Honorable Court designed to eliminate the vestiges of segrega­
tion “root and branch” , and to do it in the most practical, con­
venient manner employing all known techniques of desegregation 
approved by this Honorable Court.

Of course, the findings of fact and conclusions of law as to 
the metropolitan desegregation plans announced on June 14, 
1972, were far from complete, and the district court acknowl­
edged this. The district court established a desegregation panel to 
develop a plan for further hearings. The Petitioner school districts 
were granted representation on that panel. The Superintendent of 
Public Instruction was also on that panel. The panel was directed 
to develop a metropolitan plan of desegregation consistent with 
the court’s findings of fact and conclusions of law under a clear 
mandate that further hearings would be held on the plan. Peti­
tioners, at all times, had full opportunity to participate in this 
procedure.

At the request of both the Attorney General of the State of 
Michigan, who has always represented the State Defendants and 
the Petitioner school districts, the District Judge certified the case 
for review pursuant to 28 U.S.C. 1292(b). The Court of Appeals 
for the Sixth Circuit in a three judge panel reviewed the entire 
proceedings. After the Petitioners were given every opportunity to 
file briefs along with the original parties and to argue orally, the 
Sixth Circuit on December 11, 1972, unanimously affirmed the 
district court.



10

On petition for rehearing en banc, the Sixth Circuit granted 
the petition, and again, the Sixth Circuit en banc affirmed the 
district court on all matters save the final form of the metropoli­
tan remedy which they remanded to the district court with 
instructions to permit those districts which had not chosen to 
intervene in the hearing to develop a metropolitan plan.

On remand, the district court is proceeding to hold hearings 
to determine, with all petitioners present, what other local school 
districts should be brought into the hearings, and what procedure 
should be followed in developing the metropolitan plan. The hear­
ings are not complete. There is much work to be done. The oppor­
tunity to provide additional legal input by interested parties is 
present and pending. The case, at this point, is still incomplete, 
making an appeal to this Honorable Court, most premature and 
most untimely.



11

SUMMARY OF ARGUMENT

The Sixth Circuit sitting en banc remanded this case to the 
district court for the development of a desegregation remedy pur­
suant to the guidelines previously announced by this Honorable 
Court, including the use of “mathematical ratios” as a “starting 
point in the process of shaping a remedy” . Swann v. Charlotte- 
Mecklenburg Board o f Education, 402 US 1, 17-18 (1971). This 
case does not, and never has, involved a racial balance remedy. 
Among the issues which must yet be resolved in a final metropoli­
tan desegregation plan are the extent and type of transportation to 
be required, the precise method of crossing school district bound­
aries to exchange pupils, the number of pupils to be exchanged 
and the faculty to be exchanged, if any. A case which is in this 
posture does not represent a final decision for which this Honor­
able Court should grant certiorari.

If this Honorable Court were to grant certiorari, it would 
place itself in the novel position, which it has consistently con­
demned, of deciding hypothetical, speculative and abstract ques­
tions as there is no specific desegregation plan now before this 
Court for review.

Under Michigan public school law, the sole responsibility for 
education rests with the State, and Michigan school districts are 
mere instrumentalities of the State subordinated to the State 
Board of Education and the Legislature and subject to pervasive 
State control. Thus, the de jure actions of the subordinate agent 
Detroit School District are binding on the State of Michigan just as 
the de jure actions of the State of Michigan are binding on the 
Detroit School District. It is the State of Michigan, and only the 
State of Michigan, that has committed de jure acts of segregation, 
and it is the State alone that must provide a remedy.

A Detroit-only desegregation plan would not eliminate un­
constitutional racial isolation in the relevant metropolitan Detroit 
community. There are 180,000 black children and 100,000 white 
children in the Detroit School System — a system surrounded by
700,000 white school children in the metropolitan Detroit com­
munity.

The relevant metropolitan Detroit community is an intensely 
interrelated community both socially and economically with many



12

forms of metropolitan governmental services. Students in the 
metropolitan Detroit community already cross school district lines 
to attend school. Educational services are already provided to the 
metropolitan students on an inter-district basis. The boundaries of 
Michigan school districts in general bear no relationship to the 
boundaries of other municipal or county governments.

The arguments presented by the Petition of the State Defen­
dants have failed to explain that if the State can eliminate 700 
school districts out of 1438 school districts in a five-year period 
(1964-1968), including districts in the metropolitan Detroit com­
munity, for financial and educational reasons, then why are the 
Michigan school district lines so sacrosanct when it comes to pro­
tecting constitutional rights of black children?

The Michigan State Board of Education has always been a 
party to this litigation and has adequately represented the interests 
of its subordinate districts. Petitioner school districts, although 
having every opportunity to intervene in a case that had great 
publicity, chose to intervene in February, 1972. The Sixth Circuit 
in its remand has made it clear that all districts may participate in 
the fashioning of a metropolitan remedy, which still is in the 
process of being developed.

If the State of Michigan can continue to provide educational 
services for students on an inter-district basis and continue to 
transport students across school district lines, then a multi-district 
desegregation remedy is consistent with Michigan school law. It is 
mandatory for the district court, exercising its equity powers, to 
remedy the constitutional violation of the rights of 180,000 black 
school children isolated from the rest of the relevant metropolitan 
Detroit community. By practical necessity, this requires a multi­
district remedy.



13

REASONS FOR DENYING THE WRITS

I. CERTIORARI SHOULD BE DENIED AS THIS IS NOT AN 
APPEAL FROM A FINAL DECISION SINCE THE SIXTH 
CIRCUIT HAS REMANDED THE CASE TO THE DIS­
TRICT COURT TO DETERMINE WHAT TYPE OF 
REMEDY SHOULD BE ORDERED, AND WHAT DIS­
TRICTS, IF ANY, SHOULD BE INCLUDED IN THAT 
REMEDY.

A grant of certiorari would be improvident in this case as the 
decision of the Sixth Circuit is not a final decision. The Sixth 
Circuit agreed with the district court on its conclusion to consider 
a metropolitan remedy and remanded the case for the joinder of 
additional parties and for a determination of the relief to be 
granted the plaintiffs; namely what type of metropolitan remedy 
should be ordered. The district court has begun proceedings in 
compliance with the instructions of the Sixth Circuit.

Among the issues that must be resolved in the district court 
are (1) the identities of the school districts to be included in a 
final desegregation plan, (2) the extent and type of transportation 
to be required, (3) the precise method of crossing school district 
boundaries to exchange pupils, (4) the number of pupils to be ex­
changed, and (5) the faculty involved.

If “a ‘final decision’ generally is one which ends the litigation 
on the merits and leaves nothing for the Court to do but execute 
the judgment,” Catlin v. U.S., 324 U.S. 229, 233 ( 1945),the June 
12, 1973 decision of the Sixth Circuit is not a final decision. See 
St. Louis, I.M. and S.R.R. v. Southern Express Company, 108 U.S. 
24, 28 (1883); Morgan v. Thompson, 124 F. 203, 204 (8th Cir. 
1903).

This Honorable Court admittedly has power to grant certio­
rari in cases that are not yet final, but it has consistently refused 
to review interlocutory orders of the courts of appeals “unless it is 
necessary to prevent extraordinary inconvenience and embarrass­
ment to the conduct of the cause.” American Construction Com­
pany v. Jacksonville T & K.W.R. Company, 148 U.S. 372, 384 
(1893). This refusal to review especially follows when the case has



14

been remanded to the district court for further proceedings. See 
Hamilton-Brown Shoe Co. v. Wolf Bros., 204 U.S. 251, 257-58 
(1916); Brotherhood o f Locomotive Firemen and Enginemen v. 
Bangor & Aroostook R. Co., 389 U.S. 327, 328 (1967).

The possibility that the Sixth Circuit has erred may present 
some slight inconvenience, but that inconvenience is much less 
than would result from repeated piecemeal appeals. On the facts 
of this case the inconvenience, if any, is hardly extraordinary, nor 
will delay in Supreme Court review cause any “embarrassment to 
the conduct of the cause.” Neither the State of Michigan nor the 
Petitioner school districts are placed in any danger of being de­
prived of rights which cannot be vindicated by an appeal in the 
normal course of litigation. Assuming, arguendo, that the State 
and Petitioner school districts should be entitled to prevail on 
every substantive point they raise, those points will still be capable 
of vindication after the district court has concluded its hearing. 
Consequently, there is no “danger of denying justice by delay.” 
Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511 
(1950); Gillespie v. U.S. Steel Corporation, 379 U.S. 148 (1964).

Judge Friendly’s opinion for the Second Circuit in Taylor v. 
Board of Education o f New Rochelle, 288 F.2d 600, 602 
(1961) dealt decisively with the related issue of finality of a dis­
trict court decision after a finding of segregation and before the 
ordering of a remedy:

“ Upon full consideration, we conclude that we have no 
power to entertain the Board’s appeal until the District Court 
has finished its work by directing the Board to take or refrain 
from action.

“ Familiar decisions of the Supreme Court establish the con­
trolling principles. ‘Finality as a condition of review is an 
historic characteristic of federal appellate procedure. It was 
written into the first Judiciary Act and has been departed 
from only when observance of it would practically defeat the 
right to any review at all.’ Cobbledick v. United States, 1940, 
309 U.S. 323, 324-325, 60 S.Ct. 540, 541, 84 L.Ed. 783. 
‘The foundation of this policy is not in merely technical 
conceptions of ‘finality.’ It is one against piecemeal litigation.



15

‘The case is not to be sent up in fragments * * *’ Lux tony. 
•North River Bridge Co., 147 U.S. 337, 341 [ 13 S.Ct. 356, 
358, 37 L.Ed. 194], Reasons other than conservation of 
judicial energy sustain the limitation. One is elimination of 
delays caused by interlocutory appeals.’ Catlin v. United 
States, 1945, 324 U.S. 229, 233-234, 65 S.Ct. 631, 634, 89 
L.Ed.911.

“A ‘final decision’ within 28 U.S.C. §1291, the basic 
statute authorizing appeals to the courts of appeals, and 
its predecessors going back to § § 21 and 22 of the Act of 
Sept. 24, 1789, c. 20, 1 Stat. 73, 83-84, ‘is one which ends 
the litigation on the merits and leaves nothing for the court 
to do but execute the judgment.’ Catlin v. United States, 
supra, 324 U.S. at page 233, 65 S.Ct. at page 633. Plainly 
Judge Kaufman’s decision of January 24, 1961 does not fit 
that description. It constituted only a determination that 
plaintiffs were entitled to relief, the nature and extent of 
which would be the subject of subsequent judicial considera­
tion by him. What remained to be done was far more than 
those ministerial duties the pendency of which is not fatal to 
finality and consequent appealability, Ray v. Law, 1805,3 
Cranch 179, 180, 2 L.Ed. 404. An order adjudging liability 
but leaving the quantum of relief still to be determined has 
been a classic example of non-finality and non-appealability 
from the time of Chief Justice Marshall to our own, The 
Palmyra, 1825, 10 Wheat. 502, 6 L.Ed. 375; Barnard v. Gib­
son, 1849, 7 How. 650, 12 L.Ed. 857; Leonidakis v. Inter­
national Telecoin Corp., 2 Cir., 1953, 208 F.2d 934; 6 
Moore, Federal Practice (1953 ed.), p. 125 and fn. 5, al­
though in all such cases, as here, this subjects the defendant 
to further proceedings in the court of first instance that will 
have been uncalled for if that court’s determination of liabi­
lity is ultimately found to be wrong.

*  *  *

“ Here, while we understand defendants dislike of presenting 
a plan of desegregation and attending hearings thereon that 
would be unnecessary if the finding of liability were ulti­
mately to be annulled, and also the possibly unwarranted



16

expectations this course may create, this is scarcely injury at 
all in the legal sense and surely not an irreparable one. 
Equally inapposite is the doctrine of Cohen v. Beneficial In­
dustrial Loan Corp., 1949, 337 U.S. 541, 545-547, 69 S. Ct. 
1221, 1225, 93 L. Ed. 1528, also advanced by appellants, 
permitting review of orders ‘which finally determine claims 
of right separable from, and collateral to rights asserted in the 
action, too important to be denied review and too indepen­
dent of the cause itself to require that appellate consideration 
be deferred until the whole case is adjudicated.’ Here the 
issue sought to be reviewed, far from being collateral to the 
main litigation, represents the very findings and conclusions 
upon which any final judgment against the defendants must 
rest.”

Judge Friendly’s rationale is equally persuasive and dispositive 
of this case.

For these reasons, certiorari should be denied.



17

n. CERTIORARI SHOULD BE DENIED BECAUSE THIS 
HONORABLE COURT CANNOT PROPERLY ASSESS THE 
PROPRIETY OF A MULTI-DISTRICT REMEDY WHEN 
ALL FACTUAL ASPECTS OF THE REMEDY ARE HYPO 
THETICAL AND SPECULATIVE AND THEIR IMPACT, IF 
ANY, UPON EACH PETITIONER IS UNKNOWN AT THIS 
TIME.

At this stage of the case there are too few firm facts available 
to this Honorable Court in reviewing the work of the courts 
below. Petitioners’ objections are to hypothetical conditions. 
Remedies in school segregation cases, being matters of equity, are 
characterized by a flexibility deeply rooted in the facts of each 
case. See Brown v. Board of Education o f Topeka, 349 U.S. 294, 
299-300 (1955); Swann v. Chariot t e-Mecklenburg Board of Educa­
tion, 402 U.S. 1, 12-13, 15, (1971). As this Honorable Court has 
said, “There is no universal answer to complex problems of deseg­
regation; there is obviously no one plan that will do the job in 
every case. The matter must be assessed in light of the cir­
cumstances present and the options available in each instance.” 
Green v. County School Board o f New Kent County, 391 U.S. 
430, 439 (1968). That task cannot be done well if this Honorable 
Court is not fully informed of the circumstances and options. The 
Supreme Court cannot properly evaluate the decisions of the 
courts below in the factual vacuum that exists at this point in this 
case. Every major measureable aspect of a desegregation remedy is 
unsettled in this case, as indicated in Reason I, supra at 13.

The Petitions for certiorari show on their face that they 
present hypothetical questions divorced from the concrete facts 
necessary to sound judicial decision-making. Petitioner Grosse 
Pointe Public School System refers to “the impact of the lower 
courts’ proposed remedy upon the residents of every school dis­
trict in the Detroit Metropolitan Area” . Grosse Pointe Public 
School System, Petition for Writ of Certiorari, at 14. Yet that 
petition cannot point to an actual remedy agreed upon by those 
courts. Rather, Petitioner concedes that the district court’s plan 
was vacated by the Sixth Circuit. (Id. at 16.) Nevertheless, in the 
eyes of Petitioner Grosse Pointe Public School System, the vacated 
plan “ remains fully illustrative of the magnitude of a plan” the 
Petitioner wants to attack. Only if one assumes that the lower



18

courts are playing games with the parties, can one assume before 
rehearing that a vacated plan is “ fully illustrative” of the ultimate 
plan. This Honorable Court does not sit to resolve “ illustrative” 
issues but to deal with concrete legal issues. Petitioner jumbles 
statistics based on a vacated plan and statistics from a much larger 
metropolitan area in an effort to discredit a remedy that has not 
yet been ordered. (Id. at 16). Petitioner admits that “ the exact 
geographical area and the number of students to be involved” are 
unsettled, but asserts that the consequences of a remedy will be 
“important” to Petitioner. Significantly, Petitioner cannot assert 
with absolute certainty that it will be included in the geographical 
area of the ultimate plan. Petitioner Grosse Pointe Public School 
System in effect concedes that all the critical facts are unknown: 
pupil reassignment and transportation, faculty reassignment, 
“governance, finance and administrative arrangements.” (Id. at 17, 
note 25). Yet it asserts, as a justification for premature interven­
tion of this Honorable Court, that the cost of the unknown factors 
is “inestimable” . (Id. at 17, note 25). The fact that all aspects of 
the remedy are inestimable is good cause for this Honorable Court 
to stay its hand and allow the district court to finish its work.

Petitioners Allen Park Public Schools, et al., are similarly un­
certain of the scope of the remedy. They also vacillate between 
the vacated plan and the outer limits of the three county metro­
politan area in asserting the unreasonableness of a remedy that has 
not yet been announced. Allen Park Public Schools, et al.,Petition 
for Writ of Certiorari, at 14-15. Their uncertainty is reflected in 
the very terms of the Statement of Questions Presented. Question 
II refers to an order “embracing up to eighty-five (85)” school 
districts and requiring the transportation of “hundreds of 
thousands” of children. (Id. at 3, emphasis added). Precision was 
obviously impossible at this stage of the case. Question III asserts a 
failure to afford a meaningful hearing to “Petitioners against 
whom relief is imposed. ” (Id. at 4, emphasis added.) The wording 
of the question obscures the fact that relief has never been “im­
posed” against some of those petitioners and, for all that, is now 
known, never will be. Other petitioners were included in the vacat­
ed plan but may or may not be affected by the next one.

Sound judicial administration will not be served by deciding 
major issues of constitutional law on the speculative factual basis 
presently available to this Honorable Court.



19

111 THE METROPOLITAN DESEGREGATION REMEDY OR- 
DERED BY THE COURTS BELOW IS BASED ON SPE- 
CIFIC MICHIGAN PUBLIC SCHOOL LAW, SET IN THE 
CONTEXT OF THE RELEVANT METROPOLITAN DE 
TROIT COMMUNITY, AND THUS CERTIORARI SHOULD 
BE DENIED.

The Sixth Circuit correctly concluded that the Public School 
System in Michigan is a State function and that the local school 
districts are mere “ instrumentalities of the State created for 
administrative convenience” . (165a). More succinctly stated, 
under Michigan law, “ the school district is a State agency”. 
Attorney General, ex rel Kies v. Lowrey, 131 Mich. 639, 644,92 
N.W. 289, 290 (1902),aff’d, 199 U.S. 233 (1905).

Tracing the long history of State control over local public 
education in Michigan the Sixth Circuit noted as follows:

“ The Northwest Ordinance of 1787 governing the Terri­
tory of Michigan provided:

‘Religion, morality and knowledge, being necessary to 
good government and the happiness of mankind, schools 
and the means of education shall forever be encouraged.’ 
Art. III.

“With this genesis, Michigan’s four Constitutions have 
clearly established that the public school system in that State 
is solely a State function. The Constitution of 1835 in Article 
X, Section 3, provided, in part: ‘The legislature shall provide 
for a system of common schools . . .’ The Constitution of 
1850, Article XIII, Section 4, provided, in part: ‘The legisla­
ture shall . . . provide for and establish a system of primary 
schools . . .’ Section 1 of the same Article provided, ‘ . . .  the 
Superintendent of Public Instruction shall have general super­
vision of public instruction . . .’

“ The Constitution of 1908 in Article XI, Section 2, pro­
vided that the Superintendent of Public Instruction ‘shall 
have general supervision of public instruction in the State.’ 
Article XI, Section 9, provided, in part as follows:



20

‘ The legislature shall continue a system of primary 
schools, whereby every school district in the State shall 
provide for the education of pupils without charge for tui­
tion . .

“The Constitution of 1963, the present Constitution of 
the State of Michigan, in Article VIII, Section 2, provides, in 
part, as follows:

‘The legislature shall maintain and support a system of 
free public elementary and secondary schools as defined 
by law.’

“In interpereting [sic] the above educational provisions of 
the Constitution of 1850, the Michigan Supreme Court stat­
ed: ‘The school district is a State agency. Moreover, it is of 
legislative creation...’ Attorney General v. Lowrey, 131 
Mich. 639, 644, 92 N.W. 289, 290 (1902). Again, inter­
preting the Constitution of 1850, the Supreme Court of 
Michigan in Attorney General v. Detroit Board o f Education, 
154 Mich. 584, 590, 1 18 N.W. 606, 609 (1908), adopted 
lower court language which read:

‘Education in Michigan belongs to the State. It is no 
part of the local self-government inherent in the township 
or municipality, except so far as the legislature may chose 
to make it such. The Constitution has turned the whole 
subject over to the legislature . . .’

“The Supreme Court of Michigan interpreted Article XI, 
Section 9, of the Constitution of 1908 to mean:

‘The legislature has entire control over the schools of 
the State subject only to the provisions above referred to. 
The division of the territory of the State into districts, the 
conduct of the school, the qualifications of teachers, the 
subjects to be taught therein are all within its control.’ 
Child Welfare v. Kennedy School Dist., 220 Mich. 290. 
296, 189 N.W. 1002, 1004 (1922).
“ In the leading case concerning construction of this sec­

tion of the Michigan Constitution of 1963, the Michigan Su­
preme Court said:



21

‘It is the responsibility of the State board of education 
to supervise the system of free public schools set up by the 
legislature and, as a part of that responsibility, to promul­
gate regulations specifying the number of hours necessary 
to constitute a school day for elementary school students 
as well as for other classifications or groupings of students, 
to determine the curricula and, in general, to exercise 
leadership and supervision over the public school system.’ 
Welling v. Livonia Board o f Education, 382 Mich. 620, 
624, 171 N.W.2d 545, 546 (1969). See also Governors. 
State Treasurer, 389 Mich. 1, 13, 203 N.W.2d 457 (1972).

“ Michigan has not treated its school districts as sacrosanct. 
To the contrary, Michigan always has regarded education as 
the fundamental business of the State as a whole. Local 
school districts are creatures of the State and act as instru­
mentalities of the State under State control. Cf. Senghas v. 
L’Anse Creuse Public Schools, 368 Mich. 557, 1 18 N.W.2d 
975 (1962); McLaughlin v. Board of Education, 255 Mich. 
667, 239 N.W. 374, (1931).” (165a-167a)

The Sixth Circuit also cited numerous examples illustrating 
the pervasive effect of State control over local school districts in 
Michigan. These examples serve to unequivocally substantiate the 
court’s conclusion that local school districts are mere instrumen­
talities or agents of the State created for administrative conven­
ience. As cited by the Sixth Circuit, examples were as follows:

“ 1. Following the holding of Welling v. Livonia Board of 
Education, supra, that there was no minimum length of day 
required under the 180-day school attendance rule absent a 
State Board of Education regulation, the Michigan State 
Board of Education, acting under its Constitutional mandate 
without legislative authority, established an administrative 
rule requiring local school boards to provide a minimum 
number of hours per school year. See, School Districts Child 
Account for Distribution o f State Aid, Bulletin No. 1005, 
Michigan State Department o f Education ( 1 970). 
(167a-168a).

“ 2. Public Act 289 of 1964 (MSA § 15.2299 (1) et seq., 
MCLA §388.681 et seq.) required Michigan school districts



22

to operate K-12 systems. When Public Act 289 become effec­
tive, 1,438 public school districts existed in Michigan. By the 
beginning of 1968, this figure had been reduced to 738, 
meaning that 700 school districts in Michigan have disap­
peared since 1964 through reorganization. Annual Report, 
Committee on School District Reorganization, 1968 Journal 
of the Senate 422-423 (March 1, 1968). (168a).

“3. Pursuant to Act 289 of 1964, supra, the State Board 
of Education ordered the merger of the Brownstown No. 10, 
Hand, Maple Grove and Carson school districts, all in Wayne 
County. The action is best explained by the fact that Browns­
town was, at that time, the wealthiest school district in the 
State, indeed, with a property valuation of $340,000 backing 
each child, perhaps the wealthiest district in the nation, while 
the other three districts were extremely poor. (168a).

“4. When the Sumpter School District was on the verge 
of bankruptcy in 1968, the State Board of Education, acting 
under Public Act 239 of 1967 (MSA § 15.2299 (51) et seq., 
MCLA §388.691 et seq.), merged the district with four ad­
joining districts, including the Airport School District. Signi­
ficantly, though Sumpter was in Wayne County, Airport was 
in Monroe County, showing that county lines are not in­
violate in Michigan. (168a).

“ 5. The Nankin Mills School District in Wayne County 
was beset with financial problems and had no high school. 
Again, pursuant to Act 239, the State Board of Education in 
1969 ordered this school district to merge with the Livonia, 
Garden City and Wayne Community schools. (168a).

“6. When the Inkster School District in Wayne County 
was on the verge of financial bankruptcy, the Michigan legis­
lature passed Public Act 32 of 1968 (MSA § 15.1916 et seq., 
MCLA §388.201 et seq.) enabling the district to borrow 
$705,000 but on the condition that if the district could not 
balance its budget the State Board of Education could reor­
ganize, merge or annex the district. The legislative history of 
Act 32 indicates at least two legislators voted against the bill 
in the House of Representatives because of the excessive con­
trol given to the State Board of Education:



2 3

‘I voted No on House Bill No. 3332 because in setting 
up the machinery to bail out distressed districts, it takes 
from the local communities the control over their own 
educational system by providing for excessive arbitrary re­
organization powers in the hands of the Board of Educa­
tion. . .’

‘This bill certainly sets up the State Board of Education 
to be a dictator of all school districts that run into fi­
nancial problems.’ 1968 Journal of the House of Represen­
tatives 1965. (168a-l69a).

“ 7. Too small and too poor to operate a high school, the 
all-black Carver School District in suburban Oakland County 
reached a crisis in 1960 when other surrounding white dis­
tricts refused to accept Carver pupils on a tuition basis. The 
Carver district was merged with Oak Park. (169a).

“ 8. The State Board of Education and Superintendent of 
Public Instruction may withhold State aid for failure to 
operate the minimum school year. MSA § 15.3575, MCLA 
§340.575. In 1970, funds were withheld from the City of 
Grand Rapids School District. 17 Michigan School Board 
Journal 3 (March, 1970). For Attorney General Opinions 
holding that State aid may be withheld by the State Board of 
Education from the school districts for hiring uncertified 
teachers, defaulting on State loans and for other reasons, see 
Op. Att’y Gen. No. 880, 1949-1950 Report of the Attorney 
General 104 (January 24, 1949, Roth); No. 2333, 1955 
Report of the Attorney General 561 (October 20, 1955, 
Kavanaugh); No. 4097, 1961-1962 Report of the Attorney 
General 553 (October 8, 1962, Kelley). (169a-170a).

“ 9. The State of Michigan contributes, on the average, 
34% of the operating budgets of the 54 school districts in­
cluded in the proposed Metropolitan Plan of Integration. In 
eleven of the 54 districts, the State’s contribution exceeds 
50% and in eight more, it exceeds 40%. State aid is appropri­
ated from the General Fund, revenue raised through state­
wide taxation, and is distributed annually to the local school 
districts under a formula devised by the legislature. See, e.g., 
Public Act 134(1971),MSA § 15.1919(51),MCLA §388.611.



2 4

“Though the local school districts obtain funds from the 
assessment of local property, the ultimate authority in in­
suring equalized property valuations throughout the State is 
the State Tax Commission. MSA §7.631, et seq., MCLA 
§209.101, et seq.; MSA §7.206, MCLA §211.148; MSA 
§7.52, MCLA §211.34. The State’s duty to equalize is re­
quired by the Michigan Constitution, Article IX, Section 3. 
This ‘State equalized valuation’ serves as the basis for calcu­
lating local revenue yields. See, Ranking of Michigan Public 
High School — School Districts by Selected Financial Data, 
1970, Bulletin 1012, Michigan State Department of Educa­
tion (1971). (170a).

“ 10. The Michigan School Code reaffirms the ultimate 
control of the State over public education. Local school dis­
tricts must observe all State laws relating to schools, 1 hold 
school a minimum number of days per year,2 employ only 
certified teachers,3 teach civics, health and physical educa­
tion and drivers’ education,  ̂ excuse students to attend reli­
gious instruction classes,̂  observe State requirements when 
teaching sex education,6 make annual financial and other re­
ports to the Superintendent of Public Instruction,  ̂ adopt 
only textbooks which are listed with the Superintendent of 
Public Instruction  ̂ and must follow all rules and regulations 
of the State Department of Education.

“Local school districts, unless they have the approval of 
the State Board of Education or the Superintendent of Public * 161

‘‘ [1] MSA §15.3253(c), MCLA §340.252(c).
[2] MSA §15.3575, MCLA §340.575.
[31 MSA § § 15,1023(10)(a), 15.3570, MCLA § §388 .1010(a), 340.570.
141 MSA § §  1 5.1951, 15.3361, MCLA §§388.371, 340.361; MSA

§§15.3781, 15.3782, MCLA § §340.781, 340.782; MSA §9.2511(c), 
MCLA §257.811 (c).

[5] MSA §15.3732(g), MCLA §340.732(g).

161 MSA §15.3789, MCLA §340.789.
MSA §15.3612, MCLA §340.612; MSA § §  15.3616,15.3688, MCLA 
§ §340.616, 340.688.
MSA §15.3887(1), MCLA §340.887(1).

18]



2 5

Instruction, cannot consolidate with another school district,̂  
annex territory,^ divide or attach parts of other districts,̂  
borrow monies in anticipation of State aid,^  or construct, 
reconstruct or remodel school buildings or additions to
them. 13

“ The power to withhold State aid, of course, effects enor­
mous leverage upon any local school district, since on the 
average 34 per cent of the operation budget of the 54 school 
districts included in the proposed Metropolitan Plan is paid 
for by the State.

“ In the instance of the City of Detroit, the State exhibited 
its understanding of its power over the local school district 
by the adoption of Act 48 of the Public Acts of 1970 which 
repealed a high school desegregation plan previously adopted 
by the Detroit Board of Education, See 433 F.2d 897.” 
(170a-l 71a).

As noted in the above excerpt from the Sixth Circuit 
Opinion, the State of Michigan eliminated 700 school districts be­
tween 1964 and 1968. (168a). Those school districts were elimi­
nated by the State for educational and financial reasons. The fact 
that Michigan can, and did, eliminate nearly half of its local school 
districts in a five year period is overwhelming evidence that, in 
Michigan, local school districts are mere “ instrumentalities of the 
State” that can be created, eliminated, or consolidated for the 
administrative convenience of the State. If this Honorable Court 
has any doubt about the pervasive state control of education in 
Michigan we urge this Honorable Court to re-read the Petition for 
Writ of Certiorari of Michigan’s Attorney General and ask this 
simple question: Does the Attorney General at any point deny the

“ [9] MSA §15.3402, MCLA §340.402.
[10] MSA §15.3431, MCLA §340.431.
[11] MSA §15.3447, MCLA §340.447.
[12] MSA §15.3567(1), MCLA §340.567(a).
[13] MSA §15.1961, MCLA §388.851, Op. Att’y Gen. No. 1837, 1952- 

1954 Report of the Attorney General 440 (Nov. 8, 1954).”



2 6

finding of the district court, affirmed by the Sixth Circuit, that 
local school districts in Michigan are mere state agencies through 
which the state acts?^

Since the Michigan State Board of Education has previously 
arranged for multi-district co-operation, and in some cases multi­
district consolidation, for educational and financial purposes, 
there is no reason why the Michigan State Board of Education and 
its agents, in the instant case the metropolitan Detroit community 
school districts, cannot be involved in remedying a constitutional 
violation of the rights of black children.

In Michigan, it makes no difference whether the offender of 
those constitutional rights was the agent, the Detroit School Board, 
or the principal, the State of Michigan, or both. The action of the 
Detroit School Board is, under Michigan law, the action of the 
State of Michigan. Conversely, the actions of the State are binding 
on the Detroit School Board,

The instant decision by the Sixth Circuit, based on specific 
Michigan public school law set in the context of the relevant 
metropolitan Detroit community, is limited to Michigan and can­
not be applied to other states having different applicable public 
school law. The public school law of Michigan, as enunciated by 
the Michigan Constitution, the State Legislature, judicial inter­
pretation and avowed public policy, is clear and consistent: local 
school districts are mere instrumentalities or agents of the State of 
Michigan. Hence, the contention that school district boundaries in 
Michigan are sacrosanct, and that the Courts below have no power 
to grant effective remedial equitable relief beyond established 
school district boundaries, should be rejected and Certiorari 
denied.
D) Because of the unique agency relationship existing between the State 

of Michigan and its local school districts, case law involving public ed­
ucation in other states may not necessarily apply. For example, in 
Bradley v. School Board o f  the City o f  Richmond, 462 F.2d 1058 (4th
Cir. 1972), a ff ’d by an equally divided court,___ U.S______ , 93 S.Ct.
1952 (1973) the Fourth Circuit noted that:

“The power to operate, maintain and supervise public schools in 
Virginia is, and always has been within the exclusive jurisdiction of 
the local school boards and not within the jurisdiction of the State 
Board of Education.” 462 F.2d at 1067.

The Sixth Circuit, in the instant case, emphasized the distinction be­
tween Virginia and Michigan public school law, when it said:

“The record in the present case amply supports the finding that the 
State of Michigan has not been subject to such (referring to Vir­
ginia law) limitations in its dealings with local school boards.” 
(175a).



27

IV . C E R T IO R A R I SH O U LD  BE D E N IED  AS THE COURTS BE­
L O W  DID N O T  E R R  IN O R D E R IN G  A  METROPOLITAN  
R E M E D Y , W IT H O U T  R E G A R D  T O  A R T IF IC IA L  CITY OR 
M U N ICIPA L B O U N D A R Y  LIN ES, T O  EL IM IN A TE  UN­
C O N  S T I T U T I O N A L , R A C I A L L Y  ID E N T IF IA B L E  
SCHO OLS IN T H E  M E T R O P O L IT A N  D E T R O IT  COMMU­
N IT Y , SINCE TH E S T A T E  OF M IC H IG A N , IN  A N D  OF IT­
SE L F, H A S SO LE R E SPO N SIB ILITY F O R  EDUCATION 
W ITH IN  ITS B O U N D A R IE S.

On the basis of the Record in this case the courts below 
correctly ordered a metropolitan remedy.

1. This is not a racial balance case. Instead the courts below 
used a racial proportion of the relevant community as a 
starting point for desegregation as specifically endorsed by 
Swann v. Charlotte-Mecklenburg Board o f Education, 402 
U.S. 1 (1971).

2. The relevant community is the metropolitan Detroit commu­
nity; not just the City of Detroit.

3. A finding of de jure acts on the part of the Petitioner school 
districts, or the de jure establishment of school boundaries, is 
unnecessary because of the legal relationship between the 
Petitioner school districts and the State.

4. A Detroit-only remedy is constitutionally impermissible as 
such an alleged remedy is not a remedy which results in de­
segregation.

1. THIS IS N O T  A  R A C IA L  B A L A N C E  CA SE.

This is not a racial balance case. The district court found that 
the schools in Detroit, averaging 65% black, are racially identi­
fiable in a metropolitan community that is three-quarters white. 
There is nothing constitutionally repugnant in having black ma­
jority schools per se in majority black communities. However, 
what is constitutionally repugnant is a remedy which would main­
tain a set of majority black schools, clearly identifiable as dif­
ferent, in a community in which the vast majority of the rest of 
the schools are all white. Swann, supra.



28

Petitioners’ reliance on Wright v. Council o f City o f Emporia, 
407 U.S. 451 (1972) and United States v. Scotland Neck Board of 
Education, 407 U.S. 484 (1972) for the proposition that pre­
dominately black schools can be tolerated in the metropolitan 
Detroit community is misplaced.  ̂ Both cases involved county­
wide black communities. For that reason, the fact that the schools 
in the relevant community were racially identifiable as black was 
not constitutionally repugnant. In fact, this Honorable Court re­
jected an attempt by municipalities, within those counties, to 
withdraw from the county-wide school districts after a desegrega­
tion order had been issued. Neither Emporia nor Scotland Neck is 
applicable to the instant case because here the relevant community 
is the metropolitan Detroit community which is urban and ma­
jority white. The maintenance of identifiably black schools in such 
a community results in the racial isolation that Brown I con­
demned. Brown v. Board of Education of Topeka 347 U.S. 483 
(1954).

Where the relevant community is majority white, then a rem­
edy which retains racially identifiable black schools is repugnant 
to the Constitution of the United States. This Honorable Court, in 
Swann, specifically held that every school, or almost every school, 
should consist of a mixture of the races that roughly approximates 
the make-up of the student community as a whole.

The courts below examined the Detroit metropolitan com­
munity of 780,000 students and, in the words of Swann, used 
racial ratios as “a starting point in the process of shaping a rem­
edy, rather than [as] an inflexible requirement.” 402 U.S. at 25.

H] We are unable to explain the State’s reliance, page 35 of its Petition, on 
Raney v. Board o f  Education o f  Gould School District, 391 U.S. 443 
(1968). The Raney case rejected “ freedom of choice” as a tool for 
desegregation. The question of “ freedom of choice” is not an issue in 
the instant case.
The State also has relied on a 1969 Sixth Circuit case, Northcross v. 
Board o f  Education o f  Memphis, 420 F.2d 546, 548 (1969), a ff ’d per 
curiam, 397 U.S. 232 (1970), for the proposition that a unitary school 
system can be effectuated in a school district that is majority black. 
The Sixth Circuit was obviously aware of its Northcross holding, and 
the particular facts which supported it, when it agreed with a metro­
politan plan in principle, while remanding same to the district court 
with instructions to develop a metropolitan plan of desegregation.



2 9

2. T H E  C O M M U N IT Y  IN V O L V E D  IS T H E  METROPOLI­
T A N  D E T R O IT  C O M M U N IT Y .

The relevant community for an appropriate remedy in the 
instant case is much larger than the City of Detroit. The district 
court’s findings, adopted by the Sixth Circuit, noted the following 
facts clearly establishing the metropolitan nature of the Detroit 
community:

A. Many pupils in the metropolitan Detroit community already 
cross school district lines to attend school or receive edu­
cational services on an inter-district basis. (79a-80a)

B. The metropolitan Detroit area has been labeled by the 
Bureau of the Census as a Standard Metropolitan Statistical 
Area because of the high degree of interaction among the 
populace of the tri-county (Wayne, Oakland and Macomb) 
area (80a).

C. Recognizing the interdependence of its citizens, the Detroit 
metropolitan community has joined together in establishing 
the Metropolitan Detroit Water System. (80a).

D. The metropolitan Detroit community has joined together to 
establish a joint transportation system known as the South­
eastern Michigan Transportation Authority (SEMTA). (80a)

E. The metropolitan Detroit community has joined together in 
establishing a Metropolitan Sewage System. (80a).

F. The metropolitan Detroit community has joined together in 
establishing a metropolitan park authority known as the 
Huron-Clinton Metropolitan Authority. (80a).

G. The local governments have recognized their interdependence 
by creating the Southeastern Michigan Council of Govern­
ments (SEMCOG). (80a).

H. The school authorities have recognized the metropolitan 
nature of education by creating intermediate school districts 
which provide educational services on an inter-district basis in 
each of the three counties. (80a).



30

I. A number of school districts encompass more than one city. 
For example, Petitioner, Grosse Pointe School System, 
encompasses five separately incorporated cities (Grosse 
Pointe Park, Grosse Pointe City, Grosse Pointe Farms, Grosse 
Pointe Woods, and Grosse Pointe Shores) and part of a sixth 
(Harper Woods), most of which have at least one common 
indistinguishable pavement border with the City of Detroit 
(80a).

J. The economic and social life of metropolitan Detroit is 
metropolitan in scope. (70a-80a).

Subjective perceptions as to the metropolitan nature of the 
Detroit community coincide with above objective data. Metropoli­
tan Detroit residents cross indistinguishable political lines casually 
in shopping, commuting to work, seeking recreation and seeking 
private or higher education. Dr. Robert Green, an expert witness 
in the trial below, testified to those perceptions when he referred 
to the stream of whites driving down the freeway from the sub­
urbs to Detroit in the morning rush hour traffic and when he 
described how Detroit-educated whites have fled to the suburbs. 
Just as black children in a 90% black school still perceive their 
school as identifiably black, even though all children in the atten­
dance zone go to the same school, children in a 60% to 80% black 
Detroit school will continue to perceive their school as identifiably 
black even though it is no different from any other school in 
Detroit -  precisely because they know that there are nearby 
suburbs full of white youngsters receiving educations in all-white 
schools.

It would be a most unusual third grader of any race who 
could stand on Tireman Street, a paved indistinguishable boundary 
line, separating overwhelmingly white Dearborn from Detroit, and 
explain that a political boundary, rather than race, was the reason 
the white children south of Tireman attended a white school and 
ihe black children north of Tireman attended a black school. His 
perception of the metropolitan community also is conditioned by 
ihe metropolitan orientation of the communication media — news-



31

papers, television, radio -  to which he is exposed. There is no 
evidence in the Record which permits an assumption that the per­
ception of the community felt by a black child in Detroit is limit­
ed to the irregular boundaries of the school district of the City of 
Detroit and further limited to the racial composition of the stu­
dents in the Detroit school system. It is obvious, in a community 
that is so interrelated between city and suburbs, that the black 
child would wonder why his school does not reflect the total racial 
composition of the metropolitan Detroit community, and why he 
has been racially isolated.

The avoidance of racial isolation has been a part of the law of 
school desegregation for 19 years. Mr. Chief Justice Warren form­
ulated this issue for a unanimous Court in Brown v. Board of 
Education o f Topeka, (Brown I), 347.U.S. 483 (1954) when he 
said:

“To separate them (blacks) from others of similar age and 
qualification solely because of their race generates a feeling 
of inferiority as to their status in the community that may 
affect their hearts and minds in a way unlikely ever to be 
undone.” 347 U.S. at 494.
There are over a million children of school age in the metro­

politan Detroit area. There are 280,000 school children in the 
Detroit system, of which 180,000 are black children. It would be 
unconstitutional racial isolation to confine these children to the 
city limits of Detroit. Their education is the responsibility of the 
State of Michigan. And the State of Michigan has established, for 
its own administrative convenience, the Detroit school system and 
the surrounding, basically all-white school districts.

We may add that in Brown II, 349 U.S. 294 (1955), Chief 
Justice Warren speaking to the method of desegregation, stated:

“To that end, the Courts may consider problems related to 
administration, arising from the physical condition of the 
school plant, the school transportation system, personnel, re­
vision of school districts and attendance areas into compact 
units to achieve a system of determining admission to the 
public schools on a non-racial basis, and revision of local laws 
and regulations which may be necessary in solving the fore-



32

going problems. They will also consider the adequacy of any 
plans the Defendants may propose to meet these problems 
and to effectuate a transition to a racially nondiscriminatory 
school system.” 349 U.S. at 300-301.

The district court and the Sixth Circuit, both in panel and 
en banc, came to realize that the only way unconstitutional racial 
school isolation in the extensively interrelated metropolitan 
Detroit community can be eliminated is through a metropolitan 
desegregation remedy.

3. A  F IN D IN G  O F  DE JURE  AC TS O N  TH E P A R T  OF  
TH E PETITIO N ER  SC H O O L D ISTR ICTS O R  TH E DE  
JURE  EST A B LISH M E N T  O F  SCH O O L BO U N D A R IE S  
IS U N N E C E S S A R Y  BE CA U SE O F  TH E L E G A L  R E L A ­
T IO N S H IP  BETW EEN  TH E PETITION ER SCHO OL  
D ISTRICTS A N D  T H E  STA TE .

The suggestion that a de jure finding must be made against 
the suburbs is totally irrelevant. Assuming, arguendo, that the 
Courts below proceeded on a de jure basis, and that there cannot 
be any showing of de jure acts on the part of the Petitioner school 
districts, or with regard to the drawing of their boundary lines, the 
results here would be the same. The Sixth Circuit has demonstrat­
ed with clarity the pervasive power of the State of Michigan over 
individual school districts and has shown that the districts are 
mere instrumentalities or agents of the State of Michigan.

If the Detroit School Board committed de jure acts of segre­
gation, as an agent or instrumentality of the State, its actions con­
stitute State action, and the State of Michigan is responsible for a 
desegregation remedy. If the State of Michigan alone committed 
de jure acts of segregation, again, the State is responsible for a de­
segregation remedy. In fact, the court below found that both the 
State of Michigan and the Detroit School Board had committed de 
jure acts of segregation. The Petitioner school districts have con­
veniently ignored their relationship with the State of Michigan. It 
makes no difference what basis was used for drawing their bound­
ary lines. These Petitioner school districts are an integral part of 
Michigan’s system of education and when there is an unconstitu-



3 3

tional violation in that system they must form part of the remedy. 
If the State of Michigan is responsible for a remedy either because 
of the State’s own actions or because of the actions of its agent, 
the Detroit School Board, or both, the State of Michigan can 
properly be ordered to implement a remedy that involves the 
school districts contained within the metropolitan Detroit com­
munity which, as State controlled agents created by the State for 
its convenience, are nothing more than the State of Michigan it­
self.

There are at least four elements that must be present for a 
desegregation plan to work.

(1) Every school, or almost every school, should contain a 
mixture of the races that roughly approximates the make-up of 
the student community as a whole. Swann, supra; Davis v. Board 
of School Commissioners o f Mobile County, 402 U.S. 33 (1971).

(2) The plan should be educationally sound. Swann, supra.

(3) The plan should avoid resegregation. Lemon v. Bossier 
Parish School Board, 446 F.2d 911 (5th Cir. 1971).

(4) The plan must be practical. Each of these elements of a 
workable plan deserves to be examined more closely. Swann, 
supra; Davis, supra.

Racial Mix: We repeat that Swann validates the use of race in 
student assignments where the goal is desegregation rather than 
segregation. This Honorable Court has recognized the racial assign­
ment concept as a primary teaching of Swann in Kelly v. Metro­
politan County Board of Education of Nashville and Davidson 
County, 463 F.2d 732 (1972), cert, denied, 409 U.S. 1001 
(1972), where this Honorable Court said:

“Perhaps the primary thing that the Swann case decided was 
that in devising plans to terminate such residual effects, it is 
appropriate for the school system and the District Judge to 
take note of the proportion of white and black students with­
in the area and to seek as practical a plan as may be for end­
ing white schools and black schools and substituting therefor 
schools which are representative of the area in which the 
students live.



34

We have noted that the District Judge in Swann employed a 
flexible 71% white to 29% black population ratio as a guide 
in seeking a practical plan. The Supreme Court specifically 
approved his doing so. See Swann v. Charlotte-Mecklenburg 
Board of Education, supra at 16, 23-24. The District Judge in 
this case clearly read and followed the Swann guideline. As to 
this issue, we find no error.” 463 F.2d at 744
In the instant case, the district court found that in the metro­

politan Detroit desegregation area the ratio of whites to blacks was 
approximately 75% to 25% and, therefore, on June 14, 1972, 
adopted a plan that would approximate this ratio, in the spirit of 
Swann as apparently approved by this Honorable Court in Nash­
ville.

Educational soundness: No desegregation plan can function 
unless it is educationally sound. The educational soundness of an 
integration plan is to a large extent dependent upon how effec­
tively it gives children an opportunity to have stable multi-racial 
experiences in groups composed substantially like the surrounding 
community. Such experiences, especially if begun as early as pos­
sible, give children of both major races accurate perceptions of 
their own abilities and those of the members of the opposite race. 
These informed self-perceptions in turn lead to more self-con­
fidence and better scholastic performance. Multi-racial education is 
essential preparation for life in a multi-racial society. For this rea­
son, if no other, schools should reflect the racial composition of 
the entire metropolitan community which they serve.

Practicalities: Swann and Davis obviously suggest that a plan 
must be practical. The transportation plan envisioned by the dis­
trict court in its desegregation area is no more massive nor does it 
require rides longer in distance than are presently being under­
taken by children in the metropolitan Detroit area. The clusters 
are so designed as to provide for administrative convenience. (72a- 
75a).

In other words, there is nothing in the plan to suggest that it 
is not practical. To illustrate, a substantial part of the educational 
program of the State is not conducted on a local school district 
basis. The intermediate school districts provide inter-district educa­
tion for the physically handicapped, the emotionally disturbed



35

and vocational students. Frequently, with the exception of voca­
tional education which is usually operated at large central skills 
centers, these special educational programs are operated on an 
inter-district basis. In point of fact, inter-district transportation has 
been a common phenomenon for the special education student for 
a good many years. If there is any distinction between the pro­
priety of the State of Michigan providing a metropolitan desegre­
gation remedy for the purpose of terminating the violation of con­
stitutional rights and the propriety of the above inter-district activi­
ties, such distinction escapes the Detroit School Board.

Resegregation: No desegregation plan can function if it offers 
a ready avenue for resegregation. Even policies pursued by school 
board officials in good faith do not relieve them of their duty to 
fully eradicate the vestiges of segregation. Clark v. Board of Educa­
tion o f Little Rock School District, 426 F.2d 1035 (8th Cir. 
1970). It follows then that the courts should require school 
authorities to take steps to prevent resegregation by various 
means. Lemon, supra. Similarly, in protecting Fourteenth and 
Fifteenth Amendment rights, this Honorable Court has spoken of 
a “need to eradicate past evil effects and to prevent the continua­
tion or repetition in the future of discriminatory practices. ..” 
Louisiana v. United States, 380 U.S. 145, 156 (1965). Were a less 
rigorous standard insisted upon by the courts, the constitutional 
obligation to eradicate segregation “root and branch” would be re­
duced to a pruning that would let the old evil grow back, more 
vigorous and more intractable than ever. See Swann, supra. 
Neither this Honorable Court nor the school authorities would be 
true to their duty were they to adopt a plan that will create more, 
rather than less, segregation.

Failure to adopt a metropolitan remedy would mean that the 
black children of the City of Detroit would, in effect, have had 
their constitutional rights denied and would be without a remedy 
required by Swann. In other words, we would have the anomaly 
that there is a constitutional wrong but no remedy.



36

In recent years it has been urged upon the federal court sys­
tem that constitutional violations as to voting rights could not be 
remedied. See Baker v. Carr, 369 U.S. 186 (1962). This Honorable 
Court responded and now voting rights cases are an intricate part 
of our system of constitutional protections with remedies. See, 
e.g., Gomillion v. Lightfoot, 364 U.S. 339 (1960). We suggest that 
the remedy in the instant case must be the metropolitan remedy 
adopted by the district court which considered the necessity of 
racial mix, education soundness, prevention of resegregation, and 
the practicalities of the situation, and which has attempted to eradi­
cate the evils of segregation “root and branch” pursuant to the dic­
tates of Green v. County School Board o f New Kent County, 391 
U.S. 430 (1968).

No more elegant statement of the legal and practical reasons 
for a metropolitan remedy in the Detroit metropolitan community 
has been made than the district court’s own statement from the 
bench on July 19, 1972:

“1 think it should be clearly understood, however, that in my 
disposition of the motions before me today this Court does 
not retreat from nor abandon . . . our conclusion that any 
plan for the desegregation of the public schools of the City of 
Detroit would not accomplish desegregation and that only a 
Metropolitan Plan of desegregation would accomplish the de­
segregation of those schools.”
“The Equal Protection clause of the Fourteenth Amendment 
to the Constitution of the United States, as I read it, is not 
geographically limited. It is difficult for this Court to believe 
that any higher judicial authority of the United States would 
or, for that matter Constitutionally could, engraft on that 
amendment any such geographical limitation. The vindication 
of the Plaintiffs’ Constitutional right to equal education can­
not be denied on the claim of alleged sovereign powers of 
local school districts.” (Tr. 1947-48).

4. A DETROIT-ONLY PLAN IS CONSTITUTIONALLY IM­
PERMISSIBLE

It is the contention of all Petitioners that the district court’s 
finding that “relief of segregation in the Detroit public schools 
cannot be accomplished within the corporate geographical limits 
°f the city” , is in error. This contention completely ignores the



37

constitutional rights of 280,000 Detroit school children.
We call this Honorable Court’s attention to what the district 

court stated in its Findings of Fact and Conclusions of Law as to 
Detroit-only plans in its Opinion of March 28, 1972.

With regard to Defendants’ Plan A, the district court found:

“4. As conceded by its author, Plan A is neither a desegrega­
tion nor an integration plan.” (54a).

As to Defendants’ Plan C, the district court held:

“ 2. We find that this plan covers only a portion of the 
grades and would leave the base schools no less racially 
identifiable.” (54a).

Insofar as Plaintiff’s Plan was concerned, the district
court said:

“7. The Plaintiffs’ Plan would make the Detroit school 
system more identifiably Black, and leave many of its 
schools 75 to 90 per cent Black.” (55a).

“8. It would change a school system which is now Black and 
White to one that would be perceived as Black, thereby 
increasing the flight of Whites from the City and the 
system, thereby increasing the Black student popu­
lation.” (55a).

Thus, the district court’s conclusions of law on this point, 
were most explicit.

“ 2. On the basis of the court’s findings of illegal school seg­
regation, the obligation of the school defendants is to 
adopt and implement an educationally sound, practica­
ble plan of desegregation that promises realistically to 
achieve now and hereafter the greatest possible degree 
o f actual school desegregation. Green v. County School 
Board, 391 U.S. 430; Alexander v. Holmes County 
Board o f  Education, 396 U.S. 19; Carter v. West



38

Feliciana Parish School Board, 396 U.S. 290; Swann v. 
Charlotte-Mecklenburg Board o f Education, 402 U.S. 1. 
(Emphasis added). (56a).

* * *

“4. Plaintiffs’ Plan, while it would provide a racial mix more 
in keeping with the Black-White proportions of the 
student population than under either of the Board’s 
plans or as the system now stands, would accentuate the 
racial identifiability o f the district as a Black school 
system, and would not accomplish desegregation. 
(Emphasis added). (56a).

“5. The conclusion, under the evidence in this case, is ines­
capable that relief o f segregation in the public schools of 
the City o f Detroit cannot be accomplished within the 
corporate geographical limits o f the city.” (Emphasis 
added). (56a).

The Sixth Circuit emphatically agreed with the district court 
when it said:

“At the outset it is obvious from what we have said per­
taining to the inadequacy of any Detroit only desegregation 
plan that this court feels that some plan for desegregation be­
yond the boundaries of the Detroit School District is both 
within the equity powers of the District Court and essential 
to a solution of this problem.” (173a)

As the above citations indicate, both the district court and 
the Sixth Circuit have agreed that complete relief within Detroit 
is constitutionally impossible. Detroit is the hub of a highly inter­
related metropolitan area which contains a public school popula­
tion that is approximately 75% white and 25% black. Yet the 
student population within the Detroit school system is 65% black 
and 35% white. There are no steps the Detroit Board of Education 
can take within its boundaries which would desegregate the 
Detroit public schools.



3 9

This Honorable Court should not grant certiorari. The rem­
edy proposed is consistent with Michigan school law and the 
metropolitan nature of Detroit. It recognizes the fact that in the 
metropolitan Detroit community, governmental services -  parks, 
water, sewage, transportation and education -  have assumed 
metropolitan dimensions. Thus, a metropolitan desegregation 
remedy is compelling in its logic and irrefutable in its necessity.



40

V. SINCE THIS HONORABLE COURT HAS ENCOURAGED 
DISTRICT COURTS TO FASHION BROAD, TAILOR- 
MADE, EQUITABLE REMEDIES FOR THE ELIMINATION 
OF CONSTITUTIONAL VIOLATIONS IN EACH GIVEN 
SITUATION, THERE IS NOTHING UNCONSTITUTIONAL 
IN THE INSTANT REMEDY, PURSUANT TO ESTAB­
LISHED MICHIGAN PUBLIC SCHOOL LAW, SO AS TO 
JUSTIFY CERTIORARI.

As the courts below clearly indicated, education in Michigan 
is solely a function of the State. Local school districts are mere 
creatures of the State acting as agents or instrumentalities of the 
State under pervasive State control.

When the district court, having heard over fifty-eight days of 
testimony, including five days on a Detroit-only desegregation 
remedy, ruled in favor of a metropolitan desegregation remedy, it 
was simply responding to this Honorable Court’s directive to 
“make every effort to achieve the greatest possible degree of 
actual desegregation.” Davis v. Board of School Commissioners of 
Mobile County, 402 U.S. 33, 37 (1971). The Sixth Circuit twice 
(December 8, 1972 and June 12, 1973) (110a- 111a) approved the 
necessity of a metropolitan desegregation remedy as found by the 
district court.

The legal path for the metropolitanization of school districts 
was first cleared by this Honorable Court in the so-called voting 
rights cases. Those decisions established that constitutional re­
quirements supercede the importance of maintaining State created 
legislative districts. Reynolds v. Sims, 377 U.S. 533 (1964); 
Gomillion v. Light foot, 364 U.S. 339 (1960).

The concept of ignoring political division lines for purposes 
of guaranteeing constitutional rights has been extended to school 
districts. Where a city attempted to remove its schools from a 
county system when the latter was ordered to establish a unitary 
school system, the Fifth Circuit refused to permit the secession 
because it would have had a substantial adverse effect on desegre­
gation. Lee v. Macon County Board o f Education, 448 F.2d 746 
(5th Cir. 1971). The court observed:

“ [SJchool district lines within a State are matters of political 
convenience.” 448 F.2d at 752.



41

In another case, a district court refused to permit the crea­
tion of two school districts where one could operate as easily as 
two, and where the creation of two school districts was obviously 
designed to foster racial segregation. Turner v. Warren County 
Board of Education, 313 F.Supp. 380 (E.D. N.C. 1970). See also, 
Hall v. St. Helena Parish School Board, 197 F.Supp. 649, 658 
(E.D. La. 1961), aff’d, 287 F.2d 376 (5th Cir. 1961), aff’d per 
curiam, 368 U.S. 515 (1962); Burleson v. County Board of Elec­
tion Commissioners of Jefferson County, 308 F.Supp. 352 (E.D. 
Ark. 1970), aff’d per curiam, 432 F.2d 1356 (8th Cir. 1970).

The principle that school district lines may not be used for 
purposes of violating fundamental constitutional rights has re­
cently been recognized by this Honorable Court. School districts 
are not permitted to withdraw from county-wide school systems 
where the effect of such a separation would impede the process of 
dismantling a segregated school system. Wright v. Council of City 
of Emporia, 407 U.S. 451 (1972); United States v. Scotland Neck 
City Board of Education, 407 U.S. 484 (1972).

Refusal to permit the separation of school districts where 
such action would foster segregation has its counterpart in the 
court-ordered merger of districts. In Haney v. County Board Edu­
cation of Sevier County, 410 F.2d 920 (8th Cir. 1969), the Eighth 
Circuit ordered the merger of a white school district and a black 
school district even though they had been maintained as separate 
units for fourteen years. The court declared:

“ [SJtate political subdivisions have long ago lost their 
mastery over the more desired effects of protecting the equal 
rights of all citizens.” 410 F.2d at 924.

The Eighth Circuit viewed merger of the two districts in Sevier 
County as the only possible means of effectively desegregating the 
schools. In Texas, the annexation and consolidation of all-black 
school districts with nearby biracial units was ordered as a means 
of achieving meaningful racial desegregation. United States v. State 
of Texas, 447 F.2d 441 (5th Cir. 1971). With regard to changes in 
school district boundaries, the Fifth Circuit specifically directed:

“ Defendants shall not permit, make arrangements for, 
approve, acquiesce in, or give support of any kind to changes



42

in school district boundary lines -  whether by detachment, 
annexation, or consolidation of districts in whole or in part — 
which are designed to, or do in fact, create, maintain, rein­
force, renew, or encourage a dual system based on race, 
color, or national origin.” 447 F.2d at 443-444.

In short, the courts have found that the State has an affirmative 
duty to enforce Fourteenth Amendment rights.

Bradley v. School Board o f the City o f Richmond, 462 F.2d
1058 (4th Cir. 1972), U.S___ , 93 S.Ct. 1952 (1973) can
be clearly distinguished from the instant case. In Richmond, the 
district court ordered consolidation of three separate school dis­
tricts, all of which were declared to be unitary by the Fourth 
Circuit. In the instant case, there is no district court order for 
consolidation of school districts, but rather an order for a study of 
plans for the reassignment of pupils in school districts comprising 
the metropolitan Detroit community. In Richmond, the district 
court found that neither the past nor present Virginia Constitu­
tions or statutes would have permitted the State Board of Educa­
tion, acting alone, to have consolidated three school districts into 
a single system under the control of a single school board. The 
Fourth Circuit merely held that compulsory consolidation of poli­
tical subdivisions in the State of Virginia was beyond the power of 
a federal court because of the Tenth Amendment to the Constitu­
tion of the United States. The instant case involves no such re­
structuring of school districts. Rather, it merely concerns the 
transfer of students.

Moreover, as we have already pointed out in this Brief, 5 
the Board of Education of the State of Michigan has the power to 
consolidate school districts and in fact has utilized that power to 
consolidate seven hundred school districts in five years for pur­
poses that could have been no more important than remedying the 
violation of the constitutional rights of 180,000 black school 
children. Given these considerable distinctions between Richmond 
and the instant case, Petitioners’ substantial reliance on t\\Q Rich­
mond holding is without justification.

In the instant case, the courts below recognized — not Vir- 15

15] See Reason III at 19, supra.



43

ginia law or the law of any other state -  but only Michigan public 
school law. The courts also found that: the metropolitan Detroit 
community is extensively interrelated, both economically and 
socially; has already taken massive steps toward the provision of 
metropolitan community and government services; and that in the 
relevant metropolitan Detroit community the isolation of 180,000 
black school children in racially identifiable schools was in viola­
tion of the Constitution of the United States and required remedy.

Petitioners’ reliance on Spencer v. Kugler, 326 F.Supp. 1235 
(D. N.J. 1971), aff’d, 404 U.S. 1027 (1972) for the unique propo­
sition that there can be a finding that racially identifiable schools 
violate constitutional rights, but that the remedy for the violation 
may and must be the continuation of racially identifiable schools, 
is wholly without foundation. Petitioners fail to distinguish be­
tween the basic right to a remedy and the remedy itself.

Spencer merely held that a statute of the State of New Jersey 
making school district boundary lines coterminous with the 
boundary lines of municipalities in the State was not unconstitu­
tional. The case did not involve an effective allegation that the act 
of enacting the statute was segregation by State action; rather it 
contemplated an assertion that the act involved a suspect classifi­
cation based on race. On those assertions the lower court found, 
and this Honorable Court affirmed, that the classification was 
neutral and had a reasonable basis. The case has no application to 
the appropriateness of school desegregation remedies, and does 
not even attempt to establish a right to a desegregation remedy.̂

Petitioners reliance on Goss v. The Board o f Education o f  the 
City of Knoxville, Nos. 72-1766-1767 (6th Cir., July 18, 1973) is 
equally misplaced. As the Sixth Circuit noted in that case:

“Appellant complained that the result in this case is incon­
sistent with that reached by this Court in other school

[61 We suggest quite strongly that if Spencer were tried in the State courts 
of New Jersey the result could very well have been different. In 
1971, the year that Spencer was first decided, the Supreme Court of 
New Jersey held that racial imbalance is unconstitutional under the 
State’s Constitution. Jenkins v. Township o f  Morris School District, 58 
N.J. 483, 279 A.2d 619 (1971).



44

desegregation cases. If the result is different, it is only be­
cause the evidence produced in the District Court required a 
different result. . . This Court has consistently upheld the 
decrees of District Judges of this Circuit when properly sup­
ported by the pleadings and evidence. . .” Slip Op. at 4.

The Sixth Circuit made this same point in the instant case when it 
said:

“We reject the contention that school district lines are sacro­
sanct and that the jurisdiction of the District Court to grant 
equitable relief in the present case is limited to the geographi­
cal boundaries of Detroit. We reiterate that school districts 
and school boards are instrumentalities of the State. See 
Cooper v. Aaron, 358 US 1, 16 (1958). As early as Brown II 
the Supreme Court pointed out that:

‘[T]he courts may consider problems related to adminis­
tration, arising from the physical condition of the school 
plant, the school transportation system, personnel, revision 
of school districts and attendance areas into compact units 
to achieve a system of determining admission to the public 
schools on a nonracial basis, ....’ 349 U.S. at 300-01.

The Supreme Court has held that school boundary lines can­
not be changed or new school systems created where the re­
sult is a larger imbalance in racial ratios in school systems 
where all vestiges of enforced racial segregation have not been 
eliminated. United States v. Scotland Neck Board o f Educa­
tion, 407 U.S. 484 (1972); Wright v. Council of the City of 
Emporia, 407 U.S. 451 (1972). This is true regardless of 
“dominant purpose.” Wright v. City of Emporia, 407 U.S. at 
462.

If school boundary lines cannot be changed for an unconsti­
tutional purpose, it follows logically that existing boundary 
lines cannot be frozen for an unconstitutional purpose.” 
(174a)

In the instant case the Sixth Circuit correctly affirmed the 
district court’s use of traditional equity powers, within the guide­
lines set forth in Swann, to remedy constitutional violations. The 
Swann decision emphasized:



45

“Once a right and a violation have been shown, the scope of a 
district court’s equitable powers to remedy past wrongs is 
broad, for breadth and flexibility are inherent in equitable 
remedies.” 402 U.S. at 15.

We cannot ignore the equity teachings of Brown II, which are 
as equally important today as they were in 1955 when this Honor­
able Court said:

“In fashioning and effectuating the decrees, the courts will be 
guided by equitable principles. Traditionally, equity has been 
characterized by a practical flexibility in shaping its remedies 
and by a facility for adjusting and reconciling public and pri­
vate needs. These cases call for the exercise of these tradi­
tional attributes of equity power. At stake is the personal in­
terest of the plaintiffs in admission to public schools as soon 
as practicable on a non-discriminatory basis. To effectuate 
this interest may call for elimination of a variety of obstacles 
in making the transition to school systems operated in ac­
cordance with the Constitutional principles set forth in our 
May 17, 1954, decision. Courts of equity may properly take 
into account the public interest in the elimination of such ob­
stacles in a systematic and effective manner. But it should go 
without saying that the vitality of these Constitutional princi­
ples cannot be allowed to yield simply because of disagree­
ment with them.
“ [T]he courts may consider problems relating to administra­
tion, arising from the physical condition of the school plant, 
the school transportation systems, personnel, revision ot 
school districts and attendance areas into compact units to 
achieve a system of determining admission to the public 
schools on a non-racial basis, and revision of local laws and 
regulations which may be necessary in solving the foregoing 
problems.” 349 U.S. 294, 299-300.

This posture was reiterated in Swann, which quoted the above lan­
guage verbatim, 402 U.S. 1, 12-13 (1971). There is absolutely no 
reason why the power of a court of equity should not be extended 
to metropolitan school desegregation plans. Under principles of



46

equity, the remedy must be evaluated by assessing its capacity to 
achieve the ultimate objective — the establishment of a unitary 
school system.

Since constitutional rights have been violated, the district 
court, affirmed by the Sixth Circuit, was within the scope of its 
equity powers in remedying the violation by ordering a metropoli­
tan plan of desegregation based upon Michigan public school law 
as it applies to the relevant metropolitan Detroit community.

Returning to our initial proposition, the State of Michigan 
controls all education in Michigan. The Detroit School Board is its 
instrumentality. If either or both have violated the constitutional 
rights of black school children, then the remedy can extend to the 
other school districts in the metropolitan Detroit community, be­
cause they are mere instrumentalities of the State, and the State, 
acting through its agents, must remedy the situation.



47

VI. THE COURTS BELOW FOUND SYSTEMATIC ACTS OF 
SEGREGATION AFFECTING THE CONSTITUTIONAL 
RIGHTS OF BLACK CHILDREN FOR WHICH THE STATE 
DEFENDANTS ARE RESPONSIBLE.

The Detroit Board of Education has chosen not to appeal the 
Sixth Circuit’s decision because it believes that there is no appeal­
able issue. Keyes v. School Dist. No. 1___ U.S----- , 37 L.Ed. 2d
548 (1973) indicates that this Honorable Court, in desegregation 
cases, is more concerned with the legal standard applied by the 
courts below than the specific factual findings of unconstitutional 
acts of segregation. Regardless of the relative culpability of De­
fendants below, if a constitutional violation has been found under 
the appropriate legal standard, a remedy must issue. Public school 
education is a function of the State of Michigan. Clearly it is the 
State of Michigan that must provide the remedy in the instant 
case.

The State of Michigan functions through subordinate school 
districts which are its agents. The expendability of those school 
districts is illustrated by the fact the State of Michigan eliminated 
seven hundred of them between 1964 and 1968, for financial and 
educational purposes. Yet, what reason, other than segregatcry 
intent, could explain the State’s contradictory position. On the 
one hand, it is willing to eliminate numerous school districts fa



48

financial and educational purposes, but on the other hand, it re­
fuses to accept a necessary multidistrict solution to its own viola­
tion of black children’s constitutional rights.^

Prior to the district court’s finding of unconstitutional acts 
of segregation in the Detroit School System, the Detroit School 
Board, as agent of the State of Michigan, attempted to desegregate 
high schools within the City of Detroit. The State of Michigan, 
through the enactment of Public Act 48 of 1970, thwarted the 
efforts of its agent, the Detroit School Board, to desegregate the 
Detroit school system. The district court (28a) and the Sixth 
Circuit (151a) both found that the enactment of Public Act 48 
was one of several systematic acts which helped to create and 
maintain segregated conditions within the Detroit school system, 
segregated conditions within the Detroit school system.

The State challenges the findings of the district court and 
the Sixth Circuit as to the effect of Public Act 48. Public Act 48 
was declared unconstitutional by the Sixth Circuit. The Act’s 
statutory stigmatization of black children, because of race, 
occurred as late as 1971 and would certainly fall within the Keyes

[71 The State asserts in its Petition at 15, footnote 3, that the Detroit 
School Board’s decision not to petition for certiorari in this 
case is “ proof positive that under Michigan law, the Detroit Board of 
Education governs and controls the conduct of the school district of 
the City o f Detroit” . In light o f the examples of State control cited 
in this Brief and found to be true by the district court and the Sixth 
Circuit, such a statement is totally without merit. It is true that under 
MSA §§15.3154 and 15.3192 local school districts may sue or be sued. 
However, the State fails to point out that this privilege was granted to 
the local school districts by the state legislature as a matter of admin­
istrative convenience in the processing of legal matters involving the 
schools.

in addition, the State in its Petition at 15-16, erroneously cites the 
Sixth Circuit Opinion (177a) to substantiate its makeweight claim 
that there is no agency relationship between the State Defendants and 
the local school districts. To the contrary, the citation (177a) con­
tains no denial of an agency relationship — express or implied—but 
rather refers to a completely different issue, the right o f other school 
districts to be made parties. In fact, the previous page (176a) states 
quite specifically: “ Under the authorities heretofore discussed, these 
school districts are arms and instrumentalities of the State of 
Michigan.”



49

guidelines that racially inspired actions have an impact beyond the 
particular schools that are the subjects of those actions. Public Act 
48 was sufficiently proximate to other acts of segregation found 
by the courts below to establish a requisite causal nexus between 
those prior state acts of segregation and the resulting pattern of 
unconstitutional segregation.

In its Petition for Certiorari,8 the State asserts, under Mich­
igan law, that the Michigan Superintendent of Public Instruction had 
no control over school site selection prior to 1949 and after 1962. 
Furthermore, the State indicates that most of the school 
construction relied upon by the lower courts in finding acts of de 
jure segregation occurred after 1962. This Honorable Court in 
Keyes, however, pointed out that the site selection for even one 
school in a school district the size of the Denver School District 
(96,580 pupils in 1969 and 119 schools) can have a substantial 
reciprocal effect on the racial composition of other nearby 
schools.

“ Similarly, the practice of building a school — such as the 
Barrett Elementary School in this case — to a certain size and 
in a certain location, ‘with conscious knowledge that it would 
be a segregated school’, 303 F.Supp. at 285, has a substantial 
reciprocal affect on the ratio composition of other nearby
schools.” --------U.S---------- , 37 L.Ed.2d 559.

*  *  *

“The Court found that by building Barrett Elementary 
School west of the Boulevard and by establishing Colorado 
Boulevard as the Eastern boundary of the Barrett attendance 
zone, the Board was able to maintain for a number of years
the Anglo character of the Park Hills School.” _____U.S.
_____ ,37 L.Ed.2d 561.
It is apparent from Keyes that even discrimination in one 

school site selection can be pervasive considering the long range 
effect that school site locations can have on the racial composition 
of surrounding areas. The courts below predicated their finding, in 
the instant case, on this very proposition.

[81 State Petition at 22-23.



50

The State erroneously assertŝ  that the late 1950’s practice 
of busing black Carver School District high school students to black 
inner-city schools (while by-passing nearby all white high schools) 
should be overlooked as evidence of discrimination in light of the 
1960 merger of the Carver School District with the predominately 
white Oak Park School District. The Keyes standard does not 
uphold the State’s contention. Can there be any doubt that the 
discriminatory treatment of the black Carver school district high 
school students as late as 1959 had “a profound reciprocal effect 
on the racial composition of residential neighborhoods within
[the] metropolitan area” of Detroit?___U.S___ , 37 L Ed 2d
559.

The State and school district Petitioners (except Grosse 
Pointe) cite San Antonio Independent School District v. Rodriguez, 
411 US 1 (1973), for the rule that “ this Court has never doubted 
the propriety of maintaining political subdivisions within the 
states and has never found in the Equal Protection Clause any per 
se rule of territorial uniformity (citations omitted)” . 10 But Rodri­
quez was a school finance case, not a desegregation case. The 
inappropriateness of a "'per se rule of territorial uniformity” in 
that case was confined to the financing of school districts, for 
which a “rational basis” legal standard was developed. The instant 
case, however, is a desegregation case concerned with the denial of 
equal protection on racial grounds. 11

The State has suggested that certain State officials, 
Defendants below, are improper parties to this suit by virtue of 
the sovereignty provisions of the Eleventh Amendment. 12 T]le 
argument presented by the State is not novel. It previously has 
been made by states in an attempt to frustrate federal court 
remedial orders in the area of school desegration. It has 
consistently been laid to rest as quickly as it has been raised. The

!91 State Petition, at 21.

(1°] 411 U.S. 54, cited at 24 of State Petition and at 17-18 of School 
District Petitions.

DD Except for a minor finding by the District Court (152a),inter-district 
financial disparities are not mentioned by the courts below.
The genesis of this argument dates back as early as Cooper v. Aaron, 
358 U.S. 1 (1958).

[12]



51

response to the State’s argument is the universal holding of courts 
that it is the duty of state officers to support both the Constitution 
and the rights guaranteed against infringement by the states under 
the Fourteenth Amendment.

In Griffin v. School Board of Prince Edward County, 377 U.S, 
218 (1964), which involved the closing of public schools and the 
operation of a system of private schools by the county with the 
acquiescence of the Commonwealth of Virginia, Mr. Justice Black, 
speaking for a unanimous Court, summarily dismissed the 
Eleventh Amendment argument.

“It is contended that the cases and action against the State, is 
forbidden by the Eleventh Amendment, and therefore should 
be dismissed. The complaint, however, charged that State and 
county officials were depriving Petitioners of rights 
guaranteed by the Fourteenth Amendment. It has been 
settled law since Ex parte Young, (citation omitted), that 
suits against State and County officials to enjoin them from 
invading constitutional rights are not forbidden by the 
Eleventh Amendment.” 377 U.S. at 228.

The Court went on to state that the district court could, in 
addition to its injunctive powers, force the various Defendants, that 
is, the Board of Supervisors, School Board, Treasurer, Division 
Superintendent of Schools of Prince Edward County, the State 
Board of Education and the State Superintendent of Education, 
all of whom were held to have duties which related “directly or 
indirectly to the financing, supervision, or operation of the 
schools” , to undertake positive action to reopen the public schools 
in the county:

“ For the same reasons, the District Court may, if necessary 
to prevent further racial discrimination, require the 
Supervisors to exercise the power that is theirs to levy taxes 
to raise funds adequate to reopen, operate and maintain with­
out racial discrimination a public school system in Prince 
Edward County . . .” 377 U.S. at 233.

Furthermore, as the district court correctly recognized in 
Swann v. Charlotte-Mecklenburg Board of Education, 318 F. 
Supp. 786 (W.D. N.C. 1970), the implementation of procedures



5 2

necessary to assure any Constitutional rights of the individual may 
place, directly or indirectly, additional financial burdens upon the 
State, even though it is not a formal party to the proceedings:

“However, a Constitutional right has been denied, this court 
believes that it is the Constitutional right that should prevail 
against the cry of ‘unreasonableness’. . . . The unreasonable­
ness of putting the State to some expense cannot be weighed 
against or prevail over the privilege against self­
incrimination, or the right of people to be secure in their 
homes. If, as this court and the Circuit Court have held, the 
rights of children are being denied, the cost and inconve­
nience of restoring those rights is no reason under the Con­
stitution for continuing to deny them.” (Citation omitted). 
318 F. Supp. at 801.

Thus, it becomes readily apparent that State Defendants, 
through the exercise of inherent powers which they possess as 
officers and agents of the State, can and should effectuate and 
implement the remedy ordered by the courts below. School 
boards in Michigan being but agents of the State, any finding of 
unconstitutional segregatory actions traceable to the state, if not 
clearly erroneous, compels the conclusion that the state shall be 
held accountable and shall be included in a remedy.



5 3

V II. PE TITIO N ER  SCH O O L D ISTRICTS H A V E  N O T  BEEN 
D E N IED  D U E PROCESS O F  L A W  SINCE T H E Y  ARE 
AG E N C IE S O F  T H E  S T A T E  B O A R D  O F  EDUCATION, 
W HICH H A S BEEN A  P A R T Y  T O  THIS LITIGATION 
FR O M  ITS IN CEPTIO N , A N D  W HICH H A S ADEQUATELY  
PR O TECTED  TH E IN T ER ESTS O F  T H E  PETITIONER 
SC H O O L D ISTR ICTS.

The Petitioner school districts have not been denied due pro­
cess of law. Throughout the proceedings in the courts below, State 
Defendants including the State Board of Education had been 
joined and did participate fully in all phases of the trial and 
early appeals. As the State was represented, the school districts 
were represented, for under Michigan law local school districts 
are mere agencies and instrumentalities of the State. Education 
in Michigan is a state function and not a matter of local concern 
except as the legislature may choose to make it such. 13 The 
joinder of all possible parties need not be had if the various 
interests are likely to be adequately protected by those already 
parties to the cause, and joinder would be onerous or defeat 
jurisdiction. Isdaner v. Beyer, 53 F.R.D. 4 (D.C. Pa. 1971). The 
interests of the local school districts, being identical to those of 
the State, were adequately represented by the State Defendats. 
Cf. Higgins v. Board o f Education, City o f Grand Rapids, No. 
6386 (D.C. W.D. Mich., July 18, 1973), Slip Op. at 79-80.

To have required joinder of local school districts, prior to the 
ruling that a Detroit-only plan would not remedy the violation 
found in this cause, would have been not only onerous, but im­
possible. Joinder is required after it becomes apparent that addi­
tional parties will be necessary in order to afford complete relief in 
the proceedings. F.R.C.P. 19. Bradley v. School Board o f the City 
of Richmond, 51 F.R.D. 139 (D.C. Va., 1970). Prior to the hear­
ing and decision that a Detroit-only plan would not be effective, 
there was no indication that additional parties would be necessary 
to afford complete relief. As of that point in time, the advisability 
of joinder became apparent as to Petitioners and to the district 
court.

[ 1 3 ]  See  R e a s o n  III, supra, at 1 9 -2 6 .



54

The Sixth Circuit recognized this in vacating all proceedings 
subsequent to the hearing on Detroit-only plans and remanding to 
the district court for a hearing on the propriety of a Metropolitan 
remedy, after joinder of the school districts likely to be affected 
thereby. Bradley v. Milliken, Nos. 72-1809-1814, (6th Cir., June 
12, 1973). (244(a)-245(a)). To have called for a joinder of local 
school districts prior to the date that it became apparent that they 
might be affected by the remedy in this cause, would have re­
quired that all local school districts throughout the State of Michi­
gan be joined, pending a determination by the district court re­
garding which of them would not be affected by the remedy 
necessary to grant Plaintiffs below full relief. This would have not 
only been onerous, but of no substantive merit, as the State De­
fendants had already been joined and were able to adequately 
protect whatever interests local school districts may have had in 
the litigation.

There is no indication by Petitioner school districts that the 
State defendants did not adequately represent their interests in the 
litigation, prior to their joinder; if such were the case, Petitioners 
had adequate remedy during the course of the trial proceedings to 
request intervention on that basis. F.R.C.P. 24 (a) (2); Hatton v. 
County Board o f Education of Maury County, 422 F. 2d 457 (6th 
Cir. 1970).

Finally, Petitioners claim that the conditions imposed upon 
them by the Sixth Circuit in the litigation of matters on remand 
constitute a denial of due process. The hearing granted, in order to 
meet requirements of due process, must be meaningful. Goldberg 
v. Kelly, 397 U.S. 254 (1970). Flowever, reasonable conditions 
may be imposed upon such a hearing. Owenby v. Morgan, 256 
U.S. 94 (1921).

The denial by a state, through its statutes, of the right of a 
litigant to raise certain defenses in an action brought against him, 
does not constitute a denial of due process, Lindsey v. Normet, 
405 U.S. 56 (1972). The Sixth Circuit in this cause has provided 
Petitioners with a hearing which will deal with those matters 
which directly affect them — the formulation of a proper remedy 
within the guidelines enunciated by this Honorable Court. The 
relitigation of issues already decided in the district court in this



55

cause would add nothing to the question of de jure segregatory 
acts by the State Defendants and the Detroit Board of 
Education, as found by the district court and affirmed by the 
Sixth Circuit en banc. A relitigation of the issues regarding the 
propriety of a Detroit-only plan would also add nothing to the 
present status of this cause. Presentation of evidence regarding 
the propriety of a Detroit-only plan by Petitioners would be of 
no substantive merit and would be cumulative to that presented 
by State Defendants including the State Board of Education in 
the hearing below.

CO N CL U SIO N

For the reasons above stated it is respectfully submitted that 
this Honorable Court deny the Petitions for Writs of Certiorari.

Respectfully submitted,

RILEY AND ROUMELL

By: GEORGE T. ROUMELL, JR.

JOHN F. BRADY 
THOMAS M. J. HATHAWAY 
GREGORY P. THEOKAS 
C. NICHOLAS REVELOS, O f Counsel 

720 Ford Building 
Detroit, Michigan 48226 
Telephone: 313/962-8255

Counsel fo r  Respondents,
BOARD OF EDUCATION FOR THE SCHOOL 

DISTRICT OF THE CITY OF DETROIT, 
a school district of the first class;
Pa t r ic k  McDo n a l d ,
JAMES HATHAWAY and 
CORNELIUS GOLIGHTLY, 

members of the Board of 
Education of the City of Detroit and 

NORMAN DRACHLER, Superintent 
of the Detroit Public Schools.

Dated: October 5, 1973



laa

APPEN D IX

C O N S T IT U T IO N A L  PR O VISIO N S

United States Constitution, Amendment XI provides:
Limitation of judicial powers.

The Judicial power of the United States shall not be con­
strued to extend to any suit in law or equity, commenced or 
prosecuted against one of the United States by Citizens of another 
State, or by Citizens or Subjects of any Foreign State.

United States Constitution, Amendment XIV, Section 1, provides:
Citizenship; security of persons and property, due process 

and equal protection clauses.

Section 1. All persons bom 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 citizens of the United States; nor 
shall any State deprive any person of life, liberty, or proper­
ty, without due process of law; nor deny to any person with­
in its jurisdiction the equal protection of the laws.

United States Constitution, Amendment XV, Section 1, provides: 
Right of citizens to vote; race; color.

Section 1. The right of citizens of the United States to 
vote shall not be denied or abridged by the United States or 
by any State on account of race, color, or previous condition 
of servitude.

Michigan Constitution of 1963, Art. 8 §2 provides:
Free public elementary and secondary schools; discrimi­

nation.

Section 2. The legislature shall maintain and support a 
system of free public elementary and secondary schools as 
defined by law. Every school district shall provide for the ed­
ucation of its pupils without discrimination as to religion, 
creed, race, color or national origin.



2aa

U N ITE D  ST A T E S  S T A T U T E S

Judicial Code, 28 U.S.C. § 1292(b) provides:
§ 1292. Interlocutory decisions

(b) When a district judge, in making in a civil action an 
order not otherwise appealable under this section, shall be of 
the opinion that such order involves a controlling question of 
law as to which there is substantial ground for difference of 
opinion and that an immediate appeal from the order may 
materially advance the ultimate termination of the litigation, 
he shall so state in writing in such order. The Court of 
Appeals may thereupon, in its discretion, permit an appeal to 
be taken from such order, if application is made to it within 
ten days after the entry of the order: Provided, however, 
That application for an appeal hereunder shall not stay pro­
ceedings in the district court unless the district judge or the 
Court of Appeals or a judge thereof shall so order.

M IC H IG A N  S T A T U T E S

Act 48, Sec. 12, Mich. Pub. Act of 1970 provides:
3 88.182 Attendance provisions, implementation; con­

ditions. [M.S.A. 15.2298(12)]

Section 12. The implementation of any attendance pro­
visions for the 1970-71 school year determined by any first 
class school district board shall be delayed pending the date 
of commencement of functions by the first class school dis­
trict boards established under the provisions of this amenda­
tory act but such provision shall not impair the right of any 
such board to determine and implement prior to such date 
such changes in attendance provisions as are mandated by 
practical necessity. In reviewing, confirming, establishing or 
modifying attendance provisions the first class school district 
boards established under the provisions of this amendatory 
act shall have a policy of open enrollment and shall enable 
students to attend a school of preference but providing pri­
ority acceptance, insofar as practicable, in cases of insuffi­
cient school capacity, to those students residing nearest the 
school and to those students desiring to attend the school for



3aa

participation in vocationally oriented courses or other 
specialized curriculum.

F E D E R A L  R U LE S O F  C IV IL  PR O C ED U R E

Fed. R. Civ. P. 19 provides:
Rule 19. Joinder of Persons Needed for Just Adjudication

(a) Persons to be Joined if Feasible. A person who is sub­
ject to service of process and whose joinder will not deprive 
the court of jurisdiction over the subject matter of the action 
shall be joined as a party in the action if (1) in his absence 
complete relief cannot be accorded among those already 
parties, or (2) he claims an interest relating to the subject of 
the action and is so situated that the disposition of the action 
in his absence may (i) as a practical matter impair or impede 
his ability to protect that interest or (ii) leave any of the per­
sons already parties subject to a substantial risk of incurring 
double, multiple, or otherwise inconsistent obligations by 
reason of his claimed interest. If he has not been so joined, 
the court shall order that he be made a party. If he should 
join as a plaintiff but refuses to do so, he may be made a 
defendant, or, in a proper case, an involuntary plaintiff. If 
the joined party objects to venue and his joinder would 
render the venue of the action improper, he shall be dis­
missed from the action.

(b) Determination by Court Whenever Joinder not Feas­
ible. If a person as described in subdivision (a) (l)-(2) hereof 
cannot be made a party, the court shall determine whether in 
equity and good conscience the action should proceed among 
the parties before it, or should be dismissed, the absent per­
son being thus regarded as indispensable. The factors to be 
considered by the court include: first, to what extent a judg­
ment rendered in the person’s absence might be prejudicial to 
him or those already parties; second, the extent to which, by 
protective provisions in the judgment, by the shaping of 
relief, or other measures, the prejudice can be lessened or 
avoided; third, whether a judgment rendered in the person’s 
absence will be adequate; fourth, whether the plaintiff will



4aa

have an adequate remedy if the action is dismissed for 
nonjoinder.

(c) Pleading Reasons for Nonjoinder. A pleading asserting 
a claim for relief shall state the names, if known to the 
pleader, of any persons as described in subdivision (a) (l)-(2) - 
hereof who are not joined, and the reasons why they are not 
joined.

(d) Exception of Class Actions. This rule is subject to the 
provisions of Rule 23.

Fed. R. Civ. P. 24 provides in part:
(a) Intervention of Right. Upon timely application any- i 

one shall be permitted to intervene in an action: (1) when a 
statute of the United States confers an unconditional right to 
intervene; or (2) when the applicant claims an interest re- i 
lating to the property or transaction which is the subject of 
the action and he is so situated that the disposition of the 
action may as a practical matter impair or impede his ability 
to protect that interest, unless the applicant’s interest is ' 
adequately represented by existing parties.







IN  T H E

SU PR EM E CO URT OF T H E  U N IT E D  S T A T E S  
October Term  1973  

N o.
------ 1------

THE GROSSE POINTE PUBLIC SCHOOL SYSTEM,
Petitioner,

vs.
RONALD BRADLEY and RICHARD BRADLEY, by their Mother and 

Next Friend, VERDA BRADLEY; JEA N NE GOINGS, by her 
Mother and Next Friend, BLANCH GOINGS; BEVERLY LOVE, 
JIMMY LOVE and DARRELL LOVE, by their Mother and Next 
Friend, CLARISSA LOVE; CAMILLE BURDEN, PIERRE BUR­
DEN, AVA BURDEN, MYRA BURDEN, MARC BURDEN and 
STEVEN BURDEN, by their Father and Next Friend, MARCUS 
BURDEN, KAREN WILLIAMS and KRISTY WILLIAMS, by 
their Father and Next Friend, C. WILLIAMS; RAY LITT and 
MRS. WILBUR BLAKE, parents; all parents having children a t­
tending the public schools of the City of Detroit, Michigan, on 
their own behalf and on behalf of their minor children, all on be­
half of any person similarly situated; and NATIONAL ASSOCIA­
TION FOR TH E ADVANCEMENT OF COLORED PEOPLE, 
DETROIT BRANCH; DETROIT FEDERATION OF TEACHERS, 
LOCAL 231, AMERICAN FEDERATION OF TEACHERS, AFL- 
CIO; BOARD OF EDUCATION OF THE CITY OF DETROIT, a 
school district of the first class; PATRICK McDONALD, JAMES 
HATHAWAY and CORNELIUS GO LIGHTLY, members of the 
Board of Education of the City of Detroit; and NORMAN DRACH- 
LER, Superintendent of the Detroit Public Schools; WILLIAM G. 
MILLIKEN, Governor of the State of Michigan and ex-officio mem­
ber of the Michigan State Board of Education; FRANK J. KELLY, 
Attorney General of the State of Michigan; MICHIGAN STATE 
BOARD OF EDUCATION, a constitutional body corporate, and

(Continued on Reverse Side) 
---------♦--------

brief in  s u p p o r t  o f  p e t it io n s  f o r  w r it
OF CERTIORARI TO THE UNITED STATES 

COURT OF APPEALS FOR THE 
SIXTH DISTRICT

------ ♦------
RO SS, B R U F F  A N D  H E N D R IK S E N  

Attorneys for Professional 
Personnel o f Van Dyke  

215 S. Gratiot 
M t. Clemens, Michigan  
962-6281

Interstate Brief S Record Co., 1036 Beaubien St., Detroit, Michigan 48226 
W O . 2-8745—W O . 2-8732



JOHN W. PORTER, Superintendent of Public Instruction, Depart­
ment of Education of the State of Michigan, ALLISON GREEN, 
State Treasurer, ALLEN PARK PUBLIC SCHOOLS, SCHOOL 
DISTRICT OF THE CITY OF BERKLEY, BRANDON SCHOOLS, 
CENTERLINE PUBLIC SCHOOLS, CHERRY HILL SCHOOL 
DISTRICT, CHIPPEW A VALLEY PUBLIC SCHOOLS, SCHOOL 
DISTRICT OF THE CITY OF CLAWSON, CRESTWOOD SCHOOL 
DISTRICT, DEARBORN PUBLIC SCHOOLS, DEARBORN 
HEIGHTS SCHOOL DISTRICT NO. 7, EAST DETROIT PUBLIC 
SCHOOLS, SCHOOL DISTRICT OF THE CITY OF FERNDALE, 
FLAT ROCK COMMUNITY SCHOOLS, GARDEN CITY PUBLIC 
SCHOOLS, GIBRALTAR SCHOOL DISTRICT, SCHOOL DIS­
TRICT OF THE CITY OF HARPER WOODS, SCHOOL DISTRICT 
OF THE CITY OF HAZEL PARK, INTERM EDIATE SCHOOL 
DISTRICT OF THE COUNTY OF MACOMB, LAKE SHORE 
PUBLIC SCHOOLS, LAKEVIEW PUBLIC SCHOOLS, THE LAM- 
PHERE SCHOOLS, LINCOLN PARK PUBLIC SCHOOLS, MAD­
ISON DISTRICT PUBLIC SCHOOLS, MELVINDALE-NORTH 
ALLEN PARK SCHOOL DISTRICT, SCHOOL DISTRICT OP 
NORTH DEARBORN HEIGHTS, NOVI COMMUNITY SCHOOL 
DISTRICT, OAK PARK SCHOOL DISTRICT, OXFORD AREA 
COMMUNITY SCHOOLS, BEDFORD UNION SCHOOL DIS­
TRICT NO. 1, RICHMOND COMMUNITY SCHOOLS, SCHOOL 
DISTRICT OF THE CITY OF RIVER ROUGE, RIVERVIEW 
COMMUNITY SCHOOL DISTRICT, ROSEVILLE PUBLIC 
SCHOOLS, SOUTH LAKE SCHOOLS, TAYLOR SCHOOL DIS­
TRICT, WARREN CONSOLIDATED SCHOOLS, WARREN 
WOODS PUBLIC SCHOOLS, WAYNE-WESTLAND COMMUN­
ITY SCHOOLS, WOODHAVEN SCHOOL DISTRICT and WYAN­
DOTTE PUBLIC SCHOOLS; KERRY and COLLEEN GREEN, by 
their F ather and Next Friend, DONALD G. GREEN; JAMES, 
JACK and KATHLEEN ROSEMARY, by their Mother and Next 
Friend, EVELYN G. ROSEMARY; TERRI DORAN, Mother and 
Next Friend, BEVERLY DORAN; SHERRILL, KEITH, JEFFREY 
and GREGORY COULS, by their Mother and Next Friend, 
SHARON COULS; EDWARD and MICHAEL ROMESBURG, by 
their F ather and Next Friend, EDWARD M. ROMESBURG, JR.; 
TRACEY and GREGORY ARLEDGE, by their Mother and Next 
Friend, AILEEN ARLEDGE; SHERYL and RUSSELL PAUL, by 
their Mother and Next Friend, MARY LOU PAUL; TRACY 
QUIGLEY, by her Mother and Next Friend, JANICE QUIGLEY; 
IAN, STEPHANIE, KARL and JAAKO SUNI, by their Mother 
and Next Friend, SHIRLEY SUNI; and TRI-COUNTY CITIZENS 
FOR INTERVENTION IN FEDERAL SCHOOL ACTION NO. 
35257; DENISE MAGDOWSKI and DAVID MAGDOWSKI, by their 
Mother and Next Friend, JOYCE MAGDOWSKI; DAVID VIETTI, 
by his Mother and Next Friend, VIOLET1 V IETTI; and the CITI­
ZENS COMMITTEE FOR BETTER EDUCATION OF THE DE­
TROIT METROPOLITAN AREA, a Michigan non-Profit Corpora­
tion; SCHOOL DISTRICT OF THE CITY OF ROYAL OAK; 
SOUTHFIELD PUBLIC SCHOOLS, MICHIGAN EDUCATION 
ASSOCIATION; PROFESSIONAL PERSONNEL OF VAN DYKE,

Respondents.



T A B L E  OF CON TEN TS

Page

Statement o f the Case .....................................................  1

Eeasons for Granting the W r it ...............................  2
Conclusion .............................................   5
Appendix .............     7

IN D E X  OF A U T H O R IT IE S

Cases: Page

Oliver v. 'School District of Kalamazoo, 448 F. 2d 
635 (CA 6, 1971) ............................................ 3

iSmuck v. Hobson, 408 F12d 175 (Dist of Col Dis­
trict, 1969) ...........................................   3

Statutes:

M.C.L.A. 423,211 ...........................................................  3





IN THE
SUPREME COURT OF THE UNITED STATES 

October Term 1973 
No.

------ f------

THE GROSSE POINTE PUBLIC SCHOOL SYSTEM,
Petitioner,

vs.
RONALD BRADLEY, et al.,

Respondents
+■

BRIEF IN SUPPORT OF PETITIONS FOR WRIT  
OF CERTIORARI TO THE UNITED STATES 

COURT OF APPEALS FOR THE 
SIXTH DISTRICT

------- f------
The briefant, Professional Personnel o f  Van Dyke, 

upon Order o f the Sixth Circuit Court o f Appeals, was 
granted the right to intervene in this cause.

This brief is written in support o f the three Petitions 
for Writ o f Certiorari previously filed herein. Its page 
references are to the Petition o f  the Grosse Pointe School 
System.

STATEMENT OF THE CASE

Professional Personnel of Van Dyke is an independent, 
i-e., unaffiliated, labor union, representing some three 
hundred and fifty-three teachers in the Van Dyke School 
District. It is the exclusive bargaining agent o f such 
teachers, having been so elected under the appropriate 
statutes o f the State of Michigan (423.211 M .C.L.A .). A s 
such exclusive bargaining agency, it has entered into a 
labor contract, (called “ Master Agreement”  by the par-



2

.ties) with the School District o f Van Dyke, Such agree­
ment covers the salaries, fringe benefits, class size, teacher 
assignments, grievance procedure and teacher responsibil­
ity.

The school district is located in southeast Macomb 
County (immediately north o f D etroit). It  has 1,500 stu­
dents.

When, at the trial level, it first became apparent that 
the trial judge might fashion a remedy that encompassed 
school districts other than the defendant, School District 
o f the City o f Detroit, Professional Personnel of Van 
Dyke petitioned fo r  the right to intervene, or, in the al­
ternative, fo r  leave to intervene. This petition, filed on 
February 22, 1972, was denied by order dated March 15, 
1972. Professional Personnel then filed a motion for 
re-hearing o f its original petition. F iled on A pril 11, 1972, 
the re-hearing Avas denied on June 29, 1972.

Finally, on July 2, 1973, the United States Court of 
Appeals fo r  the Sixth D istrict reversed. (Its Order is 
appendixed herein.)

(It is noteworthy that the Detroit Federation o f Teach­
ers, the bargaining agent for  the teachers o f the School 
District o f Detroit, was granted intervention early in 
this matter, and without the difficulty experienced by the 
Professional Personnel).

REASONS FOR GRANTING THE WRIT

Professional Personnel o f Van Dyke agrees with Rea­
son 1 (o f  Petition o f Crosse Pointe School S ystem — p.B).

The Decisions Below are in Direct and IRRECON- 
C IL IA B L E  CON FLICT W IT H  TH E  DECISION S OF 
O TH E R  U N ITE D  S T A T E S  COU RTS OF A P P E A L , AS 
W E L L  A S  D E CISIO N  OF TH E  U N ITE D  ST A T E S SU­
PR E M E  CO U RT; and Reason 2 (p. 14).



3

THE D ECISIO N S B E L O W  IN V O L V E  IS SU E S 
OF IMMENSE PU B LIC  IM PO R TA N C E  O F (A ) TH E  
FAB-REACHING P R E C E D E N T  E S T A B L IS H E D  
THEREBY, AN D  (B ) TH E  IM P A C T  OF TH E  LO W E R  
COURTS’ PRO PO SED  R E M E D Y  UPON TH E  R E S I­
DENTS OF E V E R Y  SCHOOL D IS T R IC T  IN  TH E  D E ­
TROIT M E TR O PO LITA N  A R E A . It is in agreement 
with Reason 3, p. 17) as well, but would re-state such 
reason to be more specifically applicable to this briefant, 
an organization o f teachers, as follow s:

THE R E F U S A L  OF T H E  L O W E R  COU RTS TO  
ACCORD FU N D AM EN T AT. DUE PR O C E SS  
OF L A W  TO T H E  PR O F E SS IO N A L  P E R ­
SONNEL OF V A N  D Y K E , W H O, IT  IS  N OW  
c o n c e d e d , SHOULD H A V E  B E E N  
GRANTED TH E  R IG H T  TO IN T E R V E N E  
(AS OF F E B R U A R Y  22, 1972) R E Q U IR E S  
THE E X E R C IS E  OF T H IS  COU RT OF IT S  
SU PERVISO RY PO W E R S.

Professional Personnel o f Van Dyke was singularly 
unsuccessful, on the trial level, in its attempts to inter­
vene. Its original petition was filed on February 22, 1972 
(prior to the adoption by the trial court o f the so-called 
Metropolitan Plan.) It was denied on March 15, 1972. 
Its petition fo r  re-hearing, filed on A pril 11, 1972, was 
denied on June 14, 1972, after fhe passage o f two very 
critical months in the proceedings. And this in spite o f 
the fact that the law was clear that its motion to inter­
vene should have been granted. [Oliver v  School District 
°f Kalamazoo, 448 F  2d 635 (C A  6, 1971) and Smv,ck v 
Hobson, 408 F 2d 175 (D ist o f Col District, 1969)].

Assuming a M etropolitan Plan, the issues to be deter­
mined by the trial court are overwhelming: Teacher place­
ment, tenure, grievance, salaries and advancements; cur­
ricula and class size are but a few  o f them.



4

'The original input in an attempt ,to solve these prob­
lems is to be made by  a court-appointed panel, consisting 
o f two members o f the defendant, State B oard o f Educa­
tion, three members o f the defendant, Detroit Board of 
Education, one from  the plaintiff, one from  defendant in- 
tervenors, MagdowsM (who favor a Metropolitan Plan 
and who are essentially white home owners residing in 
the City o f Detroit,) one from  all the intervening school 
districts and one from  the Michigan Civil Rights Com­
mission (Joint Appendix 99a).

It is at once noteworthy that no one from  any teacher 
organization is included. Yet without any teacher parti­
cipation, this panel is mandated to re-assign faculty and 
staff, and to develop criteria “ in the hiring, assignment, 
promotion, demotion and dismissal o f faculty and staff 
. . . ”  (Joint Appendix 103a). And the Court o f Appeals 
expressly held that such panel should proceed with its 
studies and plans (Joint Appendix 178a).

It is respectfully submitted that such panel— totally 
without a representative o f any teacher organization or of 
any teachers— is violative of elementary due process and, 
indeed, contrary to the statutes o f the State o f Michigan 
(M .C.L.A. 423.211) recognizing collective bargaining right 
o f public employees. It is further submitted that such 
panel has been given the power to completely obliterate 
the contractual rights o f members o f the Professional 
Personnel o f  Van Dyke.

The grant o f the Petition to Intervene, as ordered by 
the Sixth Circuit Court o f Appeals, is rendered totally 
meaningless i f  Professional Personnel is foreclosed from 
full and active participation in open court as well as this 
most important planning panel.



5

In its appellate brief on the denial o f its Petition to 
Intervene, Professional Personnel w rote:

Once an order is entered herein that affects the 
Van Dyke School District, the movant appellant 
will be practically foreclosed from  litigating its 
rights in any form. Its members may be laid off, 
transferred, have their salaries reduced, their con­
tractual rights decimated, have their tenure lost, 
without any day in court.

In reversing the trial court and ordering intervention, 
the Court o f Appeals must have agreed with such think­
ing. Yet, under the terms o f the Judgment o f the Sixth 
Circuit Court o f Appeals, Professional Personnel will be 
sent back to the trial court with naught but a hollow 
“ right to intervene.”  It will not have a day in court-un- 
less, the Supreme Court grants the writs o f certiorari re­
quested.

CONCLUSION

Wherefore, Professional Personnel o f  Van Dyke re­
spectfully submit that ,the W rits o f Certiorari requested 
issue.

Respectfully submitted,

ROSS, BR.UFF and H E N R IK SE N  
B y : W illiam Ross

Attorneys for Professional 
Personnel of Van Dyke 

215 S. Gratiot 
Mt. Clemens, Michigan 
962-6281



■

-

:

■

■

■

■

.

'

■

■

’
■



7

APPENDIX

M.C.L.A. 423.211 Representatives designated o r  se­
lected for purposes o f collective bargaining by the m ajor­
ity of ,the public employees in a unit appropriate fo r  such 
purposes, shall be the exclusive representatives o f all 
the public employees in such unit fo r  the purposes o f 
collective bargaining in respect to rates o f pay, wages, 
hours of employment or other conditions o f employment, 
and shall be so recognized by the public em ployer: P ro­
vided, That any individual employee at any time may 
present grievances to this employer and have the griev­
ances adjusted, without intervention o f the bargaining 
representative, i f  the adjustment is not inconsistent with 
the terms of a collective bargaining contract or agree­
ment then in effect, provided that the bargaining repre­
sentative has been given opportunity to be present at such 
adjustment.



8

O RD E R

(U. S. Court o f Appeals'— Sixth Circuit) 

(F iled July 2, 1973)

In re Appeal of
Professional Personnel o f  Van Dyke,

Appellants.

Ronald Bradley, et al.
v.

W illiam  Gr. Milliken, et al.

No. 72-2008

B efore P H IL L IP S , Chief Judge, and E D W A R D S and 
PE C K , Circuit Judges.

This is an appeal by Professional Personnel of Van 
Dyke, which is the exclusive bargaining agent for the 
teaching personnel o f the Van Dyke School District. Ap­
pellants undertook to intervene in the D istrict Court in 
the case o f Bradley v. Milliken. On March 15, 1972, the 
District Court denied the motion o f appellants to inter­
vene. On A pril 11, 1972, appellants filed a petition for re­
hearing o f their motion to intervene. On June 29, 1972, 
the District Court affirmed its previous denial o f the mo­
tion.

Upon consideration, it is Ordered that the decision of 
the District Court denying to appellants' the right to in­
tervene is vacated and the case is remanded to the Dis­
trict Court with directions to grant the motion to inter­
vene.

Entered by order o f the court.

/ s /  James A. Higgins, 
Clerk.



.

■









T3or
D
v*«<Viia.iK

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term 1973

No. 73436

THE GROSSE POINTE PUBLIC SCHOOL SYSTEM,
Petitioner,

vs.

RONALD BRADLEY, et. al.,
Respondents.

PETITIONER’S REPLY BRIEF IN SUPPORT OF 
PETITIONS FOR WRIT OF CERTIORARI 

TO THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

DOUGLAS H. WEST 
3700 Penobscot Building 
Detroit, Michigan 48226 
Counsel for Petitioner

THOMAS E. COULTER and 
HILL, LEWIS, ADAMS, GOODRICH 

&TAIT
3700 Penobscot Building 
Detroit, Michigan 48226 
Of Counsel for Petitioner





1

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term 1973

No. 73-436

THE GROSSE POINTE PUBLIC SCHOOL SYSTEM,
Petitioner,

vs.

RONALD BRADLEY, et al„
Respondents.

PETITIONER’S REPLY BRIEF IN SUPPORT 
OF PETITIONS FOR WRIT OF CERTIORARI

ARGUMENT

The Plaintiffs’ Memorandum in Opposition urges this Court 
to deny the several Petitions for Writ of Certiorari because the pre­
cise details of a plan for the desegregation of the Detroit school 
district are not yet before the Court, and therefore this Court 
would be unable to “ . . .evaluate the practicalities of the local situ­
ation. . . ,” U1 Petitioner submits, however, that “local practicali­
ties” are irrelevant to the basic issue of the legal propriety or 
necessity for a “Metropolitan plan” of desegregation, so complete­
ly framed by the Opinion of the Court of Appeals in the following 
passages: 121

HI Memorandum of Bradley, et al, in Opposition to Petitions for Writ of 
Certiorari, at page 3.

(21 Joint Appendix, at 173a.



2

“ Under this record a remedial order of the court of equity 
which left the Detroit school system overwhelmingly black 
(for the foreseeable future) surrounded by suburban school 
systems overwhelmingly white cannot correct the constitu­
tional violations herein found.

* * *

“At the outset it is obvious from what we have said pertain­
ing to the inadequacy of any Detroit only desegregation plan 
that this court feels that some plan for desegregation beyond 
the boundaries of the Detroit School District is both within 
the equity powers of the District Court and essential to a so­
lution o f this problem. ” (emphasis added).

“This problem” , as perceived by the Court of Appeals, is 
simply that the student population of the Detroit school system is 
predominately black, vis a vis school districts outlying therefrom. 
It is therefore difficult to conceive of how additional evidentiary 
record as to “ . . . the precise manner in which school district boun­
daries need be permeated. . .” and students transferred and trans­
ported, will assist this Court in its review of the lower Court’s 
basic proposition that a racial imbalance of students in any multi­
school district geographical area is, per se, unconstitutional; irre­
spective of intention to segregate or causal connection therewith. 
The Court of Appeals Opinion could not have been more clear in 
its declaration that there will be a metropolitan plan, and because 
the District Court’s final order 01 on that issue was affirmed, 
review by this Court now is appropriate, without the necessity of 
considering any plan details. This case, in its present posture, 
presents a holding which is in square conflict with decisions of this 
Court and other Courts of Appeal, and has far reaching effect of 
an unprecedented nature. It is therefore respectfully submitted 
that review of the question presented at this time is not only

0 1  The District Court’s Findings of Fact and Conclusions of Law on 
Detroit-Only Plans of Desegregation, as well as other relevant Orders, were 
certified as containing controlling questions of law under 28 USC 51292(b), 
and were also determined to be final under Rule 54(b), FRCP. See Joint 
Appendix at 113a.



3

proper, but essential, for the reasons set forth in the several Peti­
tions for Writ of Certiorari. 14 *1

Respondents Bradley, et al, have also submitted, however, 
that this Court should deny Certiorari because the Court of 
Appeals has already ordered that Petitioner and newly added 
school districts will be permitted to present . . all relevant 
evidence necessary for decision and determination of the issues 
both of violation and of remedy.” [5] Petitioner will be able to do 
this, it is argued, because the Court of Appeals did not expressly 
direct the District Court to refuse to receive such evidence. 
Although Petitioner is overwhelmed by Plaintiff’s claimed change 
of attitude on the question of its participation in the District 
Court proceedings, I6) this is unfortunately a misleading and un­
realistic analysis of the treatment which Petitioner may expect to 
receive. This is apparent from a review of the actual language of 
the Court of Appeals’ remand to the District Court:

“The District Court may consider any evidence now on file 
and such additional competent evidence as may be intro­
duced by any party. However, the District Court will not be 
required to receive any additional evidence as to the matters 
contained in its Ruling on the Issue of Segregation, dated 
September 27, 1971, and reported at 338 F. Supp. 582, or its 
Findings o f Fact and Conclusions of Law on the “Detroit- 
only” plans o f desegregation, dated March 28, 1972. We hold 
that the findings of fact contained in these rulings are not 
clearly erroneous, Rule 52(a), Fed. R. Civ. P., but to the con­
trary are supported by substantial evidence.” (Emphasis 
added).

^  Petitioner notes plaintiff’s assertion that tills Court should deny Cer­
tiorari in the name of judicial economy. Petitioner fails to perceive, however, 
now additional hearings, now involving 85 school districts and nearly 
1,000,000 students, can result in judicial economy when the very issue peti­
tioner requests this court to decide may obviate the necessity for such 
hearings, or deliniate the scope thereof so that an additional remand of this 
and other cases in the future will be unnecessary.

Memorandum of Bradley, et al, in opposition to Petitions for Writ of 
Certiorari, at page 3, footnote 2.

^  Throughout the District Court proceedings, Plaintiffs have consistently 
opposed any effective or meaningful participation by Petitioner. As but one 
example, the Conditions on Intervention, imposed upon Petitioner school 
istricts by the District Court, (Joint Appendix, page 232a) were those 

Proposed by the Plaintiffs and adopted verbatim by the District Court.



4

Thus, the Court of Appeals has effectively excluded from its direc­
tion that Petitioner be permitted to present additional evidence, 
any matters relating to the question of the necessity for a Metro­
politan Plan of Desegregation. Judge Weick’s dissenting observa­
tion on this point is particularly perceptive:

“However, in its opinion the majority did provide for amend­
ment of pleadings on remand, making new party defendants, 
for intervention, and for offering additional testimony. These 
provisions are wholly illusory with respect to the issues of se­
gregation, the ‘Detroit-only Plan’ and the ‘Metropolitan plan', 
as the opinion expressly excludes these issues from reconside­
ration upon remand. ” (Emphasis added) Joint Appendix, at 
206a.

For the reasons set forth in the Petitions for Writ of Certiorari, hi 
Petitioner school districts have been and will continue to be de­
nied due process of law by the Courts below, unless this Court 
intercedes. It is therefore respectfully submitted that should this 
Court concur with Plaintiffs position that this case is not yet in a 
appropriate posture for review, it is essential that this Court also 
insure Petitioner’s full, fair and unrestricted participation in the 
ensuing proceedings before the District Court; which participation 
Plaintiffs have represented to this Court as being a basis for denial 
of Certiorari. I8! Consequently, if full review is declined at this

Petition of Grosse Pointe Schools, at pg. 17. Petition of Allen Park 
Schools et al, at pg. 20.

I8 5 Petitioner appreciates Plaintiff’s magnanimous statements that the Dis­
trict Court should permit presentation of additional evidence on issues of 
violation and remedy, “ upon a proper showing” . In light of the Plaintiffs 
previous attitude concerning Petitioners participation in the proceedings, 
however, and the District Court’s previous treatment of the Petitioner as 
outlined in the Petition for Writ of Certiorari, Plaintiff’s statement that the 
District Court will permit such evidence can only be characterized as falsely 
optimistic rhetoric, intended only to sway the Court at this moment. In 
addition, Plaintiffs misapprehend the requirements of due process to be 
afforded Petitioner; being minimally the right to participate in the 
proceedings “ at a meaningful time and in a meaningful manner” . Armstrong 
v. Manzo, 380 U.S. 545, 552 (1965). Plaintiff’s now undoubtedly realize the 
error in this respect, which was forced by them in the District Court, and 
hope to gloss over the problem by saying that now Petitioner will be able to 
present “ additional evidence” . Without all prior orders of the Court being 
vacated and the proceedings being recommenced on all issues, however, the 
denial of Petitioner’s rights o f procedural due process of law will remain 
unvindicated and unrespected.



5

time, this Court should, notwithstanding, grant Certiorari and 
summarily vacate all prior findings and orders of the District 
Court; remanding the case for further proceedings, with instruc­
tions as to the scope thereof and the treatment to be accorded 
Petitioner School districts. ^

CONCLUSION
For the foregoing reasons, and for the reasons stated in the 

Petitions for Writ of Certiorari, it is respectfully submitted that 
Certiorari be granted to review the judgment and opinions of the 
Courts below.

Respectfully submitted,

HILL, LEWIS, ADAMS, GOODRICH 
& TAIT

Ry Is/ DOUGLAS H. WEST 
Douglas H. West

R v -  Is/ THOMAS E. COULTER 
Thomas E. Coulter

Attorneys for the Grosse Point e 
School System 

3700 Penobscot Building 
Detroit, Michigan 48226 
962-6485

Dated: October 31, 1973

Should this Court decline full review at this time, it should also be made 
aware of an additional problem which may be an appropriate subject in an 
Order of Remand. In their brief to the Court of Appeals, Petitioner school 
districts asserted that the District Court was without jurisdiction to order 
implementation of a Metropolitan Plan o f Desegregation for the reason that 
the granting of such relief would necessarily constitute the enjoining, as a 
result of the unconstitutionality thereof, o f the enforcement, operation or 
execution of certain provisions of the Michigan Constitution and statutes of 
statewide application, in pursuance of which all independent Michigan school 
districts are organized and operated. The Court o f Appeals, however, chose to 
totally ignore this problem notwithstanding the provisions o f 28 U.S.C. 
§2281 et seq, requiring the convening o f a District Court of three judges.













IN THE SUPREME COURT OF THE UNITED STATES 
October Term, 1973 

No. 73-434

WILLIAM G. MILLIKEN, et al,

v
Petitioners,

RONALD BRADLEY, et al,
Respondents.

PETITIONERS’ REPLY

FRANK J. KELLEY
Attorney General

Robert A . Derengoski 
Solicitor General

Eugene Krasicky 
Gerald F. Young 
George L. McCargar 

Assistant Attorneys General 
Attorneys for  Petitioners 

W illiam  G. Milliken, et al.

Business Address:
750 Law  Building 
525 W est Ottawa Street 
Lansing, M ichigan 48913

PRINTED B Y S PE A K E R —H IN E S A N D  T H O M A S , IN C ., L A N S IN G , M IC H IG A N  -----  1 9 7 3





1

TABLE OF CONTENTS

Argument ______________________________________________  1

Conclusion ______________________________________________  5

CITATIONS

Gillespie v United States Steel Co, 379 US 148,
154 (1964) __________________________________________

Higgins v Board o f Education o f the City o f Grand 
Rapids, Michigan, (W D  CA 6386), Slip Opinion
of Judge Albert J. Engel, July 18, 1973 -------------- -4

28 USC 1 2 9 2 (b )__________________________________________ 1

Rule 54(b) F R  Civ P 1





— 1 —

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1973 

No. 73-434

WILLIAM G. MILLIKEN, et al,

v

RONALD BRADLEY, et al,

Petitioners,

Respondents.

PETITIONERS’ REPLY 

ARGUMENT

Respondents, Bradley, et al, attempt to persuade this 
Court to refrain from  reviewing this case on the basis that 
the orders below are interlocutory. Nothing could be further 
from the truth. In its order dated July 20, 1972, the District 
Court determined as final, under Rule 54(b) o f F R  Civ P, 
its Ruling on Issue o f Segregation, its Findings o f Fact 
and Conclusions o f Law on Detroit-Only Plans o f Desegre­
gation, its Ruling on Propriety o f Considering a M etropoli­
tan Remedy, and the Ruling for  Desegregation Area and 
Development o f Plans, among others, and certified as con­
trolling questions o f law the issues presented therein to 
the Court o f Appeals, under the provisions o f 28 USC 
1292(b). (113a) Dl The Court o f Appeals affirmed the 
Ruling on Issue o f Segregation and the Findings of Fact
rtf’

Hereafter references to  the Jo in t A ppendix filed heretofore will 
he indicated by page num bers enclosed in  parentheses.



-2—

and Conclusions o f Law on Detroit-Only Plans o f Desegre­
gation, and affirm ed in principle the Ruling on Propriety 
o f a M etropolitan Rem edy and the Ruling on Desegregation 
Area and Development o f Plans, but vacated the same for 
non-joinder o f affected school districts as necessary parties. 
(189a-190a) On these questions, controlling and fundamental 
to the further conduct o f this case, the decision o f the Court 
o f Appeals is final and binding upon petitioners unless re­
viewed now by this Court and reversed. Gillespie v United 
States Steel Co, 379 US 148,154 (1964). See also dissenting 
opinion o f  Judge W eick. (206a-207a).

Respondents, Bradley, et al, suggest that the newly 
added school districts and the petitioner intervening school 
districts may, upon proper s h o w i n g , present evidence 
going to the violation and sufficiency o f the Detroit-Only 
remedy if  the District Court chooses to admit such evi­
dence. Yet, in their amended complaint to conform  to the 
evidence, paragraphs 10, et seq, they assert that the Detroit

[3]
Respondents do no t reveal th e ir  definition of the phrase “upon 

p roper showing.” D ue process, a t  a minimum, requires th a t a de­
fendant school d is tr ic t he given notice of the charges against it, 
the r ig h t to  he presen t by counsel, the r ig h t to  offer evidence, the 
r ig h t to  cross-examine opposing w itnesses and  the  r ig h t to  be heard 
on a ll issues—fac tu a l and legal—th a t affects it. The exercise ot 
these rig h ts  is not dependent “upon a proper showing,” regardless 
of how th is  te rm  is defined. I t  is precisely these righ ts that are 
denied the  added and petitioner intervening school d istric ts  hy the 
C ourt of A ppeals’ affirm ance of the D is tr ic t C ourt’s Rulings on the 
Issue  of Segregation and  “D etroit-O nly” p lans of desegregation 
(178a) and the affirm ance in  princip le of th e  D is tric t Court’s Exil­
ing on P ro p rie ty  of M etropolitan  Remedy (177a).

The g ra tu itous, undefined phrase  “upon a p roper showing” is 
dissem bling in  tw o respects: (1) i t  conceals the lack  of due process 
in  the D is tr ic t Court, and  (2) i t  suggests the existence of factual 
issues which, in  fact, a re  foreclosed by the C ourt of Appeals 
affirm ance of the D is tr ic t C ourt’s rulings.



— 3—

school district is segregated and a multi-district remedy is 
required “ wholly apart from the actions of the suburban 
defendants or any of them.”  Thus, unless this Court 
grants certiorari and reverses and remands the decision 
of the Court of Appeals, the suggestion of respondents, 
Bradley, et al, is “wholly illusory with respect to the issues 
of segregation, the ‘Detroit-Only plan’ and the ‘ Metro­
politan plan’, as the opinion expressly excludes these 
issues from reconsideration upon the remand.”  Opinion 
of Judge Welch. (206a)

Even though all of the school districts in the tri-county 
area of Wayne, Macomb and Oakland, with the exception of 
Pontiac school district, are now parties in this action, the 
decision of the Court of Appeals and Amended Complaint 
to Conform to Evidence of respondents, Bradley, et al, fore­
close litigation of any factual issue as a predicate to multi- 
district relief. The legal predicates, segregation, insuffi­
ciency of a Detroit-Only plan and propriety of a. multi­
district remedy have been finally and adversely determined. 
The multi-district scope of the remedy has been determined. 
The multi-district form of the remedy has been determined.

Before hearings in the District Court commence and 
these districts are put to the expense o f marshaling their 
efforts to hearings necessarily limited by the decision o f 
the Court o f Appeals to the extent o f  the multi-district 
remedy, and such other issues as the District Court by 
grace may permit, as contrasted with fulfilling their pri­
mary mission o f educating resident children within each 
district, this Court should grant certiorari, receive briefs 
and hear oral arguments to dispose o f  the paramount is­
sues of constitutional law raised by the petitions for 
certiorari.

Respondents, Bradley, et al, at p 3, footnote 2, acknowl-



4-

edge and unsuccessfully attempt to paper over the lack 
of fundamental due process afforded the intervening and 
added school district defendants herein. Due process is 
not the opportunity, dependent upon the grace o f the trial 
judge, to relitigate issues already finally and adversely 
determined by  the trial court and the Court o f Appeals, as 
proposed by respondents. Rather, due process is the right 
to notice and opportunity to be heard, as a matter of right, 
at a meaningful stage of the proceedings. (212a) (235a- 
236a) (239a-240a)

The proper procedure, where a multi-school district 
remedy is sought, is joinder o f all potentially affected school 
districts, with full rights o f participation, prior to the 
initial trial on the merits. See Higgins v  Board of Educa­
tion of the City of Grand Rapids, Michigan, (W D, OA 
6386), Slip Opinion o f Judge A lbert J. Engel, July 18, 
1973, where this procedure was employed.

Respondents, Bradley, et al, are seeking- a massive multi­
school district remedy involving the expensive transporta­
tion o f school children across school district and county 
lines, together with faculty reassignment and major altera­
tions in the present legal and administrative arrangements 
governing Michigan school districts, all for the purpose of 
some artificial racial balance. The children, parents and 
school officials in each affected school district will bear 
the full burden o f implementing respondents’ social goal. 
Thus, at a minimum, these hundreds o f thousands of people 
deserve a fair opportunity to be heard on all issues. A 
m ajor reason that the American people com ply with un­
popular federal court orders is that they view the federal 
judicial process as a fundamentally fair process. Here, as 
to the affected school districts, simple fairness requires full 
opportunity to be heard on all issues, as a matter of right,



not of grace. (240a) Otherwise the proceedings remain 
fatally defective.

CONCLUSION

For the foregoing reasons, a w rit o f certiorari should 
issue to review the decision o f the Sixth Circuit rendered 
herein on June 12, 1973.

Respectfully submitted,

FRANK J. KELLEY
Attorney General

Robert A. Derengoski 
Solicitor General

Eugene Krasicky 
Gerald F. Young 
George L. McCargar 

Assistant Attorneys General 
Attorneys for Petitioners 

W illiam  G. Milliken, et al.

Business A ddress:
750 Law Building 
525 W est Ottawa Street 
Lansing, M ichigan 48913





/~S

r \





IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1973.

No. 73-434
WILLIAM G. MILLIKEN, et al,

v.
RONALD G. BRADLEY, et al.

Petitioners,

O n  W r i t  O f  C e r t i o r a r i  T o  T h e  U n i t e d  S t a t e s  C o u r t  O f  
A p p e a l s  F o r  T h e  S i x t h  C i r c u i t .

BRIEF FOR PETITIONERS

FRANK J. KELLEY 
Attorney General

Robert A. Derengoski 
Solicitor General

Eugene Krasicky 
Gerald F. Young 
George L. McCargar 
Thomas F. Schimpf 
Assistant Attorneys General

Attorneys for Petitioners 
750 Law Building 
525 West Ottawa Street 
Lansing, Michigan 48913





TABLE OF CONTENTS

Page

OPINIONS AND ORDERS BELOW .................................... 1

JURISDICTION .................................................................  2

CONSTITUTIONAL AND STATUTORY PROVISIONS IN­
VOLVED .......................................................................  3

QUESTIONS PRESENTED.................................................. 4

STATEMENT OF THE CASE .............................................. 5
I. The Complaint .................................................... 6
II. The Detroit Board of Education .......................... 8
III. The State Board of Education and the Super­

intendent of Public Instruction ........................ 9
IV. Population — Detroit and the Detroit Board of

Education .......................................................  9
V. The Tri-County Area of Wayne, Oakland and

Macomb Counties .................    10
VI. Proceedings Through Trial.................................... 11
VII. Proceedings After Trial ........................................ 14

SUMMARY OF ARGUMENT .............................................  18
ARGUMENT

I. THE RULING OF THE COURT OF APPEALS 
AFFIRMING THE DISTRICT COURT’S HOLD­
ING THAT DEFENDANTS MILLIKEN, ET AL, 
HAVE COMMITTED ACTS RESULTING IN DE 
JURE SEGREGATION OF PUPILS, BOTH 
WITHIN THE SCHOOL DISTRICT OF THE CITY 
OF DETROIT AND BETWEEN DETROIT AND 
OTHER SCHOOL DISTRICTS IN A TRI-COUNTY 
AREA, IS WITHOUT BASIS IN FACT OR LAW . . 24



11

A. Ruling (5) -  transportation of Carver School
District’s high school students .................... 25

B. Ruling (4) - allocation of transportation funds. 27
C. Ruling (3) — school construction .................33
D. Ruling (2) -  the effect of section 12 of 1970

PA 4 8 .......................................................... ...
E. Ruling (1) -  Detroit Board of Education an

agency of the State of Michigan ................... 41
II. THE RULING OF THE COURT OF APPEALS 

THAT A DETROIT-ONLY DESEGREGATION 
PLAN COULD NOT REMEDY THE UNCONSTI­
TUTIONAL SEGREGATION FOUND IN THE 
DETROIT SCHOOL SYSTEM IS NOT SUP­
PORTED BY THE RECORD AND IS CLEARLY
ERRONEOUS AS A MATTER OF LAW.................46
A. The lower courts rejected the constitutional

concept of a unitary school system within 
Detroit for the sociological concept of racial 
balance throughout a three-county area.........46

B. The teachings of Green, Alexander and Swann
examined ....................................................  53

C. The teachings of Green, Alexander and Swann
were unheeded and ignored............................. 57

D. This Court has consistently required majority 
black school systems to convert to unitary 
school systems without regard to achieving 
racial balance among such majority black 
school systems and larger geographical areas.. 58

III. THE DECISION OF THE LOWER COURTS THAT 
A MULTI-SCHOOL DISTRICT REMEDY IS CON­
STITUTIONALLY PERMISSIBLE HEREIN IS 
MANIFESTLY ERRONEOUS.............................. 63
A. Scope of multi-district remedy decreed below 

and sought on remand by plaintiffs’ amended 
complaint......................................................63



B. This massive multi-school district relief is not
based upon any constitutional violation in­
volving the manipulation of school district 
boundaries for purposes of de jure segregation 
of pupils between Detroit and the other 85 
school districts in the tri-county area.............. 64

C. This massive multi-school district remedy is 
not supported by any de jure conduct of any
of the school districts to be affected.............. 67

D. This massive multi-school district remedy is 
not supported by any conduct of defendants 
Milliken, et al, with the purpose and present 
causal effect of segregating children by race as 
between Detroit and the other school districts
in the tri-county are a....................................... 68

E. The multi-district relief decreed below is for
the sole purpose of racial balance within a tri­
county area....................................................  71

F. The attempt by the appellate majority to dis­
tinguish Bradley v. Richmond is patently erro­
neous.............................................................  78

G. This Court has consistently recognized both
the importance of local control over public 
education and the integrity of local political 
subdivisions.................................................... 82

H. The multi-district remedy herein will require
excessive expenditures for acquiring, housing, 
maintaining and operating school buses to 
effectuate racial balance throughout the tri­
county area....................................................  85

I. The lower courts denied fundamental due
process to the affected school districts other 
than Detroit ...............................................  87

Ill

Page

IV. CONCLUSION 89



IV

TABLE OF CITATIONS

CASES 1$.

A & N Club v. Great American Insurance Co, 404 F2d 100, 
(CA 6, 1968) ................................................................... 13

Airport Community Schools v. State Board o f Education, 17 
Mich App 574; 170 NW 2d 193 (1969) ...........................  80

Alexander v. Holmes County Board o f Education, 396 US
19; 90 S Ct 29; 24 L Ed 2d 19 (1969)........  20,21,47,51,53,

55, 57,62,68
Allen v. Mississippi Commission of Law Enforcement, 424 

F2d 285 (CA 5, 1970)..................................................... 39
Attorney General, ex rel Kies v. Lowrey, 131 Mich 639; 92 

NW 289 (1902), aff’d 199 US 233, 26 S Ct 27; 50 L Ed 
167 (1905) ..................................................................... 43

Baker v. Carr, 369 US 186; 82 S Ct 691; 7 L Ed 2d 663 
(1962) ............................................................................. 36

Beech Grove Investment Company v. Civil Rights Commis­
sion, 380, Mich 405; 1 57 NW 2d 213 (1968)...................  46

Blissfield Community Schools District v. Strech, 346 Mich 
186; 77 NW 2d 785 (1956) ..............................................  34

Board o f Education of City of Detroit v. Lacroix, 239 Mich 
46;214NW 239 (1927) ..................................................  34

Bradley x. Milliken, 338 F Supp 582 (ED Mich 1971).........  1
Bradley v. Milliken, 345 F Supp 914 (ED Mich 1972) .........  2
Bradley v. Milliken, 433 F2d 897 (CA 6, 1970) 2, 1 1,38, 39,40,

41,69
Bradley v. Milliken, 438 F2d 945 (CA 6, 1971) ............2, 12,41
Bradley v. Milliken, 468 F2d 902 (CA 6, 1972), cert den 409 

US 844 (1972) ............................................................2,H
Bradley v. Milliken, 484 F 2d 215 (1973)............................. '
Bradley v. School Board o f Richmond, Virginia, 462 F2d 

1058 (CA 4, 1972), aff’d by equally divided Court in
___US___; 94 SCt 31; 38 L Ed 2d 132 (1973) . . . .22,23,61

78, 80,81,82



V

Brown v. Board o f Education, 347 US 483; 74 S Ct 686; 98 
L Ed 873 (1954) ..........................................................  25,89

Cleaver v Board of Education of City o f Detroit, 263 Mich 
301; 248 NW 629 (1933) ................................................ 34

Cotton v Scotland Neck City Board o f Education, 407 US 
484; 92 S Ct 2214; 33 L Ed 2 75 (1972)....................... 22, 59

Ford Motor Co v Department o f Treasury o f Indiana, 323 US 
459; 65 S Ct 347; 89 L Ed 389 (1945) ........................ 42,45

Gentry v Howard, 288 F Supp 495 (ED Term, 1969) .......... 36
Gomillion v Lightfoot, 364 US 339; 81 S Ct 125; 5 L Ed 2d 

110(1960) ...................................................................... 66
Goss v Board o f Education o f City o f Knoxville, 340 F Supp 

711 (EDTenn, 1972) ...................................................... 62
Goss v Board of Education o f City o f Knoxville, 482 F2d 

1044 (CA 6, 1973) .......................................................... 62
Green v School Board o f New Kent County, 391 US 430; 88 

SCt 1689; 20 L Ed 2d 716 (1968) . 20,21,46,47,51,53,54,
55, 57, 60, 62, 68

Griffin v County School Board o f Prince Edward County,
377 US 218; 84 S Ct 1226; 12 L Ed 2d 256 (1964) ___ 42, 55

Hadley v Junior College District of Metropolitan Kansas City,
397 US 50; 90 S Ct 791; 25 L Ed 2d 45 (1970) .............. 40

Hiers v Detroit Superintendent o f Schools, 316 Mich 225;.
136 NW 2d 10(1965) ........................................ 34,39,43,81

Higgins v Board o f Education o f the City o f Grand Rapids, 
Michigan, (WD, Mich. CA 6386), Slip Opinion, July 18,
1973   31,82

In re State o f New York, 256 US 490; 41 S Ct 588; 65 L Ed 
1057 (1921) .........................................................  19,42,45

Jones v Grand Ledge Public Schools, 349 Mich 1; 84 NW 2d 
327 (1957) .................................................................... 25,80

Keyes v School District No. 1, Denver Colorado,____US
— ---- ; 93 SCt 2686; 37 L Ed 2d 548, (1973) . . 19, 22, 23, 26,

27, 31, 32, 33, 35, 38, 41, 43, 44, 48, 55, 67, 69, 83, 84, 85, 89
Mason v Board of Education o f the School District o f the 

City of Flint, 6 Mich App 364; 149 NW 2d 239 (1967) . . 82



VI

is
Munro v Elk Rapids Schools, 383 Mich 661; 178 NW 2d 450

(1970), on reh 385 Mich 618, 189 NW 2d 224 (1971) .. §]
Northcross v Board o f Education o f Memphis, 420 F2d 546 

(CA 6, 1969), aff’d in part and remanded in 397 US 232’
90 S Ct 891; 25 L Ed 2d 246 (1970)...........................  22,61

Northcross v Board o f Education o f Memphis,___F2d___,
No. 73-1667, 73-1954, Slip Op, (1973)......................... ’ 61

Parden v Terminal Railway Co, 377 US 184; 84 S Ct 1207- 
12 L Ed 2d 233 (1964)............................ ’.................... ’42; 45

Penn School District No. 7 v Lewis Cass Intermediate School 
District Board o f Education, 14MichApp 109; 165 NW 2d 
464,(1968) .................................................................... 80i8i

Pierce v Society o f Sisters, 268 US 510; 45 S Ct 571 • 69 L Ed 
1070 (1925)..........................  ............................................ 88

Piessy v Ferguson, 163 US 537; 16 S Ct 1138; 41 L Ed 256 
(1896) ............................................................................  82

Ranjel v City o f Lansing, 417 F2d 321 (CA 6, 1969), cert 
den 397 US 980; 90 S Ct 1105; 25 L Ed 2d 390 (1970), 
reh den 397 US 1059; 90 S Ct 1352; 25 L Ed 2d 680
(1970) ............................................................................ 36

Raney v Board o f Education o f the Gould School District,
391 US443; 88 S Ct 1697; 20 L Ed 2d 727(1968) . . . .22,60

San Antonio Independent School District v Rodriguez, 411 
US 1; 93 SCt 1278; 36 L Ed 2d 16 (1973) . 19,23,30,31,38,

40, 45, 69,71,83,84,85
School District o f the City o f Lansing v State Board o f Edu­

cation, 367 Mich 591; 116 NW2d 866, (1962)................ 8,43,80
Senghas v L ’Anse Creuse Public Schools, 368 Mich 557; 118 

NW 2d 975,(1962) .......................................................  43,81
Smith v North Carolina State Board of Education 444 F2d 6 

(CA 4, 1971) ................................................................... 35
Sparrow v Gill, 304 F Supp 86 (MD NC 1969)......................  31
Spencer v Kugler, 326 F Supp 1235 (D NJ, 1971), aff’d on 

appeal, 404 US 1027; 92 S Ct 707;30 L Ed 2d 723 (1972). 20,
23, 36, 58, 65, 66



Sterling v Constantin, 287 US 378; 53 S Ct 190; 77 L Ed 375 
(1932) ............................................................................. 19

Swann v Chariot te-Mecklenburg Board o f Education, 402 US 
1; 91 SCt 1267; 28 L Ed 2d 554 (1971) . . .  20,21,22,23,46,

47,48, 51, 53, 55, 56, 57, 60, 62, 67, 68, 69, 70, 71, 78, 90
The People, ex rel Workman v Board of Education o f Detroit,

18 Mich 399 (1869)..........................................................5, 82

Tinker v Des Moines Independent School District, 393 US 
503; 89 S Ct 733; 21 L Ed 2d 731 (1969)........................ 44

Wisconsin v Yoder, 406 US 205; 92 S Ct 1526; 32 L Ed 2d 
15 (1972) .....................................................................  88

Wright v Council o f the City o f Emporia, 407 US 451; 92 S
Ct 2196; 33 L Ed 2d 51 (1972)___  22, 23, 40, 59, 71, 72, 82,

83,85,88
Wright v Rockefeller, 376 US 52; 84 S Ct 603; 11 L Ed 2d 

512(1964) ...................................................................40,66
Yahr v Resor, 431 F2d 690 (CA 4, 1970) cert den 401 US 

982;91 SCt 1192; 28 L Ed 2d 334 (1971) ...................... 39

CONSTITUTIONS AND STATUTES

Constitution of United States

Amendments, Article V ...................................................  2
Amendments, Article X ...................................................  3
Amendments, Article XI, ................................................ 3,19
Amendments, Article XIV, Section 1   3

Federal Statutes
28 USC 1 2 5 4 ( 1 ) ..................................................................................  2

FR Civ. P 1 9 ..............................................................................................  64

FR Civ. P 41(b).....................................................................  13
Michigan Constitution of 1908:

art 11, § 2 ...........................................................................................  4, 9



viii

Michigan Constitution of 1963:
art 4, § 33 ........................
art 5, § 1 9 .........................
art 5, § 2 9 ............................

art 5, § 31 ..........................
art 8, § 2 ............................
art 8, § 3 ............................
art 9, § 6 ............................
art 9, § 11 ..........................
art 9, § 1 7 ..............................

art 11, § 2 ..........................

...........4, 40, 42

...............4,40

.................  46

.................  4
4, 80 , 81, 82,84

.........4, 6, 9,36

...........4, 30,87

.................4,30

.................4,42

.................4, 35

Page

Michigan Public Acts:

1842 PA 70 ............................................................ 4,8,65,69
1937 PA 306 ................................................................... 4,34
1943 PA 88 .....................................................................  36
1947 PA 336 ....................................................................4,78
1949 PA 231 ....................................................................4,34
1955 PA 269 .................................... 4, 8, 9, 29, 33, 37, 38, 67

78,79,80,81,82,83,84, 87
1957 PA 312 ...............................................................4,31,32
1962 PA 175 ....................................................................4,34
1964 PA 289 ................................................................... 4,81
1965 PA 379 ................................................................... 4
1967 PA 239 ................................................................... 4,81
1968 PA 112 ................................................................... 46
1968 PA 239 ................................................................. 4
1968 PA 316 ................................................................... 29
1969 PA 22 .....................................................................  31
1969 PA 244 ................................................4,38,39,40,69



IX
Page

1969 PA 306 ....................................................................4,36
1970 PA 48 ...................................... 4 ,6,7,11,38,39,40,69
1971 PA 23 .................................................................  29,86
1971 PA 171 .................................................................... 41
1972 PA 258 ........................................................4,30,32,86
1973 PA 101 ..............................................................4,30,86

Miscellaneous
Bulletin 1012, Michigan Department of Education,

December, 1970 ........................................................ 26, 28
Michigan Statistical Abstract 1972 (9th E d .).................... 10
Statistical Abstract of United States 1972 (93rd Ed.) . . . .  10
A Description and Evaluation of Section 3 Programs in 

Michigan 1969-1970, Michigan Department of 
Education, 1970, Appendix B ...................................... 31





1

IN TH E

SUPREME C O U R T  O F  T H E  U N ITE D  STA TE S  

October Term , 1 9 7 3 .

N o. 7 3 -4 3 4 .

W IL L IA M  G . M IL L IK E N , et al„

vs.

R O N A L D  G. B R A D L E Y , et al.

Petitioners,

O n  W r i t  o f  C e r t i o r a r i  t o  t h e  U n i t e d  S t a t e s  C o u r t  o f  
A p p e a l s  f o r  t h e  S i x t h  C i r c u i t

BR IEF F O R  PETITIO N ERS

OPINION S A N D  O R D E R S  BELO W

The opinions of the Court of Appeals for the Sixth Circuit 
are reported at 484 F2d 215 and are reprinted in the Appendix to 
Petitions for Writ of Certiorari at pp 110a-240a. U1

Other opinions delivered in the Courts below are:

United States District Court for the Eastern 
District o f  Michigan, Southern Division

September 27, 1971, Ruling on Issue of Segregation, 338 F 
Supp 582. (17a-39a).

November 5, 1971, Order [for submission of Detroit-only 
and metropolitan desegregation plans], not reported. (46a-47a).
^  Hereafter, references to appendices, records and exhibits will be enclos­
ed in parentheses and indicated as follows:

Single joint appendix: (Ial et seq.)
Appendix of constitutional and statutory provisions: (laa et seq.) 
Appendix to petitions for writ o f certiorari: (la  et seq.)
Record of trial: (R 1 et seq.)
Record of proceedings before or after trial: (Date of proceeding

).
Exhibits: Plaintiffs’ (PX ), defendant Detroit Board of Education’s 

(DX ), defendant-intervenor Detroit Federation of Teachers’ (TX 
).



2

March 24, 1972, Ruling on Propriety of Considering a Metro­
politan Remedy to Accomplish Desegregation of the Public 
Schools of the City of Detroit, not reported. (48a-52a).

March 28, 1972, Findings of Fact and Conclusions of Law on 
Detroit-Only Plans of Desegregation, not reported. (53a-58a).

June 14, 1972, Ruling on Desegregation Area and Order for 
Development of Plan, and Findings of Fact and Conclusions of 
Law in Support of Ruling on Desegregation Area and Develop­
ment of Plan, 345 F Supp 914. (59a-105a).

July 11, 1972, Order for Acquisition of Transportation, not 
reported. (106a-107a).

September 6, 1973, Order [granting plaintiffs’ motion to join 
all school districts in Wayne, Oakland and Macomb Counties, ex­
cept the Pontiac school district], not reported. (Ia 300-la 301).

United States Court o f  Appeals for the Sixth Circuit

July 20, 1972, Order [granting leave to appeal], not report­
ed. (108a-109a).

Other opinions of the Court of Appeals rendered at prior 
stages of the present proceedings are reported in 433 F2d 897, 
438 F2d 945 and 468 F2d 902, cert den, 409 US 844 (1972).

JURISDICTIO N

The judgment of the Court of Appeals was entered on June 
12, 1973. (241a, 244a-245a). The petition for certiorari was filed 
on September 6, 1973, and was granted on November 19, 1973. 
The jurisdiction of this Court rests on 28 USC 1254 (1).

C O N S T IT U T IO N A L  A N D  S T A T U T O R Y  
PR O VISIO N S IN V O L V E D

United States Constitution:
Amendments, Article V -  “No person shall be held to answer 

for a capital, or otherwise infamous crime, unless on a present­
ment or indictment of a Grand Jury, except in cases arising in the



3

land or naval forces, or in the Militia, when in actual service in 
time of War or public danger; nor shall any person be subject for 
the same offence to be twice put in jeopardy of life or limb; nor 
shall be compelled in any Criminal Case to be a witness against 
himself, nor be deprived of life, liberty, or property, without due 
process of law; nor shall private property be taken for public use, 
without just compensation.”

Amendments, Article X — “The powers not delegated to the 
United States by the Constitution, nor prohibited by it to the 
States, are reserved to the States respectively, or to the people.”

Amendments, Article XI — “The Judicial power of the 
United States shall not be construed to extend to any suit in law 
or equity, commenced or prosecuted against one of the United 
States by Citizens of another State, or by Citizens or Subjects of 
any Foreign State.”

Amendments, Article XIV, Section 1 — “All persons bom 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 citizens of the United 
States; nor shall any State deprive any person or life, liberty, or 
property, without due process of law; nor deny to any person 
within its jurisdiction the equal protection of the laws.”

Due to the voluminous number of Michigan constitutional 
provisions and statutes cited in their brief, defendants, Milliken, et 
al, have compiled an appendix to their brief, pursuant to Rule 
40.1(c), containing virtually all the Michigan constitutional and 
statutory provisions which are cited in their brief. This appendix, 
which is referred to herein as (laa et seq.), has been separately 
bound since combining the brief and appendix in one volume 
would have resulted in too bulky a document for the reader. 
Where such appendix has the headings “article,” “part,” “ chapter” 
or “public act,” it does not necessarily mean that every provision 
of that unit appears in the appendix; only those provisions rele­
vant to the brief are set forth, including the appropriate section 
numbers. The citations to the Michigan constitutional and statu­
tory provisions are as follows:



4

Michigan Constitutions

Constitution of 1908, art 11, § 2
Constitution of 1963: art 4, § 33; art 5, § § 19 and 31; art 8, 

§ § 2 and 3; art 9, § § 6, 1 1 and 17; art 11, § 2.

Michigan Statutes

1955 PA 269, as amended, (the School Code of 1955); 1842 
PA 70; 1969 PA 244; 1970 PA 48; 1964 PA 289; 1967 PA 239; 
1937 PA 306, § 1; 1949 PA 231, § 1; 1962 PA 175, § 1; 1968 
PA 239, § 1; 1957 PA 312, § 34; 1972 PA 258, § § 18, 21 and 
51; 1973 PA 101, §§ 21(1) and 51; 1947 PA 336, § 15,as added 
by 1965 PA 379; 1969 PA 306, § 46, as amended by 1971 PA 
171.

When a statute is cited for the first time in this brief, parallel 
citations will be given.

The Michigan constitutional provisions and statutes contain­
ed in the appendix to this brief have been photocopied from the 
two official texts of Michigan laws: The Compiled Laws of 1970 
and the Public Acts of the year specified for the law. The sole 
exception is 1973 PA 101, which has been copied from the ad­
vance sheets to the Michigan Statutes Annotated (MSA), since the 
official Public Acts of 1973 have not been published as of this 
time. The bold face captions to the constitutional and statutory 
provisions are not part of the law of Michigan, but have been sup­
plied by the editors of the respective texts for easier reference by 
the reader.

Q U ESTIO N S PRESEN TED  

I.
Whether, based upon the controlling precedents of this 

Court, petitioners, defendants Milliken, et al, have committed acts 
of de jure segregation with the purpose and present causal effect 
of separating school children by race either within the School Dis­
trict of the City of Detroit or between Detroit and other school 
districts in the 1,952 square mile tri-county area of Wayne, Oak­
land and Macomb?



5

Whether the Detroit School District, a 63.8% black school 
district, could operate a unitary system under a Detroit-only dese­
gregation plan, thus meeting the remedial requirements of the 
Constitution and the decisions of this Court?

II.

III.
Absent any pleaded allegations, any proofs or any findings 

either that the boundaries of any of the 86 independent school 
districts within the 1,952 square mile tri-county area of Wayne, 
Oakland and Macomb have ever been established and maintained 
with the purpose and present causal effect of separating children 
by race, or that any such school districts, with the sole exception 
of Detroit, has ever committed any acts of de jure segregation, 
does the Constitution or any decision of this Court permit a 
multi-school district remedy?

S T A T E M E N T  O F  TH E CA SE

In this case, the lower courts have used a ruling that the Det­
roit school system is de jure segregated as the basis for a remedy 
that involves 84 additional school districts in a geographical area 
covering approximately 1,952 square miles, and almost Vi of the 
public school children in the State. t2l The circumstances and pro­
ceedings by which this has come to pass are set forth hereafter. 13I

The separation of the races in the public schools of Michigan 
has been prohibited by Michigan law since at least 1869. [4]
[2i

Defendants Milliken, et al, realize that while no multi-district desegrega­
tion order is in effect at the present time, the District Court’s Ruling on 
Desegregation Area and Order for Development o f Desegregation Plan (97a) 
and the Court o f Appeals affirmance thereof in principle (110a) make such a 
remedy inevitable unless this Court reaffirms the constitutional principles dis­
regarded by the lower Courts in their zeal to achieve a racial balance among 
almost 1/2 o f the public school children in the State.

[31 Petitioners Milliken, Kelley, State Board o f Education, Porter and 
Green, collectively, will be called “ defendants Milliken, et al.”  Individual ref­
erences will be to that petitioner’s name or office.
[4]

The People, ex rel Workman v Board o f  Education o f  Detroit, 18 Mich
399 (1 8  6 9 ).



6

I.

The Com plaint

Plaintiffs commenced this class action by filing a complaint 
on August 18, 1970. (2a-l 6a). The complaint was not amended or 
supplemented until plaintiffs filed an “Amended Complaint to 
Conform to Evidence and Prayer for Relief” on or about Septem­
ber 4, 1973. [5] (la 291).

The allegations in plaintiffs’ complaint were limited to claims 
of de jure segregation against the defendants solely within the 
School District of the City of Detroit. (1 la-12a). Further, plain­
tiffs’ prayer for relief was limited to the establishment of a unitary 
system of schools within the School District of the City of Det­
roit. (13a-15a). In addition, plaintiffs challenged the constitution­
ality of § 12 of 1970 PA 48 on the grounds that it interfered with 
the implementation of the Detroit Board of Education’s April 7, 
1970 plan involving alterations in attendance areas for 12 of the 
21 Detroit high schools to increase racial balance in those 12 
schools. (13a-15a).

The defendants named in the complaint were William G. 
Milliken, Governor of the State of Michigan and ex officio 
member (without vote) of the Michigan State Board of Education; 
Frank J. Kelley, Attorney General of the State of Michigan; Michi­
gan State Board of Education, a constitutional body created by 
Mich Const 1963, art 8, § 3; John W. Porter, Superintendent of 
Public Instruction of the State of Michigan, ex officio chairman of 
the State Board of Education (without vote) and principal execu­
tive officer of the Michigan State Department of Education; Board 
of Education of the School District of the City of Detroit, a body 
corporate under the laws of the State of Michigan; the individual 
members of said Board of Education, and the Superintendent of 
Schools of said Board of Education. No school district (nor any 
officer or employee thereof) other than the School District of the 
City of Detroit was named as a defendant.

^  The majority opinion o f the Court o f Appeals suggested and authorized 
the amended complaint. (178a). Plaintiffs made no effort to amend their 
complaint prior to the Court o f Appeals suggestion.



7

In their original complaint, plaintiffs made three basic claims: 
1) that assignment of pupils within the Detroit public schools was 
based upon race; 2) that the assignment of personnel within the 
Detroit public schools to some extent was based upon race, and 3) 
that Section 12 of 1970 PA 48 was unconstitutional because it 
interfered with the implementation of the Detroit Board of Educa­
tion’s April 7, 1970 plan involving alterations in attendance areas 
for 12 of the 21 Detroit high schools to increase racial balance 
over a 3 year period in those 12 schools. (2a-13a). The relief sought 
was the temporary and permanent enjoining of the effect of Sec­
tion 12 of 1970 PA 48 and the requiring that the April 7, 1970 
plan be implemented in full in the 1970-71 school year, and 
requiring defendants to create and maintain a unitary, nonracial 
school system in the Detroit public schools. (13a-15a).

In their pretrial statement (la 75), plaintiffs advanced the fol­
lowing claims:

1. That the Detroit public schools were operated in a 
manner violating the Thirteenth and Fourteenth Amendments to 
the Constitution of the United States.

2. That the Detroit school system operated racially identifi­
able “Negro” and “White” schools, which schools are inherently 
unequal and which deny plaintiffs equal educational opportuni­
ties.

3. That such a school system has an affirmative duty “ to 
remove the racial identifiability of the schools in its system by de­
segregating the student body of the individual schools and by as­
signing and/or reassigning faculty members to each school in ac­
cordance with the system-wide ratio of black and white faculty 
members and by planning and making faculty additions in a man­
ner which will promote and maintain racially non-identifiable 
schools.”

Plaintiffs’ claims in the joint pretrial statement (la 103-la 
104) were identical.

In summary, plaintiffs alleged that the Detroit Board of Edu­
cation operated a de jure segregated school system and they 
Prayed as their relief that the Detroit public schools be compelled



8

to operate as a unitary school system. Further, plaintiffs’ prayer 
for relief was directed entirely to relief in the Detroit school 
system and they made no claim for relief against any other school 
system.

II.

The Detroit Board o f  Education

Michigan school districts are organized and classified as pri­
mary, fourth class, third class, second class and first class, depen­
ding, essentially, upon the number of children between the ages of 
5 and 20 within the district. The School Code of 1955, 1955 PA 
269, as amended, §§2, 21, 53, 102, 142 and 182; MCLA 340.2, 
340.21, 340.53, 340.102, 340.142 and 340.182; MSA 15.3002, 
15.3021, 15.3102, 15.3142 and 15.3182. (6aa, 8aa, 20aa). Detroit 
is the only first class school district in the state. The other school 
districts involved here are third and fourth class school districts.

The City of Detroit was organized as one school district, as a 
body corporate by the name and style of “The board of education 
of the City of Detroit” in 1842,161 and remains a single school 
district and a body corporate under the same name today. In other 
words, the Detroit Board of Education has existed as an inde­
pendent body corporate governmental unit with its geographical 
boundaries coterminous with those of the City of Detroit since 
1842.

The best way to capsulate the function and powers of the 
Detroit Board of Education, or any other school district in the 
state, is to say, in the words of the Michigan Supreme Court, that 
they are “ local state agencies organized with plenary powers to 
carry out the delegated functions given it by the legislature.” ^

With regard to plaintiffs’ claims that the Detroit public 
schools are a de jure segregated system, the plenary power to

161 1842 Laws o f Michigan, No. 70, § §1 and 5. (55aa).

1̂ 1 School District o f  the City o f  Lansing v State Board o f  Education, 367 
Mich 591, 595; 116 NW2d 866, 868 (1962).



9

locate school sites and construct school buildings, to condemn 
land therefor, to hire and assign teachers, and to establish attend­
ance areas and assign students thereto has been delegated by the 
legislature to the Detroit Board of Education. See the School Code 
of 1955, supra, §§192 (condemnation) and 215 (buildings and 
sites), § §204, 269 and 569 (teacher hiring and assignment) and 
§589 (attendance areas and assignment of students). (32aa, 46aa, 
49aa).

III.

The State Board o f Education and the 
Superintendent o f Public Instruction

The State Board of Education and the office of the Superin­
tendent of Public Instruction were created anew by the Michigan 
Constitution of 1963 (Const 1963), art 8, §3. (3aa). In general, 
“ [l]eadership and general supervision over all public education” is 
vested in the State Board of Education. Prior thereto the power of 
general supervision was vested in the Superintendent of Public In­
struction. Const 1908, art 11, §2. (laa). The present Superinten­
dent of Public Instruction is appointed by the State Board of Edu­
cation, is the chairman of the board without the right to vote and 
is responsible for the execution of its policies. Also, he is the prin­
cipal executive officer of a state department of education. Const 
1963, art 8, §3. (4aa).

The testimony of Dr. Porter demonstrates the fact that de­
fendants Milliken, Kelley, the State Board of Education, and the 
Superintendent of Public Instruction, do not exercise supervisory 
authority over the Detroit Board of Education in the hiring or as­
signment of teachers, in the establishment of attendance areas, in 
the establishment of feeder patterns or in the transportation of 
children within the Detroit public schools. (Ilia 35 - Ilia 37).

IV .

Population — Detroit and the Detroit 
Board o f  Education

In 1940, the black population of the City of Detroit was 
9-2% (of a total population of 1,623,452). (21a). By 1970, the



10

black population had risen to 43.9% (of a total population of 
1,513,601). (21a). As the black population increased, it displaced 
the white population. (R367-369). As in the case of all large cities 
in the United States, blacks and whites in Detroit tend to live in 
separate areas of the city so that residential areas are either pre­
dominantly black or predominantly white. (R350-35 1).

In the school year 1960-61, the Detroit Board of Education 
enrolled 45.8% black pupils. (21a). By the school year 1970-71, 
the entrollment of black pupils in the schools was 63.8%. (21a).

In the school year 1960-61, the Detroit Board of Education 
operated 266 schools, eight of which had no white children in at­
tendance, 73 of which had no black children in attendance, and 
the remainder had both white and black children in varying pro­
portions. (22a). In 1970, the Detroit Board of Education operated 
319 schools of which 30 had no white pupils in attendance and 11 
had no black children in attendance, and the remainder had vary­
ing percentages of both black and white children. (22a).

V.

The Tri-County Area of Wayne, Oakland 
and Macomb Counties

According to the 1970 census, the population of Michigan is 
8,875,083, almost half of which, 4,199,931, resides in the tri­
county area of Wayne, Oakland and Macomb. Oakland and Ma­
comb Counties abut Wayne County to the north and Oakland 
County abuts Macomb County to the west. These counties cover 
1,952 square miles. The population of Wayne, Oakland and 
Macomb counties is 2,666,751, 907,871 and 625,309, respec­
tively. Detroit, the state’s largest city, is located in Wayne County.

In the 1970-71 school year, there were 2,157,449 children 
enrolled in the school districts in Michigan. 13.4% of these child­
ren were black and 84.8% were white. There are 86 independent, 
legally distinct school districts within the tri-county area, havinga

M ich ig a n  S ta tis t ica l A b s t r a c t ,  1 9 7 2  (9 t h  e d .) .  T h is  area is approx im ately  
the  s ize  o f  th e  sta te  o f  D e la w a re  (2 ,0 5 7  sq u a re  m ile s ) , m o r e  th a n  h a lf again 
th e  s ize  o f  th e  sta te  o f  R h o d e  Islan d  ( 1 ,2 1 4  sq u a re  m ile s )  an d  a lm o s t  3 0  times 
th e  s ize  o f  th e  D istr ic t  o f  C o lu m b ia  (6 7  sq u a re  m ile s ). S ta tis t ica l A bstract o f 
U n ited  S ta tes , 1 9 7 2  (9 3 r d  e d .) .



11

total enrollment of approximately 1,000,000 children, approxi­
mately 20% of whom are black. (66a).

VI.

Proceedings Through Trial

On September 3, 1970, Denise Magdowski, et al, were per­
mitted to intervene as defendants, as parents and representatives 
of parents of children attending the Detroit public schools. On 
November 4, 1970, Detroit Federation of Teachers, Local 231, the 
collective bargaining representative of the Detroit Board of Educa­
tion’s teachers, was permitted to intervene as a party defendant. 
(Ia2).

Plaintiffs moved for interlocutory injunctive relief to, inter 
alia, require the Detroit Board of Education to put into effect its 
April 7, 1970 plan to increase racial balance in 12 high schools and 
to enjoin the implementation of 1970 PA 48 insofar as it might 
interfere with the effectuation of the April 7 plan. Defendants 
Milliken and Kelley moved for the dismissal of the suit as to them. 
On September 3, 1970, the District Court denied plaintiffs’ re­
quest for interlocutory relief and dismissed the action as to de­
fendants Milliken and Kelley. (Ia59, Ia62). In denying inter­
locutory relief, the District Court did not rule on the constitution­
ality of 1970 PA 48. (Id.)

Plaintiffs appealed to the Court of Appeals for the Sixth Cir­
cuit. The Court of Appeals declared 1970 PA 48, § 12 to be un­
constitutional and ordered reinstatement of defendants Milliken 
and Kelley as parties, “at least at the present stage of the proceed­
ings,” but affirmed the denial of interlocutory relief. 433 F2d 
897. Defendants Milliken, et al, did not seek a review of the deci­
sion of the Court of Appeals.

Upon remand to the District Court, plaintiffs moved for an 
order requiring the immediate implementation of the April 7, 
1970 plan. In response to plaintiffs’ motion, the District Court or­
dered the Detroit Board of Education to submit a high school at­
tendance area plan to the Court consisting of that portion of the 
action taken by the Detroit Board of Education on April 7, 1970



12

with regard to changing the attendance areas of the 12 high 
schools, or an updated version thereof achieving “no less pupil in­
tegration.” (Ia69). The Detroit Board of Education submitted two 
alternate plans known as “ The Campbell Plan” and “The Mac­
Donald Plan.” In a ruling dated December 3, 1970, the Court 
ruled that the “The MacDonald Plan” was superior and ordered 
that it be implemented beginning September, 1971. (Ia88, Ia96).

Plaintiffs, claiming that the alternative plan was con­
stitutionally insufficient, sought emergency relief in the Court of 
Appeals. Relief was denied and the Court of Appeals ordered the 
District Court to set a hearing on the merits forthwith. 438 F2d 
945. Because the lower courts declined to order that it be done, 
the April 7 plan was never implemented.

Trial on the merits, limited to the issue of segregation within 
the Detroit public schools, began on April 6, 1971, and concluded 
on July 22, 1971, consuming 41 trial days. [91 Early in the trial, 
plaintiffs offered testimony as to housing discrimination within 
the City of Detroit (IIa9) and later in the trial with respect to 
areas in the counties ot Wayne, Oakland and Macomb outside of 
the City of Detroit. (Ila69). When such testimony was first offered 
it was objected to by the defendants Milliken, et al, and by the 
Detroit Board of Education for the reason that such testimony in­
volved the acts of other persons not parties to the suit. All testi­
mony with regard to discrimination in housing was admitted over

t9 J F r o m  t im e  t o  t im e  d u r in g  th e  c o u r s e  o f  th e  tria l a t te m p ts  w e re  m ade by 
th e  p la in t if fs  a n d  b y  th e  d e fe n d a n t - in t e r v e n o r , D e n is e  M a g d o w s k i, et al, to 
b r o a d e n  th e  s c o p e  o f  th e  tria l t o  a f f e c t ,  as t o  p o s s ib le  r e m e d y , s c h o o l  districts 
n o t  p a r tie s  in  th is  ca u s e , l o c a t e d  o u t s id e  o f  t h e  b o u n d a r ie s  o f  th e  Detroit 
s c h o o l  s y s te m . F r o m  th e  r e m a rk s  o f  th e  D is tr ic t  C o u r t ,  it is c lea r  that he also 
u n d e r s t o o d  w h at is p a te n t  in  th e  p le a d in g s , th at th e  issu e  w as w h eth er the 
D e tro it  S c h o o l  D istr ic t  w as a se g re g a te d  s y s te m  qua th e  D e tro it  public 
s c h o o ls  a n d  n o t  w ith  r e s p e c t  t o  a n y  o t h e r  s c h o o l  d is tr ic t  w ith in  th e  State of 
M ich ig a n . Illu stra tive  c o m m e n t s  b y  th e  D is tr ic t  C o u r t  f o l l o w :

“ W ell, I d o n ’ t k n o w  w h e th e r  fo r t u n a t e ly  o r  u n fo r tu n a te ly  th is lawsuit 
is l im ite d  t o  th e  C ity  o f  D e tro it  a n d  th e  s c h o o l  s y s te m , so  that we’re 
o n ly  c o n c e r n e d  w ith  th e  c i t y  i t s e l f  an d  w e  are n o t  ta lk in g  ab out the 
m e tr o p o lit a n  a r e a .”  (1 l a 4 1).

“ 1 h o p e ,  M r. F la n n e ry , that is n o t  a th re a t  b e c a u s e  1 am  having enough 
t o  d o  w ith  m y  l im ite d  ju r is d ic t io n  in th is  ca se , a n d  I am  n o t  on e  for 
e x p a n d in g  i t . ”  (U a 4 4 ) .

H o w e v e r , as th e  tria l p r o g r e s s e d , th e  p e r c e p t io n  o f  th e  D istr ic t  C ou rt  changed 
in pu rsu it o f  a m u lt i-d is tr ic t  r e m e d y . ( R 3 5 3 7 ,  4 0 0 3 ,  4 0 0 4 ;  2 0 a )



13

the continuing objection of the defendants Milliken, et al, and the 
Detroit Board of Education. (IIa9-IIalO). There was no testimony 
regarding acts of housing discrimination on the part of defendants 
Milliken, et al, or of the Detroit Board of Education.

At the close of plaintiffs’ case in chief, defendants Milliken, 
et al, moved to dismiss pursuant to FR Civ P 41(b). (Ial 17-Ial 18). 
The District Court took the motion under advisement and the de­
fendants Milliken, et al, elected to rest on their motions to dismiss 
and did not participate further in the trial on the merits on the 
issues of whether the Detroit School District was a segregated 
school system.! 10] (HIa86-IIIa87). The District Court at a later 
date denied these motions. (242a).

On June 17, 1971, intervenors Denise Magdowski, et al, filed 
a motion to join as defendants all of the school districts in Wayne, 
Oakland and Macomb Counties. (Ial 19-Ia 129). The motion was 
heard on July 26, 1971 (R4682), and taken under advisement by 
the District Court. (R4709). The motion was never acted upon by 
the District Court and later the intervenor withdrew the motion.

On September 27, 1971, the District Court rendered its 
ruling on the issue of segregation in which it found that “both the 
State of Michigan and the Detroit Board of Education have com­
mitted acts which have been causal factors in the segregated condi­
tion of the public schools of the City of Detroit.” (Emphasis ad­
ded.) (33a). The de jure segregation found to exist was among the • 
school buildings within the City of Detroit and not between the 
Detroit School District and any other school district in the State 
of Michigan. (17a-34a). The Court also found that “ [t]he princi­
pal causes undeniably have been population movement and hous­
ing patterns, . . .” (33a).

T h e  ra t io n a le  f o r  th is  p o s i t io n  is  f o u n d  in  A & N  Club v  Great 
American Insurance Com pany, 4 0 4  F 2 d  1 0 0 , 1 0 3 -1 0 4  (C A  6 , 1 9 6 8 ) .  I f  a d e ­
fendant p r o c e e d s  in  t h e  ca se  a fte r  m a k in g  a F R  C iv  P  4 1 ( b )  m o t i o n ,  h e  w a iv e s  
his right t o  a lle g e  e r ro r  o n  th e  m o t i o n ’ s d is p o s it io n  o n ly  in  lig h t  o f  th e  e v i­
dence in t r o d u c e d  u p  t o  th e  p o in t  o f  th e  m o t io n .



1 4

VII.

Proceedings After Trial
At a hearing on October 4, 1971, the Court orally ordered 

the Detroit Board of Education to submit its plan for deseg­
regation of its schools within 60 days and ordered the defendants 
Milliken, et al, to submit “ a metropolitan plan of desegregation” 
within 120 days. (43a). A written order to the same effect was 
entered on November 5, 1971. (46a-47a).

An appeal by defendants Milliken, et al, of the District 
Court’s ruling on issue of segregation and the order of November 
5, 1971 was dismissed for the stated reason that the ruling and 
order were not final. 468 F2d 902. Their petition for certiorari for 
a review of this dismissal was denied. 409 US 844.

As directed by the Court, plans for desegregation were filed 
by the parties, including plaintiff, on or before February 4, 1972. 
Between February 9 and 17, 1972, 43 school districts within the 
counties of Wayne, Oakland and Macomb filed motions to inter­
vene for the purpose of representing their interests and those of 
the parents and children residing in the respective school districts. 
(Ia 185, la 190, la 193, la 196). Under date of March 6, 1972, the 
District Court notified all counsel that hearings on intra-city plans 
would begin at 10 a.m. on March 14, 1972; that recommendations 
for “ conditions” of intervention be submitted not later than 
March 14, 1972; that briefs on propriety of metropolitan remedy 
by submitted not later than March 22, 1972, and that, tentatively, 
hearings on a metropolitan remedy would commence on March 
28, 1972. (Ia 203). The hearings on the intra-district plans 
commenced on March 14, 1972. On March 15, 1972 the District 
Court allowed the 43 school districts to intervene, but imposed 8 
conditions upon the intervention that severely limited their parti­
cipation in the proceedings. (Ia 204-la 206). Among the condi­
tions imposed were the following:

“ 1. No intervenor will be permitted to assert any claim or 
defense previously adjudicated by the court.

“ 2. No intervenor shall reopen any question or issue which 
has previously been decided by the court.” (Ia 206).



15

Although the order allowing intervention stated that the interven­
tion was allowed for two principle purposes: “ (a) To advise the 
Court, by brief, of the legal propriety or impropriety of consider­
ing a metropolitan plan” and “ (b) To review any plan or plans for 
the desegregation of the so-called larger Detroit Metropolitan 
Area . . .  ” , the Court’s notice to counsel of March 6, 1972 direct­
ing that briefs on the propriety of the metropolitan remedy be 
submitted not latter than March 22, 1972, was not modified to 
provide any additional time for the intervenors to file their briefs 
or make their objections. The District Court filed its ruling that a 
metropolitan desegregation plan was appropriate on March 24, 
1972. (48a).

Hearings on the intra-district plans commenced on March 14, 
1972 and concluded on March 21, 1972. Plaintiffs’ expert witness, 
Dr. Gordon Foster, testified as follows with regard to the intra­
district plan that he prepared for plaintiffs (PX C2, R303, 304, 
316):

“Q. I believe you testified you prepared an intra-district de­
segregation plan for the City of Richmond?

“A. That’s correct.
“Q. Did the plan that you projected in your opinion meet 

the constitutional requirements of the Fourteenth 
Amendment?

** *

“A. As 1 remember the situation, yes, I though that the plan 
met the requirements of what we then called a unitary 
school system.

“Q. Do you think that the plan that you prepared for the 
plaintiffs that is under consideration today, do you think 
that meets the constitutional requirements of the Four­
teenth Amendment?

“A. I believe that it would in terms of at least the factor of 
pupil assignment which is what the plan is primarily 
about.”
(IVa 95-IVa 96).

* * *



1 6

“ Q. Dr. Foster, in your opinion, your proposed plan to de­
segregate the Detroit School District is a sound educa­
tional plan, is that correct?

“A. Yes.
*  *  *

“Q. Yes, I am going to try to lead you in steps. Secondly,it 
would provide for equal treatment of children, would it 
not?
I think so, yes. I perceive it as nondiscriminatory in that 
regard.
In your opinion this would improve the educational 
opportunity of Detroit of the children of Detroit?
Yes.”
(IVa 97-IVa 98).

In accordance with the March 6 notice and its ruling that a 
metropolitan desegregation plan was appropriate, the District 
Court commenced taking testimony on such plans on March 28, 
1972. Later that day, the District Court filed its findings of fact 
and conclusions of law on Detroit-only plans of desegregation. 
(53a). In essence, the Court’s ruling was that no Detroit-only plan 
would result in desegregation because of its majority black student 
body.

On June 14, 1962, the District Court filed its ruling on deseg­
regation area and order for development of plan of desegregation 
(97a) and its finding of fact and conclusions of law in su p p o rt of 
ruling on desegregation area and development of plan. (59a). The 
judicially decreed “desegregation area” included 53 school districts 
covering approximately 700 square miles within a three county 
area, involved 780,000 school children and required that at least
310,000 of them be transported. (72a). Although the District 
Court had expressly found no de jure segregation in the fa cu lty  in 
the Detroit public schools (23a-33a), the Order required faculty 
and staff reassignment among the 53 districts. (102a-103a).

“A.

“ Q.

“A.



17

The findings of fact and conclusions of law in support of the 
ruling contained the following initial finding:

“It should be noted that the Court has taken no proofs with 
respect to the establishment of the boundaries of the 86 pub­
lic school districts in the counties of Wayne, Oakland and 
Macomb, nor on the issue of whether, with the exclusion of 
the city of Detroit school district, such school districts have 
committed acts of de jure segregation.” (59a-60a).

18 of the districts included in the “ desegregation area” were not 
parties to the litigation when the ruling was made. (59a-60a).

The ruling on desegregation area also appointed a panel of 9 
persons, later increased to 11, and charged it with the 
responsibility of preparing and submitting a desegregation plan in 
accordance with the provisions of the ruling. (99a).

On July 1 1, 1972, the District Court, following a recommen­
dation of the panel, ordered the Detroit Board of Education to 
acquire 295 buses, the contracts for such acquisition to be entered 
into not later than July 13, 1972. (106a-107a). Defendants 
Milliken, et al, were ordered to bear the cost of the acquisition 
(106a) and by contemporaneous order, the Court on its own mo­
tion ordered Allison Green, Treasurer of the State of Michigan, to 
be made a party defendant. (Ia 263).

On July 20, 1972, the District Court, pursuant to oral mo­
tions made on July 19, 1972, certified to the Court of Appeals the 
issues presented by the five controlling orders or rulings made in 
the case to date. (Ia 265-la 266). Defendants Milliken, et al, and 
others, petitioned the Court of Appeals for permission to appeal 
the controlling orders, which permission was granted by the Court 
of Appeals. (108a). In said order, the Court of Appeals stayed the 
order for acquisition of transportation, July 11, 1972, and all pro­
ceedings with regard to the assignement of children and faculty 
within the desegregation area, except planning. (109a).

Permission to intervene was granted by the Court of Appeals 
to the Michigan Education Association on August 21, 1972, and 
to the Professional Personnel of Van Dyke on July 21, 1973.



18

A panel of the Court of Appeals filed its opinion on Decem­
ber 8, 1972. Thereafter, defendants moved for rehearing en banc, 
which was granted. Following rehearing, in a 6 to 3 decision, the 
Court of Appeals (en banc) in substance affirmed the District 
Court’s orders and rulings. (189a-190a).

On August 6, 1973, plaintiffs filed a motion in the District 
Court for the joinder of all of the school districts in the counties 
of Wayne, Oakland and Macomb that had not already been made 
parties herein, with the exception of the Pontiac School District 
which is under a U.S. District Court desegregation order in another 
proceeding. (Ia 287).

On September 6, 1973, the District Court ordered the joinder 
ot all of the school districts in Wayne, Oakland and Macomb 
Counties that were not parties to the suit, except the Pontiac 
School District. (Ia 300).

On or about September 4, 1973, plaintiffs filed an amended 
complaint to conform to evidence and prayer for relief. (Ia 291 - 
Ia 299). The thrust of this complaint, as contrasted with the ori­
ginal complaint, is that the Detroit School System is a de jure seg­
regated system not only within the Detroit public schools but as 
between the Detroit public schools and other school districts in 
the counties of Wayne, Oakland and Macomb. Plaintiffs are plead­
ing a new cause of action for a multi-district remedy but do not 
allege that school district boundaries have been created or altered 
for segregatory purposes nor do they allege that any of the school 
districts other than Detroit have committed acts of de jure segrega­
tion. (Ia 294).

Although not stated in so many words in the amended com­
plaint, from the listing of the school districts in paragraphs 15 and 
16 thereof it is apparent that plaintiffs are seeking substantially 
the same relief as was ordered by the Court in its ruling on dese­
gregation area and order for development of plan.

SUMMARY OF ARGUMENT
I. Defendants Milliken, et al, have not committed acts of de 

jure segregation with the purpose and present causal effect of 
separating school children by race either within the Detroit



1 9

school district or between Detroit and the other 85 school 
districts in the tri-county area. Keyes v School District No. 1,
Denver: Colorado, _____  US ______ ; 93 S Ct 2686,
2697-2699; 37 L Ed 2d 548, 562-566 (1973).

A. The rulings against the defendants Milliken, et al, are 
based, not upon their actual conduct in office, but upon 
the judicial goal of achieving racial balance throughout a 
large, densely populated area convering three counties. 
(41a, 224a)

B. It is the Detroit Board of Education, pursuant to Michi­
gan law, and not any of the defendants Milliken, et al, 
herein, that selects and acquires school sites, constructs 
schools, establishes attendance areas and transports and 
assigns pupils to the public schools under its operational 
control.

C. The State of Michigan is not a party in this cause. De­
fendants Milliken, et al, are not vicariously liable for the 
alleged de jure conduct of defendant Detroit Board of 
Education. US Const, Am XI. Sterling v Constantin, 287 
US 378; 53 S Ct 190; 77 L Ed 375 (1932). In re State of 
New York, 256 US 490; 41 S Ct 588; 65 L Ed 1057 
(1921). The shifting burden of proof principle set forth 
in Keyes, supra, 93 S Ct, at 2697, 2698, is carefully 
limited to situations involving the same defendant 
against whom a finding of de jure segregation is made as 
to a substantial portion of the school district in ques­
tion.

D. The Carver School District has been a part of the Oak 
Park School District since 1960, thus, manifestly negat­
ing any present segregatory effect. (169a) Keyes, supra, 
93 S Ct, at 2698, 2699.

E. Alleged inter-district disparities in financial resources, 
among school districts, including funds for intra-district 
transportation, give rise to no constitutional violation. 
San Antonio Independent School District v Rodriguez, 
411 US 1; 93 SCt 1278; 36 L Ed 2d 16 (1973).



20

F. From and after October 13, 1970, the lack of imple­
mentation of the April 7, 1970 racial balance plan af­
fecting some of the students in 12 of 21 Detroit high 
schools has been the result of the unwillingness of the 
Detroit Board of Education and the lower courts herein 
to implement such plan.

G. There can be no multi-school district school construc­
tion violation by defendants Milliken, et al, for the 
reason, inter alia, that in each affected school district 
herein, it is the local board of education that selects and 
acquires school sites and constructs schools under Michi­
gan law, and the trial court expressly stated that it took 
no proofs as to whether any school district, other than 
Detroit, has committed any acts of de jure segregation 
(59a-60a)

II. A dual school system within a school district must be dis­
mantled and converted into a unitary school system within 
the school district, so that no pupil is excluded from any 
school, directly or indirectly, because of race. Green v School 
Board of New Kent County, 391 US 430; 88 S Ct 1689; 20 L 
Ed 2d 716 (1968). Alexander v Holmes County Board of 
Education, 396 US 19; 90 S Ct 29; 24 L Ed 2d 19 (1969). 
Swann v Charlotte-Mecklenburg Board o f Education, 402 US 
1; 91 SCt 1267; 28 L Ed 2d 554 (1971).
A. The Detroit School District is not a racially imbalanced 

system because of any purposeful action to segregate by 
defendants Milliken, et al, or the defendant Detroit 
Board of Education. Racial imbalance in the Detroit 
school system was caused by housing patterns. The Con­
stitution imposes no duty upon school officials to over­
come racially imbalanced housing patterns by racially 
balancing the schools. Spencer v Kugler, 326 F Supp 
1235 (D NJ, 1971), affd on appeal, 404 US 1027; 92 S 
Ct 707; 30 L Ed 2d 723 (1972).

B. The racial composition of the pupils of the Detroit 
School District is 63.8% black children and 34.8% white 
children. (21a).



21

C. Assuming, arguendo, that the Detroit School District is a 
dual school system, plaintiffs’ Detroit-Only plan to dis­
mantle such dual system would establish a unitary sys­
tem as required by Green, supra, 391 US, at 442; 
Alexander, supra, 396 US, at 20, and Swann, supra, 402 
US, at 23. Plaintiffs’ Detroit-Only plan would eliminate 
racially identifiable schools, no child would be excluded 
from any school, directly or indirectly because of race 
or color, and the plan is educationally sound, as testified 
to by Plaintiffs’ expert witness. (IVa95-98).

D. Plaintiffs’ Detroit-Only plan, even though it would ac­
complish more desegregation than now obtains in the 
school district, was disapproved by the District Court 
only because it did not lend itself as a building block for 
a multi-district plan spanning a tri-county area, and 
would make the Detroit school system more identifiably 
black. This action of the Court was error. Green, supra, 
391 US, at 442; Alexander, supra, 396 US, at 20; and 
Swann, supra, 402 US, at 23.

E. The erroneous decision of the District Court, affirmed 
by the majority of the Court of Appeals, is predicated 
upon an unwarranted overriding emphasis on the future 
black pupil population of the Detroit School District in 
1975, 1980 and 1992, based entirely upon conjecture, 
so as to justify the exercise of judicial power to attain 
the social goal of racially balancing the public schools 
within a 1,952 square mile geographical area.

F. The majority of the Court of Appeals affirmed the deci­
sion rejecting plaintiffs’ Detroit-Only plan on the erro­
neous premise that anything less than a multi-district 
plan encompassing a vast geographical area over three 
counties would result in the Detroit School District be­
ing an all black school district surrounded by all white 
school districts.

G. The decisions of this Court command the dismantling of 
dual school systems now in majority black school sys­
tems and the establishment of unitary systems within 
such districts. Unitary systems have been established



22

within a 66% black, 34% white school district in Wright 
v Council o f City o f Emporia, 407 US 451; 92 S Ct 
2196; 33 L Ed 2d 51 (1972); within a 77% black, 22% 
white and 1% American Indian school district in Cotton 
v Scotland Neck City Board o f Education, 407 US 484; 
92 S Ct 2214; 33 L Ed 2d 75 (1972); within a 60% 
black school district in Raney v Board of Education of 
the Gould School District, 391 US 443; 88 S Ct 1697; 
20 L Ed 2d 727 (1968); and within a 64% black, 36% 
white school district in Bradley v School Board of Rich­
mond, Virginia, 462 F2d 1058 (CA 4, 1972), affd by
equally divided Court in__US___ ; 94 S Ct 31; 38 L Ed
2d 132 (1973). A unitary system is capable of being es­
tablished within a 57% black, 43% white school district 
inNorthcrossv Board of Education, 420 F2d 546 (CA6, 
1969), affd in part and remanded in 397 US 232; 90S 
Ct 891; 25 L Ed 2d 246 (1970).

H. A unitary school system having a racial composition of 
63.8% black children and 34.8% white children is not 
unconstitutional.

III. The lower courts committed manifest error in decreeing a
multi-school district remedy.

A. Federal judicial power may not be substituted for the 
legitimate authority of state and local governments in 
public education except on the basis of an unconstitu­
tional violation. Swann, supra, 402 US, at 16.

B. Here, there is no unconstitutional violation to serve as a 
predicate for judicially imposed multi-district relief. The 
record is barren of allegations, proofs and findings either 
that school district boundaries were manipulated for un­
lawful segregatory ends or that any school district, other 
than Detroit, committed any acts of de jure segregation. 
(59a-60a) Bradley v Richmond, supra, 462 F 2d, at 
1060. Further, there is no causal nexus between any 
alleged conduct of the defendants Milliken, et al, and 
the distribution of pupils by race between Detroit and 
the other 85 school districts in the tri-county area.



23

Keyes, supra, 93 S Ct, at 2698-2699.

C. The Constitution does not require racial balance among 
school districts over a three county area. Swann, supra, 
402 US, at 24. Emporia, supra, 407 US, at 464, 473. 
Further, the historical, rational and racially neutral 
coterminous boundaries of the city and school district 
of Detroit do not constitute a constitutional violation. 
Spencer v Kugler, supra, 326 F Supp, at 1240, 1243. In 
addition, there has been no showing in this cause “ that 
either the school authorities or some other agency of 
the State has deliberately attempted to fix or alter 
demographic patterns to affect the racial composition of 
the schools,” . Swann, supra, 402 US, at 32.

D. The traumatic governmental restructuring of scores of 
legally, geographically and politically independent 
school districts, implicit in the multi-district relief ap­
proved by the lower courts, (104a-105a, 188a-189a) is 
directly contrary to the result reached in Bradley v 
Richmond, supra.

E. The affected school districts are legally, politically and 
geographically separate, identifiable and unrelated units 
that facilitate local control and participation in public 
education through locally elected boards of education. 
Thus, based on its past precedents, this Court should 
respect the integrity of these local political subdivisions. 
Keyes, supra, 93 S Ct, at 2695; Emporia, supra, 407 US, 
at 469 and 478; Rodriguez, supra, 411 US, at 49-50, 54.

F. The multi-million dollar transportation costs involved in 
multi-school district relief are excessive and will impose 
an additional burden on educational resources.

G. The school districts to be affected herein, other than 
Detroit, were denied due process by the lower courts. 
(See dissenting opinions of Judge Weick, 205a-212a; 
Judge Kent, 230a-238a; and Judge Miller, 239a-240a).



2 4

ARGUMENT

I.

THE RULING OF THE COURT OF APPEALS AFFIRMING 
THE DISTRICT COURT’S HOLDING THAT DEFEN­
DANTS MILLIKEN,ET AL, HAVE COMMITTED ACTS RE­
SULTING IN DE JURE SEGREGATION OF PUPILS, BOTH 
WITHIN THE SCHOOL DISTRICT OF THE CITY OF DET­
ROIT AND BETWEEN DETROIT AND OTHER SCHOOL 
DISTRICTS IN A TRI-COUNTY AREA, IS WITHOUT 
BASIS IN FACT OR LAW,
The decisions of the lower courts herein represent, not a faith­

ful adherence to the Constitution and the binding precedents of 
this Court, but rather an attempt to use the law as a lever in attain­
ing what the lower courts decided is the desirable social goal of 
multi-school district racial balance throughout a vast three county 
area. This is vividly demonstrated by the trial court’s statement in 
a subsequent remedy pre-trial conference, “ [i]n reality, our courts 
are called upon, in these school cases, to attain a social goal, 
through the educational system, by using law as a lever.” (41a)

The sound dissent of the late Circuit Judge Kent sets forth 
the overriding concern of the appellate majority for racial balance 
among school districts as follows:

“Through the majority’s opinion runs the thread which holds 
it together. That thread is the unwillingness apparent in the 
minds of the majority to sanction a black school district 
within a city which it concludes will be surrounded by white 
suburbs. While the majority does not now state that such a 
demographic pattern is inherently unconstitutional, neverthe­
less, I am persuaded that those who subscribe to the majority 
opinion are convinced, as stated in the slip opinion of the 
original panel, ‘big city school systems for blacks surrounded 
by suburban school systems for whites cannot represent 
equal protection of law.’ While that statement has been re­
moved from the opinion of the majority, yet the premise 
upon which the statement was obviously based must neces­
sarily form the foundation for the conclusions reached in the 
majority opinion. It may be that such will become the law,



25

but such a conclusion should not recieve our approval on a
record such as exists in this case.” (224a)

Thus, the underlying premise of both lower courts is the 
achievement of what they perceived as the desirable social goal of 
racial balance among school districts, rather than the vindication 
of constitutional rights to attend a school free from racial dis­
crimination by public school authorities. Brown v Board of Educa­
tion, 347 US 483; 74 S Ct 686; 98 L Ed 873 (1954). Viewed 
against this background, the defendants Milliken, et al, submit 
that the rulings that they had committed acts resulting in de jure 
segregation are mere makeweights designed to provide the legal 
window dressing for the achievement of multi-school district racial 
balance.

The constitutional violations allegedly committed by the de­
fendants Milliken, et al, are set forth under the caption of “ State 
of Michigan.” (151 a-152a) The majority opinion of the Court of 
Appeals elsewhere acknowledges that the State of Michigan is not 
a party to this cause. Thus, these rulings are directed against the 
defendants Milliken, et al. (115a). The following review of these 
rulings will conclusively demonstrate that the courts below, as to 
the defendants Milliken, et al, have erected an edifice of unconsti­
tutionality upon a foundation of sand in attempting to further 
their paramount goal of multi-school district racial balance.

A. Ruling (5 ) -  transportation o f  Carver School District’s 
high school students.

Ruling (5) relates to the transportation, by the Detroit Board 
of Education, of high school students from the Carver School Dis­
trict, which did not have a high school, to Northern High School 
within Detroit during the 1950’s. (152a, 137a-138a). Here, it must 
he observed that under Michigan law no school district has any 
legal duty to educate non-resident pupils on a tuition basis. Jones 
v Grand Ledge Public Schools, 349 Mich 1; 84 NW 2d 327(1957). 
However, the Carver area was adjacent to Detroit and the Detroit 
school district voluntarily chose to accept these non-resident 
pupils (Va 14). The reason that the student were bussed past 
Mumford to Northern was that “Mumford was must more 
crowded.” (Va 186).



2 6

The majority opinion states that such transportation “could 
not have taken place without the approval, tacit or express, of the 
State Board of Education.” (Emphasis added) (152a) The trial 
court’s ruling on this point contains no reference to the State 
Board of Education. (96a). The record is barren of any proof that 
the State Board of Education possessed any actual knowledge of 
the transportation in question, let alone approving same. To the 
contrary, the record is clear that when the then Superintendent of 
the Detroit Schools “ became aware of it” such transportation of 
Carver students was discontinued. (Va 186). Since not even the 
Superintendent of Schools in Detroit was initially aware of this 
bus route affecting his own shcool district, what possible basis can 
there be for imputing knowledge of this bus route or the racial 
compositions of Mumford and Northern high schools to the State 
Board of Education in Lansing, Michigan? The Michigan Depart­
ment of Education never collected any racial counts of pupils until 
after April, 1966. (See next to last paragraph at PX 174, Va 13). 
The reference to the State Board of Education by the Court of 
Appeals majority is without any evidentiary support. The require­
ment of a finding of segregative purpose enunciated in Keyes, 
supra, 93 S Ct, at 2697, cannot be met as to ruling (5) for the 
reason that purpose presupposes knowledge of the event in 
question, an element which is totally lacking in this cause as to 
defendant State Board of Education.

In 1960, the Carver School District, an independent school 
district, became disorganized and lost its identity and became a 
part of the Oak Park School District by attachment of the County 
Board of Education, pursuant to Section 3 of 1955 PA 269, as 
amended, being MCLA 340.1 et seq; MSA 15.3001 et seq;herein- 
after referred to as the School Code of 1955. (169a, 6aa). The Oak 
Park school district has a 10.1% black student body and, according 
to plaintiffs’ expert witness, the black students currently residing 
in the former Carver area attending Oak Park schools are thriving 
academically. (PX P.M. 12, Va 113, R 939-R 940, R 996-R 997). 
Further, in the 1969-70 school fiscal year, Oak Park had the 
highest per pupil expenditures of any Michigan school district. 
Bulletin 1012, Michigan Department of Education, December, 
1970, pp 26-27.



27

This Court has adopted the sound rule that to establish a con­
stitutional violation, there must be a causal relationship between 
the act complained of and a present condition of segregation, 
Keyes, supra, 93 S Ct, at 2698, 2699. Obviously, the reliance of 
the majority herein on the transportation of Carver students, not 
parties to this action, prior to 1960 to a Detroit high school fails 
to meet this controlling test of present causal nexus in light of the 
developments since 1960 involving the attachment of Carver to 
Oak Park, the attendance of students residing in the former Carver 
area in the largely white Oak Park school district and their good 
academic performance as testified to by plaintiffs’ expert witness.

B. Ruling (4 ) — allocation o f  transportation funds

The District Court’s Ruling on Issue of Segregation in Detroit 
contained the following language which was quoted in the 
majority opinion of the Court of Appeals.

“ ‘ . . . The State refused, until this session of the legislature, 
to provide authorization or funds for the transportation of 
pupils within Detroit regardless of their poverty or distance 
from the school to which they were assigned, while providing 
in many neighboring, mostly white, suburban districts the 
full range of state supported transportation. This and other 
financial limitations, such as those on bonding and the work­
ing of the state aid formula whereby suburban districts were 
able to make far larger per pupil expenditures despite less tax 
effort, have created and perpetuated systematic educational 
inequalities.’’ ” (Emphasis added.) (152a).

This language, which constitutes a major part of the District 
Court’s holding against the defendants Milliken, et al, on the 
initial question of de jure segregation in Detroit goes, not to the 
question of pupil assignment in Detroit, but to the markedly dif­
ferent question of inter-district disparities in school finance.

Here, it is instructive to note that the trial court made no 
conclusions of discriminatory allocation of funds between pre­
dominantly black and predominantly white schools within Detroit 
although plaintiffs presented evidence directed at the point and 
submitted proposed Findings of Fact on the issue which were not



28

adopted by the trial court. The use of alleged inter-district dis­
parities in school resources as a predicate for finding de jure segre­
gation as to only black students within Detroit, can only be ex­
plained by the trial court’s preoccupation with using law as a lever 
to obtain the judicially desired goal of multi-school district racial 
balance.

Although quoting the trial court in full as to finance, the ap­
pellate majority apparently adopted as its own ruling only the dis­
trict court language dealing with transportation funds. (151a, 
152a). This reluctance to expressly embrace the state school aid 
formula and bonding portions of the trial court’s finance language 
is readily understandable since such findings are contrary to the 
facts in this cause as demonstrated below:

A. In 1969-70, the last school fiscal year for which data 
was available prior to trial herein, of the 84 school dis­
tricts operating high schools in the tri-county area 
(Wayne, Oakland and Macomb counties), only 33 had a 
greater revenue producing ability than Detroit in terms 
of state equalized valuation of taxable property per 
pupil within their boundaries. Bulletin 1012, Michigan 
Department of Education, December, 1970, pp 20-23, 
26-27, 32-35.

B. In 1969-70, 76 of the 84 school districts in the tri­
county area made a greater tax effort than Detroit in 
terms of operating tax rates. Bulletin 1012, Michigan 
Department of Education, December, 1970, pp 20-23, 
26-27, 32-35.

C. In 1969-70, only 38 of the 84 school districts in the tri­
county area had higher general fund expenditures per 
pupil than Detroit. Bulletin 1012, Michigan Department 
of Education, December, 1970, pp 20-23, 26-27, 32-35.

D. In 1969-70, only 13 of the 84 school districts in the tri­
county area had higher average teacher salaries than 
Detroit. Bulletin 1012, Michigan Department of Educa­
tion, December, 1970, pp 20-23, 26-27, 32-35.



2 9

Thus, when compared to the other 83 school districts operating 
high schools in the tri-county area, Detroit was above average in 
state equalized valuation per pupil and general fund expenditures 
per pupil while it was way below average in terms of tax effort, as 
measured by operating tax rates, and way above average in terms 
of average teacher salaries. Further, it should be noted that for 
1969-70, Detroit paid its teachers with a B.A. degree the average 
of the top 10 salaries of the school districts in Wayne, Oakland 
and Macomb counties, and paid its teachers with an M.A. degree 
the average of the top 12 salaries of the school districts in Wayne, 
Oakland and Macomb counties. (Detroit Teachers Contract, Va 1, 
Va 2). Consequently, it must be concluded that, contrary to the 
trial court’s finding, (152a), very few suburban districts made “less 
tax effort” than Detroit and Detroit’s general fund expenditures 
per pupil were higher than a substantial number of school districts 
making a greater tax effort.

Turning to the bonding portion of the District Court’s finance 
language, it is instructive to observe that in the slip opinion of the 
original panel of the Sixth Circuit, December 8, 1972, pp 41, 
47-49, the Court expressly adopted the trial court’s finding on 
bonding, only to drop same from the majority opinion on rehear­
ing in terms of the five numbered rulings against the defendants 
Milliken, et al. (15 la-152a). This is understandable in light of the 
fact that, as was pointed out on rehearing, Detroit’s current bond­
ing authority had not yet been exhausted when it was increased to 
5% of the state equalized valuation of taxable property within the 
district without a vote of the people, thus bringing it in harmony 
with other classes of school districts. (See pp 48-49 of the Decem­
ber 8, 1972 slip opinion of the Sixth Circuit.) Prior to 1968 the 
bonding authority of third, second and first class school districts 
was limited to 2% without a vote of the people. See, respectively, 
Sections 115, 158 and 220a of the School Code of 1955, as 
amended, supra. (25aa, 31aa, 33aa). This limitation was raised to 
3% in first class school districts (Detroit), and 5% in all other dis­
tricts by 1968 PA 316 and increased to 5% in first class districts 
by 1971 PA 23, prior to Detroit having exhausted its pre-existing 
authority to bond without a vote of the people for school con­
struction. (17aa-18aa, 25aa-26aa, 31aa, 33aa-34aa). Thus, any 
claim of bonding discrimination must fall as it did in the Court of



30

Appeals majority opinion on rehearing. Compare pp 41, 47-49 of 
the opinion of December 8, 1972 and (15la-1 57a) of the opinion 
issued June 12, 1973.

In addition, the question of inter-district disparities in school 
finance has been definitively adjudicated by this Court in San 
Antonio Independent School District v Rodriguez, supra, and the 
conclusion is compelled that both lower courts erred, as a matter 
of law, in relying on alleged inter-district financial disparities. The 
financial disparities among school districts in Michigan, as in 
Texas, are the result of local variations in both taxable property 
per pupil and school tax rates that are not violative of the Equal 
Protection Clause under the applicable rational basis test, 
Rodriguez, supra. See also, Mich Const 1963, art 9, § 6 and § 11 
for the constitutional outline of Michigan’s system of school finan­
ce. 1111 (4aa, 5aa).

The trial court’s ruling as to state aid transportation funding, 
which was independently adopted and set forth on appeal, war­
rants scrutiny. (151a). This urban rural statutory distinction was 
recently found to be both reasonable and non-racial by another 
Federal Districtt Court in Michigan, as follows:

“There was proof that rural school districts received up to 
7 5% reimbursement for student transportation expense 
where none was, until recently, received by the Grand Rapids 
Board or other districts for students residing within the city 
limits. While plaintiffs do not press any claim that the law is 
unconstitutional, they urge that the fact of the distinction is 
discriminatory as part of overall state action claimed violative 
of plaintiffs’ rights. It is an urban-rural classification distinc­
tion based upon known differences usually characteristic of 
urban and rural areas: absence of public transportation, side­
walks, lesser density of student population and generally 
longer distances. It is in no part related to racial difference.

[ I l l  In Michigan’s most recent legislation dealing with state aid to school 
districts, the legislature has adopted a power equalizing formula to be phased 
in over a three year period, pursuant to which each school district will be 
guaranteed $40.00 per pupil for each mill o f operating tax effort, thus 
making expenditures per pupil primarily a function o f the willingness of the 
voters in each school district to tax themselves for school purposes. See Sec­
tion 21(1) o f 1972 PA 258, as amended by 1973 PA 101, MCLA 388.1 121; 
MSA 15.1919 (521). (74aa).



31

“The exercise of legislative discretion in this regard is as valid 
as is that which sees the Grand Rapids School District receive 
annually over $1,000,000 in compensatory aid money under 
Section 3 of the State Aid Act, funds in which the suburban 
school districts do not participate at all. The overall record 
heavily supports the claim that no financial discrimination 
has been practiced against plaintiffs and their class in the 
operation of the school system at any level. . . .”

Higgins v Board o f Education o f the City o f Grand Rapids, 
Michigan, (WD, Mich, CA 6386), Slip Opinion of Judge 
Albert J. Engel, July 18, 1973, pp 77-78.112J

In the 1969-70 school fiscal year, Detroit received 
$1,729,755.00 in Section 3 compensatory state aid money. See 
Section 3 of 1957 PA 312, as amended by 1969 PA 22. However, 
only 9 of the other school districts in the tri-county area received 
any Section 3 funds in 1969-70. A Description and Evaluation of 
Section 3 Programs in Michigan 1969-70, Michigan Department of 
Education, March 1, 1970, Appendix B, pp 61-63.

Further, applying the correct reasonable basis test ennu- 
ciated in Rodriguez, supra, a three judge federal court held this 
very type of urban-rural classification for purposes of state school 
aid transportation funding “plainly constitutional.” Sparrow v 
Gill, 304 E Supp 86, 90-91 (MD NC 1969). As recognized in the 
opinion of Mr. Justice Powell in Keyes, supra, 93 S Ct, at 2714, the 
need for pupil transportation is obviously greater in rural than in 
urban areas.

In Keyes, supra, 93 S Ct, at 2697, this Court emphasized that 
the difference between de jure and de facto segregation is a finding 
[1 2 ] In Higgins, supra, plaintiffs sought a multi-district desegregation 
remedy involving Grand Rapids, which has only a 25% black student body, 
and 11 other surrounding school districts. In a 105 page opinion, following a 
A  day trial in which all 12 school districts and the same defendants Milliken, 
et al, involved herein fully participated, the District Court ruled that, with the 
sole exception of faculty assignment within Grand Rapids, “ . . . the proofs 
'ave failed to establish the other allegations in plaintiffs’ complaint, as amen- 
c . as to the Grand Rapids Board o f Education or as to any other defend­

ants in the case.” Slip opinion, p 103. Thus, in Higgins, supra, plaintiffs’ 
e aims of de jure conduct against the defendants Milliken, et al, not unlike 
tose made herein, were found wholly lacking in merit.



3 2

of purposeful intent to segregate. In the instant cause, neither 
lower court made any finding of purposeful segregation in connec­
tion with the statutory urban-rural classification employed by the 
legislature for allocating categorical state school aid transportation 
funds to school districts. As noted by the trial court, this classifi­
cation also applied to other “ city-contained school districts,... in 
the desegregation area. . . .”  (93a). Clearly, this legislatively 
imposed urban-rural geographical classification is not based on 
race but on whether children reside within or without incorporat­
ed cities, irrespective of race, f 131

Moreover, in Keyes, supra, 93 S Ct, at 2698,2699, this Court 
held that another finding essential in determining de jure segrega­
tion is that the acts in question must have a present causal effect 
of segregation. In this regard, the District Court’s finding on trans­
portation reimbursement made no reference to any finding of 
segregative effect within Detroit. (27a). The Court of Appeals’ 
majority opinion erroneously conveys the impression that the trial 
court made a finding that the lack of state aid transportation reim­
bursement “ contributed to pupil segregation.” (154a).

However, the trial court made no such finding in its Ruling 
on Issue of Segregation as, indeed, it logically could not in light of 
its de jure findings concerning the conduct of the Detroit Board of 
Education in transporting children to relieve overcrowding. (25a). 
The Court of Appeals’ majority opinion is manifestly inconsistent 
in its dual ruling that, while Detroit transported children in a man 
ner furthering segregation, the lack of categorical state school aid 
transportation reimbursement funds in Detroit also contributed to 
pupil segregation in some inexplicable way.

While it is true that the categorical appropriation for transportation 
reimbursement contains an urban-rural classification, it must be stressed that 
Detroit, like all other school districts, may use its locally collected property 
tax revenues for transportation purposes. (Ilia 32). Further, contrary to the 
erroneous statement of the appellate majority that “ Detroit was denied any 
allocation of State funds for pupil transportation,”  (151a), the Detroit 
Board of Education could, in its discretion, spend its general state school aid 
per pupil membership allowance funds, which comprise the great bulk of 
state school aid, for transportation purposes. See Section 34 of 1957 PA 312 
and, for the current legislation, see Section 18(1) of 1972 PA 258, MCLA 
388.1118; MSA 15.1919(518). (72aa, 73aa)



33

Finally, as to ruling (4), neither lower court made any finding 
that the urban-rural statutory classification employed for state 
school aid categorical transportation reimbursement to school 
districts to transport their own pupils had any causal effect on the 
distribution of pupils by race as between Detroit and the other 85 
school districts in Wayne, Oakland and Macomb counties. Thus, in 
light of Keyes, supra, 93 S Ct, at 2698, 2699, this statutory classi­
fication provides no basis for the imposition of a multi-district 
remedy herein.

In summary, both as a matter of fact and law, the lower 
courts committed manifest error concerning matters of alleged 
inter-district disparities in school finance, including categorical 
state school aid transportation reimbursement as determined by 
the legislature. When carefully examined, these determinations by 
the lower courts only support the conclusion that, given the ju­
dicially desired goal of multi-school district racial balance, the 
facts were disregarded and the law ignored to reach such goal.

C. Ruling (3) — school construction

Ruling (3) relates to the matter of school construction. This 
ruling is premised on the alleged statutory control of defendant 
State Board of Education over site acquisition by local school 
boards for new school construction. (151a, 157a). This ruling of 
de jure segregation must be carefully examined in light of 
Michigan’s statutory provisions relating to site acquisition and 
school construction.

Under Michigan law, defendant Detroit Board of Education, 
like other boards of education in Michigan, is empowered with 
plenary discretionary authority to locate and acquire school sites. 
See sections 77, 113, 165, 220a of the School Code of 1955, 
MCLA 340.77, 340.113, 340.165, 340.220a; MSA 15.3077, 
15.3113, 15.3165, 15.3220a. (17aa, 23aa-24aa, 32aa, 33aa-34aa). 
This statutory authority includes the power to acquire school sites 
by exercise of the power of eminent domain that is not subject to 
review by any of the defendants Milliken, et al, herein. See section 
192 of the School Code of 1955, supra, relating specifically to 
Detroit as a first class school district and sections 711 through 724 
°f the same statute laying out the condemnation procedure for



34

school districts generally. (32aa, 51aa). See also Board of Educa­
tion o f the City o f Detroit v Lacroix, 239 Mich 46; 214 NW 239 
(1927). Cleaver v Board of Education of City o f Detroit, 263 Mich 
301; 248 NW 629 (1933). Blissfield Community Schools Districtv 
Strech, 346 Mich 186; 77 NW 2d 785 (1956).

The basic Michigan statute dealing with the construction of 
school buildings is 1937 PA 306, as amended, MCLA 388.851 et 
seq.; MSA 15.1961 et seq. In 1949, by Act 231, the legislature 
amended section 1 of this act to provide, for the first time, that in 
the approval of construction plans by the Superintendent of Pub­
lic Instruction, not the State Board of Education, he was to con­
sider, as one of several factors, “ [t] he adequacy and location of 
the site. In 1962, by act 175, the legislature amended section 1 
of this statute again, thereby removing any power on the part of 
the Superintendent of Public Instruction to consider site location 
as a factor in approving school construction plans. This statute, 
since 1962 and presently, deals only with approval of school con­
struction plans in terms of fire, health and safety requirements. 
(68aa-72aa).

Thus, under Michigan law, the legal authority of defendant 
Superintendent of Public Instruction in site selection was, prior to 
1949 and after 1962, nonexistent. During the intervening period, 
this limited role related, not to the time at which the site was ac­
quired by the local board of education but, to a subsequent point 
in time relating to the submission of construction plans for ap­
proval as to health, fire and safety, at which point he could con­
sider, as one of several factors, the adequacy and location of the 
site. At no time was the Superintendent of Public Instruction em­
powered to compel any local school board to acquire a particular 
site for school purposes or to review its exercise of the power of 
eminent domain. Further, it is the Detroit Board of Education, 
acting alone, that establishes the attendance areas for each school 
under its jurisdiction. Hiers v Detroit Superintendent o f Schools. 
376 Mich 225,235; 136 NW 2d 10, 15 (1965). (Ilia 36).

Moreover, it was the testimony of Mr. Henrickson, an admini­
strative employee of the Detroit Board of Education who testified 
at length during the trial and was selected as a member of the judi-



35

dally appointed desegregation panel, (99a), that within the time 
period from 1949 to 1962, the site standards adopted and utilized 
by Detroit for school site selection and acquisition were developed 
locally and were not directed by either the State Department of 
Education or the State Superintendent of Public Instruction under 
Mich Const 1908, artl 1, § 2. (IIIa87-IIIa88) (laa). Further, it was 
not until after the issuance of the Joint Policy Statement in 1966 
that the Michigan Department of Education began to collect pupil 
data by race from school districts. (See next to last paragraph of 
PX 174, Val3). Thus, during the period from 1949 to 1962 there 
is simply no basis for the claim that the Superintendent of Public 
Instruction, through the Michigan Department of Education, com­
mitted purposeful acts of de jure segregation with respect to 
school site selection in Detroit by the Detroit Board of Education. 
Keyes, supra, 93 S Ct, at 2697.

Virtually all the construction relied upon by the lower courts 
in finding de jure segregation in Detroit occurred after 1962. 
(144a-l 51 a). Clearly, a failure on the part of the Superintendent 
of Public Instruction to exercise a nonexistent power under state 
law cannot constitute purposeful de jure segregation as required 
by Keyes, supra, 93 S Ct, at 2697. This portion of the Court of 
Appeals’ majority opinion is in direct conflict with the en banc 
opinion of the Fourth Circuit in Smith v North Carolina State 
Board of Education, 444 F2d 6 (CA 4, 1971), vacating portions of 
the District Court’s order directed at the state defendants therein 
for the reason that, under state law, such defendants lacked any 
lawful authority to prescribe school attendance plans for local 
school districts. As the North Carolina State Board of Education 
lacked authority, under state law, to prescribe school attendance 
plans for local school districts, so here the Michigan Superin­
tendent of Public Instruction lacked any authority under Michigan 
law, to control the school site selections of defendant Detroit 
Board of Education.

An interesting example of the efforts undertaken herein to 
achieve racial balance, pure and simple, is the trial court’s refer­
ence to the “ statements” and “guidelines” relative to site location 
contained in the Joint Policy Statement and School Plant Planning 
Handbook, which are later transformed by the same court to the



36

level of “requirements” and a “directive” in subsequent rulings. 
(Compare 26a-27a with 78a-79a and 103a). The 1966 Joint Policy 
Statement and the School Plant Planning Handbook, Revised Edi­
tion, 1970, represent an admonition to local school boards by the 
State Board of Education, in the exercise of its leadership function 
under Mich Const 1963, art 8, § 3, to consider racial balance as 
one of the factors in selecting new school sites (PX 174, Val3). 
(Vall-Val2). The Joint Policy Statement and School Plant Plan­
ning Handbook admonitions on site selection were never reduced 
to legally enforceable rules in the State Administrative Code for 
the reason, as correctly concluded by the trial court, that, after 
1962, neither the State Board of Education nor the Superin­
tendent of Public Instruction possessed any power of approval 
over school site selections made by local boards of education. 
(36a). Moreover, as testified by the Superintendent of Public In­
struction, these two documents were viewed by him as containing 
recommendations. (IIIa24-IIIa26, IIIa36). We ask this Court to 
take judicial notice that neither the Joint Policy Statement nor the 
School Plant Planning Handbook were ever published in the State 
Administrative Code as required by 1943 PA 88 and Section 46 of 
its successor act, 1969 PA 306, as amended, MCLA 24.246; MSA 
3.560(146), for legally binding administrative rules. (77aa). See 
Ranjel v City o f Lansing, 417 F2d 321, 322-323 (CA 6, 1969), 
cert den 397 US 980; 90 S Ct 1105; 25 L Ed 2d 390 (1970), reh den 
397 US 1059; 90 SCt 1352; 25 L Ed 2d 680 (1970), applicable 
by analogy, in which the Court held that HUD’s Low Rent Hous­
ing Manual did not have the force of federal law since it was not 
contained in the Federal Regulations.

The Federal Constitution does not require racial balance. 
Spencer v Kugler, supra. Furthermore, the rule is settled that any 
rights existing solely under state law are neither protected by the 
Federal Constitution or federal statutes nor enforceable in the fed­
eral courts. Baker v Carr, 369 US 186, 194-195 n. 15; 82 S Ct 691, 
698; 7 L Ed 2d 663, 672 (1962). Gentry v Howard, 288 F Supp 
495 (ED Tenn, 1969) Thus, assuming arguendo that the ad­
monitions on racial balance in the Joint Policy Statement and 
School Plant Planning Handbook impose some higher duty upon 
defendants State Board of Education and Superintendent of 
Public Instruction than is imposed by the Fourteenth Amend­



37

ment, the enforcement of such duty is a function for Michigan 
courts rather than the federal courts.

Although all the construction referred to relates solely to 
school construction within Detroit, the Court of Appeals’ majority 
opinion transforms such evidence into a conclusion that such con­
struction “ fostered segregation throughout the Detroit metro­
politan area.” (Compare 144a-151a and 157a). It is impossible to 
conceive how the location and construction of school buildings in 
Detroit, by the Detroit Board of Education to serve the children 
residing therein, constitutes multi-school district de jure segre­
gation by the Superintendent of Public Instruction in approving 
construction plans as to health, fire and safety. Further, such con­
clusion on appeal is impossible to reconcile with the trial court’s 
express statement that no proofs were taken as to whether any 
school district, other than Detroit, committed any acts of de jure 
segregation. (59a-60a).

The whole notion of a metropolitan construction violation 
by defendants Milliken, et al, or any of them, is pure fiction. As 
testified by plaintiffs’ expert witness, Dr. Foster, in response to a 
question from plaintiffs’ counsel, school districts, including the 
other 86 school districts in the tri-county area, do not construct 
school buildings and then invite parents, white or black, to move 
in and fill up the new schools. Rather, school districts, including 
the 85 school districts herein, are hard pressed to construct build­
ings to meet the population growth within their respective boun­
daries. (IVa260). Further, as testified to by the same expert wit­
ness, the movement of whites from central cities to suburban com­
munities “ is due to a lot of factors besides desegregation.” 
(IVa254).

Detroit and the other 85 school districts within the counties 
of Wayne, Oakland and Macomb each has a locally elected board 
of education with the duty to educate the resident children 
therein. To this end, each of these locally elected school boards is 
empowered to acquire sites and construct school buildings that are 
financed by the sale of bonds and the imposition of general ad 
valorem property taxes on property within each district to pay off 
such bonds. See sections 77a, 115, 158, 220a and 356 of the



38

School Code of 1955, as amended, supra. (17aa-19aa, 25aa-27aa, 
30aa-31aa, 33aa-34aa). Unless this entire statutory scheme of local 
governance and finance, involving separate, identifiable and unre­
lated school districts, Keyes, supra, 93 S Ct,at 2695, is unconstitu­
tional for failure to guarantee racial balance within a three county 
area, the Court of Appeals’ majority clearly erred in its purported 
finding of a multi-school district construction violation. As stated 
in Rodriguez, supra, 411 US, at 54, footnote 110, “ [t] his Court 
has never doubted the propriety of maintaining political subdivi­
sions within the States and has never found in the Equal Protec­
tion Clause any per se rule of ‘territorial uniformity.’ . . .”

To summarize, ruling 3 on school construction (151a), is in 
error both as a matter of fact and of law. As to construction in 
Detroit, the sites were selected and acquired locally without any 
power on the part of the Superintendent of Public Instruction to 
veto same. Further, as to the alleged metropolitan construction 
violation by way of the defendants Milliken, et al, it is negated both 
by the trial court’s statement that it took no proofs as to whether 
any school district, other than Detroit, committed any acts of de 
jure segregation and the uncontradicted testimony of plaintiffs’ 
expert witness that school districts play catch-up in the matter of 
constructing schools to house their increased populations. (59a-60a, 
IVa 260).

D. Ruling (2) — the effect o f section 12 of 1970 PA 48

Ruling (2) relates to Section 12 of 1969 PA 244, as added by 
1970 PA 48, MCLA 388.171a et seq; MSA 15.2298(la) et seq, 
which section delayed implementation of defendant Detroit Board 
of Education’s April 7, 1970 racial balance plan affecting 12 of its 
21 high schools over a three year period. (114a-l 16a, 151a). 
(52aa-58aa). Section 12 of 1969 PA 244, as added by 1970 PA 48, 
supra, was held invalid by the Court of Appeals on October 13, 
1970, and the trial court was expressly directed to give no effect 
to such section at the trial of this cause. However, the Court of 
Appeals refused to order implementation of the April 7, 1970 plan 
prior to a trial on the merits. 433 F2d 897, 904-905 (CA 6, 1970).

The ruling by the Court of Appeals, that Section 12 of 1969 
PA 244, as added by 1970 PA 48, supra, was unconstitutional,



3 9

contravenes the settled principle that, on appeal from the denial of 
a preliminary injunction, the courts will confine their review to 
the limited question of whether the trial court abused its discre­
tion. Courts will assess the underlying merits only to determine 
the plaintiff’s probability of prevailing on the merits upon remand 
and trial, particularly where constitutional issues are involved. 
Allen v Mississippi Commission of Law Enforcement, 424 F2d 
285, 290-291 (CA 5, 1970). Yahr v Resor, 431 F2d 690 (CA 4, 
1970), cert den 401 US 982; 91 SCt 1192; 28 L Ed 2d 334(1971). 
However, no appeal was sought by the defendants Milliken, et al, 
for the reason that, in light of the affirmance of the denial of a 
preliminary injunction, the Detroit Board of Education was left in 
the same practical situation it would have been in if the Court had 
adopted the contention of defendents Milliken, et al, that the 
second sentence of Section 12 was discretionary, not manda­
tory, f14l i.e., from and after January 1, 1971, the decision to go 
forward with the April 7, 1970 racial balance would have been re­
posed in the discretion of the newly constituted Detroit Board of 
Education. See 433 F2d 987, 904, supra, and Sections la and 12 
of 1969 PA 244, as added by 1970 PA 48, supra. 54aa, 58aa).

Based on an opinion from its counsel concerning the effect of 
the first sentence of Section 12 of 1969 PA 244, as added by 1970 
PA 48, supra, the Detroit Board of Education did not put into 
effect the April 7, 1970 racial balance plan. It cannot be said that 
Section 12 was implemented by the affirmative conduct of any of 
the defendants Milliken, et al, herein. Indeed, defendant State 
Board of Education endorsed the April 7 plan. 433 F2d 897, 
900-901, supra.

T he C ou rt  o f  A p p e a ls ,  at 4 3 3  F 2 d  8 9 7 ,  9 0 4 , supra, s ta te s  th a t  t h e  d e ­
fendants d e fe n d e d  S e c t io n  1 2  o n  th e  m e r its  in  s u ch  C o u r t .  T h a t is s im p ly  n o t  
accurate. W hile  th e  b r i e f  o f  d e fe n d a n ts  M il l ik e n , e t  a l, d id  d is cu ss  th e  c o n ­
stitutional q u e s t io n  w ith  r e fe r e n c e  t o  th e  fir s t  s e n te n c e  o f  S e c t io n  1 2 , it  d id  
so on ly  w ith in  th e  l im ite d  c o n t e x t  o f  a ssessin g  th e  p r o b a b i l i t ie s  o f  p la in t i f fs ’ 
success o n  th e  m e r its , u p o n  r e m a n d  a n d  h e a r in g , as a f a c t o r  in  e v a lu a tin g  th e  
single q u e s tio n  o f  a b u s e  o f  d is c r e t io n  b y  th e  tr ia l ju d g e .  A s  t b  th e  s e c o n d  
sentence o f  S e c t io n  1 2 , t h e  b r i e f  o f  d e fe n d a n ts  M ill ik e n , et a l, d id  n o t  a d d ress  
itself at all t o  th e  c o n s t i t u t io n a l  q u e s t io n , s in ce  it w a s  n o t  o p e r a t iv e  u n til 
January 1, 1 9 7 1 , b u t  d id  in f o r m  th e  C o u r t  o f  A p p e a ls  th a t  it w a s  th e ir  p o s i ­
tion that su ch  s e n te n c e  w as d i r e c t o r y ,  n o t  m a n d a t o r y ,  w h e n  read  in  ligh t o f  
other u n rep ea led  s t a t u t o r y  s e c t io n s  re la t in g  t o  th e  d is c r e t io n a r y  a u th o r it y  o f  
boards o f  e d u c a t io n  t o  e s ta b lish  a t te n d a n c e  areas. Hiers v  D etroit Superin­
tendent o f  Schools, supra, 3 7 6  M ic h , at 2 3 5 .



4 0

The only defendant arguably involved with Section 12 is the 
Governor, who signed into law 1970 PA 48 on July 7, 1970. How­
ever, it must be stressed that 1970 PA 48 contained 14 sections 
dealing with the decentralization of first class school districts to 
promote the judicially recognized meritorious goal of greater local 
control over public education. Wright v Council of the City of 
Emporia, supra, 407 US, at 469, 478. Rodriguez, supra, 411 US. 
at 49. (54aa-58aa). Further, under Michigan law, the Governor 
does not possess an item veto except for items appropriating 
money in appropriation bills. Mich Const 1963, art 4, §33 and art 
5, § 19. Moreover, the language added by Section 2a of 1969 PA 
244, as added by 1970 PA 48, supra, to the effect that “ [r] egions 
shall be as compact, contiguous and nearly equal in population as 
practicable” was a necessary addition to the decentralization legis­
lation, in light of the “ one-man, one-vote” principle enunciated in 
Hadley v Junior College District o f Metropolitan Kansas City, 397 
US 50; 90 S Ct 791; 25 L Ed 2d 45 (1970), since the regions serve, 
inter alia, as election districts for 8 members of the central or first 
class board of education. See Section 2a of 1969 PA 244, as added 
by 1970 PA 48, supra. (54aa-55aa). Finally, these defendants are 
aware of no judicial authority holding that a chief executive of­
ficer, whether it be the President of the United States, governor of 
a state or mayor of a city, violates the constitution by signing into 
law a legislative enactment, a portion of which is later held to be 
unconstitutional. See Wright v Rockefeller, 376 US 52, 55-57; 84 
S Ct 603; 11 L Ed 2d 512 (1964), where the majority opinion 
discussed, not the intent of the Governor, but the purpose or 
motivation of the legislature in ascertaining whether the chal­
lenged part of the statute was invalid. The record is barren of any 
evidence of segregatory purpose on the part of defendant Milliken 
in signing into law 1970 PA 48, supra.

From and after October 13, 1970, Section 12 has been legal­
ly ineffective, 433 F2d 897, supra. The postponement of the April 
7, 1970 racial balance plan for one semester by § 12 of 1970 PA 
48 affected at most approximately 3,000 to 4,000 tenth grade 
students in a school district with 289,743 students. See 433 F2d 
897, 898-901, supra, and (20a). The lack of implementation of the 
April 7, 1970 plan, since that date, has been the result of the un­
willingness of the Detroit Board of Education to implement such



4 1

plan and the refusal of the District Court, subsequently affirmed 
on appeal, to order its implementation. 438 F2d 945 (CA 6,
1971). Thus, Section 12 has long since ceased to have any causal 
nexus, if it ever had any such effect, to the racial composition of 
the 12 Detroit high schools included in the April 7, 1970 plan. 
Keyes, supra, 93 S Ct, at 2698, 2699. Further, pursuant to the 
McDonald Magnet Plan ordered implemented by the trial court, 
which included both 8 middle schools and 19 high schools, 8,174 
students enrolled in this voluntary integration program for the fall 
of 1971. (la 90, la 94 and page 1 of the Report of the Detroit 
Board of Education on the Magnet Plan).

Finally, it must be emphasized that the April 7, 1970 plan, 
affecting only 12 of 21 Detroit high schools, had no causal con­
nection with the distribution of pupils by race between Detroit 
and any other school district within the tri-county area of Wayne, 
Oakland and Macomb counties. Plaintiffs herein continually 
sought implementation of such plan solely within the School Dis­
trict of the City of Detroit. 433 F2d 891, supra, 438 F2d 945, 
supra. Consequently, ruling (2) of the Court of Appeals majority is 
manifestly erroneous as to defendants Milliken, et al, and affords 
no basis for the implementation of relief intra-Detroit or among 
Detroit and other school districts in the tri-county area.

E. Ruling (1) — Detroit Board of Education an agency of 
the State o f Michigan

If Ruling (1) means only that the actions of defendant, 
Detroit Board of Education, constitute state action within the 
scope of the Equal Protection Clause, then it merely confirms the 
obvious and adds nothing to the opinion. (151a). If, on the other 
hand, this finding constitutes a determination of vicarious liability 
against either the State of Michigan or the defendants Milliken, et 
al, based on the conduct of the Detroit Board of Education, then 
such finding is manifestly in error.

Throughout the course of the proceedings below, plaintiffs’ 
counsel, the trial court and the appellate court have proceeded on 
the erroneous premise that the State of Michigan is a party defend­
ant herein. (See Ila 44, Ila 70, 33a and the slip opinion of the 
original appellate panel issued December 8, 1972 which, unlike the



4 2

majority opinion on rehearing, did not contain the caveat at 115a 
to the effect that “The State of Michigan as such is not a party to 
this litigation.” )- In addition to not being a party herein, the State 
of Michigan has not given its consent to this suit in Federal court 
as required by the Eleventh Amendment and the controlling case 
law of this Court. In re State o f New York, supra, 256 US, at 497. 
This premise, while not in accord with reality, was obviously per­
ceived as a useful fiction in achieving the lower courts’ paramount 
social goal of multi-school district racial balance within a tri­
county area.

This premise was given its ultimate effectuation in the orders 
adding the State Treasurer as a party defendant and compelling 
the defendants Milliken, et al, to pay funds from the state treasury 
to purchase 295 buses for a partial, interim multi-district remedy. 
(Ia 263-la 264, 106a-107a). This order, compelling the payment of 
approximately $3,000,000.00 from the state treasury to acquire 
295 buses [a school bus costs approximately $10,000.00, (IVa 
18)], is squarely in conflict with the Eleventh Amendment and 
the controlling case law of this Court that a money judgment 
payable from the state treasury may not be entered by the Federal 
courts in the absence of the state’s consent. Parden v Terminal 
Railway Co, 377 US 184, 186, 192; 84 S Ct 1207, 1210-1211, 
1213; 12 L Ed 2d 233, 236, 240 (1964) Ford Motor Co. v 
Department o f Treasury o f Indiana, 323 US 459, 464; 65 S Ct 
347, 350-351; 89 L Ed 389, 394 (1945). In re State o f New York, 
supra, 256 US, at 500-502.

In addition, as cogently stated by Circuit Judge Weick in dis­
sent, “ [t]his order imposed a personal liability on the State de­
fendants and would require them, if they complied with it, to mis- 
appropriate and misapply state funds in violation of state law.” 
(21 5a). Under Michigan law, no money may be paid out of the 
state treasury except pursuant to appropriations made by law and 
the power to appropriate state funds is vested in the Michigan leg­
islature, not defendants Milliken, et al. Mich Const 1963, art 9, 
§ 17 and art 4, §31. (5aa, laa). There is no legislative appropria­
tion pursuant to which the defendants Milliken, et al, have any 
lawful authority to expend approximately $3,000,000.00 from 
the state treasury for school buses. By way of contrast, in Griffin v 
County School Board o f Prince Edward County, 377 US 218, 233;



43

84 S Ct 1226, 1234; 12 L Ed 2d 256, 266 (1964), this Court 
stated that county officials could be compelled to “ exercise the 
power that is theirs” to levy local taxes for public education. Here, 
the power is not theirs to pay out funds for school buses as 
ordered below. Although the order to pay for buses has been va­
cated, it is clear that the appellate majority would approve a simi­
lar or even more costly order in the future. (190a, 188a).

As noted above, on rehearing the appellate majority recog­
nized that the State of Michigan is not a party to this cause and 
apparently resorted, albeit cryptically, to a vicarious liability 
theory. (115a, 151a). To the extent ruling (1) is based upon an 
agency theory of vicarious liability, it must be stressed that, under 
settled Michigan law, school districts are local state agencies of leg­
islative creation exercising plenary discretionary power over stu­
dent assignment within their respective school districts. Attorney 
General, ex rel Kies v Lowrey, 131 Mich 639, 644; 92 NW 289, 
290 (1902), aff’d 199 US 233; 26 S Ct 27; 50 L Ed 167 (1905). 
School District o f the City o f Lansing v State Board o f Education, 
367 Mich 591, 595; 116 NW 2d 866, 868 (1962). Senghas v 
L'Anse Creuse Public Schools, 368 Mich 557, 560; 118 NW 2d 
975, 977 (1962). Hiers v Detroit Superintendent o f Schools, 
supra, 376 Mich, at 235; 136 NW 2d, at 15. The school code of 
1955, as amended, supra. (6aa-51aa). Thus, assuming arguendo 
any vitality to an agency theory of vicarious liability, it is clear 
that the School District of the City of Detroit is not an agent, un­
der Michigan law, of the defendants Milliken, et al.

Indeed, the Court of Appeals’ majority opinion expressly re­
jects any agency theory, as between the defendants Milliken, et al, 
and local school districts in its holding that any “affected district 
first must be made a party to this litigation and afforded an oppor­
tunity to be heard” and in its recognition that under state law, 
only the legislature may reorganize the governmental structure of 
the tri-county area. (177a, 188a, 189a). This vicarious liability is 
also decisively put to rest in the dissent of Judge Weick. 
(213a-214a).

This apparent theory of vicarious liability is also put to rest
by the majority opinion in Keyes, supra, 93 S Ct, at 2697, as fol­
lows:



44

“ On the contrary where, as here, the case involves one 
school [sic] board, a finding of intentional segregation on its 
part in one portion of a school system is highly relevant to 
the issue of the board’s intent with respect to the other segre­
gated schools in the system. . . . ”

This Court, in enunciating the shifting burden of proof principle 
applicable to school desegregation cases, carefully limited its appli­
cation to situations involving the same defendant. Since miscon­
duct by one defendant, serves only to shift the burden of proof as 
to that defendant, it cannot be said that misconduct by one defen­
dant is a legally sufficient basis for a finding of vicarious liability as 
to other defendants.

Needless to say, in passing upon the actions of defendants 
Milliken, et al, it may hardly be argued that they shed any of their 
federally protected constitutional rights at the state capitol door. 
See Tinker v Des Moines Independent School District, 393 US 
503, 506; 89 S Ct 733, 736; 21 L Ed 2d 731, 737 (1969). Like 
every other citizen their purposeful actions should be judged fairly 
by the record and in accordance with due process of law.

To summarize, neither lower court made any findings against 
either the Governor or the Attorney General of purposeful affirm­
ative conduct resulting in de jure segregation. This is not surpris­
ing, in light of the uncontradicted testimony of the Superin­
tendent of Public Instruction that neither the Governor nor the 
Attorney General is involved in the decisions of the Detroit Board 
of Education or any of the other 616 school district boards of ed­
ucation in Michigan. (Ilia 35-IIIa 36, Ilia 41-IIIa 42). Thus, under 
Keyes, supra, 93 S Ct, at 2696-2697, the case as to these two de­
fendants must be dismissed. This is the sound result reached initi­
ally by the District Court herein (la 61), and on appeal by Circuit 
Judge Weick (216a).

The defendant, State Treasurer, was added after the violation 
hearings so that the District Court could order the State Treasurer 
to pay funds from the state treasury to purchase 295 buses for the 
multi-district remedy. As to him also, the case must be dismissed 
since there is no claim or finding of unconstitutional conduct by 
him and the settled case law of this Court under the Eleventh 
Amendment precludes compelling payment of funds out of the



45

State Treasury where, as here, the State of Michigan has never con­
sented to this suit in Federal Court. Keyes, supra, 93 S Ct, at 
2696-2697. Parden v Terminal Railway Co, supra, 377 US, at 186, 
192. Ford Motor Co v Department o f Treasury o f Indiana, supra, 
323 US, at 464. In re State of New York, supra, 256 US, at 
500-502.

Turning to defendants State Board of Education and Superin­
tendent of Public Instruction, it must first be emphasized that 
under the controlling case law of this Court, the elements of de 
jure conduct are affirmative, purposeful state action with an intent 
to segregate causally connected to a present condition of segrega­
tion. Keyes, supra, 93 S Ct, at 2696-2699. Applying this control­
ling legal standard, the rulings against these two defendants 
must fall. The rulings against the State Board of Education and the 
Superintendent of Public Instruction, relating to transportation of 
Carver students by the Detroit Board of Education in the 1950’s 
and school construction in Detroit during the 1960’s on sites 
selected and acquired locally, with locally established attendance 
areas, do not constitute purposeful segregatory conduct with a 
present causal effect of segregation as required by Keyes, supra. Fur­
ther, the lower courts herein clearly erred in relying upon alleged 
inter-district financial disparities as a predicate for finding de jure 
constitutional violations by these defendants both as a matter of 
fact and law. Rodriguez, supra. Thus, as to de jure segregation in 
Detroit, the lower court rulings against these two defendants must 
be reversed.

On the question of whether the defendants Milliken, et al, 
have committed acts with the purpose and present causal effect of 
segregating school children by race as between Detroit and the 
other 85 school districts in the tri-county area, the conclusion is 
compelled that these defendants have not committed such de jure 
acts. Keyes, supra, 93 S Ct, at 2696-2699. The question of a 
metropolitan violation as to school construction by these defend­
ants is spurious in light of the express statement that no proofs 
were taken as to whether any school district, other than Detroit, 
committed any act of de jure segregation. (59a, 60a). The lower 
court language herein on this matter represents, not the record in 
ibis cause, but the judicial goal of multi-school district racial 
balance before which all else must fall. Defendants Milliken, et al,



46

should not be employed as the judicial scapegoat for racial balance 
over a three-county area. Rather, these defendants deserve to be 
judged by their actual conduct in office. Judged in this way, the 
lower court rulings against these defendants must be reversed. 45]

H.

THE RULING OF THE COURT OF APPEALS THAT A 
DETROIT-ONLY DESEGREGATION PLAN COULD NOT 
R E M E D Y  THE UNCONSTITUTIONAL SEGREGATION 
FOUND IN THE DETROIT SCHOOL SYSTEM IS NOT 
SUPPORTED BY THE RECORD AND IS CLEARLY ERRO- 
NEOUS AS A  M ATTER OF LAW.

A. The lower courts rejected the constitutional concept of 
a unitary school system within Detroit for the socio­
logical concept o f  racial balance throughout a three- 
county area.

Plaintiffs Bradley, et al, in their complaint, specifically 
prayed for the “elimination of the racial identity of every school 
in the (Detroit) system and to maintain now and hereafter a uni­
tary nonracial school system.” (15a). Plaintiffs’ prayer mirrored 
the well-settled case law of this Court that a de jure segregated 
school district be dismantled so that the system should then be 
unitary, as required by Green v School Board of New Kent 14

14 5 J it  is t h e  p o s i t io n  o f  th e  d e fe n d a n ts  M ill ik e n , et a l, as it  has been 
t h r o u g h o u t  th is  l i t ig a t io n , th a t  e v id e n c e  o f  a lle g e d  ra c ia l  d iscr im in ation  in 
h o u s in g  b y  a n y o n e  o t h e r  th a n  t h e  n a m e d  d e fe n d a n ts  is  irre lev a n t and inad­
m iss ib le  in  a s c h o o l  d e s e g re g a t io n  ca se . (I I  a 9 - 1 0 )  Swann v  Charlotte- 
Mecklenburg Board o f  Education, su p ra , 4 0 2  U S , at 2 2 -2 3  (1 9 7 1 ) .  Further, 
w h ile  th e  tr ia l c o u r t  o p in io n s  c o n t a in  s w e e p in g  g e n e r a liz a t io n s  a b o u t  racial 
d is c r im in a t io n  in  h o u s in g , t h e y  c o n t a in  n o  c o n c r e t e  r e fe r e n c e s  t o  an y  alleged 
a cts  o f  ra c ia l d is c r im in a t io n  in  h o u s in g  b y  a n y  o f  t h e  d e fe n d a n ts  M illiken, et 
al. (S e e , f o r  e x a m p le , 2 3 a -2 4 a ) .  T h e  r e a s o n  is  th a t  th e r e  is  n o th in g  in the 
r e c o r d  t o  s u p p o r t  a n y  s p e c i f i c  f in d in g s  o f  ra c ia l d is c r im in a t io n  in  housing as 
t o  th e s e  d e fe n d a n ts . F u r th e r , u n d e r  M ich ig a n  la w , p e rs o n s  a lle g e d ly  discrimin­
a te d  again st in  p r iv a te  h o u s in g  m a y  s e e k  r e l ie f  f r o m  t h e  sta te  C ivil Rights 
C o m m is s io n  a n d  t h e  sta te  c o u r t s .  S e e  M ich  C o n s t  1 9 6 3 ,  art 5 ,  § 2 9 ,  Beech 
Grove Investment Company v  Civil Rights Commission, 3 8 0  M ich  4 0 5 ; 157 
N W  2 d  2 1 3  ( 1 9 6 8 ) .  1 9 6 8  P A  1 1 2 , M C L A  5 6 4 .1 0 1  et seq.; M S A  26.1300 
( 1 0 1 )  e t  se q . (2 a a , 3 a a ).



47

County, supra, 391 US, at 436; Alexander v Holmes County Board 
of Education, supra, 396 US, at 20; and Swann v Charlotte- 
Mecklenburg Board o f Education, supra, 402 US, at 15.

The District Court found the Detroit School District to be de 
jure segregated. As defendants Milliken, et al, have demonstrated 
in Part I of this brief, the Detroit School District is not a dual 
school system because of any purposeful actions by these defend­
ants. Defendants Milliken, et al, also do not believe that 
the Detroit School District is a dual school system because of any 
purposeful action by the defendant Detroit Board of Education.

The trial court found that “ [t] he principal causes (of segrega­
tion in the Detroit public schools) undeniably have been popula­
tion movement and housing patterns.” (33a). It is submitted that, 
indeed, the cause of segregation in Detroit’s public schools is racial 
residential concentration, not the de jure conduct of the Detroit 
Board of Education. For example, on the question of faculty seg­
regation the District Court concluded, based on 30 specific find­
ings of fact, that “ [ t] he Board and the intervening defendant 
union have followed a most advanced and exemplary course in 
adopting and carrying out what is called the ‘balanced staff con­
cept’ — which seeks to balance faculties in each school with re­
spect to race, sex and experience, with primary emphasis on race.” 
(28a-32a). Thus, the trial court found no de jure faculty segre­
gation in the Detroit public schools.

Turning to pupil segregation, the lower courts relied heavily 
upon optional attendance areas in finding de jure segregation. 
(24a-25a, 139a-140a). The record does not support the conclusion 
that these optional attendance areas were created and maintained 
with the purpose and effect of segregating pupils by race, since the 
option was equally available to all students living in the area. In 
any event, it is undisputed that by the 1970-71 school year all 
such optional attendance areas had been eliminated with one 
minor exception. Further, during the decade of the 1960’s the 
elimination of such areas was done in a manner that contributed 
to increased pupil integration as testified to by one of plaintiffs’ 
witnesses. (R2391, R2392, R2393, R2398, R2399, R2407, 
R2411). In addition, the elimination of the last optional attend­
ance area in 1970 manifestly contributed to integration at South-



48

western High School. (25a). Moreover, as found by the trial 
court, the present effect of these optional attendance areas was 
limited to 11th and 12th grade students at one high school and 
disappeared at the end of the 1972-73 school year. (25a). Thus, 
these optional attendance zones do not constitute conduct with 
either the purpose or present causal effect of de jure segregation. 
Keyes, supra, 93 S Ct, at 2697-2699.

In terms of transportation to relieve overcrowding, both 
lower courts ruled that the Detroit Board had done so in a seg- 
regatory manner by transporting black pupils past predominantly 
white schools to predominantly black schools. (25a, 129a-130a). 
However, an examination of defendant’s Exhibit JJ reveals that, 
during the decade of the 1960’s, the vast majority of transpor­
tation to relieve overcrowding was from sending schools with a 
higher percentage of black students to receiving schools with a 
lower percentage of black students, thereby increasing integration. 
(DX JJ, Va 169).

Turning to school construction, both the lower courts con­
cluded that the Detroit Board of Education constructed schools in 
a segregatory manner, based almost exclusively on examples of 
schools or additions to schools that opened with predominantly 
black student bodies in the years immediately preceding the time 
of trial. (27a, 144a-151a). In Swann, supra, 402 US, at 20, this 
Court stated:

“The construction of new schools and the closing of old ones 
are two of the most important functions of local school 
authorities and also two of the most complex. They must de­
cide questions of location and capacity in light of population 
growth, finances, land values, site availability, through an al­
most endless list of factors to be considered. . . .”

In contrast with this Court’s perceptive analysis of the multiple 
factors involved in school construction, the approach of the lower 
courts herein gives no attention to any of these factors in assessing 
the alternatives available to the Detroit Board of Education in 
light of the racially concentrated demography of the city, site 
availability, land values and costs, together with population 
growth and traffic patterns in a densely populated urban area plus



49

An examination of defendant’s exhibit NN reveals that, at 
the time construction was authorized for a substantial number of 
these schools, the per cent black was above 10% and under 90%. 
However, either by the time the construction process was com­
pleted and the school opened or by 1970 some of these schools 
had become 90% or more black due to demographic changes over 
which the Detroit school board had no control. (DX NN, Va 102). 
Further, looking at the high schools on the same exhibit, it is sig­
nificant that 7 of the 13 high schools listed there, drawing from 
geographically larger attendance areas, are substantially integrated. 
(DX NN, Va 102). In fact, the schools were built where they were 
needed to house the school age children residing within the school 
district. Indeed, under the rationale employed by the lower courts 
for a multi-district remedy, the pattern of school construction in 
Detroit is irrelevant since a unitary system may not be established 
within the Detroit school district in any event.

The present Detroit Board of Education, exercising its inde­
pendent legal status under Michigan law, has elected, both in the 
Court of Appeals and in this Court, to acquiesce in the de jure 
findings against it and, in effect, gamble that through a racially 
balanced multi-district remedy a unitary system composed of ma­
jority black schools in the Detroit School District will not be 
necessary. (221a) Thus, the next question to be addressed is 
whether the simple demographic fact of a black pupil majority 
precludes the establishment of a unitary system of schools in the 
Detroit School District.

The District Court ordered the defendant Detroit Board of 
Education to submit plans for the desegregation of its schools. 
(43a) It submitted Detroit-Only desegregation plans A and C.

Plaintiffs Bradley, et al, submitted a Detroit-Only Plan, here­
after designated as plaintiffs’ plan, prepared by Dr. Gordon Foster, 
an expert widely utilized by the National Association for the Ad­
vancement of Colored People in school desegregation cases, and a 
member of the desegregation panel designated by the District 
Court. (PXC 2, R 303, 304, 316.) At the hearing on the Detroit- 
Only plan, the uncontradicted testimony of Dr. Foster established

the many other factors relating to  school construction decisions.



5 0

that plaintiffs’ plan met the constitutional requirements of the 
Fourteenth Amendment (IV 95 - IV 96), that it would eliminate 
racially identifiable schools in the Detroit School District (IV 96), 
that plaintiffs’ plan was a sound educational plan (IV 98) and that 
plaintiffs’ plan would improve the educational opportunities of 
the school children of Detroit.

The District Court rejected out-of-hand defendant Detroit 
Board of Education’s Detroit-Only Plans A and C and made the 
following findings of fact and conclusions of law relating to plain­
tiffs’ Detroit-Only plan:

“PLAINTIFFS’ PLAN
1. The court finds that Plaintiffs’ Plan would accomplish 

more desegregation than now obtains in the system, or would 
be achieved under Plan A or Plan C.
“ 2. We find further that the racial composition of the stu­
dent body is such that the plan’s implementation would 
clearly make the entire Detroit public school system racially 
identifiable as Black.

* * *
“4. The plan would entail an overall recasting of the Detroit 
school system, when there is little assurance that it would not 
have to undergo another reorganization if a metropolitan 
plan is adopted. (Emphasis added.)

* * *
“ 6. The plan does not lend itself as a building block fora 
metropolitan plan. (Emphasis added.)

“ 7. The plan would make the Detroit school system more 
identifiably Black, and leave many of its schools 70 to 90 per 
cent Black.
“8. It would change a school system which is now Black and 
White to one that would be perceived as Black, thereby in­
creasing the llight oi Whites from the city and the system, 
thereby increasing the Black student population.

*  *  *

CONCLUSIONS OF LAW
*  *  *



51

“ 2. On the basis of the court’s finding of illegal school segre­
gation, the obligation of the school defendants is to adopt 
and implement an educationally sound, practicable plan of 
desegregation that promises realistically to achieve now and 
hereafter the greatest possible degree of actual school deseg­
regation. Green v. County School Board, 391 U.S. 430; 
Alexander v. Holmes County Board o f Education, 396 U.S. 
19; Carter v. West Feliciana Parish School Board, 396 U.S. 
290; Swann v. Charlotte-Mecklenburg Board o f Education, 
402 U.S. 1.

* * *

“4. Plaintiffs’ Plan, while it would provide a racial mix more 
in keeping with the Black-White proportions of the student 
population than under either of the Board’s plans or as the 
system now stands, would accentuate the racial identifiability 
of the district as a Black school system, and would not 
accomplish desegregation.
“5. The conclusion, under the evidence in this case, is ines­
capable that relief of segregation in the public schools of the 
City of Detroit cannot be accomplished within the corporate 
geographical limits of the city. . . .
“That the court must look beyond the limits of the Detroit 
school district for a solution to the problem of segregation in 
the Detroit public schools is obvious; that it has the author­
ity, nay more, the duty to (under the circumstances of this 
case) do so appears plainly anticipated by Brown II, seven­
teen years ago. While other school cases have not had to deal 
with our exact situation, the logic of their application of the 
command of Brown II supports our view of our duty.” (54a, 
55a, 56a, 57a).

Although the District Court expressly cited Green, supra, 
Alexander, supra, and Swann, supra, as controlling precedents 
for the desegregation of a de jure segregated school district 
(56a), a study of the Findings of Fact and Conclusions of Law 
on Detroit-Only Plans of Desegregation. March 28, 1972 (53a), 
compel the conclusion that the District Court misread and mis­
applied the teachings of this Court so clearly enunciated therein. 
This came as no surprise to these defendants since the District



5 2

Court, by its observations and findings, had clearly marked the 
road upon which it had embarked. The following reflect some of 
the check points of that journey:

THE COURT: In other words, if the projection, and I will 
be surprised if it doesn’t follow the course which history has 
shown since 1940, if the projection is in that direction then 
this occurs to me, how do you integrate a school district 
where the student population is, let’s make a guess, 85 to 95 
percent black? How do you integrate it? (Emphasis added). 
(R 3537).
‘THE COURT: Mr. Ritchie has made some points along that 

line, and I have, and to repeat mine as I have said to several 
witnesses in this case: ‘How do you desegregate a black city, 
or a black school system;’ That is why I was interested in the 
projections of the student population of the city. We end up 
with student population of Detroit of 80 to 85 percent black. 
How do you integrate, or, if I find segregation, to put it an­
other way, how do I desegregate. . . .”
(R 4003, R 4004).
The overriding concern of the District Court with the spec­

ulative black student population of the Detroit School District in 
1975, 1980 and 1992 is underscored by the following statement 
contained in the Ruling on Issue of Segregation rendered on Sep­
tember 27, 1971:

“ . . . The percentage of black students in the Detroit Public 
Schools in 1975-76 will be 72.0%, in 1980-81 will be 80.7% 
and in 1992 it will be virtually 100% if the present trends 
continue. . . .”  (20a).

Seven days later at the pretrial of all counsel in the case, even be­
fore Detroit-Only plans of desegregation had been ordered, let 
alone prepared or hearing held, the District Court said:

As the Court indicated during the course of taking proofs it 
entertains serious reservations about a plan of integration, 
which encompasses no more than the public schools of the 
city of Detroit. . . . •

• . . We must bear in mind that the task that we are called 
upon to perform is a social one which society has been un-



5 3

able to accomplish. In reality our courts are called upon, in 
these school cases, to attain a social goal through the educa­
tion system, by using law as a lever.” (40a-41a).
In affirming the decision of the District Court rejecting each 

Detroit-Only desegregation plan, the majority of the Court of Ap­
peals made the following comment:

“ . . . This record presents a wholly new fact pattern in a 
school segregation case so far as this Circuit is concerned. 
This court never before has been confronted by a finding that 
any less comprehensive a solution than a metropolitan area 
plan would result in an all black school system immediately 
surrounded by practically all white suburban school systems, 
with an overwhelmingly white majority population in the 
total metropolitan area.” (163a-l 64a).

Judge Weick and Judge Kent, dissenting, characterized, correctly, 
the action of the majority of the Court of Appeals as an attempt 
to overcome demographic racial imbalance as between the Detroit 
School District and other school districts in the tri-county area of 
Wayne, Oakland and Macomb rather than correcting constitutional 
violations limited to the Detroit School District. (19la-193a, 
224a-225a).

Both the District Court and the majority of the Court of 
Appeals, in their haste to use the law as a lever through the educa­
tional system to achieve the social goal of racial balance in an area 
covering 1,952 square miles, approximately the size of the state of 
Delaware, more than half again the size of Rhode Island and al­
most 30 times the size of the District of Columbia, and affecting 
approximately 1,000,000 children and their parents, have lost 
sight of the uncontroverted fact that the Detroit School District 
enrollment is composed of 63.8% black children and 34.8% white 
children, (21a, 22a) and the controlling teachings of Green, 
Alexander and Swann.

B, The teachings of Green, Alexander and Swann exam­
ined.

Green, supra, involved a school district 57% black and 43% 
white, not unlike the Detroit School District here in racial com­
position but much smaller in pupil enrollment, operating a dual



54

school system by maintaining a separate school for blacks and a 
separate school for whites. This Court rejected a “ freedom of 
choice” plan which resulted in the black school remaining black.

“The pattern of separate ‘white’ and ‘Negro’ schools in the 
New Kent County school system established under com­
pulsion of state laws is precisely the pattern of segregation to 
which Brown I and Brown II were particularly addressed, and 
which Brown I declared unconstitutionally denied Negro 
school children equal protection of the laws. Racial identifi­
cation of the system’s schools was complete, extending not 
just to the composition of student bodies at the two schools 
but to every facet of school operations—faculty, staff, trans­
portation, extracurricular activities and facilities. In short, 
the State, acting through the local school board and school 
officials, organized and operated a dual system, part ‘white’ 
and part ‘Negro.’

“It was such dual systems that 14 years ago Brown /  held 
unconstitutional and a year later Brown II held must be abol­
ished; school boards operating such school systems were re­
quired by Brown II ‘to effectuate a transition to a racially
nondiscriminatory school system.’ 349 US, at 301___The
transition to a unitary, nonracial system of public education 
was and is the ultimate end to be brought about;. . .” 391 
US, at 435-436. (Emphasis added.)

This Court mandated that the school district convert to a uni­
tary system now, in which racial discrimination would be elim­
inated root and branch.

“ . . . The Board must be required to formulate a new plan 
and, in light of other courses which appear open to the 
Board, such as zoning, [footnote omitted] fashion steps 
which promise realistically to convert promptly to a system 
without a ‘white’ school and a ‘Negro’ school, but just 
schools.” 391 US, at 442. (Emphasis added.)

Thus, the rule of Green, supra, requires that a dual school 
system be converted now to a unitary, nonracial system, com­
posed of just schools.



55

When this Court recently rendered its decision in Keyes, 
supra, 93 S Ct, at 2693, 2694, at footnote 1 1, it confirmed that 
Green, supra, remains the governing principle.

In Alexander, supra, this Court, relying on Green, supra, and 
Griffin v County School Board, supra, restated the standard for 
the desegregation of dual school systems and ordered several 
Mississippi school districts:

. . to operate as unitary school systems within which no 
person is to be effectively excluded from any school because 
of race or color.” 396 US, at 20. (Emphasis added.)

The holding in Alexander defines a unitary system as one 
within which no pupil is excluded from any school because of race 
or color.

In Swann, supra, the Court had before it a desegregation plan 
for a dual system school district composed of a pupil population 
of 71% white and 29% black. Two-thirds of the black pupils, num­
bering approximately 14,000, were attending totally or more than 
99% black schools. The case came before this Court at a time 
when school districts and particularly the federal courts needed 
the assistance and guidance of the high court in dismantling dual 
school systems. See footnote 5, 402 US, at p 14.

This Court distilled its holdings in Green, supra, and 
Alexander, supra, and unanimously reaffirmed the standard to be 
followed:

“The objective today remains to eliminate from the public 
schools all vestiges of state-imposed segregation. Segregation 
was the evil struck down by Brown 1 as contrary to the equal 
protection guarantees of the Constitution. That was the viola­
tion sought to be corrected by the remedial measures of 
Brown II. That was the basis for the holding in Green that 
school authorities are ‘clearly charged with the affirmative 
duty to take whatever steps might be necessary to convert to 
a unitary system in which racial discrimination would be 
eliminated root and branch.’ 391 US, at 437-438, 20 L Ed 2d 
at 723.” 402 US, at 15.

* * *



5 6

“Our objective in dealing with the issues presented by these 
cases is to see that school authorities exclude no pupil of a 
racial minority from any school, directly or indirectly, on 
account of race; it does not and cannot embrace all the prob­
lems of racial prejudice, even when those problems con­
tribute to disproportionate racial concentrations in some 
schools.” 402 US, at 23.

The Court then gave fair warning that its ruling should not be mis­
applied:

“ . . . If we were to read the holding of the District Court to 
require, as a matter of substantive constitutional right, any 
particular degree of racial balance or mixing, that approach 
would be disapproved and we would be obliged to reverse. 
The constitutional command to desegregate schools does not 
mean that every school in every community must always re­
flect the racial composition of the school system as a whole.” 
402 US, at 24. (Emphasis added.)

Finally, the Court in Swann said:

“It does not follow that the communities served by such 
systems will remain demographically stable, for in a growing, 
mobile society, few will do so. Neither school authorities nor 
district courts are constitutionally required to make year- 
by-year adjustments of the racial composition of student 
bodies once the affirmative duty to desegregate has been 
accomplished and racial discrimination through official 
action is eliminated from the system. . . .”  402 US, at 31-32.
The holdings in Swann, supra, are clear. A school district 

operating as a dual school system must dismantle its de jure segre­
gated system so that it operates a unitary system wherein no pupil 
of a racial minority shall be excluded from any school, directly or 
indirectly, on account of race or color. There is no constitutional 
right to a particular degree of racial balance or mixing within such 
school district. The Constitution does not require that every 
school must always reflect the racial composition of the school 
district. Nor does it mandate that federal judges make annual ad­
justments in the racial compositions of schools because of demo­
graphic changes.



5 7

C. The teachings of Green, Alexander and Swann, were 
unheeded and ignored.

The salutary purposes of the unanimous Court in Swann, 
supra, to assist federal courts in the dismantling of dual school 
systems through reasonably precise instructions as to the remedial 
powers of such courts were unheeded and ignored by the District 
Court and the majority of the Court of Appeals. Both the decision 
of the District Court and the majority of the Court of Appeals 
contain no finding that plaintiffs’ Detroit-Only plan would not 
convert the Detroit school system into a unitary system because 
pupils of a racial minority would be excluded from any school 
within the Detroit school system, directly or indirectly, because of 
race or color, under such plan.

Rather, the District Court was preoccupied with other tests 
and standards, not enunciated by this Court, such as the failure of 
the plan to be a building block for a metropolitan plan (55a) and 
that the plan was inadequate because, somehow, the Detroit 
School District, 63.8% black and 34.8% white, would be perceived 
as a black school district rather than a black and white school dis­
trict. (56a).

While the conclusions of law of the District Court on the 
Detroit-Only plans expressly cite Green, supra, Alexander, supra, 
and Swann, supra (56a), the District Court concluded that plain­
tiffs’ plan, even though it did provide a racial mix more in keeping 
with the black-white proportions of the student population, would 
not accomplish desegregation because it would accentuate the 
racial identifiability of the district as a black school system. (56a). 
The District Court cited no legal authority for such conclusion 
and, indeed, there is none. Based upon the record below, had the 
district judge applied the controlling standard enunciated in 
Green, supra, Alexander, supra, and Swann, supra, it would have 
been compelled to find that plaintiffs’ Detroit-Only plan would 
provide for the establishment of a unitary system in which no child 
is excluded from any school, directly or indirectly, because of race 
or color, as required by this Court in Green, supra, Alexander, 
supra, and Swann, supra.

The majority of the Court of Appeals affirmed these findings 
and conclusions of law. Although the total opinion contains many 
references to Green, supra, and Swann, supra, the majority failed



58

to heed and ignored the lessons contained therein. It is clear that 
the majority of the Court of Appeals was aware of the uncon­
troverted fact that the racial pupil composition of the Detroit 
School District was 63.8% black and 34.8% white (21a-22a), yet 
the majority of the Court of Appeals made the observation that if 
plaintiffs’ Detroit-Only plan were adopted, it would result in “an 
all black school system.” (164a).

There can be no question but that both the District 
Court and the majority of the Court of Appeals sought to provide 
for more than a correction of the alleged constitutional violation 
through establishment of a unitary system in which no pupil is 
excluded from any school, directly or indirectly, because of race 
or color, but instead sought to overcome the demographic racial 
imbalance between Detroit and suburban communities.

Racial imbalance as a result of demographic residential pat­
terns, as contrasted with state enforced segregation within a school 
district, is not offensive to the Constitution. Spencer v Kugler, 
supra.

“ . . . Brown never required anything more than a unitary 
school system . . .” Spencer v Kugler, supra, 326 F Supp, at 
1241.

***
“The Court in Swann draws a critical distinction between 
those states which have a history of dual school systems and 
a separation of the races . . . and those wherein so-called ‘de 
facto’ segregation results from housing patterns and con­
ventional drawing of school district zones.”

***
“A continuing trend toward racial imbalance caused by hous­
ing patterns within the various school districts is not suscep­
tible to federal judicial intervention. . . . ” Spencer v Kugler, 
supra, 326 F Supp, at 1242-1243.
Clearly, the rulings of the District Court and the majority of 

the Court of Appeals are in direct conflict with the controlling 
authorities of this Court.

D. This Court has consistently required majority black 
school systems to convert to unitary school systems 
without regard to achieving racial balance among such



5 9

majority black school systems and larger geographical 
areas.

The effect of the decision of the majority of the Court of 
Appeals must be that a unitary system may not be constitutionally 
established in a majority black school district. Yet, this Court, on 
many occasions, has mandated that a majority black dual system 
school district must operate a unitary school system within the 
district. The attention of the Court is first invited to Wright v 
Council of City of Emporia, supra, in which the Court considered 
and rejected efforts to carve out a new school district from the 
territory of a district that had not completed dismantling of a dual 
school system, and said:

“According to figures later supplied to the District Court, 
there were 3,759 children enrolled in the unitary system 
contemplated by the desegregation decree, o f whom 66% 
were Negro and 34%> were white . . . . ” 407 US, at 457. 
(Emphasis added.)
The Court also held:
“Just as racial balance is not required in remedying a dual 
system, neither are racial ratios the sole consideration to be 
taken into account in devising a workable remedy.” 407 US, 
at 465.

While in Wright, supra, the Court divided 5-4, it is significant that 
in dissent it was found that the county school district, excluding 
the -city of Emporia, would be fully unitary and nonracial even 
though its composition of pupils would be 72% black and 28% 
white. 407 US, at 475.

The decisions below are also contrary to Cotton v Scotland 
Neck City Board o f Education, supra, where the Court disapproved 
the detachment of territory from a school district found to be 
operating a dual school system, an even more striking affirmation 
of the proposition that desegregation can be accomplished in a 
school district which is predominantly black. In Scotland Neck, 
supra, the school district, formerly dual, was composed of 77% 
black, 22% white and 1% American Indian. In a unanimous de­
cision the court failed to allude to any constitutional infirmity in 
the intra-district remedy and in fact referred to the “ unitary sys­
tem” which would take effect. 407 US, at 486.



60

In Raney v Board of Education o f the Gould School District, 
supra, a 60% black school district found to be a dual school sys­
tem attempted to desegregate its schools by means of a “ freedom 
of choice plan.” As in Green, supra, three years later the Field 
School remained all black. Relying upon Green, supra, the Court 
found the freedom of choice plan inadequate “ to convert to a uni­
tary, nonracial system.” 391 US, at 447.

This Court also harbored no doubts in Green, supra, that a 
unitary system could be established in a district with a 55% black 
majority and even suggested means for its accomplishment.

These cases unequivocally demonstrate that there is no con­
stitutional requirement that the conversion of a majority black 
school district to a unitary system be effectuated by involving sur­
rounding school districts. To the contrary, these cases stand for 
the proposition that unitary systems may be, indeed, must be, 
achieved within majority black school systems. The District 
Court’s decision, that Detroit could not be integrated because it 
would be perceived as black, is contrary to Swann, supra, because 
the District Court imposed racial balance in a large geographical 
area rather than order conversion to a unitary system in which no 
student is excluded from any school, directly or indirectly, be­
cause of race or color. Almost every school district in the country 
is either majority white or majority black and thus is susceptible 
of being perceived as such. This numerical fact of life obviously 
gives rise to no constitutional infirmity, whether the pupil majori­
ty be white or black, unless, somehow, the law is that school sys­
tems with white majorities are to be preferred as superior to 
school systems with black majorities, a concept without support in 
any decision of this Court.

Moreover, the ruling below that the broad remedial equitable 
power of a Federal District Court is insufficient to create a unitary 
school system within Detroit compels the conclusion that both 
lower courts have ruled, in effect, that the racial demographic pat­
tern both within Detroit and between Detroit and other tri-county 
school districts is inherently unconstitutional. Such result is both 
unsupported by precedent and directly in conflict with the prior 
decisions of this Court cited above.



6 1

The holding of the lower courts that it is constitutionally im­
permissible to operate a unitary system within the Detroit school 
system because it is 63.8% black, 34.8% white, is in direct conflict 
with the decision of the Fourth Circuit Court of Appeals. Bradley 
v School Board o f Richmond, Virginia, supra. In Bradley v Rich­
mond, supra, the District Court approved a plan of desegregation 
of a segregated school district, 64% black and 36% white. The 
Richmond Board of Education, shortly after the desegregation 
plan was implemented, moved the District Court to join the school 
district with two neighboring majority white school districts to 
provide a “better” racial mix. The Fourth Circuit squarely held 
that there is no federally protected right to racial balance within 
even a single school district, only a right to attend a unitary school 
system. Once a unitary school system was operative within the 
school district, 64% black and 36% white, the authority of the Dis­
trict Court to further intervene by racially balancing with majority 
white school districts was neither necessary nor justifiable. It is re­
spectfully submitted that the holding in Bradley v Richmond, sup­
ra, is sound. It clearly stands for the proposition that a unitary 
school system can be achieved and be operative within a school 
district that is 63.8% black and 34.8% white.

The attention of the Court is particularly invited to the de­
cision of the Sixth Circuit in Northcross v Board o f Education o f 
Memphis, supra, requiring a unitary system within a segregated 
school district composed of 134,000 pupils, 57% black and 43% 
white. In that case, the Court of Appeals asked counsel for plain­
tiffs, who is also chief trial counsel for plaintiffs here, to advise 
what would be a unitary system in Memphis:

“He replied that such a system would require that every pub­
lic school in Memphis there would have to be 55% Negroes 
and 45% whites. Departures of 5% to 10% from such rule 
would be tolerated. . . .”

On December 4, 1973, the Court of Appeals, over Plaintiffs objec­
tion, affirmed a desegregation plan for the majority black 
Memphis School District that would leave substantial numbers of 
black students in both all black schools and predominantly black 
schools, totalling 25 schools. Northcross v Board o f Education o f
Memphis City Schools, ____  F2d____  No. 73-1667, 73-1 954,
Slip Opinion, pp 3, 5 (1973).



62

The decisions below are also inconsistent with the decision of 
the Sixth Circuit, sitting en banc, in Goss v Board o f Education of 
City o f Knoxville, 482 F2d 1044 (CA 6, 1973), where the Court 
found that the school authorities took affirmative action to im­
prove the racial mix so that the district was operating a unitary 
system. Relying upon Swann, supra, the Court declined to order 
extensive busing to obtain a certain percentage of black students 
in each school even though “ some schools in the Knoxville system 
will remain identifiably black or white on the basis of pupil enroll­
ments.” 482 F2d at 1046. The Knoxville School District’s racial 
composition was 16.5% black. Goss v Board of Education, City of 
Knoxville, 340 F Supp 711, 716 (ED Tenn, 1972).

It is beyond question that a 63.8% black dual system school 
district can be dismantled and converted to a unitary system in 
which no pupil is excluded from any school, directly or indirectly, 
because of race, or color, Green, supra, and Swann, supra, and in 
which there are only schools. Alexander, supra. By engaging in 
sheer conjecture as to the racial composition of the Detroit School 
District in 1975, 1980 and 1992 (20a) and erroneously labeling 
the district as all black (163a-164a), contrary to the uncontrover­
ted record (21a-22a), the lower courts sought to erect a predicate 
so as to use the law as a lever, in the field of education, to achieve 
the social goal of racially balancing a geographical area as large as 
the State of Delaware, larger than the State of Rhode Island, and
mm times the size of the District of Columbia.

Z v /A /y

Since Swann, supra, proscribes year by year judicial adjust­
ments in pupil assignments because of changing demographic 
patterns within a school district, and Green, supra, requires dese­
gregation of a dual system school district now, the purely conjec­
tural student population of the Detroit School District in 1975, 
1980 and 1992 cannot form the basis for the conclusion of the 
District Court that a unitary system cannot be established within 
the majority black Detroit School District.

Plaintiffs’ Detroit-Only plan was prepared by Dr. Foster. It is 
the uncontroverted testimony of Dr. Foster that the plan meets 
constitutional requirements, eliminates racially identifiable schools 
and is a sound educational plan. Thus, plainly, such plan would



63

result in a unitary system of schools within the Detroit School Dis­
trict, in which no child would be excluded from any school, 
directly or indirectly, because of race or color. That is all the Con­
stitution requires.

III.

THE DECISION OF THE LOWER COURTS THAT A MUL-
TI-SCHOOL DISTRICT REMEDY IS CONSTITU­
TIONALLY PERMISSIBLE HEREIN IS MANIFESTLY ER­
RONEOUS.

A. Scope of  multi-district remedy decreed below and 
sought on remand by plaintiffs’ amended complaint.

Plaintiffs’ complaint herein alleged de jure segregation only 
within the confines of the School District of the City of Detroit 
and prayed for relief limited to establishing a unitary system of 
schools only within the City of Detroit. (5a, 14a, 15a). After a 
lengthy trial on the merits, at which no school district other than 
Detroit was present as a party in the cause, the District Court 
ruled that the Detroit school system was being operated as a de 
jure segregated school system.

Subsequently, the trial court proceeded to enter the most 
sweeping remedial decree ever entered in a school desegregation 
case, judicially creating a 53 school district desegregation area in­
volving 780,000 or approximately 1/3 of Michigan’s puplic school 
pupils. This remedial decree mandated and compelled the reassign­
ment of pupils and faculty across school district boundaries and 
compels massive transportation of 310,000 pupils throughout an 
area covering approximately 700 square miles for the sole purpose 
of achieving racial balance. (72a, 101a-102a).

Thereafter, the trial court commanded the defendants Mil- 
liken, et al, to pay for the acquisition of at least 295 buses for use in 
a partial, interim, multi-district desegregation plan during the 
1972-73 school year. The cost of this initial order to acquire trans­
portation would have been approximately $3,000,000.00 since 
one school bus meeting Michigan standards costs approximately 
$10,000.00. (106a-107a, IVa 18).



6 4

The appellate majority, while affirming the propriety and 
necessity of a multi-school district remedy, partially vacated the 
multi-district remedial decrees for the sole reason that 18 affected 
school districts within the desegregation area had never been made 
parties to this cause, contrary to Rule 19, FR Civ P. (173a, 
176a-179a). However, it is clear that upon remand all school dis­
tricts made parties to the cause may be included in the multi­
district remedy.

On remand, plaintiffs filed their Amended Complaint to Con­
form to Evidence and Prayer for Relief, which, at paragraph 15, 
seeks pupil and staff reassignment in virtually the same desegrega­
tion area previously decreed by the trial court. (Compare 101a and 
la 297). Further, plaintiffs are seeking relief as to the remaining 
32 school districts in the tri-county area by way of judicial moni­
toring of school construction and staff hiring, indefinitely, thus 
constituting a federal judicial receivership for the foreseeable 
future for the tri-county area of Wayne, Oakland and Macomb. (Ia 
297-la 298). Pursuant to plaintiffs’ motion and order of the trial 
court, all of the school districts in the tri-county area, except 
Pontiac, are now parties to this cause. (Ia 300-la 303).

B. This massive multi-school district relief is not based up­
on any constitutional violation involving the manipu­
lation of school district boundaries for purposes of de 
jure segregation of pupils between Detroit and the other 
85 school districts in the tri-county area.

In ordering the most sweeping relief ever in a school desegre­
gation case, the District Court candidly stated the following:

“ . . .  It should be noted that the court has taken no proofs 
with respect to the establishment of the boundaries of the 86 
public school districts in the counties of Wayne, Oakland and 
Macomb, nor on the issue of whether, with the exclusion of 
the city of Detroit school district, such school districts have 
committed acts of de jure segregation.” (59a-60a).
The appellate majority, in affirming multi-school district 

relief, did not set forth any conclusion that school district boun­
daries had been established or altered for unconstitutional pur­



6 5

poses. (174a). Further, plaintiffs’ amended complaint, like their 
original complaint, does not allege any constitutional violation as 
to the establishment and alteration of the boundaries of Detroit or 
any other school district in the tri-county area. (2a-16a, la 291 -la 
299).

This total lack of pleaded allegations, proofs and findings is 
not surprising in light of the fact that Michigan law established the 
coterminous school district and city boundaries of Detroit over 
100 years ago in 1842 as follows:

“That the city of Detroit shall be considered as one school 
district, and hereafter all schools organized therein, in pur­
suance of this act, shall, under the direction and regulations 
of the board of education, be public and free to all children 
residing within the limits thereof, between the ages of five 
and seveenteen years, inclusive.”

See Section 1 of 1842 PA 70 (52aa).

Moreover, some 98 years later, in 1940, the population of the City 
of Detroit was approximately 90% white, thus negating any 
possible inference that the city and school district boundaries were 
made coterminous for the purpose of separating people or school 
children on the basis of race. (21a).

In Spencer v Kugler, supra, plaintiffs challenged the racial im­
balance existing among New Jersey’s school districts. The three- 
judge court, in rejecting plaintiffs’ challenge, noted that under 
New Jersey law, school district boundaries conform to municipal 
boundaries, 326 F Supp, at 1240, and held the following:

“ A continuing trend toward racial imbalance caused by 
housing patterns within the various school districts is not sus­
ceptible to federal judicial intervention. The New Jersey 
Legislature has by intent maintained a unitary system of 
public education, albeit that system has degenerated to ex­
treme racial imbalance in some school districts; nevertheless 
the statutes in question as they are presently constituted are 
constitutional.” 326 F Supp, at 1243.

On appeal, this Court affirmed, Mr. Justice Douglas dis­
senting. It is impossible to reconcile this Court’s affirmance in



6 6

Spencer v Kugler, supra, with the lower courts’ decisions herein in 
view of the historical, rational and racially neutral nature of the 
coterminous boundaries of the city and school district of Detroit.

This Court has responded favorably to demands for judicial 
redrawing of local government lines only where a showing was 
made that such lines had been drawn with the purpose and effect 
of depriving persons of constitutional rights. Compare Gomillionv 
Lightfoot, 364 US 339, 341; 81 S Ct 125, 127; 5 L Ed 2d 110, 
113 (1960), where the statute in question redefined the city of 
Tuskegee’s boundaries from a square to a “ twenty-eight-side 
figure,” thereby removing “ from the city all save only four or five 
of its 400 Negro voters while not removing a single white voter or 
resident.” In the absence of any finding below that the school dis­
trict boundary lines involved herein are “the product of a state 
contrivance to segregate on the basis of race or place of origin,” 
the multi-district remedy decreed below must fall. Wright v 
Rockefeller, supra, 376 US, at 58.

It must also be observed that 9 of the 52 school districts, 
other than Detroit, included in the judicially created desegregation 
area have student body compositions ranging from 9.5% black up­
wards. (PX P.M. 12, Val 11-Val 15). This vividly illustrates that 
school district boundaries have not been manipulated to separate 
school children by race. It is simply inaccurate to perceive Detroit 
as a black island surrounded by an all white sea.

In short, there is simply no school district boundary violation 
herein as a predicate for multi-district relief. In the absence of any 
pleaded allegations, proofs and findings as to the manipulation of 
school district boundaries for the purpose of separating school 
children by race between Detroit and the other school districts in 
the tri-county area, multi-school district relief herein must fail. 
Racial imbalance among school districts, as a result of housing pat­
terns, does not violate the Equal Protection Clause. Spencer v 
Kugler, supra.



6 7

C. This massive m ulti-school district remedy is not support­
ed by any de jure conduct o f  any o f  the school districts 
to be affected.

As observed above, in setting forth the massive scope of its 
multi-school district remedy, the District Court expressly stated:

. . It should be noted that the court has taken no proofs 
with respect to the establishment of the boundaries of the 86 
public school districts in the counties of Wayne, Oakland and 
Macomb, nor on the issue of whether, with the exclusion of 
the city of Detroit school district, such school districts have 
committed acts of de jure segregation.” (59a-60a).
The appellate majority, while affirming the need for a multi­

school district remedy, did not set forth any constitutional vio­
lations as to the conduct of the school districts, other than 
Detroit, to be included in the remedy. (172a-175a). Indeed, plain­
tiffs’ amended complaint refrains from alleging de jure conduct as 
to any school district other than Detroit. (Ia294, 295).

Here, it must be stressed that, in the language of Keyes, 
supra, 93 S Ct, at 2695, each school district herein is a separate 
identifiable and unrelated unit. Under Michigan law, each school 
district is an independent body corporate with its own locally 
elected board of education exercising plenary discretionary 
authority over the educational system within its school district 
boundaries. See Sections 352, 491 and relevant portions of Sec­
tions 561 through 623 of the School Code of 1955, supra, MCLA 
340.352, 340.491; MSA 15.3352, 15.3491. (34aa-35aa, 
43aa-51aa). Thus, it is beyond dispute that, whatever the conduct 
of the Detroit Board of Education, its conduct cannot be imputed 
to any of the other school district defendants herein.

In the posture of this cause, the imposition of a multi-district 
remedy upon the school districts, not including Detroit, within the 
tri-county area constitutes the granting of a remedy in the absence 
of a constitutional violation. This is contrary to the controlling 
pnnciples concerning school desegregation remedies unanimously 
enunciated by this Court in Swann, supra, as follows:

‘‘In seeking to define even in broad and general terms how far 
this remedial power extends it is important to remember that



6 8

judicial powers may be exercised only on the basis of a con­
stitutional violation. . .

. . As with any equity case, the nature of the violation de­
termines the scope of the remedy. . .”  402 US, at 16.

Here, the violation or condition found to offend the Con­
stitution is expressly limited to de jure segregation within the 
Detroit school system, which condition may be remedied as set 
forth in Part II herein in accordance with Green, supra, Alexander, 
supra and Swann, supra. The courts below, contrary to the con­
trolling principles of Swann, supra, have expanded the remedy to 
include scores of other school districts without the support of any 
claims, proofs or findings concerning any conduct resulting in de 
jure segregation by any school district other than Detroit.

D. This massive m ulti-school district remedy is not sup­
ported by any conduct o f  defendants Milliken, et al, 
with the purpose and present causal effect o f  segregating 
children by  race as between Detroit and the other 
school districts in the tri-county area.

The appellate majority relies heavily upon the alleged de jure 
conduct of the defendants Milliken, et al, in attempting to pro­
vide a legal rationale for the imposition of multi-district relief. 
This is vividly illustrated by the following language from its opin­
ion.

“ . . . The power to disregard such artificial barriers is all the 
more clear where, as here, the State has been guilty of dis­
crimination which had the effect of creating and maintaining 
racial segregation along school district lines. See Section HI 
B, pp. 42-48, supra. [Citations omitted] ” (172a).

However, as previously demonstrated in this brief, such language is 
without any foundation in this cause. There have been no allega­
tions, proofs or findings with respect to manipulating school dis­
trict boundaries for segregatory purposes. There have been no alle­
gations, proofs or findings with respect to de jure conduct by any 
school district other than Detroit. Alleged inter-district disparities



6 9

in school finance among school districts give rise to no constitu­
tional violation. Rodriguez, supra. The former Carver School 
District area has been a part of the Oak Park School District since 
1960. (169a). The state school aid urban-rural categorical trans­
portation reimbursement provisions apply to both black and white 
students alike in Detroit and other school districts in the tri­
county area on the basis of residence within or without city boun­
daries for the purpose of intra-district transportation. (93a). Sec­
tion 12 of 1969 PA 244, as added by 1970 PA 48, supra, related 
to a racial balance plan limited to 12 of Detroit’s 21 high schools. 
433 F2d 897, supra, at 898. Thus, it is manifest that the defendants 
Milliken, et al, have not committed de jure acts with the purpose 
and present causal effect of separating school children by race be­
tween Detroit and the other school districts in the tri-county area. 
Keyes, supra, 93 S Ct, at 2697-2699.

The one remaining aspect of these defendants’ conduct 
involves site location for school construction, which has been dis­
cussed above. As shown above, the record does not support any 
notion of a multi-district construction violation by these defend­
ants. Rather, what this case demonstrates is the “ familiar phenom­
enon that in metropolitan areas minority groups are often found 
concentrated in one part of the city.” Swann, supra, 402 US, at
25. Or, as stated in the concurring opinion of Mr. Justice Powell in 
Keyes, supra, 93 S Ct, at 2704, “ . . . the familiar root cause of seg­
regated schools in all the biracial metropolitan areas of our coun­
try is essentially the same: one of segregated residential and migra­
tory patterns. . .”

Turning to the instant cause, it is demonstrable that in 1940, 
some 98 years after the boundaries of the city and school district 
of Detroit had been made coterminous by Section 1 of 1842 PA 
70, the City of Detroit was approximately 10% black. By 1970, 
the same city was approximately 45% black. (52aa). (21a). Thus, 
it is beyond dispute that school district boundary lines were not 
manipulated and superimposed upon changing demographic pat­
terns. Rather, changing racial demographic patterns have been su­
perimposed upon school district boundary lines of long standing.



70

As recognized by a unanimous Court in Swann supra 402 
US, at 31-32:

“It does not follow that the communities served by such 
systems will remain demographically stable, for in a growing, 
mobile society, few will do so. Neither school authorities nor 
district courts are constitutionally required to make year-by- 
year adjustments of the racial composition of student bodies 
once the affirmative duty to desegregate has been accom­
plished and racial discrimination through official action is eli­
minated from the system. This does not mean that federal 
courts are without power to deal with future problems; but 
in the absence of a showing that either the school authorities 
or some other agency of the State has deliberately attempted 
to fix or alter demographic patterns to affect the racial com­
position of the schools, further intervention by a district 
court should not be necessary.”

Thus, where, as here, the record does not show that the defen­
dants or any other agency of the State has purposely fixed or 
altered demographic patterns to affect racial compositions in the 
schools as between Detroit and the other 85 school districts in the 
tri-county area, there is simply no basis for multi-school district 
relief.

Finally, as set forth in Swann, supra:

“ . . . The target of the cases from Brown I to the present was 
the dual school system. The elimination of racial discrimina­
tion in public schools is a large task and one that should not 
be retarded by efforts to achieve broader purposes lying be­
yond the jurisdiction of school authorities. . . .402 US, at 22.

Our objective in dealing with the issues presented by these 
cases is to see that school authorities exclude no pupil of a 
racial minority from any school, directly or indirectly, on ac­
count of race; it does not and cannot embrace all the prob­
lems of racial prejudice, even when those problems con­
tribute to disproportionate racial concentrations in some 
schools.” 402 US, at 23.

Consequently, it is clear that changing racial demographic patterns 
over the past 30 odd years in the tri-county area, which reflect a



71

national phenomenon not unique to Wayne, Oakland and Macomb 
counties, cannot, without more, constitute a constitutional 
violation. There is simply no basis in fact or law for concluding 
that the conduct of the defendants Milliken, et al, herein serves as 
a valid basis for imposing multi-district relief.

E. The multi-district relief decreed below  is for the sole 
purpose o f  racial balance within a tri-county area.

The decisions of this Court make it unequivocally clear that 
racial balance within or between school districts is not constitu­
tionally required. The Equal Protection Clause, unlike other con­
stitutional provisions, neither confers substantive rights nor creates 
substantive liberties. Its function is limited to measuring the vali­
dity of classifications created by state law. Rodriguez, supra, 411 
US, at 59, concurring opinion of Mr. Justice Stewart.

Further, in Swann, supra, this Court squarely ruled:
“ . . .  If we were to read the holding of the District Court to 
require, as a matter of substantive constitutional right, any 
particular degree of racial balance or mixing, that approach 
would be disapproved and we would be obliged to reverse. 
The constitutional command to desegregate schools does not 
mean that every school in every community must always re­
flect the racial composition of the school system as a whole.” 
402 US, at 24.

Moreover, in Emporia, supra, 407 US, at 464, the majority, 
in enjoining the carving out of a new school district from an exist­
ing school district that had not yet finished dismantling its dual 
school system, plainly stated:

“We need not and do not hold that this disparity in the racial 
composition of the two systems would be a sufficient reason, 
standing alone, to enjoin the creation of the separate school 
district. Tire fact that a school board’s desegregation plan 
leaves some disparity in racial balance among various schools 
in the system does not alone make that plan unacceptable.
[ Footnote omitted] We observed in Swann, supra, that 
[t]he constitutional command to desegregate schools does 

not mean that every school in every community must always 
reflect the racial composition of the school system as a 
whole.’ 402 U.S., at 24.”



7 2

The dissent in Emporia, supra, representing the views of four 
justices, registered its rejection of racial balance as a predicate for 
federal judicial intervention in the following language:

“ If the severance of the two systems were permitted to pro­
ceed, the assignment of children to schools would depend 
solely on their residence. County residents would attend 
county schools, and city residents would attend city schools. 
Assignment to schools would in no sense depend on race. 
Such a geographic assignment pattern is prima facie con­
sistent with the Equal Protection Clause. See Spencer v. Kug- 
ler, 326 F. Supp. 1235 (N. J. 1971), affd, 404 U. S. 1027 
(1972).”  407 US, at 471-472.

* * *

“It can be no more be said that racial balance is the norm to 
be sought, than it can be said that mere racial imbalance was 
the condition requiring a judicial remedy. . . . Since the goal 
is to dismantle dual school systems rather than to reproduce 
in each classroom a microcosmic reflection of the racial 
proportions of a given geographical area, there is no basis for 
saying that a plan providing a uniform racial balance is more 
effective or constitutionally preferred. School authorities 
may wish to pursue that goal as a matter of policy, but we 
have made it plain that it is not constitutionally mandated. 
See Swann v. Charlotte-Mecklenburg Board of Education, 
402 U. S., at 16.” 407 US, at 473-474.

Thus, the teaching of Emporia, supra, is that mere disparities in 
racial ratios between school systems is not a legally sufficient- 
reason for enjoining the creation of a new school district. Given 
this, the reassignment of pupils across school district and county 
lines decreed herein for racial balance purposes cannot withstand 
judicial scrutiny.

An examination of the proceedings in this cause will demon­
strate that the multi-district relief mandated below is for the 
purpose of racial balance, pure and simple, in contravention of the 
precedents of this Court. On cross-examination, plaintiffs’ expert  
witness testified concerning the formulation of plaintiffs’ pro­
posed multi-district plan as follows:



73

“Q. All right. I wasn’t very good at mathematics in school, I 
probably won’t be very good at them today, Doctor, 
but let me ask you this:

Basically, as I understand your testimony, you came to 
Detroit yesterday and you sat and got down to work 
and you worked out a plan which has as its primary 
predicate achieving a 25.3 percent racial balance within 
the metropolitan area, consistent with what you con­
sider to be reasonable travel time. Isn’t that about it?

A. Not quite, no, sir.
Q. Pardon?
A. Not quite, no, sir.
Q. All right, what other factors, then, did you take into ac­

count?
A. Well, it isn’t simply a question of other factors, but I 

think you misstated my premise. My intent was not to 
achieve balance but to minimize disproportion from the 
normative figure. And I think there is a difference and a 
distinction between the two statements.

Q. All right. Well, let’s not get into an argument over se­
mantics, let’s see if we can word it another way then:
[1241 ] What you tried to do was come as close, look­
ing at your exhibit and from your previous testimony, is 
to try to come as close as possible to achieving what I 
believe you described as a norm of 25 percent plus or 
minus 5 percent in each cluster, so that you would have 
a mix of 75, roughly 75 percent white, 25 percent 
black, give or take 5 percent?

A. Well, again, it’s semantics but it’s more a problem of not 
straying too far from the norm, than it is trying to come 
as close as possible. It’s a subtle distinction but I think a 
very important one.

Q. Well, whether it’s not to stray too far or come as close, 
the norm was 25.3 percent; is that right?
Yes.A.



74

Q. And then the idea of the plan was not to try to stray 
from that norm, and you come up with a plan that 
would permit you to do that?

A. That’s right.” (IVa249-IVa250).

Further, an examination of PX P.M. 12, plaintiffs’ proposal, 
reveals that plaintiffs’ expert rigorously adhered to his norm of 
25.3% black, plus or minus 5%, in that the clusters range in per 
cent black from a low of 20.5% black in cluster 13 to a high of 
30.8% black in cluster 7. (PX P.M. 12, Val 11-Val 15). Thus, it 
may only be concluded that plaintiffs’ multi-district proposal was 
formulated on a fixed normative figure of 25.3% black with only 
minor deviations therefrom being tolerated.

An examination of the Ruling on Desegregation, June 14, 
1972, makes the purpose and intent of the District Court crystal 
clear.

“Pupil reassignment to accomplish the desegregation of 
the Detroit public schools is required within the geographical 
area which may be described as encompassing the following 
school districts (see Exhibit P.M. 12), and hereinafter re­
ferred to as the ‘desegregation area’ (Emphasis supplied)

(53 school districts are described by name, including 
Ecorse, Hamtramck, Highland Park, Inkster, River Rouge, 
Westwood, among others) (101a).

“ Within the limitations of reasonable travel time and 
distance factors, pupil reassignments shall be effected within 
the clusters described in Exhibit P.M. 12 so as to achieve the 
greatest degree of actual desegregation to the end that, upon 
implementation, no school, grade or classroom be sub­
stantially disproportionate to the overall pupil racial compo­
sition.” (101 a-102a).

PX P.M. 12 (Va 111-Val 15) shows that the racial makeup of pupils 
in the “desegregation area” is approximately 75% white and 25% 
black. It also indicates the following:

Ecorse 50.8% black pupils
Hamtramck 28.7% black pupils
Highland Park 85.1% black pupils
Inkster 88.0% black pupils



75

River Rouge 43.2% black pupils
Westwood 39.9% black pupils

If the true purpose and intent of the District Court’s desegre­
gation area is “ to accomplish the desegregation of the Detroit 
public schools” , the transporting of white pupils from Highland 
Park into Detroit will only leave Highland Park with propor­
tionately more black students. The same can be said of Inkster, 
Ecorse, River Rouge, Westwood and Hamtramck so that each dis­
trict would contain much more than an average 25% black pupils 
for the desegregation area. The truth is that when these districts 
were made part of the “ desegregation area” , there could be no in­
tent to transport white pupils from any of these school districts 
into Detroit. Rather, the clear purpose was to transport black 
children from each of these districts into predominantly white 
school districts in order to reach the 75% white and 25% black 
configuration for the desegregation area. This is amply borne out 
by examining the clusters in PX P.M. 12. (Val 11-Val 15).

Total Percent
Total Black Black

“District 
Cluster 6

Students Students Students

Birmingham 16,912 7 .0
Hazel Park 7,868 1 .0
Highland Park 7,708 6,556 85.1
Royal Oak 18,583 5 .0
Detroit Murray 9,564 7,042 73.6

60,635 13,611 22.4”
(Val 11-Val 15)

It is demonstrable that in order to achieve an approximate 
population of 75% white and 25% black in Cluster 6, black pupils 
from Highland Park and Detroit Murray will be transported to 
Birmingham, Hazel Park and Royal Oak, while white pupils from 
Birmingham, Hazel Park and Royal Oak will be transported to 
Highland Park and Detroit Murray. There will be no movement of 
Pupils between Highland Park and Detroit Murray. Thus, it cannot 
be said that the pupils in Highland Park, white or black, must be 
reassigned “to accomplish the desegregation of the Detroit Public 
Schools.” What must be said, and it is the only conclusion



76

possible, that the inclusion of Highland Park within the 
“desegregation area” as a part of Cluster 6 will serve to racially 
balance pupils in the Birmingham, Hazel Park, Royal Oak, and 
Highland Park school districts as well as in the Detroit Murray 
constellation.

Examination of the inclusion of Inkster and Westwood 
within the “desegregation area” is even more conclusive.

Total
Total
Black

Percent
Black

“District Students Students Students
Cluster 12

Cherry Hill 4,627 16 .3
Inkster 4,311 3,795 88.0
Wayne 23,218 30 .1
Westwood 4,961 1,980 39.9
Detroit Chadsey 5,998 2,053

plus Cadillac JHS
1/5 Cooley 4,250 2,526 44.7

43,420 10,400 22.0”
(Val 11-Val 15).

How the inclusion of the Inkster and Westwood school 
districts can help to desegregate the Detroit Chadsey and 
remaining identified Detroit schools is beyond our imagination. 
The Detroit school constellations are less than 50% black. Inkster 
is 88% black and Westwood is 40% black. In order to achieve the 
mix of 75% white and 25% black in Cluster 12, black pupils from 
not only the Detroit schools but Inkster and Westwood school 
districts will be transported to Cherry Hill and Wayne school 
districts, and white children from Cherry Hill and Wayne school 
districts will be transported not only to the Detroit schools but 
to Inkster and Westwood school districts. Thus, there can be no 
basis to conclude that the pupils in Inkster and Westwood are 
needed to desegregate the Detroit public schools.

A study of Cluster 14, involving River Rouge, and Cluster 13, 
involving Ecorse, compel the similar conclusion that neither school 
district is necessary to desegregate the Detroit public schools, but 
rather the District Court is applying a racial balance not only to



77

the Detroit public schools but the River Rouge and the Ecorse 
school districts as well.

Finally, brief reference should be made to the inclusion of 
the Hamtramck school district in the desegregation area as 
necessary to accomplish the desegregation of the Detroit public 
schools. Its black students represent 28.7% of its pupil population. 
Thus, this district is a little above the 75% white and 25% black 
pupil composition for the 53 district desegregation area. In order 
to meet this formula, it will be necessary to transport a limited 
number of black pupils out of Hamtramck but certainly not to the 
Detroit Pershing constellation. Obviously this transportation will 
be to Clawson, Lamphere, Madison Heights or Troy, thus assisting 
in small part at least in the desired racial balance in these five 
school districts but not the Detroit Pershing constellation.

It is recognized that the panel appointed by the District 
Court has recommended some adjustments in the various clusters 
but the suggested changes do not affect in one iota the inescapable 
conclusion that under the guise of accomplishing the desegregation 
of the Detroit public schools, the District Court has proceeded to 
order the racial balancing of the white and black pupil populations 
in a “desegregation area” within southeastern Michigan approxi­
mately matching the total population of white and black pupils in 
this large geographical area.

The point is further illustrated by the Ruling on 
Desegregation Area, June 14, 1972, as follows:

“Provided, however, that if in the actual assignment of 
pupils it appears necessary and feasible to achieve effective 
and complete racial desegregation to reassign pupils of 
another district or other districts, the desegregation panel 
may, upon notice to the parties, apply to the Court for an 
appropriate modification of this order.” (101a).

The panel in effect is given the prerogative to racially balance an 
unlimited area, subject only to it being “ feasible.”

The “ social goal” to be attained “ through the educational 
system, by using law as a lever” had been achieved. (41a). 
This social goal is to minimize the proportion of black



78

students in the public schools. Stated another way, the social 
goal is racial balance, f 16J

To summarize, in the formulation and imposition of 
multi-district relief herein, the goal was not a unitary system of 
schools in which no pupil of a racial minority is excluded from 
any school on the basis of race. Rather, the goal sought and 
achieved was a particular degree of racial balance as a matter of 
substantive constitutional right in contravention of Swann, supra, 
402 US, at 23-24.

F. The attem pt by  the appellate m ajority to distinguish 
Bradley v Richmond  is patently erroneous.

The appellate majority attempts to distinguish Bradley v 
Richmond, supra, on several grounds. (175a). It is respectfully 
submitted that, upon careful scrutiny, each alleged ground of 
distinction is manifestly untenable.

First, a distinction is set forth on the ground that here, unlike 
the Richmond case, there is no order for restructuring of school 
districts but merely pupil reassignment among school districts, 
This erroneous statement is not in accord with the record herein. 
The District Court’s order of June 14, 1972 commands, inter alia, 
the following:

“The State Superintendent of Public Instruction, with the 
assistance of the other state defendants, shall examine, and 
make recommendations, consistent with the principles 
established above, for appropriate interim and final

Although the trial court, based on 30 specific findings, found node 
jure faculty segregation within Detroit, (28a-32a), nevertheless it ordered 
“ . . . assignment of no less than 10% black faculty and staff at each school, 
and where there is more than one building administrator, every effort should 
be made to assign a bi-racial administrative team.” (102a-103a). T h u s , in the 
absence of any finding of a constitutional violation as to faculty, teachers 
within the desegregation area having lawful contracts with boards of educa­
tion covering wages, hours and conditions of employment are now subject to 
judicial reassignment in school districts governed by other boards o f  educa­
tion with whom they have no contractual relationship. See section 5 6 9  oft® 
School Code of 1955, supra, MCLA 340.569; MSA 15.3569, and 1947 PA 
336, as amended, MCLA 423.201 et seq.\ MSA 17.455(1) et seq. (46aa, 
76aa). This is patently a racial quota system to achieve racial balance.



7 9

arrangements for the (1) financial, (2) administrative and 
school governance, and (3) contractual arrangements for the 
operation of the schools within the desegregation area, 
including steps for unifying, or otherwise making uniform the 
personnel policies, procedures, contracts, and property 
arrangements of the various school districts.

* *  *

“In his examination and recommendations, the Super­
intendent, consistent with the rulings and orders of this 
court, may be guided, but not limited, by existing state law; 
where state law provides a convenient and adequate 
framework for interim or ultimate relief, it should be 
followed, where state law either is silent or conflicts with 
what is necessary to achieve the objectives of this order, the 
Superintendent shall independently recommend what he 
deems necessary. In particular, the Superintendent shall 
examine and choose one appropriate interim arrangement to 
oversee the immediate implementation of a plan of 
desegregation.” (104a-105a).

Further, the appellate majority itself states later in the 
opinion that “ the Legislature of Michigan has an opportunity to 
determine the organizational and governmental structure of an 
enlarged desegregation area” for remedial purposes. (188a-189a). 
This language conclusively lays to rest any pretense that the 
multi-district remedy herein may be implemented among scores of 
legally, geographically and politically independent Michigan school 
districts, each having its own locally elected board of education 
with legal authority over matters of taxation, bonding, personnel 
and curriculum, without a traumatic restructuring of the existing 
organizational, financial and governmental structure of scores of 
school districts in Wayne, Oakland and Macomb counties. See, 
e.g., Part 1, Chapters 3 and 4 and relevant portions of Part 2, 
Chapter 9 of the School Code of 1955, supra. (8aa-30aa, 
44aa-51 aa).

Second, the appellate majority reasons that under the law of 
Virginia its State Board of Education, acting alone, could not have 
effected consolidation of the three school districts in question.



80

Bradley v Richmond, supra, 462 F 2d, at 1067. However, in 
Michigan, like Virginia, the State Board of Education lacks any 
power, acting alone, to effect school consolidations. Rather, 
school consolidations must be initiated locally by either boards of 
education or school electors and are subject to a vote of the 
people in each affected school district. See Part 2, Chapter 3 of 
the School Code of 1955, supra, dealing with consolidation of 
school districts. (35aa-43aa). Further, Detroit, as a first class 
school district, is not subject to the consolidation provisions of the 
statute. (35aa).

In Michigan, like Virginia, the power over school district 
boundaries is reposed in the legislature. Mich Const 1963, art 8, 
§2. School District o f the City o f Lansing v State Board of 
Education, supra, 367 Mich, at 596; 116 NW 2d, at 869; Penn 
School District No. 7 v Lewis Cass Intermediate School District 
Board o f Education, 14 Mich App 109, 120; 165 NW 2d 464, 470 
(1968); Airport Community Schools v State Board o f Education, 
17 Mich App 574; 170 NW 2d 193 (1969); Bradley v Richmond, 
supra, 462 F 2d, at 1067. This is plainly recognized by the 
appellate majority herein in its statement that “ the Legislature of 
Michigan has an opportunity to determine the organizational and 
governmental structure of an enlarged desegregation area” for 
purposes of remedy. (188a-189a). Indeed, the decision as to 
whether to accept nonresident tuition pupils is reposed solely in 
local boards of education. Jones v Grand Ledge Public Schools, 
supra.

In addition, the appellate majority correctly recognizes that, 
in the alteration of school district boundaries, the State Board of 
Education acts only within the Emits of statutes enacted by the 
legislature. However, the appellate majority misreads such statutes 
and mischaracterizes the conduct of the State Board of Education 
under such statutes.

For example, the appellate majority states:
“ 2. Public Act 289 of 1964 (MSA § 15.2299(1) et seq.,
MCLA § 388.681 et seq.) required Michigan school districts
to operate K-12 systems. . . . ”



81

“ 3. Pursuant to Act 289 of 1964, supra, the State Board of 
Education ordered the merger of the Brownstown No. 10, 
Hand, Maple Grove and Carson school districts, all in Wayne 
County. . . .”  (168a).

A careful reading of this statute reveals that it made the 
elimination of non-high school districts contingent upon local 
elections and, although the statute has expired by its own terms, 
there are approximately 70 non-high school districts still 
remaining in Michigan. See 1964 PA 289, § 7. (62aa-63aa). 
Further, the statute by-passed the State Board of Education 
altogether in the reorganization process, relying instead upon an 
appointed state committee for the reorganization of school 
districts with the Superintendent of Public Instruction serving as 
its nonvoting chairman. See 1964 PA 289, § 2 (59aa) and Penn 
School District No. 7 v Lewis Cass Intermediate School District 
Board of Education, supra, 14 Mich App, at 121, 165 NW 2d, at 
470-471. Thus, contrary to the appellate majority, the State Board 
of Education did not order the merger of any school districts 
under 1964 PA 289, supra. (58aa-64aa).

The appellate majority also refer to actions of the State 
Board of Education taken under 1967 PA 239, as amended, 
MCLA 388.711 et seq; MSA 15.2299(51) et seq, concerning the 
reorganization of school districts. (168a). (64aa-68aa). However, 
under such statute, the reorganization process had to be initiated 
locally and the State Board of Education could act only after a 
finding of an emergency warranting school district reorganization 
by the state committee for the reorganization of school districts. 
See Sections 1, 2 and 5 of such statute. (65aa, 66aa).

Finally, contrary to the intimations of the Sixth Circuit 
majority, in Michigan, like Virginia, local boards of education 
possess the authority, by statute, to operate the public schools 
within their respective school district boundaries. See Mich Const 
1963, art 8, §2; the School Code of 1955, supra, (3aa, 6aa-51aa); 
Senghas v L’Anse Creuse Public Schools, supra, 368 Mich, at 560; 
118 NW 2d, at 977. Hiers v Detroit Superintendent o f Schools, 
p̂ra, 376 Mich, at 235; 136 NW 2d, at 15. Munro v Elk Rapids 

Schools, 383 Mich 661, 674; 178 NW 2d 450, 455 (1970), on reh 
85 Mich 618; 189 NW 2d 224 (1971). In summary, Bradley v



82

Richmond, supra, is not distinguishable except in the result 
reached.

In essence, the Fourth Circuit ruled that, absent proof of 
purposeful segregation in the establishment and maintenance of 
school district boundaries, a multi-district remedy was beyond the 
scope of federal judicial power under the Constitution. Bradley v 
Richmond, supra, 462 F 2d, at 1060. The Sixth Circuit ruled that, 
notwithstanding the absence of any pleaded allegations, proofs or 
findings of purposeful segregation in the establishment and 
maintenance of school district boundaries, nevertheless a 
multi-district remedy is constitutionally permissible, and required 
herein, for the sole purpose of achieving racial balance within a 
three county area.

In Michigan, there is no history of dual school systems by 
mandate of state law. Since at least 1869, some 27 years before 
Plessy v Ferguson, 163 US 537; 16 S Ct 1138; 41 L Ed 256 
(1896), the positive law of Michigan has prohibited racially dual 
school systems. The People, ex rel Workman v Board of Education 
of Detroit, supra. Section 355 of the School Code of 1955, supra, 
MCLA 340.355; MSA 15.3355, and Mich Const 1963, art 8, § 2. 
(35aa, 3aa). Further, there has always been pupil integration in 
fact in the public schools. (157a). The ruling of the Federal 
District Court in Higgins v Board of Education o f the City of 
Grand Rapids, Michigan, supra, against the plaintiffs on the issue 
of pupil segregation also attests to this fact. Mason v Board of 
Education o f the School District o f the City o f Flint, 6 Mich App 
364; 149 NW 2d 239 (1967). It is respectfully submitted that the 
result in Michigan should be the same result reached in Virginia.

G. This Court has consistently recognized both the impor­
tance of local control over public education and the 
integrity of local political subdivisions.

In Emporia, supra, the majority opinion, 407 US, at 469, and 
the dissenting opinion, 407 US, at 478, recognized respectively, 
the strong desire of parents for direct control over decisions vitally 
affecting their children and the importance of local control from 
an educational standpoint and for continuing public support of 
the public schools. Further, here, unlike Emporia, supra, 407 US,



83

at 469, the citizens o f  the sch oo l districts to  be a ffected  outside 
Detroit have heretofore  always exercised such local con trol.

Even the dissent in Emporia stated the following:
“The discretion of a district court is further limited where, as 
here, it deals with totally separate political entities. This is a 
very different case from one where a school board proposes 
attendance zones within a single school district or even one 
where a school district is newly formed within a county unit. 
Under Virginia law, Emporia is as independent from 
Greensville County as one State is from another. . . 407
US, at 478.

Under Michigan law the school districts involved herein are legally, 
politically and geographically independent from each other. See 
Section 352 of the School Code of 1955, supra, and (176a-l 77a). 
(34aa-35aa).

In Rodriguez, supra, 411 US, at 49-50, this Court reiterated 
the importance of local control over public education. Indeed, 
local participation and control over public education was found to 
be a rational state interest sufficient to justify large inter-district 
financial disparities. Rodriguez, supra, 411 US, at 55.

Moreover, in Rodriguez, supra, 411 US, at 54, this Court 
recognized that “ the very existence of identifiable local 
governmental units — requires the establishment of jurisdictional 
boundaries that are inevitably arbitrary” and stated that “ [tjhis 
Court has never doubted the propriety of maintaining political 
subdivisions within the States and has never found in the Equal 
Protection Clause any per se rule of ‘territorial uniformity.’ . . .” 
411 US, at 54, fn 110. This is directly at odds with the approach 
of the appellate majority that school district boundary lines are 
mere “artificial barriers” to be ignored in the judicial quest for 
territorial racial balance over a three-county area. (172a). Further, 
nothing is as “artificial” as the 53 school district desegregation 
area decreed below which geographically does not correspond to 
any other existing governmental unit but, rather, is judicially 
invented for the sole purpose of racial balance.

In the language of Keyes, supra, 93 S Ct, at 2695, the school 
districts involved herein are legally, politically and geographically



84

“separate, identifiable and unrelated units” within the State of 
Michigan. As demonstrated above, both lower courts herein have 
recognized the need for restructuring these governmental units if a 
multi-district remedy is to be effectuated in this cause. Otherwise, 
parents would be voting on school board candidates and school 
tax rate proposals in the district where they reside, while then- 
school age children would be educated in another school district 
where the parents would be denied any effective control over 
school board members, school tax rates, and critical decisions 
affecting educational personnel and curriculum. The cross-district 
reassignment of pupils for purposes of racial balance, without 
more, would completely vitiate any concept of parental control 
over the education of their children.

Education is not among the rights afforded either explicit or 
implicit protection under the Federal Constitution. Rodriguez, 
supra, 411 US, at 35. Thus, while not disparaging the importance 
of public education, it is important to remember that education is 
a function entrusted to the states under our federal system of 
government. The Michigan legislature, in response to the state 
constitutional directive to establish and maintain a system of free 
public elementary and secondary education (Mich Const 1963, art 
8, §2), has enacted the provisions of the School Code of 1955, 
supra, (3aa, 6aa-51aa). Pursuant to this statutory enactment, local 
participation and control over public education is encouraged and 
facilitated through local school districts and locally elected school 
boards with broad discretionary authority. As stated by this Court 
in Rodriguez, supra, 411 US, at 50, “ [a]n analogy to the 
Nation-State relationship in our federal system seems uniquely 
appropriate.”

In addition, as cogently expressed in the opinion of Mr. 
Justice Powell in Keyes, supra:

“Neighborhood school systems, neutrally administered, 
reflect the deeply felt desire of citizens for a sense of 
community in their public education. Public schools have 
been a traditional source of strength to our Nation, and that 
strength may derive in part from the identification of many 
schools with the personal features of the surrounding 
neighborhood. Community support, interest and dedication 
to public schools may well run higher with a neighborhood



85

attendance pattern: distance may encourage disinterest. 
Many citizens sense today a decline in the intimacy of our 
institutions -  home, church, and school -  which has caused 
a concomitant decline in the unity and communal spirit of 
our people. I pass no judgment on this viewpoint, but I do 
believe that this Court should be wary of compelling in the 
name of constitutional law what may seem to many a 
dissolution in the traditional, more personal fabric of their 
public schools.” 93 S Ct, at 2716.

To summarize, the school districts in the tri-county area, 
with their locally elected boards of education which facilitate local 
participation and control over public education, are independent 
local political subdivisions that, based on the record in this case 
and the controlling precedents of this Court, should be left intact 
to educate their own resident children. Emporia, supra, Rodriguez, 
supra.

H. The multi-district remedy herein will require excessive 
expenditures for acquiring, housing, maintaining and 
operating school buses to effectuate racial balance 
throughout the tri-county area.

In the opinion of Mr. Justice Powell in Keyes, supra, 93 S Ct, 
at 2717, it is noted that the costs of court ordered transportation, 
running into the millions of dollars, impose severe economic 
burdens at a time when the public schools are undergoing serious 
financial difficulties. This sound observation is squarely applicable 
to the instant cause.

The trial court stated that “at least . . .  350 buses” must be 
purchased for a multi-district remedy. (74a). At a cost of 
approximately $10,000.00 per bus, (IVal8), the initial capital 
outlay required is, at a minimum, approximately $3,500,000.00.

In addition, the trial court ruled that 310,000 pupils will be 
transported at a per pupil cost which “should be no greater than



86

50 to 60 dollars.” £17] (72a-73a). Using $55.00 as the per pupil 
cost, the annual operating cost will be approximately 
$17,050,000.00 for multi-district transportation. In addition, by 
the time such multi-district remedy might be implemented, this 
figure will have increased considerably due to salary increases 
necessitated by inflation and the rapidly rising cost of gasoline due 
to the energy crisis.

The additional costs of transporting pupils for a multi-district 
remedy come at a time when the annual outlay for public 
education in Michigan is reaching new massive proportions. 
For example, in 1972-73 the legislature appropriated 
$1,111,268,015.00 in state school aid for public elementary and 
secondary education. For the 1973-74 school fiscal year, the 
legislature has appropriated approximately $1,235,739,500.00 for 
public elementary and secondary education, an increase of 
$124,471,485.00. This increase is largely due to an increase of 
$34,000,000.00 for special education programs for handicapped 
children and the $56,500,000.00 increase required to guarantee 
each school district, in combined local and state aid funds, $38.00 
per pupil for each mill of operating tax levy up to 22 mills in the 
first year of a three year program designed to make each school 
district’s revenues primarily a function of local willingness to vote 
operating tax levies without regard to the wealth or state equalized 
valuation of taxable property per pupil within each school district. 
See Section 51 of 1972 PA 258 and the same section, as amended 
by 1973 PA 101, and Section 21(1) of 1972 PA 258, as amended 
by 1973 PA 101, being, respectively, MCLA 388.1151; MSA 
15.1919(551) and MCLA 388.1121; MSA 15.1919(521). (75aa, 
76aa, 74aa). These substantial increases are based upon tax 
revenues from a healthy economy which, with the energy crisis

£171 xhe trial court indicated that approximately 300,000 pupils in the tri­
county area are transported by bus and that, within the desegregation area, 
310,000 pupils will be transported for desegregation purposes. Here, it must 
be emphasized that the tri-county area includes 33 school districts not in­
cluded within the desegregation area. Further, these school districts, being 
farther away from the more densely populated area of Detroit and environs, 
have a disproportionately greater incidence of transporting pupils to school. 
(72a, 60a, 101a, Va 14). Finally, it must also be remembered that substantial 
numbers of additional children within the desegregation area will continue to 
be transported intra-district to the school nearest their home.



87

and disruption of the automobile industry, may not materialize. 
The added costs of multi-district transportation for racial balance 
purposes are, indeed, unjustified.

If the increased costs of multi-district transportation are 
absorbed by the local school districts through their property tax 
revenues, this means either a reduction in their existing 
educational programs or an increase in voted school operating 
millage. See Mich Const 1963, art 9, § 6 which imposes a 15 mill 
limitation for county, township and school district purposes which 
may be exceeded by vote of the electors in the respective units of 
government. (4aa-5aa). It is highly unlikely that the voters in the 
affected school districts will approve such tax increases to send 
their children to school in another school district, where they have 
no vote in school board elections, while children from other 
districts are transported into their districts to use the schools they 
either have paid for or are still paying for in terms of the property 
taxes levied to retire outstanding bonded debt. In summary, the 
financial burden of multi-district transportation for the sole 
purpose of racial balance over a tri-county area is clearly excessive. 
Tire limited funds and resources available for public education are 
far better spent in educating children than in transporting children 
out of their school districts to other school districts for racial 
balance.

I. The lower courts denied fundamental due process to the 
affected school districts other than Detroit.

The rulings of the lower courts herein concerning a 
multi-district remedy deny due process to the affected school 
districts outside Detroit in the judicial quest for racial balance. 
(See dissenting opinions of Judge Weick, 205a-212a; Judge Kent, 
230a-238a; Judge Miller, 239a-240a). Under Michigan law, 
Michigan school districts may sue and be sued. Further, each 
board of education has the right to hire local counsel of its own 
choosing. See § §352 and 609 of the School Code of 1955, supra, 
MCLA 340.352, MCLA 340.609; MSA 15.3352, 15.3609 (34aa, 
35aa, 50aa). Moreover, it has been the consistent position and 
conduct of these defendants throughout this litigation that they 
do not represent any of the school districts involved in this cause. 
The false notion that the interests of defendants and local school



88

districts are as one, and thus may be effectively represented by 
just defendants Milliken, et al, is surely put to rest by the decision 
of defendant Detroit Board of Education to accept the de jure 
findings against it and support a multi-district remedy in an 
attempt to avoid a unitary system with majority black schools.

On this point, the majority opinion of the Court of Appeals 
is manifestly inconsistent and illogical. Such opinion recognizes 
the independent legal status of Michigan school districts for 
purposes of remedial housekeeping, but on the crucial issues of 
violation and remedy within Detroit and the propriety of a 
multi-district remedy, this independent legal status is completely 
ignored. (176a-178a). The holding that each “ affected district first 
must be made a party to this litigation and afforded an 
opportunity to be heard” (177a), is without substance since the 
opportunity to be heard is available only after the decisive issues 
have already been adversely determined.

For the school districts affected herein and their boards of 
education, the interest at stake is their continued existence as 
viable governmental entities. To paraphrase the language of the 
dissenting opinion in Emporia, supra, 407 US, at 478, to bar these 
school districts from operating their own school systems for the 
children within their respective geographical boundaries is to strip 
them of their only governmental responsibility and to deny them 
any existence as independent governmental entities, all without 
their day in court. Further, unlike Emporia, supra, this case 
involves existing school districts outside the geographical area of 
the school system previously found to be de jure segregated.

For the parents of school age children within these school 
districts, the interest at stake is the parental right to direct the 
upbringing and education of children under their responsibility 
and control. Pierce v Society o f Sisters, 268 US 510; 45 S Ct 571; 
69 L Ed 1070 (1925). Wisconsin v Yoder, 406 US 205; 92 S Ct 
1526; 32 L Ed 2d 15 (1972). This paramount parental interest, 
which limits the scope of state power over public education, is also 
clearly entitled to recognition in terms of the power of federal 
courts over public education for purposes of racial balance. At a 
minimum, such parents are entitled to be heard, through their



89

locally elected boards of education, at a meaningful stage in the 
proceedings. After all, as cogently noted by Mr. Justice Powell in 
Keyes, supra, 93 S Ct, at 2717, 2718, the compulsory 
transportation of any child to a distant school solely for racial 
balance purposes impinges upon the liberty of that child and it is 
the parents and children who shoulder the full burden of 
affirmative remedial action in these cases, although they did not 
participate in any constitutional violation.

IV.

CONCLUSION

The lower courts have predicated their decisions upon alleged 
conduct of defendants Milliken, et al, which purportedly results in 
de jure segregation of the Detroit school system. Using this 
predicate the lower courts have prescribed the social goal of a 
multi-school district which has a majority of white students, and is 
racially balanced over a three-county area, as a remedy. Close 
scrutiny of the conduct of defendants Milliken, et al, reveals no 
basis for the holding that their conduct resulted in de jure 
segregation either within Detroit or between Detroit and the other 
85 school districts in the tri-county area.

Patently, a unitary system of schools can be achieved within 
the Detroit public schools, albeit a majority black unitary school 
system. Unless this Court is to abandon the principles of racial 
equality it has enunciated from Brown, supra, to the present, and 
hold that majority black school systems are somehow intrinsically 
inferior to school systems with white majorities, it must be 
concluded that a Detroit-Only plan of desegregation satisfies 
constitutional requirements.

The sweeping, novel and unprecedented multi-school district 
remedial decrees entered below, compelling massive reassignment 
and transportation of pupils across school district and county lines 
solely for racial balance purposes, are not based upon any 
unconstitutional violation as a predicate for such judicially 
unposed multi-school district relief. In the absence of a 
constitutional violation, there is simply no basis for the judicial 
restructuring of scores of legally, politically and geographically



90

independent school districts throughout the tri-county area of 
Wayne, Oakland and Macomb counties. Such action is manifestly 
beyond the “ limits” of federal judicial power. Swann, supra 402 
US, at 28.

WHEREFORE, these petitioners respectfully request that 
this Court reverse the opinion and judgment of the Sixth Circuit 
Court of Appeals herein and hold that, based on the record in this 
cause, the defendants, Milliken, Kelley, Porter, Green and the 
Michigan State Board of Education, have not committed acts 
resulting in de jure segregation, that a constitutional, unitary 
system of schools may be established within the Detroit school 
district, that a multi-school district remedy is constitutionally 
impermissible in this cause and order this cause dismissed as to 
these petitioners.

Respectfully submitted,
FRANK J. KELLEY 
Attorney General

Robert A. Derengoski 
Solicitor General

Eugene Krasicky 
Gerald F. Young 
George L. McCargar 
Thomas F. Schimpf

Assistant Attorneys General

Attorneys for Petitioners

JAN 2 1974 750 Law Building
525 West Ottawa Street 
Lansing, Michigan 48913



!





IN THE SUPREME COURT OF THE UNITED STATES 
October Term, 1973

No. 73-434
WILLIAM G. MILLIKEN, et al,

v.
RONALD G. BRADLEY, et al,

Petitioners,

Respondents.

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

APPENDIX TO BRIEF FOR PETITIONERS

FRANK J. KELLEY 
Attorney General

Robert A. Derengoski 
Solicitor General

Eugene Krasicky 
Gerald F. Young 
George L. McCargar 
Thomas F. Schimpf

Assistant Attorneys General

Attorneys for Petitioners

Business Address:
750 Law Building 
525 West Ottawa Street 
Lansing, Michigan 48913





1

IN D E X  TO A P P E N D IX  T O  BR IEF  
OF PETITIO N ER S M IL L IK E N  ET A L

Page

Michigan Constitution of 1908 ........................................ laa
Michigan Constitution of 1963 ........................................ laa
1955 PA 269, as amended, MCLA 340.1 et seq.; MSA 

15.3001 et seq. (The School Code of 1955).................. 6aa
1842 PA 70 ...................................................................... 52aa
1969 PA 244 .................................................................... 52aa
1970 PA 48 .....................................................................  54aa
1964 PA 289 .................................................................... 58aa
1967 PA 239 ...................................................................  64aa
1937 PA 306, § 1 ............................................................. 68aa
1949 PA 231, §1 .................................................................. 69aa
1962 PA 175, § 1 .................................................................. 70aa
1968 PA 239, §1 .................................................................. 71aa
1957 PA 312, §34 ...........................................................  72aa
1972 PA 258, §18 ............................................................. 73aa
1972 PA 258, §21 ............................................................. 74aa
1973 PA 101, §21(1) .......................................................... 74aa
1972 PA 258, §51 ............................................................. 75aa
1973 PA 101, §51 ............................................................. 75aa
1947 PA 336, §15, as added by 1965 PA 379 .....................  76aa
1969 PA 306, §46, as amended by 1971 PA 171 ..................77aa





laa

CONSTITUTION OF 1908

ARTICLE XI.
EDUCATION.

Superintendent of public instruction; election; term ; duties; com pensation.
| Sec. 2.A superintendent of public instruction shall be elected at the regular election 
j to be held on the first Monday in April, nineteen hundred nine, and every second year 
i thereafter. He shall hold office for a period of two years from the first day of July fol­
lowing his election and until his successor is elected and qualified. He shall have gen- 

j era!supervision of public instruction in the state. He shall be a member and secretary 
| of the state board of education. He shall be ex-officio a member of all other boards 
| having control of public instruction in any state institution, with the right to speak but 
| not to vote. His duties and compensation shall be prescribed by law.

HISTORY: See Const. 1S50, 13. 1, S. 1; 9. 1.
STATE BOARD OF EDUCATION: See See. 6 , Art. XI of this constitution.

— ^

>

CONSTITUTION OF MICHIGAN OF 1 963

ARTICLE 4 
Legislative Branch

> General appropriation bills; priority, statem ent of estim ated revenue.
Sec. 31. The general appropriation bills for the succeeding fiscal period covering 

items set forth in the budget shall be passed or rejected in either house o f the legisla­
ture before that house passes any appropriation bill for items not in the budget except 
hills supplementing appropriations for the current fiscal year’s operation. Any bill re­
quiring an appropriation to carry out its purpose shall be considered an appropriation 

I 11 ' ®ne °f the general appropriation bills as passed bv the legislature shall contain an 
itemized statment of estimated revenue bv major source in each operating fund for the 
ensuing fiscal period, the total of which shall not be less than the total of all appropria­
tions made from each fund in the general appropriation bills as passed.

HISTOKY: New Section. & “  1

1:



2aa

Bills passed; approval by governor or veto , reconsideration by legislature,
Sec. 33. Every bill passed by the legislature shall be presented to the governor! 

fore it becomes law, and the governor shall have 14 days measured in hours andi 
utes from the time of presentation in which to consider it. If he approves, hesht 
within that time sign and file it with the secretary of state and it shall become law.I 
he does not approve, and the legislature has within that time finally adjourned these 
sion at which the bill was passed, it shall not become law. If he disapproves, and I 
legislature continues the session at which the bill was passed, he shall return it wills 
such 14-day period with his objections, to the house in which it originated. Thatlios 
shall enter such objections in full in its journal and reconsider the bill. If two-thirds! 
the members elected to and serving in that house pass the bill notwithstandingt l i e i  
jcctions of the governor, it shall be sent with the objections to the other house form 
consideration. The bill shall become law if passed by two-thirds of the members eh j 
ted to and serving in that house. The vote of each house shall be entered in the jomta 
with the votes and names of the members voting thereon. If anv bill is not returned1! 
the governor within such 14-dav period, the legislature continuing in session, it sill 
become law as if he had signed it.

HISTORY: See Const. 190S. V, 36.

ARTICLE 5
Executive Branch

Disapproval of items in appropriation bills.
Sec. 19. The governor may disapprove any distinct item or items appropriating o®1 

eys in any appropriation bill. The part or parts approved shall become law, andtt 
item or items disapproved shall be void unless re-passed according to the method pit- 
scribed for-the passage of other bills over the executive veto.

HISTORY: See Const. 1908, V, 37.

Civil rights comm ission; m em bers, term , duties, appropriation.
Sec. 29. There is hereby established a civil rights commission which shall consistt 

eight persons, not more than four of whom shall be members of the same politic* 
party, who shall be appointed by the governor, by and with the advice and consent' 
the senate, for four-year terms not more than two of which shall expire in the s» 
year. It shall be the duty of the commission in a manner which may be prescribed 
law to investigate alleged discrimination against any person because of religion. »■' 
color or national origin in the enjovment of the civil rights guaranteed by law an 
this constitution, and to secure the equal protection of such civil rights without«  
discrimination. The legislature shall provide an annual appropriation’ for the effect!' 
operation of the commission.

!



Rules and regulations; hearings, orders.
The commission shall have power, in accordance with the provisions of this consu­

lt tution and of general laws governing administrative agencies, to promulgate rules and 
k regulations for its own procedures, to hold hearings, administer oaths, through court 
d authorization to require the attendance of witnesses and the submission of records, to 
ss take testimony, and to issue appropriate orders. The commission shall have other pow- 
I ers provided bv law to carry out its purposes. Nothing contained in this section shall 
> he construed to diminish the right of, any party to direct and immediate legal or equi- 

isj table remedies in the courts of this state.

A ppeals.
Appeals from final orders of the commission, including cease and desist orders and 

refusals to issue complaints, shall be tried de novo before the circuit court having juris- 
f diction provided be law.
i HISTORY: New Section.

ARTICLE 8 
Education

free public elementary and secondary schools; discrimination.
Sec. 2. The legislature shall maintain and support a system of free public elementary 

and secondary schools as defined by law. Ever)' school district shall provide for the ed­
ucation of its pupils without discrimination as to religion, creed, race, color or national 
origin.

Nonpublic schools, prohibited aid.
No public monies or property shall be appropriated or paid or any public credit uti- 

ued, by the legislature or any other political subdivision or agency of the state di- 
rectly or indirectly to aid or maintain any private, denominational or other nonpublic, 
pre-elementary, elementary, or secondary school. Xo payment, credit, tax benefit, ex- 
omption or deductions, tuition voucher, subsidy, grant or loan of public monies or 

i P‘°Perty shall be provided, directly or indirectly, to support the attendance of any stu- 
e,it or the employment of any person at any such nonpublic school or at any location 
institution where instruction is offered in whole or in part to such nonpublic school 

^  etj|s- The legislature may provide for the transportation of students to and from

0R1 Am. proposed by initiative petition;ratified at general election on Nov. 3,1970. See Const. 1903, XI, 9. Invalid provision, see p. 50.
, te board of education; duties.

ec' Leadership and general supervision over all public education, including adult 
instructional programs in state institutions, except as to institutions of 
on granting baccalaureate degrees, is vested in a state board of educa- 
rve as the general planning and coordinating body for all public educa-

d̂iication and 
.^er educati 

It shall se



4aa

State board of education; duties.
See. 3. Leadership and general supervision over all public education, including add 

education and instructional programs in state institutions, except as to institutions of 
higher education granting baccalaureate degrees, is vested in a state board of educa­
tion. It shall serve as the general planning and coordinating body for all public educa­
tion, including higher education, and shall advise the legislature as to the financial re 
quirements in connection therewith.

I
Superintendent of public instruction; appointment, powers, duties.

The state board of education shall appoint a superintendent of public instruction 
whose term of office shall be determined by the board. He shall be the chairman of lb 
board without the right to vote, and shall be responsible for the execution of its poll 
cies. He shall be the principal executive officer of a state department of education 
which shall have powers and duties provided by law. .

State board of education; m em bers, nom ination, election, term.
The state board of education shall consist of eight members who shall be nominate! 

by party conventions and elected at large for terms of eight years as prescribed by k  
The governor shall fill any vacancy by appointment for the unexpired term. The govt 
ernor shall be ex-officio a member of the state board of education without the rightte j 
vote. >

Boards of institutions of higher education, limitation.
The power of the boards of institutions of higher education provided in this const: 

tution to supervise their respective institutions and control and direct the expenditure 
of the institutions’ funds shall not be limited by this section.

HISTORY: See Const. 1909, XI, 2, 6 .

ARTICLE 9 
Finance and Taxation

1 5 mill limitation.
Sec. 6. Except as otherwise provided in this constitution, the total amount of gened 

ad valorem taxes imposed upon real and tangible personal property for all purposes: 
any one year shall not exceed 15 mills on each dollar of the assessed valuation of pr0P 
erty as finally equalized. Under procedures provided by law, which shall guarantee tin 
right of initiative, separate tax limitations for any county and for the townships and or 
school districts therein, the aggregate of which shall not exceed 18 mills on each doy 
of such valuation, may be adopted and thereafter altered by the vote of a majority 1 
the qualified electors of such county voting thereon, in lieu of the limitation herein* 
fore established. These limitations may be increased to an aggregate of not to excet 
50 mills on each dollar of valuation, for a period of not to exceed 20 years at any1;; 
time, if approved by a majority of the electors, qualified under Section 6 of Article 
of this constitution, voting on the question.



5aa

Nonapplication of lim itation.
T h e  f o r e g o i n g  l i m i t a t i o n s  s h a l l  n o t  a p p l y  t o  t a x e s  i m p o s e d  f o r  t h e  p a y m e n t  o f  p r i n c i ­

pal a n d  i n t e r e s t  o n  b o n d s  o r  o t h e r  e v i d e n c e s  o f  i n d e b t e d n e s s  o r  f o r  t h e  p a y m e n t  o f  a s ­
sessm e nts o r  c o n t r a c t  o b l i g a t i o n s  i n  a n t i c i p a t i o n  o f  w h i c h  b o n d s  a r e  i s s u e d ,  w h i c h  
taxes m a v  b e  i m p o s e d  w i t h o u t  l i m i t a t i o n  a s  t o  r a t e  o r  a m o u n t ;  o r  t o  t a x e s  i m p o s e d  f o r  
any o t h e r  p u r p o s e  b y  a n y  c i t y ,  v i l l a g e ,  c h a r t e r  c o u n t y ,  c h a r t e r  t o w n s h i p ,  c h a r t e r  a u ­
th o rity  o r  o t h e r  a u t h o r i t y ,  t h e  t a x  l i m i t a t i o n s  o f  w h i c h  a r e  p r o v i d e d  b y  c h a r t e r  o r  b y  
general l a w .

School districts in 2 or m ore counties.
In  a n y  s c h o o l  d i s t r i c t  w h i c h  e x t e n d s  i n t o  t w o  o r  m o r e  c o u n t i e s ,  p r o p e r t y  t a x e s  a t  t h e  

highest r a t e  a v a i l a b l e  i n  t h e  c o u n t y  w h i c h  c o n t a i n s  t h e  g r e a t e s t  p a r t  o f  t h e  a r e a  o f  t h e  
district m a y  b e  i m p o s e d  a n d  c o l l e c t e d  f o r  s c h o o l  p u r p o s e s  t h r o u g h o u t  t h e  d i s t r i c t .

1USTOKV: See Const. 1908, X, 21.

State school aid fund, source and distributfon.
S ec. 1 1 .  T h e r e  s h a l l  b e  e s t a b l i s h e d  a  s t a t e  s c h o o l  a i d  f u n d  w h i c h  s h a l l  b e  u s e d  e x c l u ­

sively f o r  a i d  t o  s c h o o l  d i s t r i c t s ,  h i g h e r  e d u c a t i o n  a n d  s c h o o l  e m p l o y e e s  r e t i r e m e n t  
system s, as p r o v i d e d  b v  l a w .  O n e - h a l f  o f  a l l  t a x e s  i m p o s e d  o n  r e t a i l e r s  o n  t a x a b l e  s a le s  
at r e ta il o f  t a n g i b l e  p e r s o n a l  p r o p e r t y ,  a n d  o t h e r  t a x  r e v e n u e s  p r o v i d e d  b y  l a w ,  s h a l l  
he d e d i c a t e d  t o  t h i s  f u n d .  P a y m e n t s  f r o m  t h i s  f u n d  s h a l l  b e  m a d e  i n  f u l l  o n  a  s c h e d ­
uled b a s is , a s  p r o v i d e d  b v  l a w .

HISTORY: New Section.

Payments from state treasu ry .
S e c . 1 7 .  N o  m o n e y  s h a l l  b e  p a i d  o u t  o f  t h e  s t a t e  t r e a s u r y  e x c e p t  i n  p u r s u a n c e  o f  a p ­

p r o p r ia tio n s  m a d e  b y  l a w .
HISTORY: See Const. 1908. X. 16.



6aa

A c t  2 6 9 ,  1 9 5 5 ,  p .  4 7 5 ;  E f f .  J u l .  1 .

A N  A C T  t o  p r o v i d e  a  s y s t e m  o f  p u b l i c  i n s t r u c t i o n  a n d  p r i m a r y  s c h o o l s ;  t o  p rov id e  
f o r  t h e  c l a s s i f i c a t i o n ,  o r g a n i z a t i o n ,  r e g u l a t i o n  a n d  m a i n t e n a n c e  o f  s c h o o l s  a n d  school 
d i s t r i c t s ;  t o  p r e s c r i b e  t h e i r  r i g h t s ,  p o w e r s ,  d u t i e s  a n d  p r i v i l e g e s ;  t o  p r o v i d e  f o r  regis­
t r a t i o n  o f  s c h o o l  d i s t r i c t s ,  a n d  t o  p r e s c r i b e  p o w e r s  a n d  d u t i e s  w i t h  r e s p e c t  th e re to ; to 
p r o v i d e  f o r  a n d  p r e s c r i b e  t h e  p o w e r s  a n d  d u t i e s  o f  c e r t a i n  b o a r d s  a n d  o f f i c i a l s ;  to pre­
s c r i b e  p e n a l t i e s ;  a n d  t o  r e p e a l  c e r t a i n  a c t s  a n d  p a r t s  o f  a c t s .

'
The People o f the State o f Michigan enact:

P A R T  1 .

C H A P T E R  1 .

C L A S S I F I C A T I O N .

340.1 School code of 1955; short title.
S e c .  1 .  T h i s  a c t  s h a l l  b e  k n o w n  a n d  m a y  b e  c i t e d  a s  “ T h e  s c h o o l  c o d e  o f  1 9 5 5 ” .
HISTORY: New 1953, p. 475, Act 269, Eff. Jul. 1.
CITED IN OTHER SECTIONS: Sections 340.1 to 340.984 are cited in §§ 388.650, 388.681, and 389.81.

3 4 0 .2  School districts; organization.
S e c .  2. H e r e a f t e r ,  e x c e p t  a s  o t h e r w i s e  p r o v i d e d  i n  t h i s  a c t ,  e a c h  a n d  e v e r y  school 

d i s t r i c t  s h a l l  b e  o r g a n i z e d  a n d  c o n d u c t e d  a s :

1 .  A  p r i m a r y  s c h o o l  d i s t r i c t ;  o r

2 .  A  s c h o o l  d i s t r i c t  o f  t h e  f o u r t h  c l a s s ;  o r

3 .  A  s c h o o l  d i s t r i c t  o f  t h e  t h i r d  c l a s s ;  o r

4 .  A  s c h o o l  d i s t r i c t  o f  t h e  s e c o n d  c l a s s ;  o r

5 .  A  s c h o o l  d i s t r i c t  o f  t h e  f i r s t  c l a s s .
HISTORY: New 1955, p. 475, Act 269, EH. Jul. 1.

340.3 Same; loss of organization, apportionment of territory. [M.S.A. 15.3003] 
Sec. 3. Any school district shall lose its organization whenever there are not enough

persons in such district qualified under the law to hold district offices or who will accept 
such offices. Upon the happening of either condition, the county board of education of the 
county containing the district shall declare by resolution such district dissolved and shau > 
immediately attach the territory thereof, in whole or in part, to other districts already 
organized and make an equitable distribution of the money, property and other material 
belonging to such district among the districts to which the territory thereof shall be attached. 
Provided, That if the district extends into more than 1 county, the county boards of edu- 
cation of all such counties shall meet jointly and sit as a single board for the dissolution of 
such district.



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§ 3, as amended by 1964 PA 176

340.3 School districts; disorganization, apportionm ent of territory, taxes.
S e c . 3 .  A n y  s c h o o l  d i s t r i c t  s h a l l  l o s e  i t s  o r g a n i z a t i o n  w h e n e v e r  t h e r e  a r e  n o t  e n o u g h  

p e rson s i n  s u c h  d i s t r i c t  q u a l i f i e d  u n d e r  t h e  l a w  t o  h o l d  d i s t r i c t  o f f i c e s  o r  w h o  w i l l  a c ­
cept s u c h  o f f i c e s .  U p o n  t h e  h a p p e n i n g  o f  e i t h e r  c o n d i t i o n ,  t h e  c o u n t y  b o a r d  o f  e d u c a ­
tion o f  t h e  c o u n t y  c o n t a i n i n g  t h e  d i s t r i c t  s h a l l  d e c l a r e  b y  r e s o l u t i o n  s u c h  d i s t r i c t  d i s ­
so lve d a n d  s h a l l  i m m e d i a t e l y  a t t a c h  t h e  t e r r i t o r y  t h e r e o f ,  i n  w h o l e  o r  i n  p a r t ,  t o  o t h e r  
districts a l r e a d y  o r g a n i z e d  a n d  m a k e  a n  e q u i t a b l e  d i s t r i b u t i o n  o f  t h e  m o n e y ,  p r o p e r t y  
and o t h e r  m a t e r i a l  b e l o n g i n g  t o  s u c h  d i s t r i c t  a m o n g  t h e  d i s t r i c t s  t o  w h i c h  t h e  t e r r i t o r y  
th e re o f s h a l l  b e  a t t a c h e d .  I f  t h e  d i s t r i c t  e x t e n d s  i n t o  m o r e  t h a n  1  c o u n t y ,  t h e  c o u n t v  
bo ards o f  e d u c a t i o n  o f  a l l  s u c h  c o u n t i e s  s h a l l  m e e t  j o i n t l y  a n d  s i t  a s  a  s i n g l e  b o a r d  f o r  
the d i s s o l u t i o n  o f  s u c h  d i s t r i c t .  T h e  p r o p e r t y  o f  t h e  d i s o r g a n i z e d  d i s t r i c t  s h a l l  b e  s u b ­
ject to  a n y  i n c r e a s e  i n  t h e  c o n s t i t u t i o n a l  l i m i t a t i o n  o n  t a x e s  w h i c h  h a v e  b e e n  v o t e d  b y  
the e le c to r s  o f  t h e  d i s t r i c t  t o  w h i c h  i t  is  a t t a c h e d ,  w h e t h e r  t h e  v o t e d  i n c r e a s e  is  f o r  
b u ild in g  a n d  s i t e  p u r p o s e s ,  g e n e r a l  f u n d  p u r p o s e s ,  o r  f o r  t h e  r e t i r e m e n t  o f  b o n d s  e x ­
ce pt it  s h a l l  r e c e i v e  a  c r e d i t  i n  t h e  a m o u n t  o f  a n y  l e v y  r e m a i n i n g  t o  b e  p a i d  o n  a n y  
o u t s t a n d in g  d e b t  i n  t h e  d i s o r g a n i z e d  d i s t r i c t ,  w h i c h  s h a l l  b e  p a i d  u n t i l  d e b t  is  r e t i r e d  
and s h a ll a l s o  p a y  a n  a m o u n t  e q u a l  t o  t h e  a m o u n t  l e v i e d  f o r  d e b t  r e t i r e m e n t  b y  t h e  
d is tric t t o  w h i c h  i t  is  a t t a c h e d  n o t  t o  e x c e e d  5  m i l l s  o n  t h e  s t a t e  e q u a l i z e d  v a l u a t i o n  i n  
the d i s o r g a n i z e d  d i s t r i c t .  A l l  o t h e r  t a x e s  l e v i e d  f o r  t h e  p u r p o s e s  o f  t h e  c o m b i n e d  
school d i s t r i c t ,  i n c l u d i n g  t a x e s  f o r  t h e  r e t i r e m e n t  o f  b o n d e d  i n d e b t e d n e s s ,  s h a l l  b e  
sp read o v e r  t h e  e n t i r e  a r e a  o f  t h e  c o m b i n e d  d i s t r i c t .

Bonded indebtedness; board of trustees of receiving district; taxes; audit.
I f  a n y  d i s o r g a n i z e d  d i s t r i c t  h a s  a  b o n d e d  i n d e b t e d n e s s  t h e  d i s t r i c t  s h a l l  b e  a t t a c h e d  

in w h o le  t o  a n o t h e r  d i s t r i c t  b y  t h e  i n t e r m e d i a t e  b o a r d  o f  e d u c a t i o n .  T h e  i d e n t i t y  o f  
the d i s t r i c t  s h a l l  n o t  b e  l o s t  b y  v i r t u e  o f  t h e  a t t a c h m e n t ,  a n d  i t s  t e r r i t o r y  s h a l l  r e m a i n  
as a s e p a r a t e  a s s e s s i n g  u n i t  f o r  t h e  p u r p o s e  o f  t h e  b o n d e d  i n d e b t e d n e s s  u n t i l  t h e  i n ­
d e b te d n e s s  h a s  b e e n  r e t i r e d  o r  r e f u n d e d .  T h e  b o a r d  o f  t h e  d i s t r i c t  t o  w h i c h  t h e  d i s o r ­
g a n iz e d  d i s t r i c t  is  a t t a c h e d  s h a l l  c o n s t i t u t e  t h e  b o a r d  o f  t r u s t e e s  f o r  t h e  d i s o r g a n i z e d  
d is tric t h a v i n g  t h e  b o n d e d  i n d e b t e d n e s s ,  a n d  i t s  o f f i c e r s  s h a l l  b e  t h e  o f f i c e r s  f o r  t h e  
d is o r g a n iz e d  d i s t r i c t .  T h e  b o a r d  o f  t h e  d i s t r i c t  t o  w h i c h  t h e  d i s o r g a n i z e d  d i s t r i c t  h a s  
been a t t a c h e d  s h a l l  c e r t i f y  a n d  o r d e r  t h e  l e v y  o f  t a x e s  f o r  s u c h  b o n d e d  i n d e b t e d n e s s  in  
the n a m e  o f  t h e  d i s o r g a n i z e d  d i s t r i c t ,  s h a l l  n o t  c o m m i n g l e  t h e  d e b t  r e t i r e m e n t  f u n d s  
of th e  d i s o r g a n i z e d  d i s t r i c t  w i t h  t h o s e  o f  t h e  d i s t r i c t  t o  w h i c h  i t  h a s  b e e n  a t t a c h e d ,  a n d  
shall d o  a l l  t h i n g s  r e l a t i v e  t o  t h e  b o n d e d  i n d e b t e d n e s s  r e q u i r e d  b y  l a w  a n d  b y  t h e  
term s u n d e r  w h i c h  t h e  i s s u a n c e  a n d  s a l e  o f  t h e  b o n d s  w e r e  o r i g i n a l l y  a u t h o r i z e d .  A l l  
o th e r t a x e s  l e v i e d  f o r  t h e  p u r p o s e s  o f  t h e  c o m b i n e d  s c h o o l  d i s t r i c t ,  i n c l u d i n g  t a x e s  l e v ­
ied f o r  t h e  r e t i r e m e n t  o f  b o n d e d  i n d e b t e d n e s s ,  s h a l l  b e  s p r e a d  o v e r  t h e  e n t i r e  a r e a  o f  
the c o m b i n e d  d i s t r i c t .  I m m e d i a t e l y  u p o n  t h e  a t t a c h m e n t  o f  a  d i s o r g a n i z e d  d i s t r i c t  t o  
a n o th e r d i s t r i c t  t h e  i n t e r m e d i a t e  b o a r d  s h a l l  a u d i t  t h e  a s s e t s  a n d  L i a b i l i t i e s  o f  t h e  d i s o r ­
g a n iz e d  d i s t r i c t  a n d  i f  a n v  c o n s i d e r a b l e  d i s c r e p a n c y  is  f o u n d  t h e  i n t e r m e d i a t e  b o a r d  
snail o r d e r  t h e  r e c e i v i n g  d i s t r i c t  t o  p a y  t h i s  d i s c r e p a n c y .  T h e  d i s o r g a n i z e d  d i s t r i c t  s h a l l  
re p a y  f r o m  a n y  m o n e y s  a v a i l a b l e  i n c l u d i n g  v o t e d  m i l l a g e  t h a t  a m o u n t  i n  a  t i m e  t o  b e  

e t e n n i n e d  b y  t h e  i n t e r m e d i a t e  b o a r d .
WSTOhV: New 1 9 5 5  p 4 - 5  Act ̂  E(f juj Am. 1961, p. 236. Art 176, Imd. Ell. May 19.



8aa
i

C H A P T E R  3 .

S C H O O L  D I S T R I C T S  O F  T H E  F O U R T H  C L A S S .

340.51 Fourth class districts; reclassification as g raded , township or rural 
agricultural districts.

S e c .  5 1 .  E a c h  s c h o o l  d i s t r i c t  o r g a n i z e d  a s  a  g r a d e d ,  t o w n s h i p  o r  r u r a l  agricultural i 
s c h o o l  d i s t r i c t  a t  t h e  t i m e  o f  t h e  t a k i n g  e f f e c t  o f  t h i s  a c t  s h a l l  b e  a  s c h o o l  d is t r i c t  of the I 
f o u r t h  c l a s s  s u b j e c t  t o  r e c l a s s i f i c a t i o n  a s  h e r e i n a f t e r  p r o v i d e d ,  a n d  s h a l l  o p e r a t e  and be j 
g o v e r n e d  a s  s u c h  b y  t h e  p r o v i s i o n s  o f  t h i s  c h a p t e r  a n d  b y  s u c h  p r o v i s i o n s  o f  p a rt 2 of | 
t h i s  a c t  a s  a r e  n o t  i n c o n s i s t e n t  w i t h  t h i s  c h a p t e r .

HISTORY: New 1955, p. 480, Act 269, Eff. Jul. 1.

340.52  Fourth class districts; reclassification in certain prim ary districts.
S e c .  5 2 .  A n y  p r i m a r y  s c h o o l  d i s t r i c t  h a v i n g  a  s c h o o l  c e n s u s  o f  m o r e  t h a n  7 5  and less 

t h a n  2 , 4 0 0  c h i l d r e n  b e t w e e n  t h e  a g e s  o f  5  a n d  2 0  a s  c e r t i f i e d  b y  t h e  s u p e r in te n d e n to l 
p u b l i c  i n s t r u c t i o n ,  b y  a  m a j o r i t y  v o t e  o f  t h e  q u a l i f i e d  v o t e r s  p r e s e n t  a t  a n  annual or 
s p e c i a l  m e e t i n g  m a y  o r g a n i z e  a s  a  f o u r t h  c l a s s  s c h o o l  d i s t r i c t .

HISTORY: New 1955, p. 480, Act 269, Eff. Jul. 1:—Am. 1959, p. 451, Act 271, Imd. Eff. Nov. 3.

340.53 Fourth class districts; referendum  on reclassification in certain pri-1 
m ary districts.

S e c .  5 3 .  I n  e a c h  p r i m a r y  d i s t r i c t  w h i c h  s h a l l  h e r e a f t e r  h a v e  a  s c h o o l  c e n s u s  o f more 
t h a n  7 5  a n d  l e s s  t h a n  2 , 4 0 0  c h i l d r e n  b e t w e e n  t h e  a g e s  o f  5  a n d " 2 0 , ' a s  c e r t i f i e d  b y  the 
s u p e r i n t e n d e n t  o f  p u b l i c  i n s t r u c t i o n ,  t h e  q u e s t i o n  o f  o r g a n i z i n g  a s  a  f o u r t h  class school 
d i s t r i c t  m a y  b e  s u b m i t t e d  t o  t h e  s c h o o l  e l e c t o r s  t h e r e o f  a t  a n  a n n u a l  o r  s p e c ia l school 
m e e t i n g  f o l l o w i n g  t h e  a t t a i n m e n t  o f  s u c h  s c h o o l  c e n s u s .  T h e  i n t e n t i o n  t o  s u b m it the 
q u e s t i o n  o f  t h e  o r g a n i z a t i o n  o f  a  f o u r t h  c l a s s  s c h o o l  d i s t r i c t  s h a l l  b e  e x p r e s s e d  in the 
n o t i c e  o f  s u c h  a n n u a l  o r  s p e c i a l  m e e t i n g .

HISTORY: New 1955, p. 4-80, Act 269, Eff. Jul. 1 Ant. 1959, p. 452, Act 271, Imd. Eff, Nov. 3.

3 4 0 .5 4  Fourth class districts; notice of reclassification.
S e c .  5 4 .  W h e n e v e r  t h e  e l e c t o r s  o f  t h e  d i s t r i c t  h a v e  b y  t h e i r  v o t e  a p p r o v e d  the re 

c l a s s i f i c a t i o n  o f  a  p r i m a r y  d i s t r i c t  t o  a  d i s t r i c t  o f  t h e  f o u r t h  c l a s s ,  i t  s h a l l  b e  t h e  duty of 
t h e  s e c r e t a r y  o f  t h e  b o a r d  t o  g i v e  n o t i c e  o f  s u c h  r e c l a s s i f i c a t i o n ,  i n  w r i t i n g ,  to the' 

c o u n t y  s u p e r i n t e n d e n t  o f  s c h o o l s  o f  e a c h  c o u n t y  i n  w h i c h  t h e  d i s t r i c t  is  s i t u a t e d  and to, 
t h e  s u p e r i n t e n d e n t  o f  p u b l i c  i n s t r u c t i o n  w i t h i n  1 0  d a y s  a f t e r  t h e  v o t e  t h e r e o n .

HISTORY: New 1955, p. 480, Act 269, Eff. Jul. 1.



9aa

340.55 Board of education; election, term , qualification, acceptance.
Sec. 55. When such change in the organization of the district shall have been voted, 

the voters at the next annual election or annual meeting shall proceed to elect by bal­
lot a board of 5 members, 1 member for the term of 1 year, 2 for the term of 2 years, 
and 2 for the term of 3 years, and annually thereafter a successor or successors to the 
member or members whose terms of office shall expire. The term of office of a mem­
ber of the board of any district governed by the provisions of this chapter shall be for 3 
years, except in the case of the board elected at the first annual election or annual 
meeting following reclassification. Successors to the members whose terms expire shall 
be elected by the school electors of the district, by ballot, at each annual election or 
annual meeting. The board of the primary district shall continue to be the board for 
the district until the election and qualification of the new board at tire first annual 
election or annual meeting following reclassification, and upon the qualification for 
and acceptance of office pursuant to section 493 of this act by 3 of the newly elected 
members, the district shall be deemed duly organized. After the annual election or an­
nual meeting in 1960, tire board of all fourth class school districts operating grades kin­
dergarten through 12 shall consist of 7 members. At the annual election or annual 
meeting in 1960, the voters shall elect by ballot for a term of 4 years, 2 board mem­
bers, and the voters shall elect by ballot for a term of 3 years successors to the mem­
bers whose terms of office shall expire. At the annual election or annual meeting there­
after, the voters shall elect for a term of 4 years successors to the members whose 
terms shall expire. After the rotation is established, not more than 2 members shall be 
elected in any one year to fill vacancies occurring by expiration of terms.

HISTORY: New 1955, p. 481, Act 269, EH. Jul. 1;—Am. 1959, p. 16, Act 16, Elf. Mar. 19, 1960.

340,55a Board of education; school m eetings, adoption of election system ,
rescission, election of board m em bers.
Sec. 55a. In school districts of the fourth class having a school census of less than 

600 children there shall be held school meetings rather "than school elections: Pro­
vided, That the board of education may by resolution determine that school elections 
rather than school meetings be held within such district, as provided by sections 72 
through 76 of this act. Such resolution once adopted mav be rescinded by the board 
and shall be rescinded upon petition of a majority of the electors of the district, but 
such rescission shall not be effective as to any election held less than 90 days following 
the adoption of the resolution to rescind. In fourth class school districts holding school 
meetings rather than school elections, such meetings shall be called and held at the 
hmes and in the manner provided bv sections 34 through 37 of this act. At the annual 
meeting there shall be elected by ballot school board members to succeed those whose 
h'rms then expire, and to fill vacancies. The school electors present at any annual 
meeting shall have all of the powers granted to school electors in districts of the fourth 
(,lass. The president of the hoard of education shall preside, when present, at all meet- 
m8s of the district, and the secretary of the board, when present, shall act as clerk.

HISTORY: Add 1956, p 46!, Act 215. limi. Ell. May 1 :—Am. 1957, p. 90, Act 8 8 , Imd. Ell. May 23.



lOaa

340.56  Board of education; nom inating petitions, canvass, withdrawal)1
candidate, ballot form.
Sec. 56. Candidates for members of the first and succeeding boards to be elects 

under this chapter shall be nominated by petition. To obtain the printing of the nan 
of any candidate for member of the board on the ballot, the candidate shall file not 
nation petitions with the secretary of the board not later than 4 p.m. on the thirties 
day prior to the date of the election, unless the thirtieth day falls on a Saturday, Sui 
day or legal holiday in which case nomination petitions may be served on the secretin 
up to 4 p.m. on the next secular day. Each petition shall be signed by a numberoi 

• qualified school electors of the district equal to not less than 1% nor more than 4% ol 
the total number of votes received by the candidate for member of the board of edu 
cation who received the greatest number of votes at the last election at which men 
bers to the board of education were elected but in no case shall such number belts 
than 20. No elector shall sign petitions for more candidates than are to be elected, Tk 
petitions shall be in the form prescribed in section 538 of this act except that the peti­
tion shall refer to qualified school electors rather than registered school electors;

Upon the filing of nomination petitions with the secretary of the board, the officii 
shall canvass the same to ascertain if such petitions have been signed by the requisite 
number of qualified electors, and for the purpose of determining the validity thereof 
may cause any doubtful signatures to be checked against the registration records;’ 
the clerk of any' political subdivision in which the petitions were circulated, or mavis 
any other method he deems proper for determining the validity of such doubtful signa­
tures. In case it is determined that the nomination petitions of any candidate do ni 
comply with such requirements, or if such candidate does not possess the qualifica­
tions as required by law for membership on the board, it shall be the duty of the secre- 
tary of the board to notify immediately such candidate of such fact. In the cased; 
nomination petitions filed on behalf of the secretary' of the board, the treasurer of M 
board shall perform the duties of the secretary in connection therewith instead of tf«| 
secretary.

After the filing of a nomination petition bv or on behalf of a candidate for member 
ship on the board, such candidate shall not be permitted to withdraw unless a writtet 
notice of withdrawal, signed by the candidate, is served on the secretary of the bo® 
not later than 4 p.m. of the third day after the last day for filing such petition untef 
the third day falls on a Saturday, Sundav or legal holiday, in which case the notice of 
withdrawal may be served on the secretary up to 4 p.m. on the next secular day.

The secretary of the board shall prepare and have printed an official ballot wlucai 
shall contain a separate area for each term of office. The ballot shall be substantially 
the same form as provided in the general election law and the names of all candidate 
who have been duly nominated for each term of office shall be printed in the prop1 
place thereon. In the printing of the ballots, the provisions of the general law of in­
state for transposing and alternating the positions of the names of candidates on pri 
mary election ballots shall apply. No partv emblem or designation shall be placed i 
school election ballots. The head of each section of the ballot shall have printed oni 
the number of persons to be voted for, and the expiration date of the term involved.

HISTORY: New 1955. p. 481, Act 269. EH. Jul 1 Am. 1961, p. 36S, Ael 218, Eft. Sep. 8 :—Am. 1968, p. 133, Act 80, tod. Ef f - '



1 laa

340.57 Board of education; officers, election; rem oval.
Sec. 57. The members of the board shall meet on the second Monday of July suc­

ceeding their election and annually on the same day thereafter. The members of the 
hoard shall organize the board by electing a president, a secretary and a treasurer, and 
for cause mav remove the same from such offices and shall elect others of their num­
ber in such places.

HISTORY: New 1955, p. 481. Ait 289. Eff. Jul. 1;—Am. 1961, p. 30, Act 29, Imd. E(l. May 12;—Am. 1967. p. 247, Act 165. Imd. Eff.}un.3ll.

340.58 Board of education; appointm ent of officers by county board.
Sec. 58. Whenever, in anv ease, the board shall fail or neglect to elect the officers of 

the board as provided in this chapter within 15 davs after the annual election, the 
county board of education shall appoint the said officers from the members of the 
board: Provided, That if the district extends into more than 1 county, the county 
boards of education of all such counties shall meet jointly and sit as a single board for 
the purpose of appointing the officers.

HISTORY: New 1955. p. 482, Act 269, Elf. Jul. 1.

340,59 Treasurer; bond, sureties; exceptions.
Sec. 59. Within 30 davs after his appointment, the treasurer of the board shall file 

with the secretary an official bond in such an amount and form as may be determined 
by said board, except that when the board treasurer is not directly handling school dis­
trict money or signing checks no bond is necessary. When the authority for directing 
the administration of school district money rests with a school district employee, said 
person and all persons connected therewith shall be bonded. If a surety bond is given, 
it shall be paid for by the district.

HISTORY: New 1955, p. 482* Act 269, Eff.Jul. 1;—Am. 1966, p. 344, Act 255, Imd. Eff. Jul. 11.

340.60 President; duties.
Sec. 60. It shall be the duty of the president of the board:

Presiding officer at m eetings of board.
First, to preside at all meetings of the board;

Countersignature of orders.
Second, To countersign all orders legally drawn In the secretary upon the treasurer 

for moneys to be disbursed on behalf of the district;

Prosecution of action on treasurer’s bond.
Third, To cause an action to be prosecuted in the name of the district on the treas­

urers bond in case of any breach of anv condition thereof; and

Other duties.
fourth. To perform such other duties as mav be appropriate to the duties of his of- 

ice in the management of the schools as the board shall determine.
HISTORY: New 1955. p. 4n2. Act 269. Eff. Jul. 1 .



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340,61 Secretary ; duties.
Sec. 61. It shall be the duty of the secretary of the board:

C lerk at m eetings of board .
First, To act as clerk at all meetings of the board;

Record of proceedings of board.
Second, To record the minutes of all meetings, orders, resolutions and other pro­

ceedings of the board in proper record books and sign the same;

Notice of elections.
Third, To give or cause to be given the prescribed notice of the annual election and 

of any special elections of the district;

Annual and other reports.
Fourth, To prepare the annual report of the school district and such other reports as 

may be required by the superintendent of public instruction;
O rders,
Fifth, To draw and sign orders upon the district treasurer for all moneys to be dis-! 

bursed by the district, and present such orders to the president to be countersigned by I 
that officer. Each order shall be properly numbered and dated, shall specify the 
sources of the funds called for, and the purpose for which and the fund upon which it 
is drawn; and

O ther duties.
Sixth, To perform such other duties as are or shall be required by law or by the 

board.
HISTORY: New 1955, p. 4S2, Ac! 269, Eff. JuL 1.

340.62  Treasurer; duties.
Sec. 62. It shall be the duty of the treasurer of the board: 
School m oneys; deposit as designated by board.
First, The treasurer shall have the care and custody of all the moneys of the district 

coming into his hands. He shall deposit all funds of the district with any bank or bank­
ing corporation or trust company designated by the board and in such proportion and - 
manner as shall be provided by said board;

Paym ent of orders.
Second, To pay all orders of the secretary when lawfully drawn and countersigned 

by the president out of any moneys in his hands belonging to the fund upon which 
such orders shall be drawn;

Receipts and disbursem ents; record.
Third, To keep or cause to be kept a record book in which all moneys received and 

disbursed shall be entered, the sources from which the same have been received, an 
the person to whom and the objects for which the same have been paid;



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Same; report, vouchers.
Fourth, To present to the board at the close of the school year a report in writing 

containing a statement of all moneys received during such year and of each item of 
disbursement made and exhibit the vouchers therefor if requested by the board, and 
lie shall maintain a permanent file of said vouchers; and

Other duties.
Fifth, To perform such other duties as are or shall be required by law or by the 

board.
HISTORY: New 1955, p. 483, Act 269, EH. Jul. 1.

340.63 Board of education m onthly m eetings; special m eeting, notice,
service.
Sec. 63. The board shall hold 1 regular meeting each month at a time and place to 

be determined by said board and no notice of such meeting shall be required if the 
hour and place of such meeting shall have been fixed by resolution of the board and 
placed, on the records of the secretary of said board. Special meetings of the board 
may be called by the president of the board, or any 2 members thereof, by serving on 
the other members a written notice of the time and place of any such special meeting. 
Service of such notice mav be made by delivering the notice to the members person­
ally or by leaving the same at each member’s residence w'ith some person of the house­
hold at least 24 hours before such meeting is to take place, or by depositing the same 
in a government mail receptacle enclosed in a sealed envelope plainly addressed to 
such member at his last known residence address at least 72 hours before such meeting 
is to take place. Such service mav be made by a member of the board or any employee 
of the board.

HISTORY: New 1955, p. 483, Act 269, EH. Jul. 1.

340,64 High schools; establishm ent, election.
Sec. 64. When directed by a majority vote of the school electors voting on the ques­

tion at an annual or special election, the board shall establish a high school and deter 
mine the qualifications for admission to such high school: Provided, That such vote 
shall not be required in districts in which high schools have been established at the 
time of the taking effect of this act, or in the case of the formation of districts by con­
solidation or annexation where high schools have been established at the time of sue!', 
consolidation or annexation.

HISTORY: New 1955, p. 483, Act 269, Eff. Jul. 1.

340.65 High schools; discontinuance; tuition and transportation.
Sec. 65. When directed by a majority vote of the school electors, the board may dis­

continue the high school in such district. In such event, however, said board shall 
moke provision to send the pupils of said high school to the high school of another dis­
trict or districts. When such action has been taken, said board shall use the necessary 
unds to pay the tuition as provided in section 761 of this act and shall provide trans­
portation for all such pupils.

HISTORY: New 1955, p. 45.3, Act 269, Eff. Jul. 1.



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340 .66  Superintendent of schools; adm inistrators; term s, duties.
Sec. 66. The board may employ a superintendent of schools who shall meet Ik 

qualifications prescribed in section 573, and shall employ a superintendent if 121 

more teachers are employed. The contract with the superintendent shall be for a ten: 
fixed by the board not to exceed 3 years. The board may employ assistant superintend 
ents, principals, assistant principals, guidance directors and other classified administa 
tors who do not assume tenure in position, for a term fixed bv the board not to exceed 
3 years, and shall define their duties. The employment shall be under written contract.. 
Notification of nonrenewal of contract shall be given in writing at least 90 days pri;: 
to the contract termination date or the contract is renewed for an additional 1-yra 
period. The superintendent shall have the following duties:

(a) To recommend in writing all teachers necessary for the schools and to suspd 
any teacher for cause until the board may consider such suspension.

(b) To classify and control the promotion of pupils.

(c) To recommend to the board the best methods of arranging the course of studs 
and the proper textbooks to be used.

(d) To make reports in writing to the board and to the state board of education® 
nually, or oftener if required, in regard to all matters pertaining to the educational e 
terests of the district.

(e) To supervise and direct the work of the teachers and other employees oft 
board.

(f) To assist the board in all matters pertaining to the general welfare of the seta ■. 
and to perform such other duties as the board may determine.

(g) To put into practice the educational policies of the state and of the board in®)
cordance with the means provided by the board. f

HISTORY: New 1955, p. 484, Act 269, Elf. lid. 1;—Am. 1958, p. 117, Act 110, Eff. Sep. 13:—Am. 1966, p. 342, Act 254, Imd. f*Il 
—Am. 1970, p. 661, Act 247, Imd. Eff. Dec. 30.

340 .67  Discontinuance of schools or g rades; tuition and transportation  
students.
Sec. 67. At an annual or special election, the school electors may vote to discontin r 

school in the district for the ensuing or current year and direct the board to mataf 
vision to send the children resident therein to another school or schools; or may'1 
to direct the board to make provision to send the children of any grade to ano 
school or schools. When such action has been taken, the board shall use any ’un s | I 
cept library or building funds, to pay for the tuition and transportation of all suer | 
dren.

HISTORY: New 1955, p. 484. Act 269, Eff. Jul. 1.



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340.68 Transportation w ithin district; routes.
Sec. 68. The board of any fourth class school district may provide for the transporta­

tion of pupils within the district when authorized by a majority vote of the school elec­
tors of the district voting on the question at an annual or special election. The board 
shall designate the routes over which the vehicles are to travel: Provided, however, 
That in districts in which the board was required by law or authorized by the electors 
to furnish such transportation at the time this act takes effect, such board shall con­
tinue such transportation until such authorization is rescinded by a majority of the 
electors of the district voting on the question at an annual or special election.

HISTORY: New 1955, p. 484, Act 269, EH. Jul. 1.

340.69 Transportation and tuition to other districts; resident pupils.
Sec. '69. The board may use money in the general fund or funds received from state 

appropriations for aid to school districts for the purpose of paying tuition and trans­
portation to another district or districts of resident pupils, even though the grades in 
which such pupils may be enrolled are maintained within the district.

HISTORY: New 1955, p. 484, Act 269, Eff. Jul. 1.

340.70 Number or nam e of school district; changes.
Sec. 70. The county board of education shall give a number to each of the fourth 

class school districts within the county: Provided, That when the territory of the dis­
trict extends into more than 1 county, such number shall be given by the countv 
boards of education of all such counties meeting jointly and sitting as a single board. 
Such number, together with the name of the county or counties in which the district is 
located, shall be the legal name of such district: Provided further, That the board of 
any fourth class school district may by resolution adopt a distinctive name for such 
school district and such name, after being approved by the county board of education 
as not being in conflict with the name of another district, together with the name of 
the county or counties into which the school district extends, shall be the legal name 
of such school district for all purposes. The board may in like manner change die name
0 n>e district. The adoption of a distinctive name or the change in name of any dis- 
tnct shall have no effect upon existing obligations incurred in the former name of the 
district or on the ownership of any real or personal property.

HISTORY: New 1955, p. 485, Act 269, Eff. Jul. 1.

340.71 Board of education; officers, sa laries.
Sec. 71. The salaries of members of the board shall be determined by the school 

eectors of the district at the annual election. The electors may provide for a different 
l. ary for the office of secretary and the office of treasurer of the board. A salary once
1 by the electors shall remain the same until changed by the electors at an annual 

e ection: Provided, That the salary of any member of the board shall not be increased 
nor shall the salary of any member be decreased after his election or apjrointment.

HISTORY: New 1955, p. 485, Act 269, Eff. Jul. 1.



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3 4 0 . 7 2  F o u r t h  c l a s s  s c h o o l  d i s t r i c t s ;  e l e c t i o n ,  t i m e .  [ M . S . A .  1 5 . 3 0 7 2 ]  

S e c .  7 2 .  T h e  a n n u a l  e l e c t i o n  o f  e a c h  s c h o o l  d i s t r i c t  o f  t h e  f o u r t h  class
s h a l l  b e  h e l d  o n  t h e  s e c o n d  M o n d a y  i n  J u n e ,  u n l e s s  t h e  s c h o o l  d i s t r i c t  
b o a r d  d e t e r m i n e s  t o  h o l d  i t s  e l e c t i o n  a t  t h e  s a m e  t i m e  a n d  i n  c o n j u n c t i o n  
w i t h  a  c i t y  e l e c t i o n  a s  p r o v i d e d  i n  s e c t i o n  6 4 4 k  o f  A c t  N o .  1 1 6  o f  th e  
P u b l i c  A c t s  o f  1 9 5 4 ,  a s  a d d e d ,  b e i n g  s e c t i o n  1 6 8 . 6 4 4 k  o f  t h e  C o m p i l e d  
L a w s  o f  1 9 4 8 .

3 40 .73  Special school elections; request, notice, scope.
S e c .  7 3 .  S p e c i a l  e l e c t i o n s  m a y  b e  c a l l e d  b y  t h e  b o a r d ,  a n d  t h e  b o a r d  s h a ll  call spe­

c i a l  e l e c t i o n s  o n  t h e  w r i t t e n  r e q u e s t  o f  5 %  o r  m o r e  o f  t h e  s c h o o l  e l e c t o r s  o f  t h e  district 
b u t  n o t  l e s s  t h a n  2 5  e l e c t o r s .  S u c h  e l e c t i o n  s h a l l  b e  c a l l e d  b y  g i v i n g  t h e  r e q u i r e d  legal 
n o t i c e  a n d  s h a l l  b e  h e l d  i n  n o t  l e s s  t h a n  1 0  n o r  m o r e  t h a n  1 5  d a y s  f r o m  t h e  tim e  the 
w r i t t e n  r e q u e s t  i s  r e c e i v e d ;  b u t  n o  s p e c i a l  e l e c t i o n  s h a l l  b e  c a l l e d  u n l e s s  t h e  questions 
t o  b e  v o t e d  u p o n  a r e  w i t h i n  t h e  l a w f u l  a u t h o r i t y  o f  t h e  e l e c t o r s  t o  d e c i d e ,  a n d  n o  busi­
n e s s  s h a l l  b e  t r a n s a c t e d  a t  a  s p e c i a l  e l e c t i o n  u n l e s s  t h e  s a m e  s h a l l  b e  s t a t e d  i n  the no­
t i c e  o f  s u c h  e l e c t i o n .  I n  a  r e g i s t r a t i o n  s c h o o l  d i s t r i c t ,  t h e  e l e c t i o n  s h a l l  b e  h e l d  in not 
l e s s  t h a n  6 0  d a y s  f r o m  t h e  t i m e  t h e  w r i t t e n  r e q u e s t  i s  r e c e i v e d .

HISTORY: New 1955, p. 485, Act 269, EH. Jul. 1;—Am. 1963, p. 221, Act 157, EH. Sep. 6 .

3 4 0 .7 4  Notice of election; publication, posting, contents.
S e c .  7 4 .  T h e  b o a r d  s h a l l  d e t e r m i n e  t h e  t i m e  a n d  p l a c e  o f  h o l d i n g  a n y  a n n u a l  or spe­

c i a l  e l e c t i o n ,  a n d  n o t i c e  o f  s u c h  t i m e  a n d  p l a c e  s h a l l  b e  g i v e n  b y  t h e  s e c r e t a r y  b y  caus­
i n g  n o t i c e  t h e r e o f  t o  b e  p o s t e d  i n  n o t  l e s s  t h a n  5  o f  t h e  m o s t  p u b l i c  p l a c e s  i n  the dis­
t r i c t  a t  l e a s t  6  d a y s  p r e v i o u s  t o  s u c h  e l e c t i o n ,  1  c o p y  o f  w h i c h  n o t i c e  f o r  e a c h  election 
s h a l l  b e  p o s t e d  o n  t h e  s c h o o l  g r o u n d s  o n  o r  n e a r  t h e  f r o n t  e n t r a n c e  o f  e a c h  school in 
t h e  d i s t r i c t .  T h e  n o t i c e  o f  e l e c t i o n  s h a l l  s p e c i f y  t h e  d a y ,  h o u r s  a n d  p l a c e  o f  th e  elec­
t i o n ,  t h e  o f f i c e s  t o  b e  f i l l e d  a t  s u c h  e l e c t i o n ,  i f  a n y ,  t h e  n a m e s  o f  a l l  c a n d i d a t e s  who 
h a v e  b e e n  d u l y  n o m i n a t e d  f o r  e a c h  o f f i c e  t o  b e  v o t e d  u p o n ,  a n d  t h e  s u b s t a n c e  of all 
s p e c i a l  m a t t e r s ,  i f  a n y ,  t o  b e  v o t e d  u p o n .

HISTORY: New 1955, p. 485, Act 269, Eff. Jul. 1.

340.75  Questions at annual elections; subm ission procedure.
S e c .  7 5 .  U p o n  a  w r i t t e n  r e q u e s t  o f  a  n u m b e r  e q u a l  t o  5 %  o f  t h e  r e g i s t e r e d  school 

e l e c t o r s  o f  a  d i s t r i c t ,  b u t  n o t  l e s s  t h a n  2 5  s c h o o l  e l e c t o r s ,  m a d e  n o t  le s s  t h a n  20 nor 
m o r e  t h a n  4 0  d a y s  p r i o r  t o  t h e  a n n u a l  e l e c t i o n ,  t h e  b o a r d  s h a l l  i n c l u d e  i n  t h e  notice o 
t h e  a n n u a l  e l e c t i o n  s u c h  q u e s t i o n s  s u b m i t t e d  i n  t h e  r e q u e s t  a s  m a y  l a w f u l l y  b e  vote 
u p o n  b y  t h e  e l e c t o r s  a n d  s h a l l  s u b m i t  s u c h  q u e s t i o n s  t o  t h e  e l e c t o r s  a t  t h e  annual elec 
t i o n .

HISTORY: New 1955, p. 486, Act 269, EH. Jul. 1;—Am. 1965, p. 739, Act 375, Imd. EH. Jul. 23.



17aa

340.76 Elections; polls, tim e, ballots, board of election inspectors.
Sec. 7 6 .  A t  e a c h  a n n u a l  o r  s p e c i a l  e l e c t i o n ,  t h e  p o l l s  o f  e l e c t i o n  s h a l l  b e  k e p t  o p e n  a t  

least 7  c o n s e c u t i v e  h o u r s .  A l l  q u e s t i o n s  s h a l l  b e  v o t e d  u p o n  b y  b a l l o t  a n d  a  p r o p e r  p o l l  
list shall b e  k e p t .  T h e  b o a r d  s h a l l  a p p o i n t  s c h o o l  e l e c t o r s  o f  t h e  d i s t r i c t  i n  t h e  n u m b e r  
it deem s s u f f i c i e n t  t o  a c t  a s  a  b o a r d  o f  e l e c t i o n  i n s p e c t o r s  a t  e a c h  e l e c t i o n .  M e m b e r s  o f  
the b o a r d  o f  e d u c a t i o n  m a y  s e r v e  o n  a n y  s u c h  b o a r d  o f  e l e c t i o n  i n s p e c t o r s ,  u n l e s s  t h e y  
are c a n d id a te s  a t  s u c h  e l e c t i o n .  E a c h  m e m b e r  o f  t h e  b o a r d  o f  e l e c t i o n  i n s p e c t o r s  s h a l l  
take th e  c o n s t i t u t i o n a l  o a t h  o f  o f f i c e  b e f o r e  e n t e r i n g  u p o n  h i s  d u t i e s .

HISTORY: New 1955, p. 486, Act 269, Eff. Jul. 1;—Am. 1961, p. 369, Act 218, Eff. Sep. 8 .

340.77 Board of education property and site; acquisition, purpose; han­
dling of property, nonexem ption from taxation.

Sec. 7 7 .  T h e  b o a r d  o f  a n y  s c h o o l  d i s t r i c t  g o v e r n e d  b y  t h e  p r o v i s i o n s  o f  t h i s  c h a p t e r  
is a u t h o r iz e d  t o  l o c a t e ,  a c q u i r e ,  p u r c h a s e  o r  l e a s e  i n  t h e  n a m e  o f  t h e  d i s t r i c t  s u c h  s i t e  
or sites w i t h i n  o r  w i t h o u t  t h e  d i s t r i c t  f o r  s c h o o l h o u s e s ,  l i b r a r i e s ,  a d m i n i s t r a t i o n  b u i l d ­
ings, a g r i c u l t u r a l  f a r m s ,  a t h l e t i c  f i e l d s  a n d  p l a y g r o u n d s ,  a s  m a y  b e  n e c e s s a r y ;  t o  p u r ­
chase, le a s e , a c q u i r e ,  e r e c t  o r  b u i l d  a n d  e q u i p  s u c h  b u i l d i n g s  f o r  s c h o o l  o r  l i b r a r y  o r  

a d m in is tra tio n  o r  f o r  u s e  i n  c o n n e c t i o n  w i t h  a g r i c u l t u r a l  f a r m s ,  a t h l e t i c  f i e l d s  a n d  
p la yg ro u n d s , a s  m a y  b e  n e c e s s a r y ;  t o  p a y  f o r  t h e  s a m e  o u t  o f  t h e  f u n d s  o f  t h e  d i s t r i c t  
p ro vide d f o r  t h a t  p u r p o s e ;  t o  s e l l ,  e x c h a n g e  o r  l e a s e  a n y  r e a l  o r  p e r s o n a l  p r o p e r t y  o f  
the d is tr ic t  w h i c h  is  n o  l o n g e r  r e q u i r e d  t h e r e b y  f o r  s c h o o l  p u r p o s e s ,  a n d  g i v e  p r o p e r  
deeds o r  o t h e r  i n s t r u m e n t s  p a s s i n g  t i t l e  t o  t h e  s a m e  a n d  t o  d e d i c a t e  o r  s e l l  a n d  c o n v e y  
land f o r  h i g h w a y  p u r p o s e s  t o  t h e  s t a t e  o r  a n y  a g e n c y  o r  i n s t r u m e n t a l i t y  t h e r e o f ,  i n ­
cluding s p e c i f i c a l l y  m u n i c i p a l i t i e s  a n d  b o a r d s  o f  c o u n t y  r o a d  c o m m i s s i o n e r s ,  w h e n  
such a c tio n  d o e s  n o t  d i v i d e  s a i d  s c h o o l  p r o p e r t y  i n t o  2  o r  m o r e  s e p a r a t e  p a r c e l s .  A n y  
real p r o p e r t y  o w n e d  b y  a  s c h o o l  d i s t r i c t  w h i c h  is  l e a s e d  t o  a n y  p r i v a t e  i n d i v i d u a l ,  a s s o ­
ciation o r  c o r p o r a t i o n  s h a l l  n o t  b e  e x e m p t  f r o m  p r o p e r t y  t a x a t i o n  d u r i n g  t h e  t e r m  o f  
such lea se .

HISTORY: New 1955, p. 486, Act 269, Eff. lul. I;—Am. 1956, p. 229, Act 119, Imd. Eff. Apr. 13;—Am. 1959, p. 118, Act 115, Eff. Mar. 19, 
]S60i-Am. 1963, p. 295, Act 208, Imd. Eff. May 15.

§ 77a, as added by 1968 PA 316

340.77a Fourth class districts; borrowing power. [ M .S .A .  1 5 .3 0 7 7 ( 1 ) ]
Sec. 77a. The board of a school district of the fourth class operating a K-12 program 

tos the power and duty:

Temporary purposes.
M To borrow, subject to the provisions of Act No. 202 of the Public Acts of 1943, 

as amended, being sections 131.1 to 138.2 of the Compiled Laws of 1948, for temporary 
001 Purposes such sums of money and on such terms as it deems desirable and to give 

Mtes of the district therefor, except that no such loan shall be made for any sum which 
®ceeds the amount which has been voted by the board or the qualified electors of the



18aa

Long-term loans; bonds; purposes; limitations.
(b) To borrow, subject to the provisions of Act No. 202 of the Public Acts of Ml 

as amended, such sums of money as it deems necessary to purchase sites for buildings, 
playgrounds, athletic fields or agricultural farms, and to purchase or erect and equip any 
building which it is authorized to purchase and erect, or to make any permanent im­
provement which it is authorized to make, and to accomplish this by the issue and sale ol 
bonds of the school district in such form or on such terms as the board deems advisable 
or by any other reasonable means. No loan shall be made and no bonds shall be issued! 
for a longer term than 30 years nor for any sum which, together with the total outstanding' 
indebtedness of the district, shall exceed 5%  of the assessed valuation of the taxable 
property within the district, unless the proposition of making such loans or of issuing 
bonds has been submitted to a vote of the school tax electors of the district at a general 
or special school election and approved by the majority of the electors voting on the 
question. In such case loans may be made or bonds may be issued for the purposes 
hereinbefore set forth in an amount equal to that provided by chapter 12 of part 2.

§ 77a, as amended b y  1972 PA 197

• 9 4 0 . 7 7 a  F o u r t h  c l a s s  d i s t r i c t s ;  b o r r o w i n g  p o w e r .  [ M . S . A .  1 5 . 3 0 7 7 ( 1 ) ]

S e c .  7 7 a .  T h e  b o a r d  o f  a  s c h o o l  d i s t r i c t  o f  t h e  f o u r t h  c l a s s  o p e ra tin g  a 
K - 1 2  p r o g r a m  h a s  t h e  p o w e r  a n d  d u t y :

T e m p o r a r y  p u r p o s e s .

( a )  T o  b o r r o w ,  s u b j e c t  t o  t h e  p r o v i s i o n s  o f  A c t  N o .  2 0 2  o f  t h e  P u b l i c  Acts 
o f  1 9 4 3 ,  a s  a m e n d e d ,  b e i n g  s e c t i o n s  131.1 t o  1 3 8 . 2  o f  t h e  C o m p i l e d  Lawsol 
1 9 4 8 ,  f o r  t e m p o r a r y  s c h o o l  p u r p o s e s  s u c h  s u m s  o f  m o n e y  a n d  o n  s u c h  terms as 
i t  d e e m s  d e s i r a b l e  a n d  t o  g i v e  n o t e s  o f  t h e  d i s t r i c t  t h e r e f o r ,  e x c e p t  that ns s 
s u c h  l o a n  s h a l l  b e  m a d e  f o r  a n y  s u m  w h i c h  e x c e e d s  t h e  a m o u n t  w h i c h  has beet 
v o t e d  b y  t h e  b o a r d  o r  t h e  q u a l i f i e d  e l e c t o r s  o f  t h e  d i s t r i c t .



19aa

L o n g - t e r m  l o a n s ;  b o n d s ;  p u r p o s e s ;  l i m i t a t i o n s .

(b) T o  b o r r o w ,  s u b j e c t  t o  t h e  p r o v i s i o n s  o f  A c t  N o .  2 0 2  o f  t h e  P u b l i c  A c t s  
of 1 9 4 3 , a s  a m e n d e d ,  s u c h  s u m s  o f  m o n e y  a s  i t  d e e m s  n e c e s s a r y  t o  p u r c h a s e  s i t e s  
for b u i l d i n g s , p l a y g r o u n d s ,  a t h l e t i c  f i e l d s  o r  a g r i c u l t u r a l  f a r m s ,  a n d  t o  p u r c h a s e  
or e re c t a n d  e q u i p  a n y  b u i l d i n g  w h i c h  i t  i s  a u t h o r i z e d  t o  p u r c h a s e  a n d  e r e c t ,  
or to  m a k e  a n y  p e r m a n e n t  i m p r o v e m e n t  w h i c h  i t  i s  a u t h o r i z e d  t o  m a k e ,  a n d  
to a c c o m p l i s h  t h i s  b y  t h e  i s s u e  a n d  s a l e  o f  b o n d s  o f  t h e  s c h o o l  d i s t r i c t  i n  s u c h  
form  o r  o n  s u c h  t e r m s  a s  t h e  b o a r d  d e e m s  a d v i s a b l e ,  o r  b y  a n y  o t h e r  r e a s o n a b l e  
m eans. N o  l o a n  s h a l l  b e  m a d e  a n d  n o  b o n d s  s h a l l  b e  i s s u e d  f o r  a  l o n g e r  t e r m  
than 3 0  y e a r s  n o r  f o r  a n y  s u m  w h i c h ,  t o g e t h e r  w i t h  t h e  t o t a l  o u t s t a n d i n g  
b o n d e d  i n d e b t e d n e s s  o f  t h e  d i s t r i c t ,  s h a l l  e x c e e d  5 %  o f  t h e  s t a t e  e q u a l i z e d  
v a lu a tio n  o f  t h e  t a x a b l e  p r o p e r t y  w i t h i n  t h e  d i s t r i c t ,  u n l e s s  t h e  p r o p o s i t i o n  o f  
m a k in g  s u c h  l o a n s  o r  o f  i s s u i n g  b o n d s  h a s  b e e n  s u b m i t t e d  t o  a  v o t e  o f  t h e  
school t a x  e l e c t o r s  o f  t h e  d i s t r i c t  a t  a  g e n e r a l  o r  s p e c i a l  s c h o o l  e l e c t i o n  a n d  
a p p r o v e d  b y  t h e  m a j o r i t y  o f  t h e  e l e c t o r s  v o t i n g  o n  t h e  q u e s t i o n .  I n  s u c h  c a s e  
loans m a y  b e  m a d e  o r  b o n d s  m a y  b e  i s s u e d  f o r  t h e  p u r p o s e s  h e r e i n b e f o r e  s e t  
forth  i n  a n  a m o u n t  e q u a l  t o  t h a t  p r o v i d e d  b y  c h a p t e r  1 2  o f  p a r t  2 .

340.77b Remodeling; use o f bond proceeds; approval; definition.
[ M . S . A .  1 5 . 3 0 7 7 ( 2 ) ]

Sec. 77b. All or any portion of the proceeds from the sale of school 
district bpnds may be expended for the remodeling o f existing school buildings 
of the district when in the judgment o f the board o f education of the school 
district the remodeling will contribute positively to the health, security' or 
welfare of the pupils o f the school district if such uses are approved by 
die superintendent of public instruction if the bonds are qualified bonds 
as defined by section 3 of Act No. 10S of the Public Acts of 196i—er_hyL_the 
municipal finance commission if the bonds have not been so qualified. 
Remodeling means the alteration or construction of structural components 
of buildings, including walls, roofs, partitions, hallways, stairways and means 
of egress and the replacement, relocation or reconstruction o f heating, ventilat- 
mg, incineration, electrical, security and sanitary sy'-stems.



20aa

C H A P T E R  4 .

S C H O O L  D I S T R I C T S  O F  T H E  T H I R D  C L A S S .

340.101 Third class district; continuance, reclassification.
S e c .  1 0 1 .  E a c h  s c h o o l  d i s t r i c t  o r g a n i z e d  a s  a  s c h o o l  d i s t r i c t  o f  t h e  t h i r d  class at the 

t i m e  o f  t h e  t a k i n g  e f f e c t  o f  t h i s  a c t  s h a l l  c o n t i n u e  t o  b e  a  s c h o o l  d i s t r i c t  o f  th e  third 
c l a s s  s u b j e c t  t o  r e c l a s s i f i c a t i o n  a s  h e r e i n a f t e r  p r o v i d e d  a n d  b e  g o v e r n e d  b y  th e  provi­
s i o n s  o f  t h i s  c h a p t e r  a n d  b y  s u c h  p r o v i s i o n s  o f  p a r t  2  o f  t h i s  a c t  a s  a r e  n o t  inconsistent 
w i t h  t h i s  c h a p t e r .

HISTORY: New 1955, p. 486, Act 269, EH. Jul. 1.

34 0 .1 0 2  Third class districts; reclassification in certain fourth class districts.
S e c .  1 0 2 .  T h e  b o a r d  o f  a n y  f o u r t h  c l a s s  s c h o o l  d i s t r i c t  h a v i n g  a  s c h o o l  census of 

m o r e  t h a n  2 , 4 0 0  a n d  l e s s  t h a n  3 0 , 0 0 0  c h i l d r e n  b e t w e e n  t h e  a g e s  o f  5  a n d  2 0 , as certi­
f i e d  b y  t h e  s u p e r i n t e n d e n t  o f  p u b l i c  i n s t r u c t i o n ,  m a y  s u b m i t  t h e  q u e s t i o n  o f  becoming 
a  d i s t r i c t  o f  t h e  t h i r d  c l a s s  t o  a  v o t e  o f  t h e  e l e c t o r s  o f  s u c h  d i s t r i c t  a t  a n y  annual or 
s p e c i a l  e l e c t i o n .  T h e  v o t e  u p o n  t h e  q u e s t i o n  s h a l l  b e  b y  b a l l o t  w h i c h  s h a l l  b e  in sub­
s t a n t i a l l y  t h e  f o l l o w i n g  f o r m :

“ S h a l l ..............................................................................( n a m e  o f  s c h o o l  d i s t r i c t )  b e  r e c l a s s i f i e d  a n d  becom e a
s c h o o l  d i s t r i c t  o f  t h e  t h i r d  c l a s s ?

Y e s  □

N o  □ ”

I f  a  m a j o r i t y  o f  t h e  s c h o o l  e l e c t o r s  v o t i n g  o n  t h e  q u e s t i o n  v o t e  i n  f a v o r  o f  becoming 
a  d i s t r i c t  o f  t h e  t h i r d  c l a s s , t h e n  s u c h  r e c l a s s i f i c a t i o n  s h a l l  t a k e  i m m e d i a t e  e f f e c t .

HISTORY: New 1955, p. 486, Act 269, Eff. Jul. 1;—Am. 1959, p. 452, Act 271, Imd. EH. Nov. 3.

340 .10 3  Third class districts; election and reclassification.
S e c .  1 0 3 .  W h e n e v e r  t h e  b o a r d  o f  a  d i s t r i c t  o f  t h e  f o u r t h  c l a s s  h a v i n g  a  s c h o o l census 

o f  m o r e  t h a n  2 , 4 0 0  a n d  l e s s  t h a n  3 0 , 0 0 0  c h i l d r e n  b e t w e e n  t h e  a g e s  o f  5  a n d  2 0 , as cer­
t i f i e d  b y  t h e  s u p e r i n t e n d e n t  o f  p u b l i c  i n s t r u c t i o n ,  is  p r e s e n t e d  w i t h  a  p e t i t i o n  signed 
b y  n o t  l e s s  t h a n  3 0 0  s c h o o l  e l e c t o r s  o f  t h e  d i s t r i c t  t o  s u b m i t  t h e  q u e s t i o n  o f  becoming 
a  t h i r d  c l a s s  d i s t r i c t  t o  a  v o t e  o f  t h e  e l e c t o r s  a t  a  s p e c i a l  e l e c t i o n  o r  t h e  n e x t  annual 
e l e c t i o n ,  t h e  b o a r d  s h a l l  p r o c e e d  t o  c a l l  s u c h  s p e c i a l  e l e c t i o n  o r  s u b m i t  t h e  question to 
a  v o t e  o f  t h e  e l e c t o r s  a t  t h e  n e x t  a n n u a l  e l e c t i o n .  I f  s u c h  p e t i t i o n  is  p r e s e n t e d  within 
9 0  d a y s ,  b u t  n o t  l e s s  t h a n  2 0  d a y s  b e f o r e  t h e  t i m e  o f  t h e  a n n u a l  e l e c t i o n ,  s u c h  question 
s h a l l  b e  s u b m i t t e d  a t  t h e  a n n u a l  e l e c t i o n ,  e v e n  t h o u g h  t h e  p e t i t i o n  m a y  r e q u e s t  a spe 
c i a l  e l e c t i o n .  I f  t h e  b o a r d  is  p e t i t i o n e d  t o  s u b m i t  t h e  q u e s t i o n  a t  a  s p e c i a l  e le c tio n  an 
s u c h  p e t i t i o n  is  p r e s e n t e d  9 1  o r  m o r e  d a y s  b e f o r e  t h e  a n n u a l  e l e c t i o n ,  t h e  boards 
c a l l  s u c h  e l e c t i o n  t o  b e  h e l d  w i t h i n  3 0  d a y s  f r o m  t h e  t i m e  s u c h  p e t i t i o n  is presente 
s u c h  p e t i t i o n  is  p r e s e n t e d  l e s s  t h a n  2 0  d a y s  b e f o r e  t h e  t i m e  o f  t h e  a n n u a l  election 
s u c h  q u e s t i o n  s h a l l  b e  s u b m i t t e d  a t  a  s p e c i a l  e l e c t i o n  h e l d  n o t  m o r e  t h a n  3 0  days 
t h e  a n n u a l  e l e c t i o n .

HISTORY: New 1955, p. 487, Act 269, Eff. Jul. 1:—Am. 1959, p. 452, Act 271, Imd. Eff. Nov. 3.

3 40 .10 4  R epealed . 1 959 , p .  45 3 , Act 271 , Imd. Eff. Nov. 3.
Section provided for determination of population in third class districts.



21aa

340.105 Third class districts; notice of reclassification.
Sec. 1 0 3 . W h e n e v e r  t h e  e l e c t o r s  o f  t h e  d i s t r i c t  h a v e  b y  t h e i r  v o t e  a p p r o v e d  t h e  r e ­

classification o f  a  f o u r t h  c l a s s  d i s t r i c t  t o  a  d i s t r i c t  o f  t h e  t h i r d  c l a s s ,  i t  s h a l l  b e  t h e  d u t y  
of the s e c r e t a r y  o f  t h e  b o a r d  t o  g i v e  n o t i c e  o f  s u c h  r e c l a s s i f i c a t i o n ,  i n  w r i t i n g ,  t o  t h e  
county s u p e r i n t e n d e n t  o f  s c h o o l s  o f  e a c h  c o u n t y  i n  w h i c h  t h e  d i s t r i c t  is  s i t u a t e d  a n d  t o  
the s u p e r i n t e n d e n t  o f  p u b l i c  i n s t r u c t i o n  w i t h i n  1 0  d a y s  o f  t h e  v o t e  t h e r e o n .

HISTORY: New 1955, p. 487, Act 269, Eff. Jul. 1.

340.106 Third class district nam e; changes.
Sec. 1 0 6 . E a c h  s c h o o l  d i s t r i c t  o r g a n i z e d  a n d  o p e r a t i n g  u n d e r  t h e  p r o v i s i o n s  o f  t h i s

chapter s h a ll  b e  d e s i g n a t e d  a n d  k n o w n  a s  t h e  “ S c h o o l  D i s t r i c t  o f  t h e ......................................... ( h e r e
insert th e  n a m e  o f  t h e  c i t y  o r  v i l l a g e  o r  t o w n s h i p  i n  w h i c h  t h e  w h o l e  o r  a  p a r t  o f  s a i d  
school d i s t r i c t  is  s i t u a t e d ) ” ,  a n d  s u c h  d e s i g n a t i o n ,  t o g e t h e r  w i t h  t h e  n a m e  o f  t h e  
county o r  c o u n t i e s  i n t o  w h i c h  t h e  d i s t r i c t  e x t e n d s ,  s h a l l  b e  t h e  l e g a l  n a m e  o f  s u c h  d i s ­
trict fo r  a ll p u r p o s e s :  P r o v i d e d ,  T h a t  t h e  b o a r d  o f  a n y  t h i r d  c l a s s  s c h o o l  d i s t r i c t  m a y  
by r e s o lu tio n  a d o p t  a  d i s t i n c t i v e  n a m e  f o r  s u c h  s c h o o l  d i s t r i c t  a n d  s u c h  n a m e ,  a f t e r  b e ­
ing a p p r o v e d  b y  t h e  c o u n t y  b o a r d  o f  e d u c a t i o n  a s  n o t  b e i n g  i n  c o n f l i c t  w i t h  t h e  n a m e  

of a n o th e r d i s t r i c t ,  t o g e t h e r  w i t h  t h e  n a m e  o f  t h e  c o u n t y  o r  c o u n t i e s  i n t o  w h i c h  t h e  
school d i s t r i c t  e x t e n d s ,  s h a l l  b e  t h e  l e g a l  n a m e  o f  s u c h  s c h o o l  d i s t r i c t  f o r  a l l  p u r p o s e s .  
The b o a r d  m a y  i n  l i k e  m a n n e r  c h a n g e  t h e  n a m e  o f  t h e  d i s t r i c t .  T h e  a d o p t i o n  o f  a  d i s ­
tinctive n a m e  o r  t h e  c h a n g e  i n  n a m e  o f  a n y  d i s t r i c t  s h a l l  h a v e  n o  e f f e c t  u p o n  e x i s t i n g  
obligations i n c u r r e d  i n  t h e  f o n n e r  n a m e  o f  t h e  d i s t r i c t  o r  o n  t h e  o w n e r s h i p  o f  a n y  r e a l  
or p e rs o n a l p r o p e r t y .

HISTORY. New 1955, p. 457, Act 269, Eff. Jul. 1.

340.107 Board of education; m em bership , term , election, vacancies, term
extension.
Sec. 1 0 7 .  I n  e a c h  s c h o o l  d i s t r i c t  o f  t h e  t h i r d  c l a s s ,  t h e  b o a r d  s h a l l  c o n s i s t  o f  7  m e m ­

bers e le c te d  f r o m  t h e  d i s t r i c t  a t  l a r g e  a n d  t h e i r  t e r m s  a r r a n g e d  s o  t h a t  2  o f  t h o s e  e l e c -  
led m e m b e r s  s h a l l  s e r v e  f o r  1  y e a r ,  2  f o r  2  y e a r s ,  2  f o r  3  y e a r s ,  a n d  1  f o r  4  y e a r s ;  t h e r e ­
after, a t  t h e  n e x t  s c h o o l  e l e c t i o n  i m m e d i a t e l y  p r e c e d i n g  t h e  e x p i r a t i o n  o f  t h e  
respective t e r m s  o f  t h e s e  o f f i c e r s ,  t h e i r  s u c c e s s o r s  s h a l l  b e  e l e c t e d  t o  s e r v e  f o r  t e r m s  o f
I  years a n d  u n t i l  t h e i r  s u c c e s s o r s  a r e  e l e c t e d  a n d  q u a l i f i e d .  W h e n  a n y  s c h o o l  d i s t r i c t  
of the f o u r t h  c la s s  b e c o m e s  a  s c h o o l  d i s t r i c t  o f  t h e  t h i r d  c l a s s  b y  a  v o t e  o f  t h e  e l e c t o r s ,  
additio nal m e m b e r s  s h a l l  b e  e l e c t e d  t o  t h e  b o a r d  o f  e d u c a t i o n  a s  p r o v i d e d  u n d e r  s e c -  
to n  3 34  o f  t h i s  a c t .  A n y  s c h o o l  d i s t r i c t  o f  t h e  t h i r d  c l a s s  m a y  h o l d  i t s  e l e c t i o n  b i e n -  
"ially a t t h e  s a m e  t i m e  t h a t  t h e  c i t y  o r  v i l l a g e  e l e c t i o n  is  h e l d .  T h e  b o a r d  s h a l l  d e t e r -  
m*ne w h e t h e r  t h e  d i s t r i c t  s h a l l  h o l d  i t s  e l e c t i o n  a t  t h e  t i m e  o f  t h e  c i t y  o r  v i l l a g e  
ejection. I f  t h e  s c h o o l  d i s t r i c t  h o l d s  i t s  e l e c t i o n  a t  t h e  s a m e  t i m e  o f  t h e  c i t y  o r  v i l l a g e  
election, t h e  t e r m  o f  o f f i c e  s h a l l  b e  f o r  6  y e a r s .  T w o  o f  t h e  m e m b e r s  o f  t h e  b o a r d  s h a l l  
serve f o r  2  y e a r s , 2  f o r  4  v e a r s ,  a n d  3  f o r  6  y e a r s .  A t  t h e  n e x t  s c h o o l  e l e c t i o n  i m m e d i ­
ately p r e c e d i n g  t h e  e x p i r a t i o n  o f  t h e  r e s p e c t i v e  t e r m s  o f  t h e s e  o f f i c e r s ,  t h e i r  s u c c e s s o r s  
s'all b e  e l e c t e d  t o  s e r v e  f o r  t e r m s  o f  6  y e a r s  a n d  u n t i l  t h e i r  s u c c e s s o r s  a r e  e l e c t e d  a n d  
q u alifie d. I n  c a s e  t h e  b o a r d  o f  a n y  s c h o o l  d i s t r i c t  i n  w h i c h  t h e  m e m b e r s  o f  t h e  b o a r d  
are e le c te d  f o r  a  6  y e a r  t e r m  o f  o f f i c e ,  b y  a  m a j o r i t y  v o t e ,  p r o v i d e s  t h a t  t h e  t e r m  o f  o f -  

lte m e m b e r s  o f  t h e  b o a r d  s h a l l  b e  f o r  4  y e a r s ,  t h e n  i n  a n y  s u c h  s c h o o l  d i s t r i c t ,  n o t -
I I l a n d i n g  t h e  p r o v  i s i o n s  o f  t h i s  s e c t i o n  t o  t h e  c o n t r a r y ,  t h e  t e r m  o f  o f f i c e  o f  i n e m -  
>ers o f t h e  b o a r d  s h a l l  b e  f o r  4  y e a r s .  T h e  p r e s e n t  m e m b e r s  o f  t h e  b o a r d  s h a l l  s e r v  e



22aa

t h e  b a l a n c e  o f  t h e i r  r e s p e c t i v e  u n e x p i r e d  t e r m s .  T h e  b o a r d ,  i n  d e t e r m i n i n g  th a t m em ­
b e r s  o f  t h e  b o a r d  s h a l l  s e r v e  f o r  4  y e a r  t e r m s ,  s h a l l  p r o v i d e  i n  t h e  r e s o l u t i o n  that elec­
t i o n s  t h e r e a f t e r  s h a l l  b e  h e l d  o n  t h e  s e c o n d  M o n d a y  i n  J u n e ,  a s  p r o v i d e d  i n  section I I  
o f  t h i s  a c t ,  a n d  s h a l l  p r o v i d e  f o r  a  s y s t e m  o f  r o t a t i o n  o f  t e r m s  o f  o f f i c e  w h ic h  is is 
e q u a l  a s  m a y  b e  a n d  s h a l l  f a i r l y  a d j u s t  t h e  l e n g t h  o f  t e r m s  a n d  t h e  n u m b e r  o f  m em ta 
t o  b e  e l e c t e d  a n n u a l l y  u n t i l  t h e  r o t a t i o n  is  e s t a b l i s h e d .  A f t e r  t h e  r o t a t i o n  is established 
b u t  n o t  m o r e  t h a n  8  y e a r s  a f t e r  t h e  a d o p t i o n  o f  t h e  r e s o l u t i o n ,  n o t  m o r e  t h a n  2 met I 
b e r s  s h a l l  b e  e l e c t e d  i n  a n y  o n e  y e a r  t o  f i l l  v a c a n c i e s  o c c u r r i n g  b y  e x p i r a t i o n  o f terms.

I f  a n y  p e r s o n  e l e c t e d  f a i l s  t o  t a k e  t h e  o a t h  o f  o f f i c e  w i t h i n  1 0  d a y s  a f t e r  service oi 
n o t i c e  o f  h i s  e l e c t i o n ,  o r  i f  a  v a c a n c y  o c c u r s  a s  p r o v i d e d  i n  s e c t i o n  4 9 4  o f  th is  act, the 
v a c a n c y  s h a l l  b e  f i l l e d  b y  a n  e l e c t i o n  b y  a  m a j o r i t y  o f  t h e  r e m a i n i n g  m e m b e r s  of t ie  
b o a r d  u n t i l  t h e  n e x t  s c h o o l  e l e c t i o n ,  w h e n  t h e  v a c a n c y  s h a l l  b e  f i l l e d  b y  a n  election foe 
t h e  r e m a i n d e r  o f  t h e  t e r m  o f  t h e  f o r m e r  m e m b e r .  W h e r e  t h e  b o a r d  o f  e d u c a tio n  ofi 
s c h o o l  d i s t r i c t  o f  t h e  t h i r d  c l a s s  h a s  v o t e d  t o  h o l d  e l e c t i o n s  b i e n n i a l l y  a t  t h e  same time < 
a s  t h e  s t a t e  s p r i n g  b i e n n i a l  e l e c t i o n  a n d  t h e  c i t y  o r  v i l l a g e  e l e c t i o n  is n o t  h e ld  on t i t  
s a m e  d a t e ,  s u c h  b o a r d  o f  e d u c a t i o n  m a y  d e t e r m i n e  t o  h o l d  i t s  b i e n n i a l  e le c tio n  a t  tie  
s a m e  t i m e  a s  t h e  c i t y  o r  v i l l a g e  e l e c t i o n  i n  1 9 6 6  a n d  b i e n n i a l l y  i n  t h e  e v e n  n um be d 
y e a r s  t h e r e a f t e r .  T h e  t e r m s  o f  o f f i c e  o f  t h e  p r e s e n t  m e m b e r s  o f  s u c h  b o a r d  o f educi 
t i o n  e x p i r i n g  i n  1 9 6 5 ,  1 9 6 7  a n d  1 9 6 9 ,  a r e  e x t e n d e d  u n t i l  t h e i r  s u c c e s s o r s  a re  elected 
a n d  q u a l i f i e d  a t  t h e  c i t y  o r  v i l l a g e  b i e n n i a l  e l e c t i o n  h e l d  i n  1 9 6 6 ,  1 9 6 8  a n d  1970, re  ̂
s p e c t i v e l y .

HISTORY: New 1955, p. 487, Act 269. EH. Jul. 1;—Am. 1958, p. 233, Act 195, Efl. Sep. 13;—Am. 1965, p. 81, Act 49, Imd. Eff.Jun.1

340 .10 8  Board of education; annual election, time.
S e c .  1 0 8 .  T h e  r e g u l a r  a n n u a l  s c h o o l  e l e c t i o n  i n  e a c h  s c h o o l  d i s t r i c t  o f  t h e  th ird  das 

s h a l l  b e  h e l d  o n  t h e  s e c o n d  M o n d a y  i n  J u n e  b y  t h e  b o a r d .  T h e  m e m b e r s  o f  the board' 
i n  a l l  s c h o o l  d i s t r i c t s  o f  t h e  t h i r d  c l a s s  h e r e u n d e r  s h a l l  b e  e l e c t e d  a t  t h e  r e g u la r  annual 
s c h o o l  e l e c t i o n  a n d  t h e i r  t e r m s  s h a l l  b e g i n  o n  J u l y  f i r s t ,  f o l l o w i n g  t h e i r  e l e c t i o n .

HISTORY; New 1955, p. 488, Act 269, Eff. Jul. 1.
CITED IN OTHER SECTIONS; The above section is cited in $ 36934.

3 40 .10 9  Board of education; special election, notice, prerequisites.
S e c .  1 0 9 .  S p e c i a l  e l e c t i o n s  m a y  b e  c a l l e d  b y  t h e  b o a r d  i n  a n y  s c h o o l  d is tr ic t  of the 

t h i r d  c l a s s  h e r e u n d e r  a t  s u c h  t i m e s  a n d  p l a c e s  i n  s u c h  d i s t r i c t  a s  t h e y  s h a ll  designate | 
a n d  i t  s h a l l  b e  t h e  d u t y  o f  s u c h  b o a r d  t o  c a l l  s u c h  a n  e l e c t i o n  o n  r e c e i p t  o f  th e  written 
r e q u e s t  o f  n o t  l e s s  t h a n  10% o f  t h e  r e g i s t e r e d  s c h o o l  e l e c t o r s  o f  t h e  d i s t r i c t  qualify : 
v o t e  u p o n  t h e  q u e s t i o n  b y  g i v i n g  t h e  n o t i c e  h e r e i n a f t e r  p r e s c r i b e d .  N o  s p e c ia l election 
s h a l l  b e  c a l l e d  u n l e s s  t h e  q u e s t i o n  t o  b e  v o t e d  o n  a n d  d e c i d e d  t h e r e a t  m a y  b e  de c c 
b y  t h e  q u a l i f i e d  s c h o o l  e l e c t o r s ,  a n d  a l l  q u e s t i o n s  t o  b e  s u b m i t t e d  a t  s u c h  elections a; 
b e  s t a t e d  b r i e f l y  i n  t h e  n o t i c e  t h e r e o f .

HISTORY: New 1955, p. 488, Act 269, Eff. Jul. 1. ,

340 .11 0  Board of education; registered elections.
S e c .  1 1 0 .  A 0  s c h o o l  d i s t r i c t s  o f  t h e  t h i r d  c l a s s  s h a l l  b e  r e g i s t r a t i o n  d is tr ic t s  an *  

e l e c t i o n s  t h e r e i n  s h a l l  b e  g o v e r n e d  b y  t h e  p r o v i s i o n s  o f  c h a p t e r  8  o f  p a r t  2  o f  this a *
HISTORY: New 1955, p. 48S, Act 269, Eff. Jul. 1.



23aa

340.111 Board of education; m eetings, officers, quorum , record.
Sec. 111. The members of the board of any district of the third class hereunder elec­

ted at the first election held under this chapter shall meet on or before the second 
Monday of July succeeding their election and annually on the same day thereafter, 
and organize the board by electing a president, a vice-president, a secretary and a 
treasurer. The president and vice-president shall be members of the board, but the 
secretary' and treasurer need not be members. The board shall hold regular meetings 
on the second Monday of each month, or at such other times as it may by resolution or 
bylaws provide. The board may in its bylaws provide for calling and holding special 
meetings. A majority of the board shall constitute a quorum and it shall keep a proper 
record of all its proceedings.

HISTORY: New 1955, p. 488, Act 269, Eff. Jul. 1;—Am. 1958, p. 71, Act 6 6 , EH. Sep. 13;—Am. 1967, p. 247, Act 185, Imd. Eft. Jun. 30.

f

340.112 Board of education; treasu rer, secre tary ; duties, sa larie s, bonds.
Sec. 112. The treasurer of the board shall keep the funds of the district, except that 

the board may place responsibility for the administration of school district money with 
the school district business manager; keep proper books of account thereof; keep an 
interest account of the interest received from all school funds belonging to the district 
and credit all interest received thereon to the funds; pay out the funds belonging to 
the school district for the purposes specified by law, or, in the case of gifts or dona­
tions for the purposes for which the money is given or donated, on a proper order 
signed by the secretary and countersigned by the president of the board; and perform 
such other duties as the board may in its bylaws prescribe. The board may prescribe 
the duties of the secretary' and provide for the salary to be paid the secretary and 
treasurer thereof and may require proper bonds from such officers, except that when 
the board treasurer is not directly handling school district money or signing checks no 
bond is necessary, and where the authority for the administration of school district 
money rests with the school district business manager, he and all persons connected 
therewith shall be bonded. No member of the board or officer thereof, except the sec­
retary and treasurer, shall receive any compensation for any service rendered the dis­
trict, unless authorized by the qualified electors of the district. The salary of any mem­
ber of the board shall not be increased nor shall the salary of any member be 
decreased after his election or appointment.

HISTORY: New 1955, p. 489, Act 269, Eff. Jul. 1;—Am. 1966, p. 344, Act 255, Imd. Eff. JuL 11.

340.113 Board of education; pow ers, duties.
Sec. 113, The board of any school district of the third class hereunder shall have the 

powers and duties:



24aa

Sites for schoolhouses, lib raries, farm s, athletic fields and playground;;
buildings, property.
(a) To locate, acquire, purchase or lease in the name of the district such site or sites 

within or without the district for schoolhouses, libraries, administration buildings, agri­
cultural farms, athletic fields and playgrounds, as may be necessary; to purchase, lease, 
acquire, erect, or build and equip such buildings for school or library or administration 
or for use in connection with agricultural farms, athletic fields and playgrounds, as 
may be necessary; to pay for the same out of the funds of the district provided for that 
purpose; to sell, exchange or lease, subject to the provisions of section 354 of this act, 
any real or personal property of the district which is no longer required thereby for 
school purposes, and to give proper deeds, bills of sale or other instruments passing ti­
tle to the same;

Condem nation proceedings.
(b) To institute and maintain proceedings in the proper court for the condemnation 

of private property for public use for all purposes for which said board is authorized 
by law to acquire and hold property, when said board shall have first declared the tak­
ing necessary for such use and that the same is for the use and benefit of the public. 
When the board shall have made such declaration, such condemnation proceedings 
may be instituted and conducted in the court specified and in the manner provided by 
the general school laws of the state relating to the condemnation of private property 
for public use, or may be brought under the terms of Act No. 149 of the Public Acts of 
1911, as amended, being sections 213.21 to 213.41, inclusive, of the Compiled Laws of 
1948, or any. other appropriate state law.

HISTORY: New 1955, p. 489, Act 269, Eff. Jul. 1;—Am. 1957, p. 127, Act 108, Imd. EH. May 24.

3 40 .11 4  Board of education; educational activities.
Sec. 114. The board of any school district of the third class hereunder shall have the 

powers and duties; ,
G rad es, schools, departm ents, courses of study.
(a) To establish and carry on such grades, schools and departments or courses of 

study as it shall deem necessary or desirable for the maintenance and improvement of 
public education;

Agricultural, trade and other vocational schools.
(b) To establish, equip and maintain agricultural, trade and other vocational schools, 

and, if deemed necessary by such board, to acquire land outside the limits of the said 
school district therefor; and to have general control thereover for school purposes.

HISTORY: New 1955, p. 489, Act 269, Eff. Jul. 1.



27aa

liave been submitted first to a vote of the school tax electors of the district at 
1 a general or special school election and approved by the majority of the electors 

actually voting on the same. In such case loans may be made or bonds may be 
issued for the purposes hereinbefore set forth in an amount equal to that pro­
vided by chapter 12 of part 2.

i 340,115a Remodeling; use of bond proceeds; approval; definition.
' [ M . S . A .  1 5 . 3 1 1 5 ( 1 ) ]

Sec. 115a. All or any portion of the proceeds from the sale of school 
district bonds may be expended for the remodeling of existing school buildings 
of the district when in the judgment of the board of education of the school 
district the remodeling will contribute positively to the health, security or 

, welfare of the pupils of the school district if such uses are approved by the 
superintendent of public instruction if the bonds are qualified bonds as 
defined by section 3 of Act No. 10S of the Public Acts of 1961 or by the 
municipal finance commission if the bonds have not been so qualified. Re­
modeling means the alteration or construction of structural components ol 
buildings, including walls, roofs, partitions, hallways, stairways and means 
of egress and the replacement, relocation or reconstruction of heating, ven­
tilating, incineration, electrical, security and sanitary systems.

340.116 Board of education; property, care, custody, sanitation, medical 
inspection; school term .
Sec. 116. The board of any school district of the third class hereunder shall have the

1 powers and duties:
(a) To have the care and custody of all school property and to provide suitable 

school privileges, sanitary conditions, and medical inspection for the schools of the dis-
1 trict;

(b) To fix the length of time school shall be.kept in all of the schools of the district, 
which shall not be less than 180 days.

HISTORY: New 1955, p. 490, Act 269, Eff.juL 1.

340.117 Board of education; lib rary , m useum , em ployees.
Sec. 117, The board of any school district of the third class hereunder shall have the

powers and duties:
To establish and maintain or continue a library and museum, which institutions may 

be separately operated if desired, for the public schools of the district, if it shall deem 
it advisable to do so, and to provide for its or their care and management. For this pur­
pose, said board mav appoint librarians and hire other employees for such library and 
museum and fix their salaries, may purchase such books and apparatus as may be nec- 
Ksary> and may include in the general budget for the purpose of the schools such sums 
as may be necessary for building for, and for the maintenance and support of, any li- 
lrary and museum established, and such board may appoint a hoard of library com­
missioners and a board of museum commissioners of not to exceed 7 persons, which 
oards shall be separate boards if such board of education so directs. Members of the 
’oard of education shall not be eligible to membership on such boards. Such board or 
’°ards shall have control and direction of the public library or libraries and museum 
or museums in such district subject to the approval of the board of education therein, 
?ni .  ̂keep a correct record of its or their proceedings. All moneys for any such li- 
maries, including the fines devoted by law for the maintenance of district or school li-



28aa

braries in such district, which when collected shall be paid to the treasurer of the 
board of education therein, shall be kept by said treasurer and paid out by him on the 
order of the board of library commissioners approved by the secretary of the board of 
education.

HISTORY: New 1955, p. 490, Act 269, EH. Jul. 1.

340.118  Board of education; school census, annual report, business man­
ager.
Sec. 118. The board of any school district of the third class hereunder shall have the 

powers and duties:
(a) To provide for the taking of a school census as required by law;
(b) To make an annual report to the superintendent of public instruction at such 

time and in such form as he may prescribe;
(c) To appoint in its discretion, a business manager for the school district and fix his 

compensation.
HISTORY: New 1955, p. 491, Act 269, EH. Jul. 1.

340 .11 9  Board of education; superintendent and adm inistrators; term,
duties.
Sec. 119. The board of any school district of the third class shall have the powers 

and duties:
To contract with, appoint and employ a suitable person, not a member of the board, 

as superintendent of schools, who shall meet the requirements prescribed in section 
573, and who shall hold his office for a term fixed by the board and not to exceed 5 
years. The board may contract with, appoint an employ suitable persons, not members 
of the board, as assistant superintendents, principals, assistant principals, guidance di­
rectors, and other classified administrators who do not assume tenure in position, fora 
term fixed by the board not to exceed 3 years and shall define their duties. The em­
ployment shall be under written contract, Notification of nonrenewal of contract shall 
be given in writing at least 90 days prior to the contract termination date or the con­
tract is renewed for an additional 1-year period. The superintendent shall have powers 
and duties as follows:

(a) To put into practice the educational policies of the state and of the board in ac­
cordance with the method provided by the board.

(b) To recommend in writing all teachers necessary for the schools and to suspend 
any teacher for cause until the board may consider such suspension.

(c) To classify and control the promotion of pupils.
(d) To recommend to the board the best methods of arranging the course of studs 

and the proper textbooks to be used.
(e) To make reports in writing to the board and to the state board of education an­

nually or oftener if required, in regard to all matters pertaining to the educational in­
terests of the district.

(f) To supervise and direct the work of the teachers and other employees of the 
board.

(g) To assist the board in all matters pertaining to the general welfare of the school 
and to perform such other duties as the board may determine.

HISTORY: New 1955, p. 491, Act 269, EH. Jul. 1;—Am. 1966, p. 343. Act 254, Imd. EI1. Jul. 11:—Am. 1970. p. 662, Act 247. imd.H
.30.



29aa

340.120 Board of education; school tax  levy ; apportionm ent.
Sec. 120. The board of any school district of the third class hereunder shall have the 

powers and duties:
To make an estimate annually on a day to be determined bv the board of the 

amount of taxes deemed necessary for the ensuing year for the purpose of expenditure 
within the power of the board, which estimate shall specify the amounts required for 
the different objects, and to report the same as the regular school tax levy for such dis­
trict to the proper assessing officer or officers, who shall apportion the school taxes in 
the district in the same manner as the other taxes of the city, village or township are 
apportioned, and the amount so apportioned shall be assessed, levied, collected and 
returned for each portion of the district in the same manner as the taxes of the citv, 
village or township including such portion of the district. The board, if the district is 
extended beyond the limits of any single municipality, shall, within the time provided 
by law for certifying taxes by township clerks, certify to the board of supervisors all 
amounts to be raised therein for school purposes. The board of supervisors shall, in ac­
cordance with law, apportion such school taxes to the several municipalities possessing 
territory in such district in proportion to the assessed valuation of each municipality 
within such district, and shall certify tire same to the proper officer thereof.

HISTORY: New 1955, p. 491, Act 269, Eff. JuL 1.

340.121 Board of education; duties.
See. 121. The.board of any school district of the third class shall have the powers 

and duties:

Payment of school funds.
ia) To certify to the treasurer of the district for payment out of the school funds 

thereof all claims and demands against the board or district, which shall be allowed by 
the board under such rules and regulations as it may establish.

Reports of proceedings, receipts and expenditures.
(b) To print and publish immediately after each meeting in.such manner as the 

board shall decide all proceedings of the board at the meeting and to make and pub­
lish annually, at the end of the fiscal year, in some daily or weekly newspaper of gen­
eral circulation in the district, either separately or in connection with the report of the 
C1‘V or village in which the district or the greater part thereof is situated, a complete 
report of its receipts and expenditures.

Transportation of pupils.
(c) To provide adequate facilities for transportation within the district of pupils 

rom and to their homes when the board deems it advisable.
Tuition payments to other districts.
(d) To use money in the general fund or funds received from state appropriations for 

*! sc‘M:)ol districts for the purpose of paying tuition and transportation to another 
lv nct resident pupils, even though the grades in which the pupils may be enrolled 

are ’"'U'ltained within the district.



30aa

Carrying on of public schools.
(e) In general to do anything not inconsistent with this act which is necessary for the 

proper establishment, maintenance, management and carrying on of the public 
schools of such district.

HISTORY: New 1955, p. 492, Act 269, Eff. Jul. 1;—Am. 1961, p. 371, Act 219, Eff. Sep. 8 .

3 40 .12 2  Borrowing pow er.
Sec. 122. School districts operating under this chapter shall be governed by Act No, 

202 of the Public Acts of 1943, as amended, being sections 131.1 to 138.2, inclusive,of 
the Compiled Laws of 1948, in force or as the same may hereafter be amended.

HISTOHY: New 1955, p. 492, Act 2B9, Elf. Jul. 1.

CHAPTER 5.

SCHOOL DISTRICTS OF THE SECOND CLASS.

PUBLIC ACTS 1955—No. 269.

340.158 Borrowing power, bond issue, approval. [M .S .A . 15.3158]
Sec. 158. The board may from time to time, on such terms as it may deem proper, 

borrow for ‘temporary school purposes not to exceed the amount of unpaid, voted taxes, 
and, in case of an emergency, the board may borrow in addition thereto an amount not 
to exceed L? mill on the assessed valuation of the school district and may give the note 
or bond of the board therefor, which shall be paid from the first school moneys collected 
thereafter. For the purpose of purchasing sites, erecting schoolhouses and other buildings, 
and for equipping the same, the board may borrow such sums of money as it may deem 
necessary and may issue and sell its bonds therefor upon such rates of interest and foe 
such time and in such amount as it may think proper, and in such form and with suck 
bonds and coupons signed and countersigned in such manner as it may by resolution 
direct, but the action of the board authorizing such loan shall first be submitted to the 
common council, city commission, or other legislative body of the city or to the school 
tax electors of the district for approval, and no such issue of bonds shall be valid unless 
the proposal to issue the same shall have been approved by a majority vote of the members- 
elect of the common council, city commission or legislative body of the city, or be approved 
by a majority vote of the school tax electors of such city district voting thereon at any 
election at which the question of approving such an issue of school bonds shall be sû  
mitted to them by the said board. School districts operating under this chapter shall be 
governed by Act No. 202 of the Public Acts of 1943, as amended, being sections 131-1 to 
138.2, inclusive, of the Compiled Laws of 1948, in force or as the same may hereafter be 
amended.



31aa

340.158 S a m e ;  b o r r o w i n g  p o w e r ,  t e m p o r a r y  p u r p o s e s ,  b o n d s ,  a p p r o v a l .  
[ M . S . A .  15.3158]
Sec. 158. The board may:
(a) Borrow, subject to the provisions of Act No. 202 of the Public Acts of 1943, 

as amended, being sections 131.1 to 138.2 of the Compiled Laws of 1948, for temporary 
school purposes such sums of money and on such terms as it may deem desirable and 
give notes of the district therefor.

(b) Borrow, subject to the provisions of Act No. 202 of the Public Acts of 1943, 
as amended, such sums of money as it may deem necessary to purchase sites for 
buildings, playgrounds, athletic fields or agricultural farms, and to purchase and erect 
and equip any buildings which it is authorized to purchase and erect, or to make any 
permanent improvement which it is authorized to make, and to accomplish this by 
the issue and sale of bonds of the school district in such form or on such terms as 
the board may deem advisable, or by any other reasonable' means. No loan shall be 
made and no bonds shall be issued for a longer term than 30 years nor for any sum 
which, together with the total outstanding bonded indebtedness of the district, shall 
exceed 2 % of the state equalized valuation of the taxable property within the district, 
unless the proposition of making the loans or of issuing bonds has been submitted to 
a vote of the school tax electors of the district at a general or special school election 
and approved by the majority of the registered electors actually voting on the same, in 
which event loans may be made or bonds may be issued for the purposes set forth in 
an amount equal to that provided by chapter 1 2  of part 2 of this act.

§ 158, as la s t  amended by 1968 PA 316

340.158 S e c o n d  c l a s s  d i s t r i c t s ;  b o r r o w i n g  power. [M .S.A . 15.3158]
Sec. 158. The board may:

Temporary purposes.
(a) Borrow, subject to the provisions of Act No. 202 of the Public Acts of 1943, as 

amended, for temporary school purposes such sums of money and on such terms as it may 
sem desirable and give notes of the district therefor.

Long-term loans; bonds; purposes; limitations.
(b) Borrow, subject to the provisions of Act No. 2 0 2  of the Public Acts of 1943, as 

amended, such sums of money as it may deem necessary to purchase sites for buildings.
ygrounds, athletic fields or agricultural farms, and to purchase and erect and equip 
y buildings which it is authorized to purchase and erect, or to make any permanent 

^Pr°vement which it is authorized to make, and to accomplish this by the issue and 
e of bonds of the school district in such form or on such terms as the board may 

bn  ̂ a<̂v'saLle' or by any other reasonable means. No loan shall be made and no 
s shall be issued for a longer term than 30 years nor for any sum which, together with 

c e outstanding bonded indebtedness of the district, shall exceed 5% of the state 
mat''2™ va'uat*on of the taxable property within the district, unless the proposition of 
ele t' n8 *oans or °f issuing bonds has been submitted to a vote of the school tax 

°rs of the district at a general or special school election and approved by the 
*be registered electors actually voting on the same, in which event loans may be 

!„, ® or bonds may be issued for the purposes set forth in an amount equal to that provided 
y cl>aPter 12 of part 2.

§ 158, as amended by 1962 PA 177



32aa

340 .16 5  Board of education; authority as to sites for school purposes; agri­
cultural, trade and vocational schools, establishm ent; acquisition of land 
outside district.

S e c .  1 6 5 .  T h e  b o a r d  s h a l l  h a v e  f u l l  p o w e r  a n d  a u t h o r i t y  t o  l o c a t e ,  p u r c h a s e  o r  lease, 
i n  t h e  n a m e  o f  t h e  d i s t r i c t ,  s u c h  s i t e  o r  s i t e s  f o r  s c h o o l h o u s e s ,  a d m i n i s t r a t i o n  bu ildin g s, 
a g r i c u l t u r a l  s i t e s , a t h l e t i c  f i e l d s  a n d  p l a y g r o u n d s  a s  m a y  b e  n e c e s s a r y  o u t  o f  t h e  funds 
p r o v i d e d  f o r  t h a t  p u r p o s e ,  a n d  m a y  m a k e  s a l e  o f  a n y  s i t e  o r  o t h e r  p r o p e r t y  o f  th e  dis­
t r i c t  w h i c h  is  n o  l o n g e r  r e q u i r e d  f o r  s c h o o l  p u r p o s e s ,  a n d  m a y  a l s o  e s t a b l i s h ,  e q u i p  and 
m a i n t a i n  a g r i c u l t u r a l ,  t r a d e  a n d  o t h e r  v o c a t i o n a l  s c h o o l s ,  a n d  i f  d e e m e d  n e c e s s a r y  by 
s u c h  b o a r d  m a y  a c q u i r e  l a n d  f o r  s u c h  p u r p o s e  o u t s i d e  t h e  d i s t r i c t  l i m i t s .  L a n d  outside 
t h e  s c h o o l  d i s t r i c t  s h a l l  n o t  b e  a c q u i r e d  u n l e s s  a p p r o v e d  b y  a  %  v o t e  o f  a l l  m e m b e rs- 
e l e c t  o f  t h e  b o a r d  o f  e d u c a t i o n .

HISTORY: New 1955, p. 4 9 9 , Act 269, Eff. Jul. 1;—Am. 1970, p. 164, Act 72, Imd. Eff. Jul. 12.

C H A P T E R  6 .

S C H O O L  D I S T R I C T S  O F  T H E  F I R S T  C L A S S .

3 40 .19 2  Board of education; body corporate; nam e, pow ers, liabilities;
right of em inent dom ain.

S e c .  1 9 2 .  T h e  s a i d  b o a r d  s h a l l  b e  a  b o d y  c o r p o r a t e  u n d e r  t h e  n a m e  a n d  t i t l e  o f  “ the
b o a r d  o f  e d u c a t i o n  o f  t h e  s c h o o l  d i s t r i c t  o f  t h e  c i t y  o f ...................................................”  a n d  u n d e r  that
n a m e  m a y  s u e  a n d  b e  s u e d  a n d  m a y  t a k e ,  u s e ,  h o l d ,  l e a s e , s e l l  a n d  c o n v e y  r e a l  pro p ­
e r t y  w i t h o u t  r e s t r i c t i o n  a s  t o  l o c a t i o n  a n d  p e r s o n a l  p r o p e r t y ,  i n c l u d i n g  p r o p e r t y  re­
c e i v e d  b y  g i f t ,  d e v i s e  o r  b e q u e s t ,  a s  t h e  i n t e r e s t  o f  s a i d  s c h o o l s  a n d  t h e  p r o s p e r i t y  and 
w e l f a r e  o f  s a i d  s c h o o l  d i s t r i c t  m a y  r e q u i r e .  T h e  s a i d  b o a r d  m a y  t a k e  a n d  h o l d  re a l and 
p e r s o n a l  p r o p e r t y  f o r  t h e  u s e  o f  t h e  p u b l i c  s c h o o l s  w i t h i n  a n d  w i t h o u t  i t s  co rp o ra te  
l i m i t s  a n d  m a y  s e l l  a n d  c o n v e y  t h e  s a m e .  T h e  b o a r d  c h o s e n  p u r s u a n t  t o  t h i s  chapter 
s h a l l  b e  t h e  s u c c e s s o r  o f  a n y  s c h o o l  c o r p o r a t i o n  o r  c o r p o r a t i o n s  e x i s t i n g  w i t h i n  t h e  lim ­
i t s  o f  s u c h  c i t y  o r  c i t i e s  a n d  s h a l l  b e  v e s t e d  w i t h  t h e  t i t l e  t o  a l l  p r o p e r t y ,  r e a l  a n d  per­
s o n a l ,  v e s t e d  i n  t h e  s c h o o l  c o r p o r a t i o n  o f  w h i c h  i t  is  t h e  s u c c e s s o r .  S a i d  b o a r d  sh all be 
l i a b l e  t o  p a y  t h e  i n d e b t e d n e s s  a n d  o b l i g a t i o n s  o f  t h e  s c h o o l  c o r p o r a t i o n s  o f  w h i c h  it is 
t h e  s u c c e s s o r  i n  t h e  m a n n e r  a n d  t o  t h e  e x t e n t  p r o v i d e d  i n  t h i s  c h a p t e r .  S a i d  board 
s h a l l  h a v e  p o w e r  t o  p u r c h a s e ,  l e a s e , a n d  t a k e  b y  t h e  r i g h t  o f  e m i n e n t  d o m a i n  a ll  pro p ­
e r t y ,  e r e c t  a n d  m a i n t a i n  o r  l e a s e  a l l  b u i l d i n g s ,  e m p l o y  a n d  p a y  a l l  p e r s o n s ,  a n d  d o  all 
o t h e r  t h i n g s  i n  i t s  j u d g m e n t  n e c e s s a r y  f o r  t h e  p r o p e r  e s t a b l i s h m e n t ,  m a in te n a n c e , 
m a n a g e m e n t  a n d  c a r r y i n g  o n  o f  t h e  p u b l i c  s c h o o l s  a n d  f o r  t h e  p r o t e c t i o n  o f  other 
p r o p e r t y  o f  t h e  s c h o o l  d i s t r i c t ,  a n d  t o  d o  a n y t h i n g  w h a t e v e r  t h a t  m a y  a d v a n c e  th e  in­
t e r e s t s  o f  e d u c a t i o n ,  t h e  g o o d  g o v e r n m e n t  a n d  p r o s p e r i t y  o f  t h e  f r e e  s c h o o l s  in  salt 
c i t y ,  a n d  t h e  w e l f a r e  o f  t h e  p u b l i c  c o n c e r n i n g  t h e  s a m e ,  a n d  i t  s h a l l  h a v e  a u t h o r i t y  to 

a d o p t  b y l a w s ,  r u l e s  a n d  r e g u l a t i o n s  f o r  i t s  o w n  g o v e r n m e n t  a n d  f o r  t h e  c o n t r o l  an 
g o v e r n m e n t  o f  a l l  s c h o o l s ,  s c h o o l  p r o p e r t y  a n d  p u p i l s .  I f  p r o p e r t y  is  s o u g h t  t o  b e  taken 
b y  e m i n e n t  d o m a i n ,  s u c h  p r o c e e d i n g s  m a y  b e  b r o u g h t  u n d e r  t h e  t e r m s  o f  A c t  N a  
o f  t h e  P u b l i c  A c t s  o f  1 9 1 1 ,  a s  a m e n d e d ,  b e i n g  s e c t i o n s  2 1 3 . 2 1  t o  2 1 3 . 4 1  o f  t h e  C o m  

p i l e d  L a w s  o f  1 9 4 8 ,  o r  a n y  o t h e r  a p p r o p r i a t e  s t a t e  l a w .
HISTORY: New 1955, p. 501, Act 269, Eff. Jul. 1;—Am. 1965, p. 723, Act 367, Imd. Eff. Jul. 23.



33aa

340.220a First class district; borrowing power, for temporary school purposes 
[M.S.A. 15.3220(1)]
Sec. 2 2 0 a. The board may;
(a) Borrow, subject to the provisions of Act No. 2 0 2  of the Public Acts of 1 9 4 3  

as amended, being sections 131.1 to 138.2'of the Compiled Laws of 1948, for temporary 
school purposes such sums of money and on such terms as it may deem desirable and 
give notes of the district therefor.

Bonds; purposes, terms; limitations.
(b) Borrow, subject to the provisions of Act No. 202 of the Public Acts of 1 9 4 3 . 

as amended, such sums of money as it may deem necessary to purchase sites for buildings, 
playgrounds, athletic fields or agricultural farms, and to purchase and erect and equip 
any buildings which it is authorized to purchase and erect, or to make any permanent im­
provement which it is authorized to make, and to accomplish this by the issue and sale 
of bonds of the school district in such form or on such terms as the board may deem 
advisable, or by any other reasonable means. No loan shall be made and no bonds 
shall be issued for a longer term than 30 years nor for any sum which, together with the 
total outstanding bonded indebtedness of the district, shall exceed 2% of the state 
equalized valuation of the taxable property within the district, unless the proposition of 
making the loans or of issuing bonds has been submitted to a vote of the school tar 
electors of the district at a general or special school election and approved by the major­
ity of the registered electors actually voting on the same, in which event loans may be 
made or bonds may be issued for the purposes set forth in an amount equal to that pro­
vided by chapter 12 of part 2 of this act.

§ 220a, as amended by 1968 PA 316
340.22 0a First class districts; borrowing power. [M .S .A . 15.3220(1)]

Sec. 220a. The board may:

Temporary purposes.
(a) Borrow, subject to the provisions of Act No. 202 of the Public Acts of 1943, as 

amended, for temporary school purposes such sums of money and on such terms as it 
may deem desirable and give notes of the district therefor.

Long-term loans; bonds; purposes; limitations.
(b) Borrow, subject to the provisions of Act No. 202 of the Public Acts of 1943, as 

amended, such sums of money as it may deem necessary to purchase sites for buildings, 
Paygrounds, athletic fields or agricultural farms, and to purchase and erect and equip 
any buildings which it is authorized to purchase and erect, or to make any permanent 
improvement which it is authorized to make, and to accomplish this by the issue and sale

Ponds of the school district in such form or on such terms as the board may deem advis- 
. e’ or by any other reasonable means. No loan shall be made and no bonds shall be 
■Wied for a longer term than 30 years nor for any sum which, together with the total out- 
5 anding bonded indebtedness of the district, shall exceed 3% of the state equalized valua- 
wn of the taxable property within the district, unless the proposition of making the loans 

0 lssuing bonds has been submitted to a vote of the school tax electors of the district 
a general or special school election and approved by the majority of the registered 
c ors actually voting on the same, in which event loans may be made or bonds may be 

ssued for the purposes set forth in an amount equal to that provided by chapter 12 of

§ 220a, as added by 1965 PA 29



34aa

3 4 0 . 2 2 0 a  F i r s t  c l a s s  s c h o o l  d i s t r i c t s ;  b o r r o w i n g  p o w e r .  [ M . S . A .  1 5 ,3 2 2 0 (1 )1

S e c .  2 2 0 a .  T h e  b o a r d  m a y :

( a )  B o r r o w ,  s u b j e c t  t o  t h e  p r o v i s i o n s  o f  A c t  N o .  2 0 2  o f  t h e  Public

A c t s  o f  1 9 4 3 ,  a s  a m e n d e d ,  f o r  t e m p o r a r y  s c h o o l  p u r p o s e s  s u c h  s u m s  of

m o n e y  a n d  o n  s u c h  t e r m s  a s  i t  m a y  d e e m  d e s i r a b l e  a n d  g i v e  n o t e s  o f  the 
d i s t r i c t  t h e r e f o r .

( b )  B o r r o w ,  s u b j e c t  t o  t h e  p r o v i s i o n s  o f  A c t  N o .  2 0 2  o f  t h e  P u blic

A c t s  o f  1 9 4 3 ,  a s  a m e n d e d ,  s u c h  s u m s  o f  m o n e y  a s  i t  m a y  d e e m  n ece ssary

t o  p u r c h a s e  s i t e s  f o r  b u i l d i n g s ,  p l a y g r o u n d s ,  a t h l e t i c  f i e l d s  o r  a g r ic u lt u r a l 

f a r m s ,  a n d  t o  p u r c h a s e  a n d  e r e c t  a n d  e q u i p  a n y  b u i l d i n g s  w h i c h  it  is 

a u t h o r i z e d  t o  p u r c h a s e  a n d  e r e c t ,  o r  t o  m a k e  a n y  p e r m a n e n t  i m p r o v e m e n t  

w h i c h  i t  i s  a u t h o r i z e d  t o  m a k e ,  a n d  t o  a c c o m p l i s h  t h i s  b y  t h e  is s u e  and 

s a l e  o f  b o n d s  o f  t h e  s c h o o l  d i s t r i c t  i n  s u c h  f o r m  o r  o n  s u c h  t e r m s  as the 

b o a r d  m a y  d e e m  a d v i s a b l e ,  o r  b y  a n y  o t h e r  r e a s o n a b l e  m e a n s .  N o  loan 

s h a l l  b e  m a d e  a n d  n o  b o n d s  s h a l l  b e  i s s u e d  f o r  a  l o n g e r  t e r m  t h a n  3 0  years 

n o r  f o r  a n y  s u m  w h i c h ,  t o g e t h e r  w i t h  t h e  t o t a l  o u t s t a n d i n g  b o n d e d  in­

d e b t e d n e s s  o f  t h e  d i s t r i c t ,  s h a l l  e x c e e d  5 %  o f  t h e  s t a t e  e q u a l i z e d  v a lu a tio n  

o f  t h e  t a x a b l e  p r o p e r t y  w i t h i n  t h e  d i s t r i c t ,  u n l e s s  t h e  p r o p o s i t i o n  o f  m a k in g  

t h e  l o a n s  o r  o f  i s s u i n g  b o n d s  h a s  b e e n  s u b m i t t e d  t o  a  v o t e  o f  t h e  school 

t a x  e l e c t o r s  o f  t h e  d i s t r i c t  a t  a  g e n e r a l  o r  s p e c i a l  s c h o o l  e l e c t i o n  a n d  ap­

p r o v e d  b y  t h e  m a j o r i t y  o f  t h e  r e g i s t e r e d  e l e c t o r s  a c t u a l l y  v o t i n g  o n  the 

s a m e ,  i n  w h i c h  e v e n t  l o a n s  m a y  b e  m a d e  o r  b o n d s  m a y  b e  i s s u e d  f o r  the 

p u r p o s e s  s e t  f o r t h  i n  a n  a m o u n t  e q u a l  t o  t h a t  p r o v i d e d  b y  c h a p t e r  1 2  of 
p a r t  2 .

§ 220a, as last  amended b y  1 9 7 1  p a  23

P A R T  2 .

C H A P T E R  2 .

G E N E R A L  P O W E R S  A N D  D U T I E S  O F  D I S T R I C T S .

3 4 0 .35 2  Body corporate; pow ers, rights, liabilities; presumption.
Sec. 352. Every school district shall be a body corporate under the name provided 

in this act, and may sue and be sued in its name, may acquire and take property, both 
real and personal, for educational purposes within or without its corporate limits,!)) 
purchase, gift, grant, devise or bequest, and hold and use the same for such purposes, 
and may sell and convey the same as the interests of such district mav require, subject 

to the conditions of this act contained. As such body corporate, every school district 
shall be the successor of anv school district previously existing within the same territo­
rial limits and shall be vested with all rights of action, with the title of all property-



35aa

real a n d  p e r s o n a l ,  o f  t h e  d i s t r i c t  o f  w h i c h  i t  is  t h e  s u c c e s s o r ,  a n d  t h e  i n d e b t e d n e s s  a n d  
o b lig a tio n s  o f  t h e  d i s t r i c t  s u p e r s e d e d  s h a l l  b e c o m e  a n d  b e  t h e  i n d e b t e d n e s s  a n d  o b l i ­
gations o f  t h e  s u c c e e d i n g  d i s t r i c t ,  e x c e p t  a s  o t h e r w i s e  p r o v i d e d  i n  c h a p t e r s  3 ,  4  a n d  5 ,  
part 2  o f  t h i s  a c t .  E v e r y  s c h o o l  d i s t r i c t  s h a l l  i n  a l l  c a s e s  b e  p r e s u m e d  t o  h a v e  b e e n  l e ­
gally o r g a n i z e d  w h e n  i t  s h a l l  h a v e  e x e r c i s e d  t h e  f r a n c h i s e s  a n d  p r i v i l e g e s  o f  a  d i s t r i c t  
for th e  t e r m  o f  2  y e a r s ;  a n d  s u c h  s c h o o l  d i s t r i c t  a n d  i t s  o f f i c e r s  s h a l l  b e  e n t i t l e d  t o  a l l  
the r ig h ts , p r i v i l e g e s  a n d  i m m u n i t i e s ,  a n d  b e  s u b j e c t  t o  a l l  t h e  d u t i e s  a n d  l i a b i l i t i e s  
c o n fe rre d  u p o n  s c h o o l  d i s t r i c t s  b y  l a w .  f

HISTORY: New 1955, p. 527, Act 269. Eff. Jul. 1.

340.355 School discrim ination; race , color, intellectual progress.
Sec. 3 5 5 . N o  s e p a r a t e  s c h o o l  o r  d e p a r t m e n t  s h a l l  b e  k e p t  f o r  a n y  p e r s o n  o r  p e r s o n s  

on a c c o u n t  o f  r a c e  o r  c o l o r .  T h i s  s e c t i o n  s h a l l  n o t  b e  c o n s t r u e d  t o  p r e v e n t  t h e  g r a d i n g  
of sc h o o ls a c c o r d i n g  t o  t h e  i n t e l l e c t u a l  p r o g r e s s  o f  t h e  p u p i l ,  t o  b e  t a u g h t  i n  s e p a r a t e  
places as m a y  b e  d e e m e d  e x p e d i e n t .

HISTORY: New 1955, p. 52S, Act 269, Eff. Jul. 1.

C H A P T E R  3 .

C O N S O L I D A T I O N  O F  D I S T R I C T S .

340.401 Consolidation of districts; quota of school age  children, classifica­
tion.

S e c . 4 0 1 .  A n y  2  o r  m o r e  s c h o o l  d i s t r i c t s ,  e x c e p t  d i s t r i c t s  o f  t h e  f i r s t  a n d  s e c o n d  c l a s s , 
in w h i c h  t h e  t o t a l  n u m b e r  o f  c h i l d r e n  b e t w e e n  t h e  a g e s  o f  5  a n d  2 0  y e a r s ,  is  7 5  o r  
m ore, m a y  c o n s o l i d a t e  t o  f o r m  a  s i n g l e  s c h o o l  d i s t r i c t  a s  h e r e i n a f t e r  p r o v i d e d .  T h e  
c o n s o lid a te d  d i s t r i c t  s o  f o r m e d  s h a l l  b e  a  d i s t r i c t  o f  t h e  f o u r t h  c l a s s  o r  t h i r d  c l a s s ,  d e ­
p e n d in g  u p o n  t h e  c l a s s i f i c a t i o n  i t s  p o p u l a t i o n  e n t i t l e s  i t  t o  u n d e r  t h e  p r o v i s i o n  o f  p a r t  
1 o f th is  a c t .

HISTORY: New 1955, p. 531, Act 269, Eff. Jul. 1 .

340.402 Consolidation of districts; request, app ro val, m odification of pro­
posal; location in m ore than one county.

S e c . 4 0 2 . W h e n e v e r  t h e  c o u n t y  s u p e r i n t e n d e n t  o f  s c h o o l s  s h a l l  b e  r e q u e s t e d  i n  w r i t ­
ing b y  n o t  le s s  t h a n  1 0  s c h o o l  e l e c t o r s  o f  e a c h  o f  2  o r  m o r e  d i s t r i c t s  t o  i n i t i a t e  p r o c e e d -  
mgs f o r  t h e  c o n s o l i d a t i o n  o f  t h e  s a i d  2  o r  m o r e  d i s t r i c t s ,  h e  s h a l l  r e f e r  t h e  q u e s t i o n  o f  
c o n s o lid a tin g  t h e  s a i d  d i s t r i c t s  t o  t h e  s u p e r i n t e n d e n t  o f  p u b l i c  i n s t r u c t i o n  f o r  h i s  a p ­
p ro va l: P r o v i d e d ,  T h a t  a  r e s o l u t i o n  o f  t h e  b o a r d  r e q u e s t i n g  s u c h  a c t i o n  b y  t h e  c o u n t y  
s u p e r in t e n d e n t  s h a l l  h a v e  t h e  s a m e  e f f e c t  a s  s u c h  w r i t t e n  r e q u e s t  b y  t h e  e l e c t o r s  o f  
anY d i s t r i c t . T h e  s u p e r i n t e n d e n t  o f  p u b l i c  i n s t r u c t i o n  s h a l l  h a v e  a u t h o r i t y  t o  a p p r o v e  
or d e n y  t h e  p r o p o s a l  t o  i n i t i a t e  p r o c e e d i n g s  t o  e f f e c t u a t e  t h e  p r o p o s e d  c o n s o l i d a t i o n ,  

he m a y  r e q u i r e  t h a t  1  o r  m o r e  o f  s u c h  d i s t r i c t s  b e  n o t  i n c l u d e d  i n  t h e  p r o p o s e d  c o n -  
so d a t i o n . H i s  a c t i o n  i n  t h e  m a t t e r  s h a l l  b e  f i n a l .  I f  t h e  s c h o o l  d i s t r i c t s  p r o p o s e d  t o  b e  
c o n s o lid a te d  a r e  l o c a t e d  i n  m o r e  t h a n  1  c o u n t y ,  t h e  r e q u e s t  t o  i n i t i a t e  c o n s o l i d a t i o n  
p r o c e e d in g s  s h a l l  b e  a d d r e s s e d  t o  t h e  s u p e r i n t e n d e n t  o f  t h e  c o u n t y  c o n t a i n i n g  t h e  
(h * es P o r r i o n  o f  t h e  a s s e s s e d  v a l u a t i o n  o f  t h e  p r o p o s e d  c o n s o l i d a t e d  d i s t r i c t ,  a n d  i t  

’ on sh a ll b e c o m e  h i s  d u t v  t o  c a r r y  o u t  t h e  p r o c e e d i n g s  h e r e i n a f t e r  a s s i g n e d  t o  t h e

ount) superintendent.
mSTORl: New 19 5 5 . p. 5 3 2 , Act 269. EH. Jul. 1.



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34 0 .4 0 3  Consolidation of districts; petitions, form , circulation, time, return.
Sec. 403. Within 30 days of the receipt of the approval of the superintendent of 

public instruction to the consolidation of 2 or more districts, the county superintend­
ent of schools shall have petitions prepared for circulation within the affected school 
districts. Said petitions shall be printed or duplicated and the first page of any petition 
shall be in the following form:

Official Petition No............. consisting o f ..........pages.
Expiration date.......................
(Signed)...............................
County Superintendent of Schools o f .............County, Michigan.
To the County Superintendent of Schools o f ...........County, Michigan.

W e, the undersigned, qualified (here insert “ registered” in the case of a registration
district) electors o f ..............................................................................................................................

(Name of School District)
hereby petition that you cause the question of consolidating the following school dis­
tricts to be submitted to the school electors of said districts:

Names of school districts to be consolidated to be listed here 
Signatures of Petitioners
Name Address Date of Signing

Each additional page of any such petition shall have at or near the top of the page 
the following:

Official Petition
N o . ................................  Page N o................................
Expiration date of Petition...........................................................
Signature of County Superintendent of Schools...............................................................
Each page shall have printed or duplicated the following statement below the space 

for signature for petitioners:
The undersigned hereby certifies that he is a qualified (here insert “registered in 

the case of a registration district) elector o f .............................................................................

(Name of School District)
and that each signature appearing on this page is the genuine signature of the person 
signing the same and that to his best knowledge and belief each such person was at the 
time of signing a qualified (here insert “ registered” in the case of a registration dis­
trict) elector of said school district.

Dated th is.......................................  day o f ..............................  19...........................

Each petition shall be signed by the county superintendent of schools as indicated 
in the foregoing form before being issued to any person for circulation.

Official petitions in the form as above provided shall be given by the county supw 
intendcnt of schools to anv interested elector of anv of the districts p ro p o se d  to “ 
consolidated. Onlv qualified school electors of the districts in which signatures to i 
petitions are being sought shall circulate such petitions and the statement appear111!' 
below the signatures of petitioners shall be dated or signed on each page before re 
turning such petition to the county superintendent of schools.



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Official petitions as above provided shall be returned to the county superintendent 
of schools on or before the expiration date stated on the petition. The expiration date 
for filing of petitions shall be the sixtieth day after the receipt by the counts’ superin­
tendent of schools of the last certification by a city or township clerk as to the number 
of registered general electors residing in each of the affected school districts as herein­
after provided, but in no event shall such expiration date be later than 180 days after 
the date of approval bv the superintendent of public instruction.

HISTORY: Now 1955. p. 532. Act 269. Eff. Jul. 1.

340.404 Consolidation of districts; registration of electors.
Sec. 404. Immediately upon receipt of the approval of the superintendent of public 

instruction to the consolidation of 2 or more districts the county superintendent of 
schools shall request each appropriate city or township clerk to certify to him the 
number of registered general electors residing in each of the affected school districts 
and it shall he the duty of any such city or township clerk to make such certification 
without delay. The number of registered general electors so certified shall be the basis 
for determining the required number of signatures for calling an election on the ques­
tion of consolidation as hereinafter provided. In registration districts, signatures of per­
sons registering after the date of certification by the appropriate city or township clerk 
shall be valid signatures if such persons are registered at the time of signing a petition: 
Provided, That such additional registrations shall not affect the number of registered 
general electors originally certified to by the respective city or township clerks. It is 
the intent that in registration districts electors in order to be eligible to sign petitions 
and vote on the question of consolidation shall be registered electors, while in non­
registration districts registration shall not be a required qualification for signing peti­
tions or for voting on consolidation.

HISTORY: New 1955, p. 533, Act 269, Eff. Jul. 1.

340.405 Consolidation of districts; determ ination of num ber of qualified  
electors; superintendent of schools.
Sec. 405. Upon the filing of such petitions with the county superintendent of 

schools, said county superintendent shall canvass the same to ascertain the number of 
qualified electors who have signed the same, and, for the purpose of determining the 
validity of any doubtful signatures, may cause them to be checked against the registra­
tion records by the clerk of any political subdivision in which said petitions were circu­
lated or may use ariv other method he deems proper for determining the validity of 
such doubtful signatures. In the absence of fraud on the part of the county superin­
tendent in the determination of the validity of the signatures to any petition or error in 
the determination of the number of qualified signatures, his determination of the num- 
her of qualified electors signing each petition shall be final.

HISTORY: New 1955, p. .513, Act 269, Elf. Jul. 1.

340.406 Consolidation of districts; calling of elections, prerequisites.
Sec. 406. Whenever the county superintendent of schools is presented with peti­

tions signed by qualified school electors in each district to the number of not less than 
of the number of registered general electors, as of the date the county superin­

tendent of schools releases petitions, residing in each district in the case of primary 
e istricts, and by school electors of not less than 5% of the number of registered general 
e ectors residing in each district in the case of all other districts, he shall cause the 
question of consolidating the school districts to form a single school district to be sub- 
m,!ted to the vote of the electors of the school districts at an election called to be held 

1 11n 35 days after the receipt of such petitions. \ c  petitions shall be required in the



38aa

case of any district operating 12 grades when a resolution adopted by the board of the 
district requesting consolidation of districts has been filed with the county superin­
tendent of schools. It shall be the duty of any city or township clerk to certify to the 
county superintendent of schools the number of registered general electors residing in 
a school district when so requested by the county superintendent.

HISTORY: New 1955, p. 533, Act 269, Eff. Jul. 1;—Am. 1958, p. 234, Act 195, Eff. Sep. 13.

3 4 0 .4 0 7  Consolidation of districts; special election, place.
Sec. 407. The question of establishing a consolidated school district shall be submit­

ted to the school electors at a special election held for such purpose. In voting to form 
such consolidated school district, each district operating 12 grades shall votesepa-1 
rately as a unit and all other school districts to be included in the consolidation shall 
vote together as a unit. The board shall conduct the election in each school district op 
erating 12 grades, and the county board of education of the county, the county super­
intendent of which is required to call the election as herein provided, shall conduct 
the election for the other districts voting together as a unit: Provided, however, That 
such elections shall be held on the same dav and during the same hours and that when­
ever any registration district votes separately as herein provided the provisions ol 
chapter 8 of part 2 of this act shall apply, but not when such district votes together 
with 1 or more other districts.

HISTORY: New 1955, p. 534, Act 269, Eff. Jul. 1.

340.408  Consolidation of districts; notice of special election, contents, post­
ing, publication.
Sec. 408. The county superintendent shall give notice of the date, place or places, 

the proposition or propositions to be submitted, and the hours the polls will be open 
for the special election to the electors of the districts operating less than 12 grades, by 
causing notice thereof to be posted in 3 or more places in such affected districts not 
less than 10 days prior to such election and by publication at least once in a newspaper 
of general circulation in the territory of such districts 10 days or more before the elec­
tion. The county superintendent shall in writing notify the secretary of each board of 
each affected district operating 12 grades of tire day and hours for holding such special; 
election. Upon receipt of such notice, it shall be the duty of each such secretary to  ̂
give the statutory notice of the day, place or places, and the hours for holding such 
election and of the last day of registration in the case of a registration district. Each 
such secretary shall furnish timely proof of giving such notice to the county superin­
tendent in the form of affidavits of posting notice or publication, as the. case may be. 
In the event that a registration district which is required to vote separately is include! 
in the proposed consolidation, the polls in each election unit shall be open from /: 
o’clock in the forenoon until 8:00 o’clock in the afternoon, and the county superin­
tendent shall give the required notice of the day of the election to the secretary of tin 
board of such registration district at least 35 days prior to the election.

HISTORY: New 1955, p. 531, Act 269, Eff. Jul. 1:—Am. 1959, p. 252, Act 177, Eff. Mar. 19. 1960.



39aa

340.409 Consolidation of districts; form of ballot; conduct of election.
Sec. 409. The vote on the question of consolidating shall be by printed ballot and 

shall be in substantially the following form:
“Shall all of the territory of the following districts be united to form 1 school dis­

trict?
(Names of school districts to be consolidated to be listed here)
Yes ( )
no( r
The intermediate school district superintendent shall Supply printed ballots, poll 

books and other necessary election supplies to the board or boards of election inspec­
tors of the election unit of the districts operating less than 12 grades. The secretary of 
the board of each school district operating 12 grades shall have printed ballots pre­
pared for the election and supply all election materials necessary for said election. The 
hoard of each such district shall appoint the necessary school electors to the board or 
boards of election inspectors. The members of the intermediate board of education 
shall act as the board or boards of election inspectors for the election held in the dis­
tricts operating less than 12 grades. The intermediate board of education may appoint 
additional persons to the board or boards of election inspectors, and, if more than 1 
place for holding such election is designated by the intermediate school district super­
intendent, the members of the intermediate board of education shall be apportioned 
by the intermediate school district superintendent to the boards of election inspectors. 
In the event that a member of the intermediate board of education or such other per­
son appointed to a board of election inspectors is unable to be present at the election 
or is required to leave during the hours the polls are open, the remaining members of 
such board of election inspectors may appoint another person to fill such vacancy, 
bach member of a board of election inspectors shall take the constitutional oath of of­
fice before entering on his duties. Elections shall be canvassed by the board of canvas­
sers established by section 514a, this being section 340,514a of the Compiled Laws of 
1948, and the result shall be certified by the secretary of the board to the intermediate 
school district superintendent of schools. In the case of a registration district voting 
separately and in more than 1 precinct, the secretary of the board of canvassers shall 
file a certified copy of the canvass of the election by the board with the intermediate 
school district superintendent. The affirmative vote of a majority of the school electors 
voting on the question in each of the election units, as hereinbefore defined, shall be 
necessary to effect the consolidation of the districts, and such consolidation shall be­
come effective as of the day of the election on which the votes were cast.

Compensation of election inspectors, payment of expenses.
The members of the intermediate board of education and such other inspectors of 

election acting in the election unit Of the district or districts operating less than 12 
grades shall receive the same compensation for conducting such election as is author­
ized for election inspectors in a general state election. In the event the consolidation 
becomes effective, all expenses incurred for the election in all election units shall be 
certified to the board of the consolidated district and it shall be the duty of said board 
to pay the same out of the funds of the consolidated district. If the proposition to con­
solidate fails to be approved, as hereinbefore provided, the intermediate board shall 
determine the expenses of the election held in the election unit operating less than 12 
grades and apportion such expenses equally among the several districts of such elec- 
tlon un>t- It shall be the duty of each such board of education to pay such apportion- 
meu' 1° the intermediate board of education without delay.

"STORY:New 1955, p. 531, Act 269. Klf. Jul. 1 ;—Am. 1963. 2 nd Ex. Ses„ p. 49, Act 39, Irod. Elf. Dec. 27.



40aa

3 4 0 . 4 1 0  Consolidated district; first b o ard ,  ap p o in tm e n t ,  acceptance, term,
m eeting .
Sec. 4 1 0 .  Within 1 0  days after the effective date of the consolidation of 2  or more I 

school districts, the county board of education of the county containing the territoryol' 
the consolidated district shall appoint qualified electors of the district in the number 
required by the classification of the district to act as a board for said district. When 
the territory of a consolidated district extends into more than 1 county, such appoint­
ment shall be made by the county board of education of each county acting jointly as a 
single board. Within 7 days after his appointment, each member shall file with the 
county superintendent an acceptance of the office, accompanied by a written affidavit, 
setting forth the fact of eligibility as provided in section 4 9 3  of this act. E xcept as 
hereinafter provided, each member so appointed to the board shall hold o f f ic e  until 
the next annual election, at which time there shall be elected by ballot a new board in 
accordance with the provisions of chapter 3  or chapter 4  of part 1 of this act for the 
election of a first board. Within 1 5  days after tire effective date of the consolidation, 
the county superintendent shall call a meeting of the board appointed by the county 
board of education, at which meeting the board shall elect a president, a secretary and 
a treasurer.

District election; sa la rie s of board m em bers.
If the effective date of the consolidation is between the thirtieth day prior to the an­

nual election and December 31, the board appointed by the county board shall at its 
first meeting call a district election to be held within 45 days from the day of the meet­
ing. At the election, a board of the requisite number of members shall be elected for | 
such terms as are required for the election of a first board in section 55 or section 101 
of this act. The salaries of the members of the board shall be determined by the elec 
tors of the district at such election in accordance with section 71 or section 112. The 
election shall be in lieu of the first annual election and the first year of each term of of­
fice shall extend until the date of taking office following the next succeeding annual 
election. The board shall hold its first meeting and elect officers as provided in section 
57 or section 111 of this act.

HISTORY: New 1955, p. 535, Act 269, EH. JuL 1;—Am. 1963, p. 438, Act 248, Imd. EH. Jun. 13.

340.411 Consolidated district; transfer of records, funds, property of origi­
nal districts.
Sec. 411. Within 20 days after the effective date of the consolidation of 2 or more , 

districts, the board of each of the original districts shall account to the board of the 
consolidated district for all records, funds and property belonging to said original dis 
trict and shall turn over the same to the board of the consolidated district. Upon re 
ceipt of such records, funds and property by the board of the consolidated district, 
officers of the original district or districts shall be released from liability therefor an 
their offices terminated.

HISTORY: New 1955, p. 53-5. Act 269, Eff. Jul. 1.



41aa

340.412 Consolidated district; indebtedness of original district, retirem ent.
S e c . 4 1 2 .  I f  a n y  d i s t r i c t  b e c o m i n g  p a r t  o f  t h e  c o n s o l i d a t e d  d i s t r i c t  h a s  a  b o n d e d  i n ­

d e b te d n e s s  i n c u r r e d  a f t e r  D e c e m b e r  8 ,  1 9 3 2 ,  o r  h a s  o u t s t a n d i n g  t a x  a n t i c i p a t i o n  n o t e s  
at th e  t i m e  o f  c o n s o l i d a t i o n ,  t h e  i d e n t i t y  o f  s u c h  d i s t r i c t  s h a l l  n o t  b e  l o s t  b y  v i r t u e  o f  
such c o n s o l i d a t i o n  a n d  i t s  t e r r i t o r y  s h a l l  r e m a i n  a s  a n  a s s e s s i n g  u n i t  f o r  p u r p o s e s  o f  
such b o n d e d  i n d e b t e d n e s s  a n d  s u c h  t a x  a n t i c i p a t i o n  n o t e s  u n t i l  s u c h  i n d e b t e d n e s s  h a s  
been r e t i r e d  o r  t h e  o u t s t a n d i n g  b o n d s  r e f u n d e d  b y  t h e  c o n s o l i d a t e d  d i s t r i c t .  T h e  
b o a rd  o f  t h e  c o n s o l i d a t e d  d i s t r i c t  s h a l l  c o n s t i t u t e  t h e  b o a r d  o f  t r u s t e e s  f o r  s u c h  o r i g i ­
nal d i s t r i c t  h a v i n g  s u c h  b o n d e d  i n d e b t e d n e s s  o r  t a x  a n t i c i p a t i o n  n o t e s  a n d  t h e  o f f i c e r s  
of th e  c o n s o l i d a t e d  d i s t r i c t  s h a l l  b e  t h e  o f f i c e r s  f o r  s a i d  o r i g i n a l  d i s t r i c t .  T h e  b o a r d  o f  
the c o n s o l i d a t e d  d i s t r i c t  s h a l l  c e r t i f y  a n d  o r d e r  t h e  l e v y  o f  t a x e s  f o r  s u c h  b o n d e d  i n ­
d e b te d n e s s  a n d  t a x  a n t i c i p a t i o n  n o t e s  i n  t h e  n a m e  o f  t h e  o r i g i n a l  d i s t r i c t ,  s h a l l  n o t  
c o m m in g le  t h e  d e b t  r e t i r e m e n t  f u n d s  o f  t h e  o r i g i n a l  d i s t r i c t  w i t h  f u n d s  o f  t h e  c o n s o l i ­
da te d  d i s t r i c t ,  a n d  s h a l l  d o  a l l  t h i n g s  r e l a t i v e  t o  s u c h  b o n d e d  i n d e b t e d n e s s  a n d  t a x  a n ­
tic ip a tio n  n o t e s  r e q u i r e d  b y  l a w  a n d  b y  t h e  t e r m s  u n d e r  w h i c h  t h e  i s s u e  a n d  s a l e  o f  
the b o n d s  a n d  t a x  a n t i c i p a t i o n  n o t e s  w e r e  o r i g i n a l l y  a u t h o r i z e d .  A l l  o t h e r  t a x  l e v i e s  f o r  
tlie p u r p o s e s  o f  t h e  c o n s o l i d a t e d  s c h o o l  d i s t r i c t  s h a l l  b e  s p r e a d  o v e r  t h e  e n t i r e  a r e a  o f  
the c o n s o l i d a t e d  d i s t r i c t .

HISTORY: New 1955, p. 536, Act 269, Eff. Jul. 1;—Am. 1969, p. -296, Act 146, Imd. Eff. JuJ. 31.

340.413 Consolidated district; assum ption of indebtedness.
S e c . 4 1 3 .  A n y  t i m e  a f t e r  3  y e a r s  f o l l o w i n g  t h e  c o n s o l i d a t i o n ,  a n v  c o n s o l i d a t e d  d i s ­

trict m a y  a s s u m e  t h e  o b l i g a t i o n  o f  t h e  b o n d e d  i n d e b t e d n e s s  i n c u r r e d  a f t e r  D e c e m b e r  
8 ,1 9 3 2 , o f  a n y  o r i g i n a l  d i s t r i c t  b e c o m i n g  a  p a r t  o f  t h e  c o n s o l i d a t i o n  a n d  p a y  t h e  s a m e  
from  t h e  p r o c e e d s  o f  a  d e b t  r e t i r e m e n t  t a x  l e v y  s p r e a d  u n i f o r m l y  o v e r  t h e  t e r r i t o r y  o f  
the c o n s o l i d a t e d  d i s t r i c t  w h e n e v e r  t h e  e l e c t o r s  o f  t h e  c o n s o l i d a t e d  d i s t r i c t  s h a l l  h a v e  
a p p r o v e d  a n  i n c r e a s e  i n  t h e  l i m i t a t i o n  o n  t a x e s  f o r  t h a t  p u r p o s e  a n d  t h e  s c h o o l  t a x  
e le cto rs o f  t h e  d i s t r i c t  h a v e  a p p r o v e d  t h e  a s s u m p t i o n  o f  s u c h  b o n d e d  i n d e b t e d n e s s .  
A s s u m p t i o n  o f  s u c h  b o n d e d  i n d e b t e d n e s s  o f  a n  o r i g i n a l  s c h o o l  d i s t r i c t  s h a l l  n o t  o p e r ­
ate to  r e l e a s e  t h e  t e r r i t o r y  o f  t h e  o r i g i n a l  d i s t r i c t  f o r  t h e  f i n a l  r e s p o n s i b i l i t y  o f  p a y i n g  
the o b l i g a t i o n  o r  t o  r e s c i n d  t h e  i n c r e a s e  i n  t h e  l i m i t a t i o n  o n  t a x e s  p l e d g e d  t o  t h e  b o n d  
issue o r  a v a i l a b l e  f o r  i t  i n  t h e  o r i g i n a l  d i s t r i c t ,  n o r  b e  c o n s t r u e d  a s  s o  d o i n g .  W h e n  t h e  
b o n d e d  i n d e b t e d n e s s  o f  a n  o r i g i n a l  d i s t r i c t  h a s  b e e n  s o  a s s u m e d ,  i t  s h a l l  b e  t h e  d u t y  o f  
the b o a r d  o f  t h e  c o n s o l i d a t e d  d i s t r i c t  t o  c e r t i f y  a n d  o r d e r  t h e  l e v y  o f  t a x e s  f o r  s u c h  
'o u d e d  i n d e b t e d n e s s  e q u i v a l e n t  i n  t e r m s  o f  m o n e y  t o  t h o s e  r e q u i r e d  b y  t h e  t e r m s  u n ­

der w h i c h  s u c h  i n d e b t e d n e s s  w a s  o r i g i n a l l y  i n c u r r e d ,  a n d  c a r r y  o u t  a l l  p r o v i s i o n s  o f  
t e o r i g i n a l  b o n d  c o n t r a c t .  T h e  e l e c t i o n  m a y  b e  h e l d  a t  a n y  t i m e  f o l l o w i n g  t h e  e f f e c -  
h v e  d a t e  o f  c o n s o l i d a t i o n  w h e n e v e r  a  p r o p o s a l  is  m a d e  t o  i n c r e a s e  t h e  b o n d e d  i n d e b t ­
edness o f  t h e  c o m b i n e d  d i s t r i c t .

HISTORY: New 1955, p. 536, Act 269, EH. Jul. 1:—Am. 1957, p. 154, Act 135, EH. Sep. 27:—Am. 1959, p. 252, Act 177, EH. Mar. 19, 1960.



42aa

34 0 .4 1 4  Consolidated district; sim ultaneous election on consolidation, in.
crease  of constitutional debt lim its, assum ption of outstanding bonded in­
debtedness; petition, procedure.

S e c .  4 1 4 .  W h e n e v e r  t h e  p e t i t i o n s  f i l e d  w i t h  t h e  c o u n t y  s u p e r i n t e n d e n t  o f  schools ts 
s e t  f o r t h  i n  s e c t i o n  4 0 3  o f  t h i s  a c t  i n c l u d e  a  r e q u e s t  t h a t  t h e  q u e s t i o n s  o f  in c r e a s in g  the 
c o n s t i t u t i o n a l  l i m i t a t i o n  o n  t a x e s  o f  t h e  c o n s o l i d a t e d  s c h o o l  d i s t r i c t  f o r  t h e  p u r p o s e  of 
p r o v i d i n g  a  d e b t  l e v y  f o r  t h e  b o n d e d  i n d e b t e d n e s s  i n c u r r e d  a f t e r  D e c e m b e r  8 ,1 9 3 2 , 
o f  1  o r  m o r e  o f  t h e  d i s t r i c t s  t o  b e c o m e  p a r t  o f  t h e  c o n s o l i d a t i o n  a n d  o f  a s s u m i n g  such 
b o n d e d  i n d e b t e d n e s s  a n d  t h e  q u e s t i o n  o f  i n c r e a s i n g  t h e  c o n s t i t u t i o n a l  l i m i t a t i o n  on 
t a x e s  o f  t h e  c o n s o l i d a t e d  s c h o o l  d i s t r i c t  f o r  o p e r a t i n g  p u r p o s e s  b e  s u b m i t t e d  to  the j 
e l e c t o r s  a t  t h e  t i m e  o f  v o t i n g  t o  f o r m  t h e  c o n s o l i d a t i o n ,  i t  s h a l l  b e  t h e  d u t y  o f the 
c o u n t y  s u p e r i n t e n d e n t  t o  i n c l u d e  s u c h  q u e s t i o n  f o r  t h e  v o t e  o f  t h e  e l e c t o r s  a t  each of 
t h e  e l e c t i o n  u n i t s  p r o v i d e d  i n  s e c t i o n  4 0 7  o f  t h i s  a c t .  T i r e  s t a t e m e n t  o f  v o t e s  cast on 
t h e s e  q u e s t i o n s  s h a l l  b e  c e r t i f i e d  t o  t h e  c o u n t y  s u p e r i n t e n d e n t  b y  e a c h  b o a r d  o f  elec­
t i o n  i n s p e c t o r s ,  i n c l u d i n g  t h o s e  o f  a  d i s t r i c t  v o t i n g  i n  m o r e  t h a n  1  p r e c i n c t :  Pro vide d, 
T h a t  o n l y  s c h o o l  t a x  e l e c t o r s  s h a l l  b e  p e r m i t t e d  t o  v o t e  o n  t h e  q u e s t i o n  o f  assuming 
s u c h  b o n d e d  i n d e b t e d n e s s .  T h e  c o u n t y  b o a r d  o f  e d u c a t i o n  s h a l l  m e e t  w i t h i n  3  days 
a f t e r  t h e  d a y  o f  t h e  e l e c t i o n  a n d  c a n v a s s  t h e  s t a t e m e n t s  f i l e d  b y  t h e  v a r i o u s  election 
b o a r d s .  T h e  c o u n t y  b o a r d  s h a l l  b v  r e s o l u t i o n  d e c l a r e  t h e  r e s u l t  o f  t h e  e l e c t i o n  o n  these 
q u e s t i o n s  a n d  t h i s  r e s o l u t i o n  s h a l l  b e  t h e  o f f i c i a l  d e c l a r a t i o n  o f  t h e  r e s u l t  t h e r e o f . The 
p r o p o s i t i o n s  s h a l l  b e  d e c l a r e d  t o  h a v e  b e e n  a d o p t e d  i f  t h e  c a n v a s s  o f  t h e  v o te s  cast 
s h o w s  t h a t  a  m a j o r i t y  o f  a l l  e l e c t o r s  v o t i n g  o n  e a c h  p r o p o s i t i o n  v o t e d  i n  t h e  affirm a­
t i v e :  P r o v i d e d ,  T h a t  t h e  p r o p o s i t i o n  o f  f o r m i n g  t h e  c o n s o l i d a t i o n  w a s  a d o p t e d  at said 
e l e c t i o n  a s  h e r e i n b e f o r e  s e t  f o r t h .  T h e  p r o p o s i t i o n  t o  f o r m  a  c o n s o l i d a t e d  d i s t r i c t  shall 
b e  d e c l a r e d  t o  h a v e  f a i l e d  r e g a r d l e s s  o f  t h e  v o t e  t h e r e o n  i f  t h e  p r o p o s i t i o n  t o  increase 
t h e  l i m i t a t i o n  o n  t a x e s  f o r  t h e  d e b t  l e w ,  t h e  p r o p o s i t i o n  t o  a s s u m e  s u c h  b o n d e d  in­
d e b t e d n e s s  o r  t h e  p r o p o s i t i o n  t o  i n c r e a s e  t h e  l i m i t a t i o n  o n  t a x e s  o f  t h e  c o n s o lid a te :, 

s c h o o l  d i s t r i c t  f o r  o p e r a t i n g  p u r p o s e s  w a s  n o t  a p p r o v e d  a t  s a i d  e l e c t i o n .

A pproval of m unicipal finance com m ission; form of request for increase of
debt limits and consolidation.
T h e  a p p r o v a l  o f  d i e  m u n i c i p a l  f i n a n c e  c o m m i s s i o n  t o  t h e  s u f f i c i e n c y  o f  th e  pro­

p o s e d  i n c r e a s e  i n  t h e  l i m i t a t i o n  o n  t a x e s  s h a l l  f i r s t  b e  s e c u r e d  b e f o r e  t h e  p e tit io n s  are 
c i r c u l a t e d  w i t h i n  t h e  d i s t r i c t s  t o  b e  c o n s o l i d a t e d .  W h e n e v e r  t h e  e l e c t o r s  a p p ro v e  3 
c o n s o l i d a t i o n  a n d  a n  i n c r e a s e  i n  t h e  l i m i t a t i o n  o f  t a x e s  a n d  t h e  a s s u m p t i o n  o f tie 
b o n d e d  i n d e b t e d n e s s  o f  1  o r  m o r e  o f  t h e  o r i g i n a l  d i s t r i c t s  a s  h e r e i n  p r o v i d e d ,  th e  con­
s o l i d a t e d  d i s t r i c t  s h a l l  a s s u m e  t h e  o b l i g a t i o n  o f  s u c h  b o n d e d  i n d e b t e d n e s s  a n a  sM 
p a y  t h e  s a m e  b y  s p r e a d i n g  a  d e b t  r e t i r e m e n t  t a x  u n i f o r m l y  o v e r  t h e  t e r r i t o r y  of t n 
c o n s o l i d a t e d  d i s t r i c t ,  a n d  t h e  p r o v i s i o n s  o f  s e c t i o n  4 1 3  o f  t h i s  a c t  s h a l l  a p p l y  relative to 
s u c h  l e v y ,  t h e  c o n t i n u i n g  o b l i g a t i o n s  o f  s u c h  o r i g i n a l  d i s t r i c t  o r  d i s t r i c t s ,  a n d  th e  r ig 's  
a n d  r e m e d i e s  o f  a n y  b o n d h o l d e r .  T h e  r e q u e s t  f o r  i n c l u d i n g  t h e  q u e s t i o n  o f  increasin', 

t h e  c o n s t i t u t i o n a l  l i m i t a t i o n  o n  t a x e s  o f  t h e  c o n s o l i d a t e d  s c h o o l  d i s t r i c t  f o r  t h e  p u r p *  
o f  p r o v i d i n g  a  d e b t  l e v y  f o r  t h e  b o n d e d  i n d e b t e d n e s s  i n c u r r e d  a f t e r  December 
1 9 3 2 .  o f  1 o r  m o r e  o f  t h e  d i s t r i c t s  t o  b e c o m e  p a r t  o f  t h e  c o n s o l i d a t i o n  a n d  f o r  assmn 
i n g  s u c h  b o n d e d  i n d e b t e d n e s s  b y  t h e  c o n s o l i d a t e d  d i s t r i c t  s h a l l  b e  s t a t e d  o n  th e  F   ̂
t i o n  a f t e r  t h e  n a m e s  o f  t h e  s c h o o l  d i s t r i c t s  t o  b e  c o n s o l i d a t e d ,  a s  s e t  f o r t h  in  sec if' 

4 0 3  o f  t h i s  a c t ,  i n  s u b s t a n t i a l l y  t h e  f o l l o w i n g  f o r m :



43aa

“ W e  p e t i t i o n  t h a t  t h e  q u e s t i o n  o f  i n c r e a s i n g  t h e  c o n s t i t u t i o n a l  l i m i t a t i o n  o n  t a x e s  
w h ic h  m a y  b e  a s s e s s e d  a g a i n s t  a l l  p r o p e r t y  i n  t h e  c o n s o l i d a t e d  s c h o o l  d i s t r i c t  t o  b e
fo rm e d  a s h e r e i n  p e t i t i o n e d  b e  i n c r e a s e d  b y  ............................. m i l l s  f o r  a  p e r i o d  o f  ................................
years, 1 9 . . . .  t o  1 9 . . . . ,  i n c l u s i v e ,  f o r  t h e  p u r p o s e  o f  p a y i n g  t h e  b o n d e d  i n d e b t e d n e s s  o f

(N a m e  o f  S c h o o l  D i s t r i c t  o r  D i s t r i c t s )

and t h e  q u e s t i o n  o f  a s s u m i n g  a n d  p a y i n g  s u c h  b o n d e d  i n d e b t e d n e s s  b y  t h e  p r o p o s e d  
c o n s o lid a te d  d i s t r i c t ,  a n d

W e  f u r t h e r  p e t i t i o n  t h a t  t h e  q u e s t i o n  o f  i n c r e a s i n g  t h e  c o n s t i t u t i o n a l  l i m i t a t i o n  o n  
taxes w h i c h  m a y  b e  a s s e s s e d  a g a i n s t  a l l  p r o p e r t y  i n  t h e  c o n s o l i d a t e d  s c h o o l  d i s t r i c t  t o
be f o r m e d  a s  h e r e i n  p e t i t i o n e d  b e  i n c r e a s e d  b y  ......................... m i l l s  f o r  a  p e r i o d  o f  .......................
years, 1 9 . . . .  t o  1 9 . . . . ,  i n c l u s i v e ,  f o r  o p e r a t i n g  p u r p o s e s ,  b e  s u b m i t t e d  t o  t h e  e l e c t o r s  a t  
the s a m e  e l e c t i o n  i n  w h i c h  t h e  q u e s t i o n  o f  c o n s o l i d a t i n g  t h e  a b o v e  d i s t r i c t s  is  s u b m i t ­
te d .”

HISTORY: New 1955, p. 536, Act 269, Eff. Jul. 1 Am. 1963, p. 438, Act 248, tod. Eff. Jun. 13.

340.414b Consolidated district; increase of constitutional debt limits, a s ­
sumption of outstanding bonded indebtedness; petition.

S e c . 4 1 4 b .  W h e n  t h e  c o u n t y  s u p e r i n t e n d e n t  o f  s c h o o l s  s h a l l  f i n d  t h a t  a l l  t h e  r e ­
quests i n  w r i t i n g  o r  t h e  r e s o l u t i o n s  o f  t h e  b o a r d  o r  b o a r d s  w h i c h  h e  h a s  r e c e i v e d  u n d e r  
the p r o v i s i o n s  o f  s e c t i o n  4 0 2  o f  t h i s  a c t  r e q u e s t  t h a t  t h e  p r o v i s i o n s  o f  s e c t i o n  4 1 4  b e  i n ­
clu de d w i t h  t h e  q u e s t i o n  o f  c o n s o l i d a t i o n ,  t h e n  t h e  c o u n t s '  s u p e r i n t e n d e n t  o f  s c h o o l s  
shall c a u s e  t o  h a v e  t h e  p e t i t i o n s  p r o v i d e d  i n  s e c t i o n  4 0 3  i n c l u d e  t h e s e  p r o v i s i o n s .

HISTORY: Add. 1956, p. 463. Act 215, tad. Elf. May 1.

340.415 Consolidated districts; bonded debt of original district not subject 
to tax limitation, approval by school tax  elector.

S e c . 4 1 5 .  T h e  a u t h o r i t y  a n d  p r o c e d u r e s  p r e s c r i b e d  i n  t h i s  c h a p i t e r  f o r  t h e  a s s u m p ­
tion o f  b o n d e d  i n d e b t e d n e s s  o f  d i s t r i c t s  p r o p o s i n g  c o n s o l i d a t i o n  s h a l l  a p p l y  t o  t h e  a s ­
s u m p tio n  b y  t h e  c o n s o l i d a t e d  d i s t r i c t  o f  a n y  b o n d e d  d e b t  o f  t h e  o r i g i n a l  d i s t r i c t s  
' '  lic h  is n o t  s u b j e c t  t o  t h e  c o n s t i t u t i o n a l  l i m i t a t i o n  o n  t a x e s :  P r o v i d e d ,  h o w e v e r ,  T h a t  
V® <f u e s f ' o n  o f  i n c r e a s i n g  t h e  t a x  l i m i t a t i o n  i n  r e s p e c t  t o  s u c h  u n l i m i t e d  t a x  b o n d e d  

e it s h a ll n o t  b e  i n c l u d e d  i n  t h e  p e t i t i o n s  f o r  c o n s o l i d a t i o n ,  n o r  s h a l l  t h e  s c h o o l  d e c ­
ors b e  r e q u i r e d  t o  a p p r o v e  a n  i n c r e a s e  i n  t h e  t a x  l i m i t a t i o n  i n  r e s p e c t  t o  s u c h  d e b t .

e a s s u m p t i o n  o f  s u c h  u n l i m i t e d  t a x  b o n d e d  d e b t  s h a l l  b e  a p p r o v e d  b y  t h e  s c h o o l  t a x  
s e c to r s  a t t h e  t i m e  o f  t h e  c o n s o l i d a t i o n  e l e c t i o n  o r  a t  a n y  t i m e  a f t e r  3  y e a r s  f o l l o w i n g
the c o n s o l i d a t i o n . . .

HISTORY: Add. 1956, p. 463, Act 215, Imd. EH. May 1.

C H A P T E R  6 .

B O A R D S  O F  E D U C A T I O N ;  T E R M S  O F  O F F I C E ;  E L I G I B I L I T Y ;  
A C C E P T A N C E ;  V A C A N C I E S ;  F I L L I N G  O F  V A C A N C I E S .

40.491 Board of education; m em bers, term  of office.
on n ' 4!9 1 ' ^e r m s  ° f  o f f i c e  o f  a l l  m e m b e r s  o f  b o a r d s  o f  e d u c a t i o n  s h a l l  c o m m e n c e  

history. a i K * c o n t l m i e  u n t i l  t h e i r  s u c c e s s o r s  a r e  e l e c t e d  a n d  q u a l i f i e d .
■ New 1955, p, 543, Act 269. Eff. Jul. 1;—Am. 1961, p. 30, Act 29. Imd. Eff. Mav 12.



44aa

C H A P T E R  9 .

B O A R D S  O F  E D U C A T I O N — G E N E R A L  P O W E R S  A N D  D U T I E S .

340.561 Board of education; public m eetings, record, tem porary officers.
S e c .  5 6 1 .  A l l  b u s i n e s s  w h i c h  t h e  b o a r d  o f  a n y  d i s t r i c t  is  a u t h o r i z e d  t o  p e r f o r m  shall 

b e  d o n e  a t  a  p u b l i c  m e e t i n g  o f  t h e  b o a r d  a n d  n o  a c t  s h a l l  b e  v a l i d  u n l e s s  v o t e d  at a 
m e e t i n g  o f  t h e  b o a r d  b y  a  m a j o r i t y  v o t e  o f  t h e  m e m b e r s  e l e c t  o f  t h e  b o a r d  and a 
p r o p e r  r e c o r d  m a d e  o f  t h e  v o t e .  A  m e e t i n g  i n  w h i c h  a l l  m e m b e r s  a r e  p r e s e n t ,  w ith  or 
w i t h o u t  p r o p e r  n o t i c e ,  s h a l l  b e  c o n s i d e r e d  a  l e g a l  m e e t i n g  f o r  t h e  t r a n s a c t i o n  o f  busi­
n e s s . M e e t i n g s  o f  t h e  b o a r d  s h a l l  b e  p u b l i c  m e e t i n g s  a n d  n o  p e r s o n  s h a l l  b e  excluded 
t h e r e f r o m .  T h e  b o a r d  m a y  h o l d  e x e c u t i v e  s e s s i o n s , b u t  n o  f i n a l  a c t i o n  s h a l l  b e  ta k e n  at 
a n y  e x e c u t i v e  s e s s i o n . T h e  m i n u t e s  o f  a l l  b o a r d  m e e t i n g s  m u s t  b e  s i g n e d  b y  t h e  secre­
t a r y .  I n  t h e  a b s e n c e  o f  t h e  s e c r e t a r y  i n  a n y  m e e t i n g ,  t h e  p r e s i d e n t  s h a l l  a p p o i n t  a  tem­
p o r a r y  s e c r e t a r y  w h o  s h a l l  s i g n  t h e  m i n u t e s  o f  t h e  m e e t i n g .  I n  t h e  a b s e n c e  o f  t h e  presi­
d e n t ,  t h e  o t h e r  m e m b e r s  p r e s e n t  s h a l l  e l e c t  a  t e m p o r a r y  p r e s i d e n t .

. HISTORY: New 1955, p. 549, Act 269, Eff. Jul. 1;—Am. 1959, p. 355, Act 240, Eff. Mar. 19, I960;—Am. 1961, p. 257, Act 181, EH. Sep.8.

3 40 .56 2  Board of education; public records, inspection.
S e c .  5 6 2 .  T h e  b o a r d  o f  e v e r y  d i s t r i c t  s h a l l  p u r c h a s e  a  r e c o r d  b o o k  a n d  s u c h  other 

b o o k s ,  b l a n k s  a n d  s t a t i o n e r y  a s  m a y  b e  n e c e s s a r y  t o  k e e p  a  r e c o r d  o f  t h e  p ro c e e d in g s 
o f  t h e  b o a r d ,  t h e  a c c o u n t s  o f  t h e  t r e a s u r e r ,  a n d  f o r  d o i n g  t h e  b u s i n e s s  o f  t h e  d is tr ic t  in 
a n  o r d e r l y  m a n n e r .  A l l  r e c o r d s  o f  t h e  b o a r d  s h a l l  b e  p u b l i c  r e c o r d s  a n d  s u b j e c t  to  in­
s p e c t i o n  u n d e r  s e c t i o n  7 5 0 . 4 9 2  o f  t h e  C o m p i l e d  L a w s  o f  1 9 4 8 .

HISTORY: New 1955, p. 550, Act 269, Eff. Jul. 1;—Am. 1959, p. 355, Act 240, Eff. Mar. 19, 1960.

3 4 0 .56 3  Board of education; ta x e s , levy .
S e c .  5 6 3 .  T h e  b o a r d  o f  e v e r y  d i s t r i c t  s h a l l  v o t e  t o  l e v y  s u c h  t a x e s  a s  m a y  b e  neces­

s a r y  f o r  a l l  s c h o o l  o p e r a t i n g  p u r p o s e s ,  w h i c h  s h a l l  i n c l u d e  b u t  n o t  b e  l i m i t e d  t o  school 
f u r n i s h i n g s  a n d  a l l  a p p u r t e n a n c e s ,  t h e  c a r e  o f  s c h o o l  p r o p e r t y  f o r  s u c h  a l t e r a t i o n s  as 
s h a l l  b e  n e c e s s a r y  t o  p l a c e  t h e  s c h o o l  h o u s e  i n  a  s a f e  a n d  s a n i t a r y  c o n d i t i o n ,  teachers 
a n d  e m p l o y e e s ’ w a g e s ,  w a t e r  s u p p l y ,  p r e m i u m  u p o n  i n d e m n i t y  b o n d  f o r  t h e  treasurer 
o f  t h e  d i s t r i c t ,  t u i t i o n  a n d  t r a n s p o r t a t i o n  o f  t h e  p u p i l s ,  r e c o r d  b o o k s  a n d  b l a n k s , and 
a l l  a p p a r a t u s ,  e q u i p m e n t  a n d  m a t e r i a l  w h i c h  m a y  b e  n e c e s s a r y  i n  o r d e r  t h a t  the 
s c h o o l s  m a y  b e  p r o p e r l y  m a n a g e d  a n d  m a i n t a i n e d ,  a n d  f o r  t h e  d e f i c i e n c i e s  i n  operat­
i n g  e x p e n s e s  f o r  t h e  p r e c e d i n g  y e a r ,  i f  a n y .

HISTORY: New 1955, p. 550, Act 269, EH. Jui. 1.

3 40 .56 4  Board of education; ta x e s ; se cre ta ry ’s certificate to clerks.
S e c .  5 6 4 .  T h e  s e c r e t a r y  o f  t h e  b o a r d  o f  e v e r y  s c h o o l  d i s t r i c t  s h a l l  f i l e  a  certified 

c o p y  o f  a  r e s o l u t i o n  o f  t h e  b o a r d  c e r t i f y i n g  t h e  t a x e s  t o  b e  l e v i e d  o n  t h e  t a x a b l e  prop­
e r t y '  w i t h i n  t h e  d i s t r i c t  a s  a p p r o v e d  b y  t h e  e l e c t o r s  o f  t h e  d i s t r i c t  o r  t h e  b o a r d  w i t h  the 
c i t y  a n d  t o w n s h i p  c l e r k  o f  e a c h  c i t y  a n d  t o w n s h i p  i n  w h i c h  t h e  t e r r i t o r y  o f  t h e  district 
is  s i t u a t e d  o n  o r  b e f o r e  S e p t e m b e r  1  o f  e a c h  y e a r  o r  w i t h i n  1 0  d a y s  a f t e r  t h e  annual 
m e e t i n g  i f  h e l d  i n  S e p t e m b e r .

HISTORY: New 1955. p. 550. Act 269. EH. Jul. 1;—Am. 1958, p. 48. Act 46, EH. Sep. 13;—Am. I960, p. 138, Act 123. Eff. Am; IT.



4 5 a a

340.566 Board of education; m oney, paym ent, use.
S e c . 5 6 6 . N o  m o n e y  r a i s e d  b y  t a x  s h a l l  b e  u s e d  f o r  a n y  o t h e r  p u r p o s e  t h a n  t h a t  f o r  

w h ic h  i t  w a s  r a i s e d  w i t h o u t  t h e  c o n s e n t  o f  a  m a j o r i t y  o f  t h e  s c h o o l  t a x  e l e c t o r s  o f  t h e  
d is tr ic t  v o t i n g  o n  t h e  q u e s t i o n  a t  a n  a n n u a l  o r  s p e c i a l  m e e t i n g  o r  e l e c t i o n ,  a n d  n o  

m o n e y s  r e c e i v e d  f r o m  t h e  p r i m a r y  s c h o o l  f u n d  s h a l l  b e  a p p r o p r i a t e d  f o r  a n y  o t h e r  u s e  
th a n  t h e  p a y m e n t  o f  t e a c h e r s ’  w a g e s ,  t u i t i o n  a n d  t r a n s p o r t a t i o n  o f  c h i l d r e n ,  a s  p r o ­

v id e d  b y  l a w .
HISTORY: New 1955. p. 550, Act 269, Eff. Jul. 1.

340.567 Board of education; borrow ing po w er, ta x  collection.
S e c . 5 6 7 .  T h e  b o a r d  o f  e d u c a t i o n  o f  a n y  d i s t r i c t  m a y  b o r r o w  m o n e y  i n  a n t i c i p a t i o n  

o f t h e  c o l l e c t i o n  o f  t a x e s  i n  a c c o r d a n c e  w i t h  A c t  N o .  2 0 2  o f  t h e  P u b l i c  A c t s  o f  1 9 4 3 ,  a s  
a m e n d e d , b e i n g  s e c t i o n s  1 3 1 . 1  t o  1 3 8 . 2 ,  i n c l u s i v e ,  o f  t h e  C o m p i l e d  L a w s  o f  1 9 4 8 ,  i n  
fo rc e  o r  a s  t h e  s a m e  m a y  h e r e a f t e r  b e  a m e n d e d .

HISTORY. New 1955, p. 550, Act 269, Eff. Jul. I.

340.567a Board of education; borrow ing pow ers; school operation ; re p a y ­
ments; notes, issuance, due dates, interest, lim itations; certificate of a p ­
proval; valid ity of note.

S e c . 5 6 7 a .  S u b j e c t  t o  t h e  r e s t r i c t i o n s  p r e s c r i b e d  i n  t h i s  s e c t i o n ,  t h e  b o a r d  o f  e d u c a ­
tio n  o f  a n y  s c h o o l  d i s t r i c t  m a y  b o r r o w  m o n e y  a n d  i s s u e  i t s  n o t e  o r  n o t e s  t h e r e f o r ,  f o r  
th e  p u r p o s e  o f  s e c u r i n g  f u n d s  f o r  s c h o o l  o p e r a t i o n s  o r  f o r  t h e  p a y m e n t  o f  p r e v i o u s  
lo a ns m a d e  f o r  s c h o o l  o p e r a t i o n s  u n d e r  t h i s  o r  a n y  o t h e r  s t a t u t e ,  a n d  f o r  t h e  p a y m e n t  
o f t h e  n o t e  o r  n o t e s  h e r e u n d e r  s h a l l  p l e d g e  m o n e y s  t o  b e  r e c e i v e d  b y  i t  f r o m  t h e  s t a t e  
sc h o o l a i d  f u n d .  A n y  s u c h  n o t e s  s h a l l  b e  t h e  f u l l  f a i t h  a n d  c r e d i t  o b l i g a t i o n s  o f  t h e  
sc h o o l d i s t r i c t  a n d  s h a l l  b e  p a y a b l e  f r o m  t a x  l e v i e s  o r  f r o m  a n y  u n e n c u m b e r e d  f u n d s  
o f t h e  s c h o o l  d i s t r i c t  i n  e v e n t  o f  t h e  u n a v a i l a b i l i t y  o r  i n s u f f i c i e n c y  o f  s t a t e  a i d  f u n d s  
fo r a n y  r e a s o n , i n c l u d i n g  t h e  i n v a l i d i t y  o f  a n y  s t a t u t e  p e r t a i n i n g  t h e r e t o .  N o t e s  i s s u e d  
u n d e r  t h i s  s e c t i o n  s h a l l  b e c o m e  d u e  o n  o r  b e f o r e  S e p t e m b e r  1  i m m e d i a t e l y  f o l l o w i n g  
th e  fis c a l y e a r  i n  w h i c h  t h e y  a r e  i s s u e d ,  e x c e p t  a s  h e r e i n a f t e r  p r o v i d e d .  N o t e s  f r o m  
tim e  t o  t i m e  i s s u e d  i n  a n v  f i s c a l  y e a r  s h a l l  n o t  e x c e e d  1 0 0 %  o f  t h e  d i f f e r e n c e  b e t w e e n  
the t o t a l  s t a t e  a i d  f u n d s  a p p o r t i o n e d  t o  t h e  s c h o o l  d i s t r i c t  f o r  s u c h  f i s c a l  y e a r  a n d  t h e  
p o r tio n  t h e r e o f  a l r e a d y  r e c e i v e d  o r  p l e d g e d ,  p r o v  i d e d  t h a t  d u r i n g  t h e  l a s t  3  m o n t h s  o f  
u n v fis c a l  y e a r  a d d i t i o n a l  n o t e s  m a y  b e  i s s u e d  p l e d g i n g  s t a t e  a i d  f u n d s  f o r  t h e  n e x t  f i s ­
cal y e a r . S u c h  a d d i t i o n a l  n o t e s  s h a l l  n o t  e x c e e d  1 5 %  o f  t h e  s t a t e  a i d  f u n d s  a p p o r t i o n e d  
to  t h e  s c h o o l  d i s t r i c t  f o r  t h e  n e x t  f i s c a l  y e a r  o r  i f  s u c h  a p p o r t i o n m e n t  h a s  n o t  y e t  b e e n  
m a d e , t h e n  1 5 %  o f  t h e  a p p o r t i o n m e n t  f o r  t h e  t h e n  c u r r e n t  f i s c a l  y e a r ,  w h i c h  a d d i ­
tio n a l n o t e s  s h a l l  m a t u r e  n o t  l a t e r  t h a n  N o v e m b e r  1  i m m e d i a t e l y  f o l l o w i n g  t h e i r  is ­
s u a n c e . N o t e s  i s s u e d  u n d e r  t h i s  s e c t i o n  s h a l l  b e a r  i n t e r e s t  a t  n o t  t o  e x c e e d  6 %  p e r  a n ­
n u m  a n d  m a y  b e  m a d e  r e d e e m a b l e  p r i o r  t o  m a t u r i t y  o n  s u c h  t e r m s  a n d  c o n d i t i o n s  a s  
shall b e  p r o v i d e d  i n  t h e  n o t e s .  T h e  i s s u a n c e  o f  n o t e s  u n d e r  t h i s  a c t  s h a l l  n o t  b e  s u b j e c t  
t0  l* ' e  p r o v i s i o n s  o f  A c t  N o .  2 0 2  o f  t h e  P u b l i c  A c t s  o f  1 9 4 3 ,  a s  a m e n d e d ,  b e i n g  s e c t i o n s  
h l b l  t o  1 3 8 . 2  o f  t h e  C o m p i l e d  L a w s  o f  1 9 4 8 .  N o  n o t e s  s h a l l  b e  i s s u e d  f o r  b o r r o w i n g  
u n d e r  t h e  p r o v i s i o n s  o f  t h i s  a c t  w i t h o u t  t h e  p r i o r  a p p r o v a l  o f  t h e  s u p e r i n t e n d e n t  o f  
p u b lic  i n s t r u c t i o n ,  f o r  w h i c h  a p p r o v a l  a p p l i c a t i o n  s h a l l  b e  m a d e  b y  t h e  s c h o o l  d i s t r i c t .



46aa

T h e  s u p e r i n t e n d e n t  o f  p u b l i c  i n s t r u c t i o n  s h a l l  i s s u e  a  c e r t i f i c a t e  o f  a p p r o v a l  w k  a 
s h a l l  s h o w  t h e  a m o u n t  f i x e d  a s  t h e  s t a t e  a p p r o p r i a t i o n  a l l o c a t e d  t o  t h e  s c h o o l distil j 
f o r  t h e  p r e s e n t  a n d ,  i f  a p p l i c a b l e ,  f o r  t h e  n e x t  s u c c e e d i n g  f i s c a l  y e a r  a n d  a n y  payment! r 
d i s t r i b u t e d  t o  t h e  s c h o o l  d i s t r i c t  p r i o r  t o  t h e  d a t e  o f  t h e  c e r t i f i c a t e .  T h e  f a ilu r e  of ■  1 
s c h o o l  d i s t r i c t  t o  r e c e i v e  a n y  s t a t e  a p p r o p r i a t i o n  s h a l l  n o t  a f f e c t  t h e  v a l i d i t y  or eii ] 
f o r c e a b i l i t y  o f  a n y  n o t e  i s s u e d  u n d e r  t h i s  s e c t i o n .  A  s c h o o l  d i s t r i c t  m a y  m a k e  m en 
t h a n  1  b o r r o w i n g  u n d e r  t h i s  s e c t i o n  d u r i n g  a n y  s c h o o l  y e a r .  N o  s c h o o l  d is tric t s k i  , 
c o n t e s t  t h e  v a l i d i t y  o f  a n y  n o t e  i s s u e d  b y  i t  u n d e r  t h i s  s e c t i o n  i f  i t  h a s  r e c e i v e d  permis­
s i o n  f r o m  t h e  s u p e r i n t e n d e n t  o f  p u b l i c  i n s t r u c t i o n  t o  i s s u e  t h e  s a m e  a n d  h a s  received 
t h e  p r i n c i p a l  a m o u n t  o f  t h e  n o t e .  N o  s c h o o l  d i s t r i c t  s h a l l  m a k e  a n y  n e w  b o r r o w in g  un­
d e r  s e c t i o n  2 6  o f  A c t  N o .  3 1 2  o f  t h e  P u b l i c  A c t s  o f  1 9 5 7 ,  a s  a m e n d e d ,  b e i n g  section 
3 8 8 . 6 3 6  o f  t h e  C o m p i l e d  L a w s  o f  1 9 4 8 ,  w h i l e  t h i s  s e c t i o n  is  i n  e f f e c t .

HISTORY: Add 1968, p. 556. Act 31C, EH. Nov. 15;—Am. 1969, p. 296, Act 146, Imd. EH. Jul. 31.

3 4 0 .5 6 9  Teacher’s contracts; contents, filing, term ination.
S e c .  5 6 9 .  T h e  b o a r d  o f  e v e r y  d i s t r i c t  s h a l l  h i r e  a n d  c o n t r a c t  w i t h  s u c h  d u l y  qualified 

t e a c h e r s  a s  m a y  b e  r e q u i r e d .  A l l  c o n t r a c t s  w i t h  t e a c h e r s  s h a l l  b e  i n  w r i t i n g  a n d  signed 
b y  a  m a j o r i t y  o f  t h e  b o a r d  i n  b e h a l f  o f  t h e  d i s t r i c t ,  o r  b y  t h e  p r e s i d e n t  a n d  secretary 
o r  b y  t h e  s u p e r i n t e n d e n t  o f  s c h o o l s  o r  h i s  d e s i g n e e  w h e n  s o  d i r e c t e d  a t  a  m eeting of 
t h e  b o a r d .  T h e  c o n t r a c t s  s h a l l  s p e c i f y  t h e  w a g e s  a g r e e d  u p o n  a n d  i n  p r i m a r y  school 
d i s t r i c t s  s h a l l  r e q u i r e  t h e  t e a c h e r  t o  k e e p  a  c o r r e c t  l i s t  o f  t h e  p u p i l s ,  g r a d i n g  and the 
a g e  o f  e a c h ,  a t t e n d i n g  t h e  s c h o o l ,  a n d  t h e  n u m b e r  o f  d a y s  e a c h  p u p i l  is  p re s e n t, the 
a g g r e g a t e  a t t e n d a n c e  a n d  p e r c e n t a g e  o f  a t t e n d a n c e ,  a n d  t o  f i l e  t h e  s a m e  w i t h  the s»-' 
p e r i n t e n d e n t  o f  t h e  i n t e r m e d i a t e  d i s t r i c t  a n d  a  t r u e  c o p y  t h e r e o f  w i t h  t h e  secretary o. 
t h e  b o a r d  a t  t h e  e n d  o f  t h e  s c h o o l  y e a r ,  a n d  n o  t e a c h e r  s h a l l  b e  e n t i t l e d  t o  receive his 
l a s t  p a y m e n t  f o r  h i s  s e r v i c e s  u n t i l  t h e  r e p o r t  s h a l l  b e  f i l e d .  T h e  c o n t r a c t  s h a ll  be filed 
w i t h  t h e  s e c r e t a r y  a n d  a  d u p l i c a t e  c o p y  o f  t h e  c o n t r a c t  s h a l l  b e  f u r n i s h e d  to the 
t e a c h e r .  N o  c o n t r a c t  w i t h  a n y  p e r s o n  s h a l l  b e  v a l i d  u n l e s s  s u c h  p e r s o n  shall h o ld  a le­
g a l  c e r t i f i c a t e  o f  q u a l i f i c a t i o n  a t  t h e  t i m e  t h e  c o n t r a c t u a l  p e r i o d  s h a l l  b e g i n , and all 
s u c h  c o n t r a c t s  s h a l l  t e r m i n a t e  i f  t h e  c e r t i f i c a t e  s h a l l  e x p i r e  b y  l i m i t a t i o n  a n d  shall not 
i m m e d i a t e l y  b e  r e n e w e d ,  o r  i t  s h a l l  b e  s u s p e n d e d  o r  r e v o k e d  b y  p r o p e r  le g a l author 
i t y .  A n y  b o a r d  a f t e r  a  t e a c h e r  h a s  b e e n  e m p l o y e d  a t  l e a s t  2  c o n s e c u t i v e  y e a r s  b y  the 
b o a r d  m a y  e n t e r  i n t o  a  c o n t i n u i n g  c o n t r a c t  w i t h  s u c h  t e a c h e r  i f  t h e  t e a c h e r  holds a 
p e r m a n e n t  o r  l i f e  c e r t i f i c a t e .  A  c o n t i n u i n g  c o n t r a c t  i s  a  c o n t r a c t  w h i c h  s h a ll  reman in 
f u l l  f o r c e  a n d  e f f e c t ,  a s  p r o v i d e d  i n  t h e  r u l e s  a n d  r e g u l a t i o n s  o f  t h e  b o a r d ,  u n til t e 

t e a c h e r  r e s i g n s , e l e c t s  t o  r e t i r e ,  is  r e t i r e d ,  o r  is  d i s m i s s e d  f o r  r e a s o n a b l e  a n d  jus t cause 

a f t e r  a  f a i r  h e a r i n g .
HISTORY: New 1955, p. Sol. Act 269, EH. Jul. 1;—Am. 1965, p. 15, Act 14, EH. Mar. 31, 1966.

3 4 0 .5 6 9 a  Purchase of annuity , contract; payro ll deduction, retroactive e
feet.

S e c .  5 6 9 a .  A t  t h e  r e q u e s t  o f  a n  e m p l o y e e  a n d  a s  p a r t  o f  h i s  c o m p e n s a t i o n  arrange  ̂
m e n t ,  t h e  b o a r d  o f  e d u c a t i o n  o f  a n y  s c h o o l  d i s t r i c t  m a y  p u r c h a s e  a n  a n n u i t y  con ra 
f o r  a n  e m p l o y e e  f o r  r e t i r e m e n t  o r  o t h e r  p u r p o s e s  a n d  m a y  m a k e  p a y r o l l  allocations^ 
a c c o r d a n c e  w i t h  s u c h  a r r a n g e m e n t  f o r  t h e  p u r p o s e  o f  p a y i n g  t h e  e n t i r e  p r e m iu m  ^  
a n d  t o  b e c o m e  d u e  u n d e r  t h e  a n n u i t y  c o n t r a c t .  T h e  a l l o c a t i o n  s h a l l  b e  m a a e  in  a m 
n e r  w h i c h  w i l l  q u a l i f y  t h e  a n n u i t y  p r e m i u m s ,  o r  a  p o r t i o n  t h e r e o f ,  f o r  t h e  b e n e  1 

f o r d e d  u n d e r  s e c t i o n  4 0 3  ( b )  o f  t h e  c u r r e n t  f e d e r a l  i n t e r n a l  r e v e n u e  c o d e  o r  a n y  
a l e n t  p r o v i s i o n  o f  s u b s e q u e n t  f e d e r a l  i n c o m e  t a x  l a w .  T h e  e m p l o y e e  s h a ll  o w n  j



47aa

annuity contract and his rights thereunder shall be nonforfeitable except for failure to 
pay premiums. The board of education shall have no liability thereunder because of its 
purchase of any annuity contracts. This section shall be applied in a nondiscriminatory 
manner to employees of the school district. Its effect shall be retroactive to October 1, 
1961. .

HISTORY: Add. 1963, p. 440, Act 248, Imd. Eff. Jun. 13.

340.569b Teachers’ contracts; term ination; substitution of new  contract, e f­
fect.
Sec. 569b. At any time, the board of any district, by agreement between the board 

and a teacher or by agreement between the board and any organization representing 
the teacher in accordance with Act No. 176 of the Public Acts of 1939, as amended, 
being sections 423.1 to 423.30 of the Compiled Laws of 1948, may terminate an exist­
ing contract for the services of the teacher and substitute a new contract which pro­
vides an increased benefit to the teacher. The new contract shall be binding without 
regard to any preexisting duties or obligations of either the school board or the teacher 
under the first contract.

HISTORY: Add 1966, p. 106, Act 82, EH. Mar. 10, 1967.

340.569c School building principals; em ploym ent; duties.
Sec. 569c. Boards of education may employ an administrator or administrators, usu­

ally called building principals, and who shall:
(a) Supervise the operation and management of the school or schools and property 

as the board determines for the building principals.
(b) Be assigned administrative responsibilities and coordinate instructional leader­

ship, under the supervision of the superintendent, for the planning, management, op­
eration and evaluation of the educational program and services.

(c) Submit recommendations to the superintendent for the appointment, assign­
ment, promotion or dismissal of all personnel assigned to his supervision.

HISTORY: Add. 1970, p. 661, Act 246, Imd. Eff. Dec. 30.

340.573 Superintendent of schools; qualifications, w a iv er.
Sec. 573. Before any person may be employed as a superintendent of schools of any 

school district, he shall possess at least an earned bachelor’s degree from a college ac­
ceptable to the state board of education and be the possessor of or be eligible for a 
teachers certificate or have educational qualifications equivalent thereto in accord- 
mice with standards determined by the state board of education: Provided, That said 
state board may waive the requirements of this section for any person employed as su­
perintendent of schools for the school year 1951-1952, and subsequent years while he 
continues in such capacity for the same school district.

HISTORY: New 1955, p. 552, Act 269, Eff. Jul.l.

Assistants, em p lo yees; duties, com pensation.
c- °74. Every board may employ such assistants and employees as may be neces- 

prescribe their duties and fix their compensation.
1UST0M:Newl955.p 552,Ac.269,Eff.Jul.l. .



48aa

340.575 Length of school term; determination, minimum; certification; de­
duction of state aid; rules.
Sec. 575. The board of every district shall determine the length of the school term. 

The minimum number of days of student instruction shall be not less than 180. Any 
district failing to hold 180 days of student instruction shall forfeit 1 / 180th of its total 
state aid appropriation for each day of such failure. Not later than August 1, the board 
of every district shall certify to the department of education the number of days of stu­
dent instruction in the previous school year. If the district did not hold at least 180 
days of student instruction, the deduction of state aid shall be made in the following 
fiscal year from the first payment of state aid. Days lost because of strikes or teachers 
conferences shall not be counted as a day of student instruction. The state board of ed­
ucation shall establish rules for the implementation of this section.

HISTORY: New 1955, p. 552, Act 269, Eff. Jul. 1;—Am. 1967, p. 351, Act 237, Eff. Nov. 2:—Am. 1970, p. 165, Act 72, Imd. Eff. jui. 12,

340.576 Sites, buildings; purchase, lease.
Sec. 576. No board shall build a stone or brick schoolhouse upon any site without 

first having obtained title in fee to the same, or a lease for a period of not less than 99 
years, or unless it shall have obtained a lease for a period of not less than 50 years from 
the United States government or the state of Michigan, or a political subdivision 
thereof; nor shall any board build a frame schoolhouse on any site for which it does 
not have a title in fee or a lease for 50 years without securing the privilege of removing 
the schoolhouse.

HISTORY: New 1955, p. 552, Act 269, EH. Jul. 1.

340.576a Building sites; urban renewal program.
Sec. 576a. The board of any school district may become a participating member 

with other units of government and spend building and site funds for the purpose of 
acquiring a schoolhouse site or an addition of territory to a schoolhouse site through an 
urban renewal program.

HISTORY: Add. 1962, p. 100, Act 111, Imd. EH. Apr. 30.

340.576b Real and personal property acquisition; restriction. [M.S.A.
15.3576(2)] f
Sec. 576b. (1) The board of any school district, including any district

governed by any special or local act, may acquire any real or personal property 
for use for school purposes by purchase, land contract, lease, with or without 
option to purchase, or title retaining contract. Any such district may pay for 
the same out of any funds of the district which are or may become lawfully 
available for these purposes. The outstanding balance of all such acquisitions, 
exclusive of interest, shall not exceed 114% of the equalized assessed value of 
real and personal property in such school district.

340.576c Equipment; purchase, rental; paym ent; contract.
Sec. 576c. The board of any school district, including any school district governe 

by any special or local act, may acquire by purchase, lease or rental, with or withou 
option to purchase, any equipment necessary for the operation of the school program, 
including heating, water heating and cooking equipment for school buildings, and mav 
pay for such equipment from operating hinds of the district. All heating and coo 
equipment may be purchased on title retaining contracts, chattel mortgages, or ot 
form of agreement creating a security interest and pledging in payment moneys in 1 
general fund or funds received from the state for aid in support of the public schoo
Such contracts shall not be entered into or issued for a longer period than 10 years.

HISTORY: Add. 1965, p. +41. Art 263, Imd. EH. Jul. 21:—Add. 1965, p. 739, Art 375, Imd. EH. Jul. 23;—Am. 1967, p. 15 7 , Act '* 
EH. Jun. 27.

126. Inxl



49aa

340.578 School p ro p erly ; custody, p reservation ; school m anagem ent; 
rules, regulations.
Sec. 578. Every board shall have the general care and custody of the schools and 

property of the district and make and enforce suitable rules and regulations for the 
general management of the schools and the preservation of the property of the district.

HISTORY: New 1955, p. 553, Act 269, EH. Jul. 1.

340.582 Nonresident pupils; tuition, per capita cost.
Sec. 582. The board of any district may admit to the district school nonresident pu­

pils and shall determine the rates of tuition of such pupils and shall collect the same. 
Tuition for grades kindergarten to 6, inclusive, shall not exceed 25% more than the op­
eration cost per capita for the number of pupils in membership in grades kindergarten 
to 12, inclusive. Tuition for grades 7 to 12, inclusive, shall not exceed 12 V2% more 
than 115% of the operation cost per capita for the number of pupils in membership in 
grades kindergarten to 12, inclusive. In districts not maintaining grades above grade 8, 
the tuition shall not exceed 25% more than the operation cost per capita for the num­
ber of pupils in membership in grades kindergarten to 8, inclusive. The operation costs 
and membership so used shall be those of the preceding fiscal year. The per capita 
cost herein referred to shall not be interpreted to include moneys expended for school 
sites, school building construction, equipment, payment of bonds, or such other pur­
poses as shall be determined by the superintendent of public instruction not properly 
included in operation costs.

HISTORY: New 1955, p. 553, Act 269, Eff. Jul. 1;—Am. 1958, p. 235, Aet 195, Elf. Sep. 13.

340.583 G rades, schools, departm ents; courses of study.
Sec. 583. Every board shall establish and carry on such grades, schools and depart­

ments as it shall deem necessary or desirable for the maintenance and improvement of 
the schools; determine the courses of study to be pursued and cause the pupils attend­
ing school in such district to be taught in such schools or departments as it may deem 
expedient: Provided, That a primary district shall not operate any grades above the 
eighth.

HISTORY: New 1955, p. 554, Act 269, Efl. Jul. 1.

340.589 Attendance a reas .
Sec. 589. Every board is authorized to establish attendance areas within the school 

district.
HISTORY: New 1955, p. 554, Act 269, Elf. Jul. 1.



50aa

340 .59 4  Buses; purchase, pledge of state a id , regulations.
S e c .  5 9 4 .  T h e  b o a r d  o f  a n y  d i s t r i c t  f u r n i s h i n g  t r a n s p o r t a t i o n  m a y  p u r c h a s e  buses on 

t i t l e - r e t a i n i n g  c o n t r a c t s  o r  b y  t h e  i s s u a n c e  o f  o b l i g a t i o n s  o f  t h e  d i s t r i c t  t h e r e f o r ,  pledg­
i n g  i n  p a y m e n t  m o n e y s  i n  t h e  g e n e r a l  f u n d  o r  f u n d s  r e c e i v e d  f r o m  t h e  s t a t e  f o r  aid in 
t h e  s u p p o r t  o f  t h e  p u b l i c  s c h o o l s :  P r o v i d e d ,  T h a t  s u c h  o b l i g a t i o n s  i s s u e d  f o r  th is  pur­
p o s e  s h a l l  n o t  b e  i s s u e d  f o r  a  l o n g e r  t i m e  t h a n  t h e  e s t i m a t e d  p e r i o d  o f  u s e f u l n e s s  o f the 
b u s e s  f o r  w h i c h  i s s u e d ,  a s  d e t e r m i n e d  b y  t h e  b o a r d ,  a n d  i n  n o  e v e n t  f o r  a  lo n g e r pe­

r i o d  t h a n  6  y e a r s .
HISTORY: New 1955, p. .553. Act 263, EH. Jul. 1.

3 40 .60 5  Scholarships; educational purposes; gifts, custodian, bond.
S e c .  6 0 5 .  T h e  b o a r d  o f  a n y  s c h o o l  d i s t r i c t ,  e x c e p t  a  p r i m a r y  s c h o o l  d i s t r i c t ,  is hereby 

a u t h o r i z e d  t o  r e c e i v e ,  b y  a s s i g n m e n t ,  c o n v e y a n c e ,  g i f t ,  d e v i s e  o r  b e q u e s t ,  a n y  real or 
p e r s o n a l  p r o p e r t y  o r  a n y  i n t e r e s t  t h e r e i n ,  f o r  u s e  i n  m a i n t a i n i n g  s c h o l a r s h i p s  or for 
o t h e r  e d u c a t i o n a l  p u r p o s e s ,  a n d  s u c h  b o a r d  m a y  a c t  a s  t r u s t e e  o r  c u s t o d i a n  o f  such 
p r o p e r t y .  S u c h  p r o p e r t y  s h a l l  b e  u s e d  b y  t h e  b o a r d  s o l e l y  f o r  t h e  e d u c a t i o n a l  purposes 
f o r  w h i c h  i t  w a s  a s s i g n e d ,  c o n v e y e d ,  g i v e n ,  d e v i s e d  o r  b e q u e a t h e d , ,  w h e t h e r  b y  wayol 
t r u s t  o r  o t h e r w i s e .  T h e  t r e a s u r e r  o f  t h e  b o a r d  is  a u t h o r i z e d ,  w h e n  r e q u i r e d ,  to  give 
b o n d  t o  i n s u r e  p r o p e r  a d m i n i s t r a t i o n  o f  s u c h  p r o p e r t y .

HISTORY. New 1955, p. 557. Act 26!), Eft. Jul. 1.

3 4 0 .6 0 9  Board of education; attorney , em ploym ent.
S e c .  6 0 9 .  T h e  b o a r d  s h a l l  h a v e  a u t h o r i t y  t o  e m p l o y  a n  a t t o r n e y  t o  r e p r e s e n t  the 

s c h o o l  d i s t r i c t  o r  b o a r d  i n  a l l  s u i t s  b r o u g h t  f o r  o r  a g a i n s t  t h e  d i s t r i c t ,  a n d  t o  render 
s u c h  o t h e r  l e g a l  s e r v i c e  a s  m a y  b e  f o r  t h e  w e l f a r e  o f  t h e  s c h o o l  d i s t r i c t .

HISTORY: New 1955. p. 557, Act 269. Eff. Jul I.

3 4 0 . 6 1 3  E x p u l s i o n s  o f  c h i l d r e n ;  h a n d i c a p p e d ,  e v a l u a t i n g .  [ M . S . A .
1 5 . 3 6 1 3 ]

S e c .  6 1 3 .  T h e  b o a r d  m a y  a u t h o r i z e  o r  o r d e r  t h e  s u s p e n s i o n  o r  e x p u l ­
s i o n  f r o m  s c h o o l  o f  a  p u p i l  g u i l t y  o f  g r o s s  m i s d e m e a n o r  o r  p e r s i s t e n t  d is­
o b e d i e n c e  w h e n  i n  i t s  j u d g m e n t  t h e  i n t e r e s t s  o f  t h e  s c h o o l  m a y  d e m a n d  
i t .  I f  t h e r e  is  r e a s o n a b l e  c a u s e  t o  b e l i e v e  t h a t  t h e  p u p i l  is  h a n d i c a p p e d ,  
a n d  t h e  l o c a l  s c h o o l  d i s t r i c t  h a s  n o t  e v a l u a t e d  t h e  p u p i l  i n  a c c o r d a n c e  w it h  
r u l e s  o f  t h e  s t a t e  b o a r d ,  t h e  p u p i l  s h a l l  b e  e v a l u a t e d  i m m e d i a t e l y  b y  th e  
i n t e r m e d i a t e  d i s t r i c t  o f  w h i c h  t h e  l o c a l  s c h o o l  d i s t r i c t  i s  c o n s t i t u e n t  in 
a c c o r d a n c e  w i t h  s e c t i o n  2 9 8 c .



53aa

388.173 Regional boards; size; qualifications; election ; term. [M .S.A .
15.2298(3)]

Sec. 3. In each regional district there shall be elected 9 members to the regional board. 
No person shall be elected who is not a resident of the regional district from which he
is elected. The members shall be nominated and elected by the registered and qualified
electors of each district as is provided by law for the nomination and election of first 
class school board members except that signatures required on nominating petitions shall 
be not less than 500 nor more than 1,000. The members shall be elected for terms of 4
years. Except that of the members elected at the general election in 1970 the 5 members
receiving the highest number of votes shall be elected for a term of 4 years and the 4 
members receiving the next highest number of votes shall be elected for a term of 2 years.

388.174 First class district board, powers. [M .S.A . 15.2298(4)]
Sec. 4. The first class school district board shall retain all the powers and duties now 

possessed by a first class school district except for those given to a regional school district 
board under the provisions of this act.

388.175 Regional board, powers. [M .S.A . 15.2298(5)]
Sec. 5. Effective upon the commencement of its term of office, the regional school 

district board, subject to guidelines established by the first class district board, shall have 
the power to:

(1) Employ and discharge a superintendent for the regional school district from a list 
°r lists of candidates submitted by the district board.

(2) Employ and discharge, assign and promote all teachers and other employees of the 
regional school district, subject to review by the first class school district board, which may 
overrule, modify or affirm the action of the regional district board.

(3) Determine the curriculum, use of educational facilities and establishment of educa­
tional and testing programs in the regional school district.

(4) Determine the budget for the regional school district based upon the allocation of 
funds received from the first class school district board.

388.176 Employee rights. [M .S.A . 15.2298(6)]
Sec. 6. The rights of retirement, tenure, seniority and of any other benefits of any 

employee transferred to a regional school district or between regional school districts from 
e first class district shall not be abrogated, diminished or impaired.

388.177 First class district board, functions. [M .S.A . 15.2298(7)]
Sec. 7. The first class school district board shall perform the following functions for

t e regional school d istric ts:
(0  Central purchasing.
(2) Payroll.

, ^  Contract negotiations for all employees, subject to the provisions of Act No. 336 
Law 6 f ^CtS as amended, being sections 423.201 to 423.216 of the Compiled

s of 1948, and subject to any bargaining certification and to the provisions of any 
Active bargaining agreement pertaining to affected employees.
; ' Property management and maintenance.
(5) Bonding.
(6) Special education programs.
/ J  Allocation of funds for capital outlay and operations to each regional school district.

or before November 1, 1970, establish guidelines for the implementation of the 
provisions of section 5.



54aa

1970 PA 48 , amending 1969 PA 244

388.171a First class school d istrict; board o f education, composition
[M .S.A . 15.2298 (la ) ]
Sec. la. On or after January 1, 1971, in any first class school district with more than 

100,000 student membership, the board membership of the board of education shall be 
composed of 8 members determined and elected as provided in section 2a plus 5 membas 
determined and elected as provided in section 3a.

388.172a Regions, description, approval; boundary com m ission; redetermina-1
tion. [M .S.A . 15.2298 (2a)]
Sec. 2a. Immediately following the effective date of this 1970 amendatory act or any 

date on which a school district becomes a first class school district. 8 regions shall bt 
described in each such first class school district by resolution concurred in by three-fourths 
of the members elected and serving in each house of the legislature and such regions si 
described shall be established as regions if and when approved by the superintendent ol 
public instruction. If a concurrent resolution shall not be approved by three-fourths ol 
such .members within 7 days of the effective date of this amendatory act cr within 30 day; 
of any date on which a school district becomes a first class school district a first das; 
district boundary commission consisting of 3 members appointed by the governor shall 
determine the boundary lines of such regions within 21 days thereafter if in 1970 or w ithin  
30 days thereafter if in any later year. The members of the commission shall receive) 
compensation of $100.00 per diem per member from the funds appropriated to the dt- 
partment of education. The boundary lines of such regions shall be redetermined by Hit 
respective boards of such first class school districts following each federal decennial census 
but in no event later than April 15 of the first odd numbered year in which regional 
board members are to be elected following the federal decennial census. In the event ol 
the failure of such respective boards of such first class school districts to redetermine suet 
regional boundary lines by such April 15. the state board of education shall convene w ith in  
10 days , to make such redetermination and such redetermination of the state board ol 
education shall be the regional boundary lines until the redetermination is made following > 
the next succeeding federal decennial census as provided in this section.. Regions shall lit 1, 
as compact, contiguous and nearly equal in population as practicable.

Regional board ; s iz e ; e lection ; qualification ; term.
Within each region, there shall be a regional board consisting of 5 members. Tl® 

members shall be nominated and elected by the registered and qualified electors of each 
district as is provided by law for the. nomination and election of first class school board  ̂
members except that signatures required on nominating petitions shall be not less than 500 
nor more than 1,000. Any candidate properly filed for any educational position in any 
first class school district as of the effective date of this act shall be considered as a 
qualified candidate under sections 2a and 3a for the 1970 election provided such candidate 
makes a request, designation and selection to the election officer empowered by law w 
accept nominating petitions for such office. No person shall be elected who is not a 
resident of the region from which he is elected. The members shall be elected in I ( 
general election to be held in November, 1970 and November of 1973 and every 2 yea[! 
thereafter commencing in 1975.



55aa

Election; chairman; vacancy.
In the year 1970 regional board members shall be elected in the November general 

election and candidates for such office shall not be subject to the primary election. In 1970 
a person may qualify as a candidate for the election for regional board member by filing 
the required number of signatures on or prior to 4 p.m., August 18, 1970. In 1970 signa­
tures of registered electors of the first class district shall be valid without regard to the 
place of residence of such registered elector. In any year the candidate for regional board 
member receiving the highest number of votes in each region in the November general 
election shall be chairman of the regional board and a member of the board of education 
of his first class school district during his term of office. In case a vacancy occurs for any 
reason in the combined position of chairman of the regional board and member of the first 
class school district board of education, the regional board member who received the next 
highest number of votes in the preceding general election shall assume such combined 
position. The number of members of each regional board shall be maintained at 5 and 
vacancies shall be filled from among residents of the region by the remaining board mem­
bers of such region by a majority vote of those serving. No vacancies shall be filled later 
than 60 days prior to a primary election at which regional board members are to be 
nominated. The 5 regional board members elected in each region shall commence their 
terms of office on January 1 following the election and the members shall serve until their 
successors are elected and qualified.

388.173a District board; at large members. [M .S.A . 15.2298(3a)]
Sec. 3a. Effective January 1. 1971 there shall be S members on the boards of first 

class school districts elected at large. Members of such boards shall be nominated and 
elected at the primary and general elections of 1972 and 1974 for 3-year terms commencing 
on January 1 of the subsequent odd numbered year, 2 each to be elected in 1972 and 1974. 
In the year 1970 1 board member shall be elected in the November general election for a 
3-year term commencing January 1, 1971 and candidates shall not be subject to the primary 
election. In 1970 a person may qualify as a candidate for the election for first class school 
district board member by filing nominating petitions containing not less than 500 nor more 
than 1,000 valid signatures on or before 4 p.m., August 18. 1970. Commencing in 1973 and 
m aH subsequent odd numbered years, a number of board members equivalent to the 
number of members whose terms expire on December 31 of such year will be nominated and 
elected at the primary and general election. Such members so elected shall serve 2-year 
terms commencing on January 1 of the subsequent even numbered year. To accomplish 
the provisions of this amendatory act the terms of office of any first class district board 
members whose terms expire prior to December 31, 1971 shall expire December 31. 1970; 
the terms of office of such board members whose terms expire between January 1, 1972 
and December 31, 1973 shall expire December 31. 1972 and the terms of office of such 
hoard members whose terms expire between January 1. 1974 and December 31. 1975 shall 
expire December 31, 1 9 7 4 .

Officers; recall petitions; term of office .
In any year in which one or more board members of a first class district are commencing 

a term of office on January 1 the board of such first class district shall redetermine its



56aa

selection of officers during the month of January of such year. Petitions to recali a® 
member or members of the board of education of a first class school district filed and 
pending before this act becomes effective, or becomes operative in a school district that 
hereafter becomes a first class school district, may. be withdrawn by the person or organiza­
tion filing or sponsoring such recall petitions within 10 days after this act becomes effective 
or 20 days after the act becomes operative in any school district that hereafter becomes i 
first class school district. Board members of first class school districts who are recalled in 
accordance with law may be candidates for the same office at the next election for such 
office at which the recalled member is otherwise eligible. In the case of any school districl 
that hereafter becomes a first class school district, the term of office of each of the board 
members then serving in such school district shall expire on the next succeeding December 
31 of an odd numbered year, provided however that if the school district becomes! 
first class school district later than April 1 of an odd numbered year, the term of office 
of each of its board members shall expire on December 31 of the next succeeding odd 
numbered year later than the year in which the district became a first class school districl. 
For any district becoming a first class district S school board members shall be elected 
in the general election of the odd numbered year in which such terms of office expire . 
and the S school board members so elected shall commence 2-vear terms on January I 
of the even numbered year following such general election.

Vacancies.
In case a vacancy occurs for any reason on the first class district board such vacancy 

shall be filled by majority vote of all persons serving as regional board and first clas 
district board members at a meeting called by the president of the first class district board 
for such purpose. No vacancies shall be filled later than 60 days prior to a primary' 
election at which first class district board members are to be nominated. Vacancies whicn 
shall occur prior to the effective date of this act or have occurred in 1970. shall be filled for 
a term ending December 31. 1972, in the same manner as provided in this section forth 
election of board members at large in the year 1970 and such positions shall then be filled 
in the primary and general election of 1972 for a 3-year term. In 1970 the candidate 
receiving the highest number of votes shall be elected for the 3-year term and the candidates ' 
receiving the next highest number of votes shall be elected for 2-year terms to fill vacancies.

388.174 Regional board, qualifications, residency. [M .S.A . 15.2298(4)]
Sec. 4. A candidate for a regional board must be 21 years of age at the time of

filing and must reside in the region in which he becomes a candidate. If his legal residence 
is moved.from the region during his term of office, it shall constitute a vacating of office

388.175 District board, powers. [M .S.A . 15.2298(5)]
Sec. 5. The first class school district board shall retain all the powers and duties non 

possessed by a first class school district except for those given to a regional board under tie 
provisions of this act and such other functions as are delegated to the regional boards b) 
the first class school district board.

388.176 Regional board, powers. [M .S.A . 15.2298(6)]
Sec. 6. Effective upon the commencement of its term of office, the regional board 

subject to guidelines established by the first class district board, shall have the power to:
(1) Employ a superintendent for the schools in the region from a list or lists o 

candidates submitted by the first class district board and to discharge any such regional 
superintendent.



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(2) Employ and discharge, assign and promote all teachers and other employees of the 
region and schools therein subject to review by the first class school district board, which 
may overrule, modify or affirm the action of the regional board.

(3) Determine the curriculum, use of educational facilities and establishment of edu­
cational and testing programs in the region and schools therein.

(4) Determine the budget for the region and schools therein based upon the allocation 
of funds received from the first class school district board.

388.177 Employee rights. [M .S.A . 15.2298(7)]
Sec. 7. The rights of retirement, tenure, seniority and of any other benefits of any 

employee transferred to a region or schools therein from the first class district or trans­
ferred between regions shall not be abrogated, diminished or impaired.

388.178 District board, functions. [M .S.A . 15.2298(8)]
Sec. 8. The first class school district board shall perform the following functions for 

the regions and schools therein:
(1) Central purchasing.
(2) Payroll.
(3) Contract negotiations for all employees, subject to the provisions of Act No. 336 

of the Public Acts of 1947, as amended, being sections 423.201 to 423.216 of the Compiled 
Laws of 1948, and subject to any bargaining certification and to the provisions of any 
collective bargaining agreement pertaining to affected employees.

(4) Property management and maintenance.
, (5) Bonding.

(6) Special education programs.
(7) Allocation of funds for capital outlay and operations for each region and schools 

therein.
(8) Establish or modify guidelines for the implementation of the provisions of 

section 6. Such guidelines shall include but not be limited to the determination and specifi­
cation of each regional board’s jurisdiction and may provide for regional board’s jurisdiction 
wer schools not geographically located within their respective regions.

088.179 .Facilities and accommodations, selection ; employees.
[M.S.A. 15.2298(9)]
Sec. 9. Facilities and accommodations provided by the first class school district board 

°c regional boards shall be selected with due consideration for accessibility, economy and 
u 1 ization of existing facilities. Employees assigned by the first class school district board 
0 regional boards at the time of commencement of their functions shall be drawn, to the 
R ent feasible, from persons employed at such time by the first class school district.

388.180 Board members, compensation. [M .S.A . 15.2298(10)]
êc' Regional board members shall be paid a per diem allowance of $20.00 for each 

e mg of their board attended and first class district board members shall be paid a per 
such * °Wance $30.00 for each meeting of their board attended, but in neither case shall 

payments be for meetings in excess of 52 meetings per annum. The chairman of each 
c ,°na .rĉ  sha11 f*e Pa’d for up to 52 regional board meetings attended and up to 52 

” c ass district board meetings attended.

388;181 fnitiative and referendum. [M .S.A . 15.2298(11)]
wTh c*ass sc^°°[ districts with 100.000 student membership or more shall

«.•e, Same r‘ghts for initiative petition and referendum now granted by law to second 
ancl third class districts.



58aa

388.182 Attendance provisions, implementation; conditions.
[M .S.A . 15.2298(12)]
Sec. 12. The implementation of any attendance provisions for the 1970-71 school year 

determined by any first class school district board shall be delayed pending the date of 
commencement of functions by the first class school district boards established under the 
provisions of this amendatory act but such provision shall not impair the right of any 
such board to determine and implement prior to such date such changes in attendance 
provisions as are mandated by practical necessity. In reviewing, confirming, establishing 
or modifying attendance provisions the first class school district boards established under 
the provisions of this amendatory' act shall have a policy of open enrollment and shall 
enable students to attend a school of preference but providing priority acceptance, insofar 
as practicable, in cases of insufficient school capacity, to those students residing nearest 
the school and to those students desiring to attend the school for participation in vocation­
ally oriented courses or other specialized curriculum.

388.183 Severability. [M .S.A . 15.2298(13)]
Sec. 13. If any portion of this act or the application thereof to any person or cir­

cumstance shall be found to be invalid by a court, such invalidity shall not affect the re­
maining portions or applications of this act which can be given effect without the invalid 
portion or application, and to this end this act is declared to be severable.

Repeal.
Section 2. Sections 1, 2 and 3 of Act No. 244 of the Public Acts of 1969, being sections i 

388.171, 388.172 and 388.173 of the Compiled Laws of 1948, are repealed.

A c t  2 8 9 , 1 9 6 4 ,  p .  5 8 4 ;  E f f .  A u g .  2 8 .

A N  A C T  t o  p r o v i d e  f o r  t h e  s t u d y  a n d  d e v e l o p m e n t  o f  p l a n s  f o r  t h e  r e o r g a n iz a tio n  
o f  s c h o o l  d i s t r i c t s  a n d  f o r  e l e c t i o n s  t o  a c c o m p l i s h  s a m e ;  t o  p r o v i d e  f o r  t h e  c r e a tio n  of 
s t a t e  a n d  i n t e r m e d i a t e  r e o r g a n i z a t i o n  c o m m i t t e e s ;  t o  p r e s c r i b e  t h e i r  p o w e r s  and 
d u t i e s ;  t o  p r o v i d e  f o r  h e a r i n g s  a n d  e l e c t i o n s  o n  r e o r g a n i z a t i o n  p l a n s ;  a n d  t o  prescribe 
t h e  p o w e r s  a n d  d u t i e s  o f  t h e  s u p e r i n t e n d e n t  o f  p u b l i c  i n s t r u c t i o n .

The People o f the State o f Michigan enact:

388.681 Reorganization of school districts; definitions.
S e c .  1 .  A s  u s e d  i n  t h i s  a c t :

( a )  “ R e o r g a n i z a t i o n  o f  s c h o o l  d i s t r i c t s ”  m e a n s  t h e  f o r m a t i o n  o f  n e w  s c h o o l  districts, 
t h e  a l t e r a t i o n  o f  b o u n d a r i e s  o f  e s t a b l i s h e d  s c h o o l  d i s t r i c t s ,  a n d  t h e  d i s s o l u t i o n  o r  disor­
g a n i z a t i o n  o f  e s t a b l i s h e d  s c h o o l  d i s t r i c t s  t h r o u g h  o r  b y  m e a n s  o f  a n y  o n e  o r  co m b in a­
t i o n  o f  t h e  m e t h o d s  a s  s e t  f o r t h  i n  t h i s  a c t .



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(b) “ S t a t e  c o m m i t t e e ”  m e a n s  t h e  s t a t e  c o m m i t t e e  f o r  t h e  r e o r g a n i z a t i o n  o f  s c h o o l  
districts c r e a t e d  i n  t h i s  a c t .

(c) “ I n t e r m e d i a t e  c o m m i t t e e ”  m e a n s  t h e  c o m m i t t e e  f o r  t h e  r e o r g a n i z a t i o n  o f  s c h o o l  
districts c r e a t e d  i n  t h i s  a c t .

(d) “ P l a n  o f  r e o r g a n i z a t i o n ”  m e a n s  a  c o n c r e t e  p r o p o s a l  f o r  r e a d j u s t m e n t  a n d  r e a ­
lig n m e n t o f  t h e  b o u n d a r i e s  o f  s c h o o l  d i s t r i c t s  w i t h i n  a n  i n t e r m e d i a t e  s c h o o l  d i s t r i c t  

area.

(e) “ N o n - h i g h  s c h o o l  d i s t r i c t ”  m e a n s  a  s c h o o l  d i s t r i c t  p r e s e n t l y  o p e r a t i n g  l e s s  t h a n  a  
k in d e r g a r t e n  t h r o u g h  t w e l f t h  g r a d e  p r o g r a m .

(f) “ S c h o o l  c o d e ”  m e a n s  A c t  N o .  2 6 9  o f  t h e  P u b l i c  A c t s  o f  1 9 5 5 ,  a s  a m e n d e d ,  b e i n g  
sections 3 4 0 . 1  t o  3 4 0 . 9 8 4  o f  t h e  C o m p i l e d  L a w s  o f  1 9 4 8 .

HISTORY: New 1964, p. 584, Act 289, Eff. Aug. 28.
CITED IN OTHER SECTIONS: Sections 358.681 to 388.693 are cited in 340.352a and 388.711.

388.682 State com m ittee for reorganization  of school districts; appoint­
ments, distribution; vacan cies, com pensation.

S e c . 2 .  T h e r e  is  c r e a t e d ,  f o r  t h e  t e r m  o f  t i m e  n e c e s s a r y  t o  c o m p l e t e  t h e  r e q u i r e ­
ments o f  t h i s  a c t ,  a  s t a t e  c o m m i t t e e  f o r  t h e  r e o r g a n i z a t i o n  o f  s c h o o l  d i s t r i c t s ,  a p ­
p o in te d  b y  t h e  g o v e r n o r ,  a n d  c o m p o s e d  o f  7  m e m b e r s ,  a t  l e a s t  1  o f  w h o m  s h a l l  r e p r e ­
sent t h e  U p p e r  P e n i n s u l a ,  1  t h e  a r e a  a b o v e  t h e  B a y  C i t y - M u s k e g o n  l i n e ,  a n d  5  s h a l l  b e  
a p p o in te d  i n  s u c h  m a n n e r  a s  t o  r e p r e s e n t  f a i r l y  t h e  r e m a i n d e r  o f  t h e  s t a t e .  T h e  s u p e r ­
in te n d e n t o f  p u b l i c  i n s t r u c t i o n  s h a l l  b e  t h e  n o n v o t i n g  c h a i r m a n  o f  t h e  c o m m i t t e e .  V a ­
cancies s h a l l  b e  f i l l e d  b y  a p p o i n t m e n t  o f  t h e  g o v e r n o r .  M e m b e r s  o f  t h e  s t a t e  c o m m i t ­
tee s h a ll s e r v e  w i t h o u t  c o m p e n s a t i o n .  T h e  m e m b e r s  o f  t h e  c o m m i t t e e  s h a l l  b e  
a p p o in te d  w i t h i n  6 0  d a y s  a f t e r  t h e  e f f e c t i v e  d a t e  o f  t h i s  a c t .

HISTORY: New 1964, p. 585, Act 289, EH. Aug. 28.

388.683 State reorganization  com m ittee; officers, records, m eetings, quo­
rum.

S ec. 3 .  W i t h i n  9 0  d a y s  a f t e r  t h e  e f f e c t i v e  d a t e  o f  t h i s  a c t ,  t h e  s t a t e  c o m m i t t e e  s h a l l  
o rg a n ize  b y  e l e c t i n g  a  v i c e - c h a i r m a n  a n d  a  s e c r e t a r y .  T h e  v i c e - c h a i r m a n  s h a l l  a c t  a s  
ch a irm a n  a t  t h e  r e q u e s t  o f  t h e  s u p e r i n t e n d e n t  o f  p u b l i c  i n s t r u c t i o n .  T h e  s e c r e t a r y  

. I* ^ e e P  t h e  r e c o r d s  o f  o f f i c i a l  c o m m i t t e e  m e e t i n g s  a n d  p r e p a r e  a n d  d i s t r i b u t e  m a t e ­
rials as r e q u e s t e d  b y  t i r e  s t a t e  c o m m i t t e e .  M e e t i n g s  o f  t h e  c o m m i t t e e  s h a l l  b e  h e l d  
opon t h e  c a l l  o f  t h e  c h a i r m a n  o r  a n y  3  o f  t h e  m e m b e r s  t h e r e o f .  F i v e  m e m b e r s ,  w h i c h  
may i n c l u d e  t h e  s u p e r i n t e n d e n t  o f  p u b l i c  i n s t r u c t i o n ,  c o n s t i t u t e  a  q u o r u m .

HISTORY: New 1964, p. 585. Act 289, EH. Aug. 28.

388.684 School district reorganization program; surveys, approval of pro­
posals, reports.

'*e c - 4 - T h e  s t a t e  c o m m i t t e e  s h a l l :

. (j*) W i t h i n  1 2  m o n t h s  a f t e r  t h e  e f f e c t i v e  d a t e  o f  t h i s  a c t ,  d e v e l o p  p o l i c i e s ,  p r i n c i p l e s  
,(jj P r o c e d u r e s  f o r  a  s t a t e w i d e  s c h o o l  d i s t r i c t  r e o r g a n i z a t i o n  p r o g r a m  p l a n n e d  s o  t h a t  
p  areas m a y  b e c o m e  p a r t  o f  a  s c h o o l  d i s t r i c t  o p e r a t i n g  o r  d e s i g n e d  t o  o p e r a t e  a t  l e a s t  

ibis', CS‘  n o  c a s e  c a n  a n  i n t e r m e d i a t e  d i s t r i c t  c o m m i t t e e  p l a n  b e  s u b m i t t e d  u n d e r  
W ^ l c ^  W 0 l , l (l  r e q u i r e  t h e  m e r g e r  o f  2  o r  m o r e  s c h o o l  d i s t r i c t s  o f  t h e  t h i r d  c l a s s  

'h  ' c r .  T h e r e  s h a l l  b e  c r e a t e d  n o  l e s s  t h a n  5 0 0  s c h o o l  d i s t r i c t s  o p e r a t i n g  1 2  g r a d e s .  

Irili' t /rCCt area s u r v e y s a n d  d e v e l o p  a  m a n u a l  o f  p r o c e d u r e  t o  b e  p r i n t e d  a n d  d i s -  
11 u > t o  a l l  i n t e r m e d i a t e  d i s t r i c t  s u p e r i n t e n d e n t s  o f  s c h o o l s .



60aa

( c )  P e r f o r m  e i t h e r  b v  i t s e l f  o r  b y  i t s  a u t h o r i z e d  r e p r e s e n t a t i v e  a n y  o r  a l l  o f  t h e  duties 
r e q u i r e d  b y  t h i s  a c t  t o  b e  p e r f o r m e d  b y  t h e  i n t e r m e d i a t e  s c h o o l  d i s t r i c t  su p e rin te n d - 
c ' i t ,  t h e  i n t e r m e d i a t e  d i s t r i c t  b o a r d  o f  e d u c a t i o n ,  t h e  i n t e r m e d i a t e  d i s t r i c t  co m m ittee, 
o r  t h e  p r o b a t e  j u d g e  o r  j u d g e s ,  i n  c a s e  o f  f a i l u r e  b y  a n y  o r  a l l  o f  t h e m  t o  p e r f o r m  these 
d u t i e s .

( d )  R e v i e w  a n d  a p p r o v e  o r  r e j e c t  i n t e r m e d i a t e  d i s t r i c t  p l a n s  w i t h i n  6 0  d a y s  a fte r re­
c e i p t  o f  p l a n s  f r o m  t h e  i n t e r m e d i a t e  d i s t r i c t  c o m m i t t e e s .

( e )  R e p o r t  t o  e a c h  i n t e r m e d i a t e  d i s t r i c t  t h e  a c c e p t a n c e  o r  r e j e c t i o n  o f  t h e  proposed 
p l a n s  w i t h  r e c o m m e n d a t i o n s  f o r  c h a n g e s .

( f )  P r e s e n t  a  p r o g r e s s  r e p o r t  o n  r e o r g a n i z a t i o n  u n d e r  t h i s  a c t  t o  t h e  s t a t e  legislature 
o n  o r  b e f o r e  M a r c h  1  o f  e a c h  y e a r .

HISTOHY: New 19&4, p. 585, Act 289, EH. Aug. 28.

388 .68 5  Interm ediate district com m ittee for reorgan ization  of school dis­
tricts; m em bership , election, vacan cies, organization .

S e c .  5 .  ( 1 )  A  c o m m i t t e e  s h a l l  b e  o r g a n i z e d  i n  e a c h  i n t e r m e d i a t e  d i s t r i c t  i n  th e  state 
t o  b e  k n o w n  a s  t h e  i n t e r m e d i a t e  d i s t r i c t  c o m m i t t e e  f o r  t h e  r e o r g a n i z a t i o n  o f  school 
d i s t r i c t s .  T h e  i n t e r m e d i a t e  d i s t r i c t  s u p e r i n t e n d e n t  o f  s c h o o l s  s h a l l  b e  n o n v o t i n g  chair­
m a n  o f  t h e  i n t e r m e d i a t e  d i s t r i c t  c o m m i t t e e ,  a n d  h e  s h a l l  p r e s i d e  o v e r  a l l  m e e tin g s  ol 
t f i e  i n t e r m e d i a t e  d i s t r i c t  c o m m i t t e e .  T h e  i n t e r m e d i a t e  d i s t r i c t  c o m m i t t e e  s h a ll com­
p l e t e  t h e  r e q u i r e m e n t s  o f  t h i s  a c t  a n d  c o m p l y  w i t h  t h e  r e q u e s t s  m a d e  b y  th e  state 
c o m m i t t e e .

T h e r e  s h a l l  b e  1 8  m e m b e r s  o n  t h e  i n t e r m e d i a t e  d i s t r i c t  c o m m i t t e e  e a c h  o f  whom 
s h a l l  b e  a  r e g i s t e r e d  r e s i d e n t  e l e c t o r .  I n  i n t e r m e d i a t e  d i s t r i c t s  c o n t a i n i n g  n o  district 
o p e r a t i n g  1 2  g r a d e s  o r  m o r e  a n d  i n  i n t e r m e d i a t e  d i s t r i c t s  c o n t a i n i n g  n o  non-high 
s c h o o l  d i s t r i c t s  t h e  c o m m i t t e e  s h a l l  c o n s i s t  o f  1 3  m e m b e r s .

( 2 )  M e m b e r s  o f  t h e  i n t e r m e d i a t e  d i s t r i c t  c o m m i t t e e  s h a l l  b e  c h o s e n  a s  f o l l o w s :

( a )  T h e  i n t e r m e d i a t e  b o a r d  o f  e d u c a t i o n  s h a l l  a p p o i n t  3  o f  i t s  m e m b e r s  t o  serve on 
t h e  c o m m i t t e e .

( b )  T h e  i n t e r m e d i a t e  d i s t r i c t  s u p e r i n t e n d e n t  o f  s c h o o l s ,  b y  n o t i c e  s e n t  b y  m a i l , shall 
c a l l  a  m e e t i n g  o f  t h e  b o a r d s  o f  e d u c a t i o n  o f  a l l  s c h o o l  d i s t r i c t s  o p e r a t i n g  a  p r o g r a m  ol 
1 2  g r a d e s  o r  m o r e  i n  t h e  i n t e r m e d i a t e  d i s t r i c t .  T h e  m e e t i n g  s h a l l  b e  h e l d  a t  s o m e  con­
v e n i e n t  p l a c e  w i t h i n  t h e  i n t e r m e d i a t e  d i s t r i c t  w i t h i n  6 0  d a y s  a f t e r  t h e  e f f e c t i v e  date of 
t h i s  a c t .  T h e  i n t e r m e d i a t e  d i s t r i c t  s u p e r i n t e n d e n t  s h a l l  a c t  a s  c h a i r m a n  o f  th is  meet­
i n g ,  a n d  t h e  b o a r d  m e m b e r s  s h a l l  e l e c t  b y  b a l l o t  5  p e r s o n s  t o  s e r v e  o n  t h e  in te rm e d iate  
d i s t r i c t  c o m m i t t e e  n o t  m o r e  t h a n  2  o f  w h o m  s h a l l  b e  f r o m  a n y  o n e  c o n s t i t u e n t  district, 
u n l e s s  t h e r e  a r e  f e w e r  d i s t r i c t s  t h a n  t h e r e  a r e  p o s i t i o n s  t o  f i l l .  T h e  5  p e r s o n s  receiving 
t h e  h i g h e s t  n u m b e r  o f  v o t e s  s h a l l  b e  d e c l a r e d  e l e c t e d .  N o  p e r s o n  m a y  b e  e le c te d  to or 
s e r v e  o n  t h e  c o m m i t t e e  w h o  is  a n  e m p l o y e e  o f  a n y  c o n s t i t u e n t  s c h o o l  d i s t r i c t  o r  of the 
i n t e r m e d i a t e  s c h o o l  d i s t r i c t .  T h e  c h a i r m a n  s h a l l  a p p o i n t  3  o r  m o r e  t e l l e r s  t o  conduct 
t h e  e l e c t i o n  a n d  t o  c a n v a s s  t h e  v o t e .  W h e n e v e r  n o t  m o r e  t h a n  2  o f  t h e  5  m e m b e r s  to 
t o  s e r v e  o n  t h e  c o m m i t t e e ,  t h e  r e m a i n i n g  m e m b e r s  s h a l l  f i l l  t h e  v a c a n c y  fr o m  »  
s a m e  c o n s t i t u e n t  d i s t r i c t  i n  w h i c h  t h e  v a c a n c y  o c c u r s .  W h e n e v e r  3  o r  m o r e  vacancies 
o c c u r  a t  t h e  s a m e  t i m e ,  t h e  v a c a n c i e s  s h a l l  b e  f i l l e d  i n  t h e  s a m e  m a n n e r  a s t h e  origins 
c o m m i t t e e  m e m b e r s  w e r e  e l e c t e d .



61aa

(c) T h e  i n t e r m e d i a t e  d i s t r i c t  s u p e r i n t e n d e n t  o f  s c h o o l s ,  b y  n o t i c e  s e n t  b y  m a i l ,  s h a l l  
call a m e e t i n g  o f  t h e  b o a r d s  o f  e d u c a t i o n  o f  a l l  s c h o o l  d i s t r i c t s  o p e r a t i n g  l e s s  t h a n  a  
tw e lv e -g ra d e  p r o g r a m  i n  t h e  i n t e r m e d i a t e  d i s t r i c t .  T h e  m e e t i n g  s h a l l  b e  h e l d  a t  s o m e  
co nvenient p l a c e  w i t h i n  t h e  i n t e r m e d i a t e  d i s t r i c t  w i t h i n  6 0  d a y s  a f t e r  t h e  e f f e c t i v e  
date o f t h i s  a c t .  T h e  i n t e r m e d i a t e  d i s t r i c t  s u p e r i n t e n d e n t  s h a l l  a c t  a s  c h a i r m a n  o f  t h i s  
meeting, a n d  t h e  b o a r d  m e m b e r s  s h a l l  e l e c t  b y  b a l l o t  5  p e r s o n s  t o  s e r v e  o n  t h e  i n t e r ­
mediate d i s t r i c t  c o m m i t t e e  n o t  m o r e  t h a n  2  o f  w h o m  s h a l l  b e  f r o m  a n y  o n e  c o n s t i t u ­
ent d is tr ic t , u n l e s s  t h e r e  a r e  f e w e r  d i s t r i c t s  t h a n  t h e r e  a r e  p o s i t i o n s  t o  b e  f i l l e d .  T h e  5  
persons r e c e i v i n g  t h e  h i g h e s t  n u m b e r  o f  v o t e s  s h a l l  b e  d e c l a r e d  e l e c t e d .  N o  p e r s o n  
may b e  e l e c t e d  t o  o r  s e r v e  o n  t h e  c o m m i t t e e  w h o  is  a n  e m p l o y e e  o f  a n y  c o n s t i t u e n t  
school d i s t r i c t  o r  o f  t h e  i n t e r m e d i a t e  s c h o o l  d i s t r i c t .  T h e  c h a i r m a n  s h a l l  a p p o i n t  3  o r  
more te lle r s  t o  c o n d u c t  t h e  e l e c t i o n  a n d  t o  c a n v a s s  t h e  v o t e .  W h e n e v e r  n o t  m o r e  t h a n  

2 of th e  5  m e m b e r s  f a i l  t o  s e r v e  o n  t h e  c o m m i t t e e ,  t h e  r e m a i n i n g  m e m b e r s  s h a l l  f i l l  
the v a c a n c y  f r o m  t h e  s a m e  c o n s t i t u e n t  d i s t r i c t  i n  w h i c h  t h e  v a c a n c y  o c c u r s .  W h e n ­
ever 3 o r  m o r e  v a c a n c i e s  o c c u r  a t  t h e  s a m e  t i m e ,  t h e  v a c a n c i e s  s h a l l  b e  f i l l e d  i n  t h e  
same m a n n e r  a s  t h e  o r i g i n a l  c o m m i t t e e  m e m b e r s  w e r e  e l e c t e d .

(d) T h e  i n t e r m e d i a t e  d i s t r i c t  s u p e r i n t e n d e n t  o f  s c h o o l s ,  b y  n o t i c e  s e n t  b y  l e t t e r ,  
shall n o t i f y  t h e  p r o b a t e  j u d g e  o f  t h e  a r e a ,  w h o ,  w i t h i n  6 0  d a y s  a f t e r  t h e  e f f e c t i v e  d a t e  
of this a c t , s h a l l  a p p o i n t  5  m e m b e r s  t o  t h e  c o m m i t t e e  f a i r l y  r e p r e s e n t i n g  a l l  a r e a s  o f  
the i n t e r m e d i a t e  d i s t r i c t .  T h e  q u a l i f i c a t i o n s  o f  t h e s e  m e m b e r s  s h a l l  b e  t h e  s a m e  a s  
those o f  t h e  o t h e r  m e m b e r s  o f  t h e  c o m m i t t e e .  T h e  p r o b a t e  j u d g e  s h a l l  f i l l  a l l  v a c a n c i e s  
that m a y  o c c u r  a m o n g  h i s  a p p o i n t e e s .  I n  a n y  i n t e r m e d i a t e  d i s t r i c t  w h e r e  t h e r e  a r e  2  o r  
more p r o b a t e  j u d g e s  t h e  j u d g e s  a c t i n g  j o i n t l y  s h a l l  m a k e  t h e  a p p o i n t m e n t s .

(3) O r g a n i z a t i o n  o f  t h e  i n t e r m e d i a t e  d i s t r i c t  c o m m i t t e e  s h a l l  b e  c o m p l e t e d  i n  e a c h  
district w i t h i n  6  m o n t h s  a f t e r  t h e  e f f e c t i v e  d a t e  o f  t h i s  a c t .  I f  a n  i n t e r m e d i a t e  d i s t r i c t  
co m m itte e  h a s  n o t  b e e n  o r g a n i z e d  w i t h i n  6  m o n t h s ,  t h e  s t a t e  c o m m i t t e e  s h a l l  a p p o i n t  
the m e m b e r s  w i t h i n  6 0  d a y s  t h e r e a f t e r .  I n  w h i c h  e v e n t  t h e  s a m e  l i m i t a t i o n s  s h a l l  a p ­
ply as p r o v i d e d  i n  t h i s  s e c t i o n .

HISTORY: New 1964, p. 585, Act 289, Eft. Aug. 28. :

388.686 Interm ediate district reorganization com m ittee; m eetings, re ­
cords, district reorganization p lan , hearings, ap p ro va l, revision , d issolu­
tion of committee.

Sec. 6 . E a c h  i n t e r m e d i a t e  d i s t r i c t  c o m m i t t e e  s h a l l  e l e c t  a  s e c r e t a r y  w h o  s h a l l  k e e p  
fhe m in u te s  a n d  r e c o r d s  o f  a l l  o f f i c i a l  m e e t i n g s .  M e e t i n g s  s h a l l  b e  h e l d  u p o n  t h e  c a l l  o f  
the c h a i r m a n  o r  a n y  3  m e m b e r s  o f  t h e  c o m m i t t e e .  A  m a j o r i t y  o f  t h e  c o m m i t t e e  s h a l l  
constitute a  q u o r u m .  T h e  i n t e r m e d i a t e  d i s t r i c t  c o m m i t t e e  s h a l l  f o l l o w  t h e  p r o c e d u r e  
guide p r o v i d e d  b y  t h e  s t a t e  c o m m i t t e e  a n d  p r e p a r e  a  d i s t r i c t  r e o r g a n i z a t i o n  p l a n ,  
which s h a ll  b e  s u b m i t t e d  t o  t h e  s t a t e  c o m m i t t e e  f o r  i t s  a p p r o v a l  o r  d i s a p p r o v a l .  T h e  
P an sh a ll p r o v i d e  f o r  t h e  r e o r g a n i z a t i o n  o f  s c h o o l  d i s t r i c t s  w i t h i n  t h e  i n t e r m e d i a t e  d i s ­
trict so t h a t  a l l  a r e a s  o f  t h e  d i s t r i c t  m a y  b e c o m e  a  p a r t  o f  a  s c h o o l  d i s t r i c t  o p e r a t i n g  o r  

esig ne d t o  o p e r a t e  a t  l e a s t  1 2  g r a d e s ,.  T h e  i n t e r m e d i a t e  d i s t r i c t  c o m m i t t e e  s h a l l  h o l d  
least 1  p u b l i c  h e a r i n g  r e g a r d i n g  t h e  p l a n  b u t  m a y  h o l d  a s  m a n y  m o r e  a s  i t  d e e m s  

accessary. H e a r i n g s  s h a l l  b e  a d v e r t i s e d  b v  p u b l i c a t i o n  a t  l e a s t  o n c e  i n  a  n e w s p a p e r  o f  
hCneral c i r c u l a t i o n  i n  t h e  d i s t r i c t s  1 0  d a y s  o r  m o r e  b e f o r e  t h e  s c h e d u l e d  h e a r i n g .  T h e  
" ite r n ie d ia te  d i s t r i c t  p l a n  f o r  r e o r g a n i z a t i o n  s h a l l  b e  s u b m i t t e d  t o  t h e  s t a t e  c o m m i t t e e



62aa

f o r  i t s  c o n s i d e r a t i o n  w i t h i n  9  m o n t h s  a f t e r  r e c e i v i n g  t h e  m a n u a l  o f  p r o c e d u r e  f r o m  the 
s t a t e  c o m m i t t e e .  I f  t h e  i n t e r m e d i a t e  d i s t r i c t  p l a n  is  a p p r o v e d  b y  t h e  s t a t e  c o m m it te e , 
t h e  p l a n  s h a l l  b e  s u b m i t t e d  t o  t h e  e l e c t o r s  a s  p r o v i d e d  i n  s e c t i o n  7  o f  t h i s  a c t .  I f  an in­
t e r m e d i a t e  d i s t r i c t  p l a n  is  r e j e c t e d  b y  t h e  s t a t e  c o m m i t t e e ,  a  r e v i s e d  p l a n  s h a ll  be sub- 
r m t t e d  b y  t h e  i n t e r m e d i a t e  d i s t r i c t  c o m m i t t e e  w i t h i n  9 0  d a y s  a f t e r  r e c e i p t  o f  th e  rejec­
t i o n  o f  t h e  o r i g i n a l  p l a n .  I f  t h e  r e v i s e d  p l a n  is  n o t  a c c e p t e d  " b y  t h e  s t a t e  c o m m i t t e e , tie 
s t a t e  c o m m i t t e e  s h a l l  s u b m i t  a  p l a n  f o r  t h e  r e o r g a n i z a t i o n  o f  t h e  s c h o o l  d i s t r i c t s  in the 
i n t e r m e d i a t e  s c h o o l  d i s t r i c t  a n d  t h e  i n t e r m e d i a t e  c o m m i t t e e  s h a l l  a l s o  s u b m i t  a pllt 
f o r  t h e  r e o r g a n i z a t i o n  o f  t h e  s c h o o l  d i s t r i c t s  i n  t h e  i n t e r m e d i a t e  s c h o o l  d i s t r i c t .  Th e  in­
t e r m e d i a t e  s c h o o l  d i s t r i c t  b o a r d  s h a l l  s u b m i t  b o t h  p l a n s  t o  t h e  e l e c t o r s  o f  t h e  interme­
d i a t e  s c h o o l  d i s t r i c t  a n d  t h e  p l a n  r e c e i v i n g  t h e  l a r g e r  n u m b e r  o f  v o t e s  s h a l l  b e  submit­
t e d  t o  t h e  q u a l i f i e d  e l e c t o r s  o f  t h e  i n t e r m e d i a t e  s c h o o l  d i s t r i c t  i n  a c c o r d a n c e  w ith  the 
r e q u i r e m e n t s  o f  m e t h o d  2  p r o v i d e d  i n  s e c t i o n  7  o f  t h i s  a c t .  F o l l o w i n g  t h i s  e le c tio n , the 
i n t e r m e d i a t e  c o m m i t t e e  s h a l l  b e  d i s s o l v e d  a n d  t h e  r e q u i r e m e n t s  o f  t h i s  a c t  shall have 
b e e n  m e t  a n d  n o  f u r t h e r  p l a n s  s h a l l  b e  r e - s u b m i t t e d  f o r  5  y e a r s  b y  e i t h e r  th e  state 
c o m m i t t e e  o r  t h e  i n t e r m e d i a t e  d i s t r i c t .  T h e  i n t e r m e d i a t e  d i s t r i c t  c o m m i t t e e  shall also ! 
b e  d i s s o l v e d  o n  c o m p l e t i o n  a n d  a c c e p t a n c e  o f  t h e  p l a n  b y  t h e  s t a t e  c o m m i t t e e  and the 
v o t e  o r  v o t e s  o n  t h e  p l a n  b y  t h e  e l e c t o r s  o f  t h e  p r o p o s e d  s c h o o l  d i s t r i c t .

Ha STORY: New 1964, p. 586, Act 289, Eff. Aug. 28.

3 8 8 .6 8 7  Optional election m ethods for adoption of reorganization plans;
conduct.

S e c ,  7 .  N o t  l e s s  t h a n  9 0  d a y s  n o r  m o r e  t h a n  6  m o n t h s  f o l l o w i n g  a p p r o v a l  o f  a n  inter 
m e d i a t e  d i s t r i c t  p l a n  a s  p r o v i d e d  i n  s e c t i o n  6  o f  t h i s  a c t  e l e c t i o n s  s h a l l  b e  h e l d  accord­
i n g  t o  o n e  o f  2  m e t h o d s .  T h e  i n t e r m e d i a t e  d i s t r i c t  c o m m i t t e e  s h a l l  d e t e r m i n e  which 
e l e c t i o n  m e t h o d  s h a l l  b e  u s e d .

M e t h o d  1 .  T h e  e n t i r e  a r e a  e n c o m p a s s e d  b y  t h e  i n t e r m e d i a t e  d i s t r i c t  p l a n  shall vote
a s  a  u n i t  o n  t h e  q u e s t i o n :  “ S h a l l  t h e  a p p r o v e d  r e o r g a n i z a t i o n  p l a n  f o r  t h e ...................h
t e r m e d i a t e  d i s t r i c t  b e  a d o p t e d ?

Y e s  (  )

No()” \
I f  a  m a j o r i t y  o f  t h e  q u a l i f i e d  e l e c t o r s  p r e s e n t  a n d  v o t i n g  a p p r o v e  t h e  p l a n  i t  shall be 

d e c l a r e d  a d o p t e d  a n d  s h a l l  b e c o m e  e f f e c t i v e  t h r o u g h o u t  t h e  a r e a  o n  t h e  d a te  of the 
e l e c t i o n  i f  t h e  e l e c t i o n  is  h e l d  a f t e r  A p r i l  3 0  b u t  b e f o r e  S e p t e m b e r  1 .  T h e  effective 
d a t e  s h a l l  b e  J u l y  1  f o l l o w i n g  i f  t h e  e l e c t i o n  is  h e l d  a f t e r  A u g u s t  3 1  b u t  b e f o r e  M a y  1. j

M e t h o d  2 .  T h e  p r o p o s e d  d i s t r i c t s  p r o v i d e d  f o r  i n  t h e  a p p r o v e d  p l a n  s h a ll  vo te by 
p r o p o s e d  d i s t r i c t s  o n  t h e  q u e s t i o n :  “ S h a l l  t h e  a p p r o v e d  r e o r g a n i z a t i o n  p la n  f o r  a pro­
p o s e d  l o c a l  d i s t r i c t ...................... w i t h i n  t h e  i n t e r m e d i a t e  d i s t r i c t  o f .....................b e  a d o p t e d ?

Y e s  (  )

No( )”
I f  a  m a j o r i t y  o f  t h e  q u a l i f i e d  e l e c t o r s  p r e s e n t  a n d  v o t i n g  i n  a  p r o p o s e d  d is tric t ap­

p r o v e  t h e  p l a n  f o r  t h a t  p r o p o s e d  d i s t r i c t  i t  s h a l l  b e  d e c l a r e d  a d o p t e d  a n d  s h a ll  become 
e f f e c t i v e  t h r o u g h o u t  t h e  p r o p o s e d  d i s t r i c t  o n  t h e  d a t e  o f  t h e  e l e c t i o n  i f  t h e  election is 
h e l d  a f t e r  A p r i l  3 0  b u t  b e f o r e  S e p t e m b e r  1 .  T h e  e f f e c t i v e  d a t e  s h a l l  b e  J u l y  1 
i n g  i f  t h e  e l e c t i o n  is  h e l d  a f t e r  A u g u s t  3 1  b u t  b e f o r e  M a y  1 .



63aa

I f  e l e c t i o n  m e t h o d  n u m b e r  1  is  a d o p t e d  b y  t h e  i n t e r m e d i a t e  d i s t r i c t  c o m m i t t e e  a n d  
if the q u e s t i o n  v o t e d  o n  f a i l s  t o  o b t a i n  a n  a f f i r m a t i v e  m a j o r i t y ,  t h e n  a n o t h e r  e l e c t i o n  
using m e t h o d  n u m b e r  2  s h a l l  b e  h e l d  n o t  l e s s  t h a n  9 0  d a y s  n o r  m o r e  t h a n  6  m o n t h s  
a lte r°th e  d a t e  o f  t h e  f i r s t  e l e c t i o n .  T h e  r e s u l t s  o f  t h i s  e l e c t i o n  u s i n g  m e t h o d  n u m b e r  2  
shall b e  f i n a l  a n d  t h e  r e q u i r e m e n t s  o f  t h i s  a c t  s h a l l  h a v e  b e e n  m e t .

I f  t h e  i n t e r m e d i a t e  d i s t r i c t  p l a n  p r o v i d e s  t h a t  t h e  b o u n d a r i e s  o f  a n  e x i s t i n g  s c h o o l  
district s h a l l  r e m a i n  t h e  s a m e  s u c h  d i s t r i c t  s h a l l  n o t  p a r t i c i p a t e  i n  a n  e l e c t i o n  h e l d  u n ­

der e it h e r  m e t h o d  n u m b e r  1  o r  m e t h o d  n u m b e r  2 .

I f  t h e  e l e c t i o n  is  h e l d  u n d e r  m e t h o d  n u m b e r  1 ,  t h e  p l a n  t o  b e  v o t e d  o n  s h a l l  n o t  
cause a n  e x i s t i n g  s c h o o l  d i s t r i c t  t o  b e  d i v i d e d  b e t w e e n  2  i n t e r m e d i a t e  d i s t r i c t s  b u t  
p r o p e r ty  t r a n s f e r s  m a y  b e  m a d e  l a t e r  a c c o r d i n g  t o  t h e  p r o v i s i o n s  o f  c h a p t e r  5 ,  p a r t  2  
of th e  s c h o o l  c o d e .  T h e  p l a n  m a y  p r o v i d e  f o r  d i v i s i o n  o f  d i s t r i c t s  w i t h i n  a n  i n t e r m e d i ­

ate d i s t r i c t .

I f  a n d  w h e n  v o t i n g  m e t h o d  n u m b e r  2  is  u s e d ,  t h e  p l a n  s h a l l  n o t  c a u s e  a n  e x i s t i n g  
school d i s t r i c t  t o  b e  d i v i d e d  b e t w e e n  2  p r o p o s e d  l o c a l  d i s t r i c t s  w i t h i n  t h e  i n t e r m e d i a t e  
unit b u t  p r o p e r t y  t r a n s f e r s  m a y  b e  m a d e  l a t e r  a c c o r d i n g  t o  c h a p t e r  5 ,  p a r t  2  o f  t h e  

school c o d e .

N o  p r o p e r t y  t r a n s f e r s  s h a l l  b e  m a d e  a f t e r  t h e  a p p r o v a l  o f  t h e  i n t e r m e d i a t e  d i s t r i c t  
plan b y  t h e  s t a t e  c o m m i t t e e  u n t i l  a f t e r  t h e  e l e c t i o n s  p r o v i d e d  f o r  i n  t h i s  s e c t i o n  h a v e  

been h e l d .

T h e  q u e s t i o n  o f  a s s u m p t i o n  o f  b o n d e d  i n d e b t e d n e s s  s h a l l  n o t  b e  i n c l u d e d  i n  a n y  
election h e l d  u n d e r  t h e  p r o v i s i o n s  o f  t h i s  a c t  b u t  t h e  p r o v i s i o n s  o f  s e c t i o n s  4 1 2  a n d  4 1 3  

of th e  s c h o o l  c o d e  r e g a r d i n g  a s s u m p t i o n  o f  d e b t  s h a l l  a p p l y .

T h e  q u a l i f i c a t i o n s  o f  e l e c t o r s  s h a l l  b e  t h e  s a m e  a s  n o w  p r o v i d e d  i n  t h e  s t a t u t e s  f o i  
votes o n  c o n s o l i d a t i o n  a n d  a n n e x a t i o n  a n d  t h e  p r o v i s i o n s  o f  t h e  g e n e r a l  e l e c t i o n  l a w s  

shall a p p l y .

T h e  b o a r d  o f  e d u c a t i o n  o f  t h e  i n t e r m e d i a t e  s c h o o l  d i s t r i c t  s h a l l  c o n d u c t  t h e  e l e c t i o n  
or e le c tio n s  p r o v i d e d  f o r  i n  t h i s  s e c t i o n  a c c o r d i n g  t o  t h e  g e n e r a l  e l e c t i o n  l a w s  a n d  a c ­

co rd in g  t o  c h a p t e r s  7  a n d  8  o f  p a r t  2  o f  t h e  s c h o o l  c o d e .
HISTORY: New 1964, p. 587, Act 289, EH. Aug. 28.

388.688 Classification of districts form ed.
S e c . 8 . D i s t r i c t s  f o r m e d  u n d e r  t h e  p r o v i s i o n s  o f  t h i s  a c t  s h a l l  b e  c l a s s i f i e d  a s  s e c o n d ,  

third o r  f o u r t h  c l a s s  d i s t r i c t s  d e p e n d i n g  u p o n  t h e  s c h o o l  c e n s u s  a s  p r o v i d e d  f o r  i n  

c h a p te rs 3 ,  4  a n d  5 ,  p a r t  1  o f  t h e  s c h o o l  c o d e .
HISTORY: New 1964, p. 588, Act 289, EH. Aug. 28.

388.689 Consolidation, annexation  or division of districts.
S e c . 9 . A f t e r  t h e  e f f e c t i v e  d a t e  o f  t h i s  a c t ,  t h e  s u p e r i n t e n d e n t  o f  p u b l i c  i n s t r u c t i o n ,  

w h e n  r e q u e s t e d  t o  a p p r o v e  a  c o n s o l i d a t i o n ,  a n n e x a t i o n  o r  d i v i s i o n  o f  a  d i s t r i c t ,  s h a l l  
give c a r e f u l  c o n s i d e r a t i o n  t o  t h e  p r o g r e s s  o f  t h e  i m p l e m e n t a t i o n  o f  t h e  r e q u i r e m e n t s  
of th is a c t .

HISTORY: New 1964, p. 588, Act 289. Eff. Aug. 28.



64aa

3 88 .69 0  School aid ; apportionm ent.
S e c .  1 0 .  S c h o o l  d i s t r i c t s  f o r m e d  u n d e r  t h e  p r o v i s i o n s  o f  t h i s  a c t  s h a l l  b e  e n title d  to 

a n d  r e c e i v e  f i n a n c i a l  a i d  f r o m  t h e  s t a t e  i n  t h e  m a n n e r  p r o v i d e d  b y  l e g i s l a t i v e  appro­
p r i a t i o n  f o r  s c h o o l  a i d  p u r p o s e s  e x c e p t  t h a t  t h e  a p p o r t i o n m e n t s  o f  s t a t e  a i d  d u e  any 
s c h o o l  d i s t r i c t  f o r m e d  u n d e r  t h i s  a c t  i n  t h e  2  f i s c a l  y e a r s  n e x t  f o l l o w i n g  re o rg a n iza tio n  
s h a l l  n o t  b e  l e s s  t h a n  t h e  a g g r e g a t e  o f  s t a t e  a i d  w h i c h  w o u l d  h a v e  b e e n  d u e  propor­
t i o n a t e l y  t o  t h e  c o m p o n e n t  d i s t r i c t s  p r i o r  t o  t h e  r e o r g a n i z a t i o n .  I t  s h a l l  b e  t h e  duty of 
t h e  s u p e r i n t e n d e n t  o f  p u b l i c  i n s t r u c t i o n  i n  m a k i n g  a p p o r t i o n m e n t s  o f  s t a t e  a id  to ad­
j u s t  t h e  a m o u n t  o f  s t a t e  a i d  d u e  e a c h  s u c h  s c h o o l  d i s t r i c t  a c c o r d i n g l y .

HISTORY: New ISM, p. 5SS, Act 2S9, Eff. Aug. 28.

388.691 Board of education of new ly-form ed district.
S e c .  1 1 .  W h e r e  t h e  p r o p o s e d  d i s t r i c t  i n v o l v e s  e x p a n s i o n  o f  t h e  b o u n d a r i e s  o f  an ex­

i s t i n g  t w e l v e - g r a d e  d i s t r i c t  b v  a d d i t i o n  o f  n o n - t w e l v e - g r a d e  t e r r i t o r y  t h e  b o a r d  of edu­
c a t i o n  o f  t h e  t w e l v e - g r a d e  d i s t r i c t  s h a l l  c o n t i n u e  a s  t h e  b o a r d  o f  t h e  e n l a r g e d  district.

W h e r e  t h e  p r o p o s e d  d i s t r i c t  i n v o l v e s  t h e  m e r g e r  o f  2  o r  m o r e  t w e l v e - g r a d e  districts 
w i t h  o r  w i t h o u t  t h e  a d d i t i o n  o f  n o n - t w e l v e - g r a d e  t e r r i t o r y ,  o r  w h e r e  t h e  p r o p o s e d  dis­
t r i c t  i n v o l v e s  m e r g e r  o f  n o n - t w e l v e - g r a d e  d i s t r i c t s  i n t o  a  n e w  t w e l v e - g r a d e  district a 
b o a r d  o f  e d u c a t i o n  f a i r l v  r e p r e s e n t i n g  a l l  a r e a s  o f  t h e  n e w  d i s t r i c t  s h a l l  b e  appointed 
b v  t h e  i n t e r m e d i a t e  d i s t r i c t  b o a r d  t o  s e r v e  u n t i l  a  n e w  b o a r d  is  e l e c t e d  a s  p ro vid e d  in 

s e c t i o n  4 1 0  o f  t h e  s c h o o l  c o d e .
HISTORY: New 1964, p. 588, Act 289. EH. Aug. 28.

388 .69 2  Board of education of district losing identity; records, property.
S e c .  1 2 ,  T h e  b o a r d s  o f  e d u c a t i o n  o f  a n y  d i s t r i c t  w h i c h  l o s e  i d e n t i t y  s h a l l  tu r n  over 

t h e i r  b o o k s ,  r e c o r d s ,  f u n d s  a n d  p r o p e r t y  t o  t h e  n e w  b o a r d  w i t h i n  1 0  d a y s  a f t e r  the ef­
f e c t i v e  d a t e  o f  t h e  r e o r g a n i z a t i o n .  I f  a n y  e x i s t i n g  d i s t r i c t  is  d i v i d e d ,  t h e  intermediate 
d i s t r i c t  b o a r d ,  o r  b o a r d s ,  s h a l l  s p e c i f y  t h e  d i v i s i o n  o f  a s s e t s  a n d  l i a b i l i t i e s .

HISTORY: New 1964, p. 589, Act 289, EH. Aug. 28.

3 88 .69 3  Final report; term ination of act.
S e c .  1 3 .  T h e  s t a t e  c o m m i s s i o n  s h a l l  m a k e  a  f i n a l  r e p o r t  t o  t h e  s t a t e  le g i s l a t u r e  on or 

b e f o r e  S e p t e m b e r  1 ,  1 9 6 8 ,  a n d  t h i s  a c t  s h a l l  e x p i r e  o n  t h e  d a t e  o f  f i l i n g  t h e  final re­

p o r t .
HISTORY: New 1964, p. 589. Act 289, Eff. Aug. 28.

A c t  2 3 9 ,  1 9 6 7 ,  p .  3 5 2 ;  I m d .  E f f .  J u l .  1 2 .

A N  A C T  t o  p r o v i d e  r e c o g n i t i o n  o f  a  s t a t e  o f  e m e r g e n c y  i n  c e r t a i n  s c h o o l  districts in 
t h e  s t a t e ;  t o  p r o v i d e  f o r  c o n t i n u a n c e  o f  t h e  s t a t e  c o m m i t t e e  o n  r e o r g a n i z a t i o n  o 

s c h o o l  d i s t r i c t s ;  a n d  t o  p r o v i d e  c e r t a i n  p o w e r s  a n d  d u t i e s  o f  t h e  s t a t e  b o a r d  o f e *  

t i o n  i n  c o n n e c t i o n  t h e r e w i t h .



65aa

The People o f the State o f Michigan enact:

388.71 1 Reorganization of school districts; determ ination of em ergency.
Sec. 1 . T h e  s t a t e  c o m m i t t e e  f o r  t h e  r e o r g a n i z a t i o n  o f  s c h o o l  d i s t r i c t s ,  c r e a t e d  b y  A c t  

No. 289 o f  t h e  P u b l i c  A c t s  o f  1 9 6 4 ,  b e i n g  s e c t i o n s  3 8 8 . 6 8 1  t o  3 8 8 . 6 9 3  o f  t h e  C o m p i l e d  
Laws o f 1 9 4 8  s h a l l  d e t e r m i n e  t h e  e x i s t e n c e  o f  a n  e m e r g e n c y  w a r r a n t i n g  i m m e d i a t e  r e ­
organization w i t h i n  a n y  p r i m a r y  s c h o o l  d i s t r i c t  o r  s c h o o l  d i s t r i c t  o f  t h e  f o u r t h  c l a s s  n o t  
reorganized u n d e r  t h e  p r o v i s i o n s  o f  A c t  N o .  2 8 9  o f  t h e  P u b l i c  A c t s  o f  1 9 6 4 .

HISTORY: New 1967, p. 352, Act 239, Imd. EH. Jul. 12.
CITED IN OTHER SECTION'S: Sections 388.711 to 388.720a are cited in § 388.628a.

388.7 1 2 Emergency school district; reorgan ization ; app licab ility ; determ i­
nation of em ergency.
Sec. 2 . T h i s  a c t  a p p l i e s  o n l y  t o  s c h o o l  d i s t r i c t s  l y i n g  w h o l l y  i n ,  o r  t h e  m a j o r  p a r t  o f  

the te rrito ry  o f  w h i c h  l i e s  w h o l l y  i n ,  a  c o u n t y  h a v i n g  a  p o p u l a t i o n  o f  m o r e  t h a n  1 , 0 0 0 , -  
1090, T h e  b o a r d  o f  e d u c a t i o n  o r  5 %  o f  t h e  s c h o o l  e l e c t o r s ,  b u t  n o t  l e s s  t h a n  5  e l e c t o r s  i n  
: a primary s c h o o l  d i s t r i c t  o r  l e s s  t h a n  2 5  e l e c t o r s  i n  a  s c h o o l  d i s t r i c t  o f  t h e  f o u r t h  c l a s s , 

of any p r i m a r y  s c h o o l  d i s t r i c t  o r  s c h o o l  d i s t r i c t  o f  t h e  f o u r t h  c l a s s  n o t  r e o r g a n i z e d  u n ­
f a  the p r o v i s i o n s  o f  A c t  N o .  2 8 9  o f  t h e  P u b l i c  A c t s  o f  1 9 6 4 ,  m a y  p e t i t i o n  t h e  s t a t e  

board o f  e d u c a t i o n  t o  d e t e r m i n e  i f  a n  e m e r g e n c y  w a r r a n t i n g  i m m e d i a t e  r e o r g a n i z a ­
tion exists w i t h i n  t h e  d i s t r i c t .

HISTORY: New 1967, p. 352, Act 239, lmd. Elf. Jul. 12;—Am. 1968, p. 192, Act 130, Imd. EH. Jun. 11.

,388.713 Determination of em ergency; hearing .
Sec. 3 . U p o n  r e c e i p t  o f  t h e  p e t i t i o n ,  t h e  s t a t e  c o m m i t t e e  s h a l l  c o n d u c t ,  o r  c a u s e  t o  

be c o n d u c te d , a n  i m p a r t i a l  s t u d y  t o  d e t e r m i n e  i f  a n  e m e r g e n c y  e x i s t s .  W i t h i n  2 0  d a y s  
following p u b l i c a t i o n  o f  t h e  r e s u l t s  o f  t h e  s t u d y ,  a  m e m b e r  o f  t h e  s t a t e  c o m m i t t e e ,  o r  
Ike se cre ta ry d e s i g n a t e d  b y  t h e  c o m m i t t e e ,  s h a l l  h o l d  a  h e a r i n g  i n  t h e  d i s t r i c t .  N o t i c e  
of the tim e  a n d  p l a c e  o f  t h e  h e a r i n g  s h a l l  b e  g i v e n  t h e  v o t e r s  o f  t h e  d i s t r i c t  a n d  t h e  s u ­
perintendent o f  t h e  i n t e r m e d i a t e  s c h o o l  d i s t r i c t  t o  w h i c h  t h e  d i s t r i c t  is  c o n s t i t u e n t .

| ® STORY: New 1967, p. 352, Act 239, Imd. EH. Jul. 12.

388.714 Reorganization committee; findings, contents.
See. 4 . W i t h i n  2 0  d a y s  f o l l o w i n g  r e c e i p t  o f  a  t r a n s c r i p t  o f  t h e  h e a r i n g ,  t h e  s t a t e  

committee s h a ll  m a k e  a  f i n d i n g  r e l a t i v e  t o  t h e  e x i s t e n c e  o f  a  c o n d i t i o n  o r  c o n d i t i o n s  
warranting i m m e d i a t e  r e o r g a n i z a t i o n  o f  t h e  d i s t r i c t .  T h e  f i n d i n g  s h a l l  i n c l u d e  c o n s i d ­
eration o f  t h e  a d e q u a c y  o f  t h e  d i s t r i c t  t o  p r o v i d e  t h e  f o l l o w i n g :

(a) A n  e d u c a t i o n a l  p r o g r a m  m e e t i n g  s t a n d a r d s  e s t a b l i s h e d  b y  t h e  s t a t e  d e p a r t m e n t  
,°  e d uc atio n  o r  b y  a c c r e d i t i n g  a g e n c i e s .

(b) A  p h y s i c a l  p l a n t  w h i c h  c a n  c o n t a i n  a n  a c c e p t a b l e  s c h o o l  p r o g r a m .

(c) T r a n s p o r t a t i o n  f o r  s t u d e n t s .

(d) N e c e s s a i y  t a x  b a s e .

(e) P u p il  s e r v i c e s , a d m i n i s t r a t i v e  a n d  t e a c h i n g  s t a f f ,  a n d  a u x i l i a r y  s e r v i c e s  i n  c o m p l i -  

W  n i ^e s p r e s c r i b e d  b v  t h e  d e p a r t m e n t  o f  e d u c a t i o n .
°W : New 1967, p. 353, Act 239, lmd. EH. Jul. 12.



66aa

388.715  Need for im m ediate reorgan ization ; report and recommend* 
tions.

S e c .  5 .  U p o n  a  f i n d i n g  b y  t h e  s t a t e  c o m m i t t e e  t h a t  c o n d i t i o n s  i n  a  s c h o o l districi 
w a r r a n t  i m m e d i a t e  r e o r g a n i z a t i o n ,  t h e  s t a t e  c o m m i t t e e  s h a l l  t r a n s m i t  i t s  rep ort 
r e c o m m e n d a t i o n s  t o  t h e  s t a t e  b o a r d  o f  e d u c a t i o n .

HISTORY: Now 1967. p. 353, Act 239. Imd. Eff. Jul. 12.

3 8 8 .71 6  State com m ittee report and recom m endations; publication; filing 
of objections and recom m endations; determ ination of state board.

S e c .  6 . T h e  s t a t e  b o a r d  o f  e d u c a t i o n  s h a l l  p u b l i s h  t h e  r e p o r t  a n d  re c o m m e n da tio n  
o f  t h e  s t a t e  c o m m i t t e e  a n d  s h a l l  i n v i t e  o b j e c t i o n s  o r  c o m m e n t s  t o  b e  file d  with i; 
w i t h i n  2 0  d a y s  f o l l o w i n g  p u b l i c a t i o n  o f  t h e  r e p o r t .  T h e  s t a t e  b o a r d  t h e n  s h a ll consider 
t h e  r e p o r t  o f  t h e  s t a t e  c o m m i t t e e ,  t o g e t h e r  w i t h  t h e  c o m m e n t s  a n d  o b je c tio n s  filed, 
a n d  m a k e  a  d e t e r m i n a t i o n  a s  t o  e n d o r s e m e n t  o f  t h e  f i n d i n g  o f  t h e  s t a t e  c o m m itte e .

HISTORY: New 1967, p. 353, Act 239, Imd. Eff. Jul. 12.

38 8 .7 1 7  Attachm ent of territory  by an n exatio n ; effective date; 
conclusiveness.

S e c .  7 .  T h e  s t a t e  b o a r d  o f  e d u c a t i o n ,  u p o n  t h e  f i n d i n g  t h a t  a n  e m e r g e n c y  warrant' 
i m m e d i a t e  r e o r g a n i z a t i o n  o f  a  s c h o o l  d i s t r i c t ,  s h a l l  a t t a c h  t h e  d i s t r i c t  b y  an n e xa tio n* 
d i v i s i o n  t o  s u c h  o t h e r  d i s t r i c t  o r  d i s t r i c t s  a s  w i l l  p r o v i d e  t h e  m o s t  e q u i t a b l e  edie 
t i o n a l  o p p o r t u n i t y  f o r  a l l  o f  t h e  s t u d e n t s  o f  t h e  r e o r g a n i z e d  d i s t r i c t  a n d  shall deter­
m i n e  t h e  e f f e c t i v e  d a t e  o f  a t t a c h m e n t .  A c t i o n  o f  t h e  s t a t e  b o a r d  o f  e d u c a t i o n  shall* 
f i n a l .  F o r  t h e  4  f i s c a l  y e a r s  i m m e d i a t e l y  s u b s e q u e n t  t o  t h e  a n n e x a t i o n ,  t h e  receiving 
d i s t r i c t  m a y  e l e c t  t o  c o m p u t e  a n d  r e c e i v e  s t a t e  a i d  f o r  t h a t  p o r t i o n  o f  t h e  district an 
n e x c d  b a s e d  u p o n  t h e  p e r  p u p i l  s t a t e  e q u a l i z e d  v a l u a t i o n  o f  t h e  a n n e x e d  p o r tio n .

HISTORY: New 1967, p. 153, Act 239, Imd. Eff. Jul. 12 — Am. 196,5, p. 193, Act 130, Imd. Elf. Jun. 11.

388.71 8 Reorganized school district; bonded indebtedness, levy of foxes,
S e c .  8 . I f  a  d i s t r i c t  a t t a c h e d  u n d e r  t h e  p r o v i s i o n s  o f  t h i s  a c t  a t  t h e  t i m e  o f  reorgaE 

i z a t i o n .  h a s  a  b o n d e d  i n d e b t e d n e s s  i n c u r r e d  a f t e r  D e c e m b e r  8 ,  1 9 3 2 ,  i t s  id e n tity  sb , 
n o t  b e  l o s t  a n d  i t s  t e r r i t o r y  s h a l l  r e m a i n  a s  a n  a s s e s s i n g  u n i t  f o r  p u r p o s e s  of sin 
b o n d e d  i n d e b t e d n e s s  u n t i l  t h e  i n d e b t e d n e s s  h a s  b e e n  r e t i r e d  o r  t h e  o u ts ta n d in g b o n ff 
r e f u n d e d  b y  t h e  r e o r g a n i z e d  d i s t r i c t .  T h e  b o a r d  o f  t h e  r e o r g a n i z e d  d i s t r i c t , or t .  
b o a r d  o f  t h e  d i s t r i c t  w h i c h  h a s  s u c c e e d e d  t o  t h e  l a r g e s t  s h a r e  o f  t h e  s t a t e  equalize,. 
v a l u a t i o n  o f  t h e  a t t a c h e d  d i s t r i c t ,  s h a l l  c o n s t i t u t e  t h e  b o a r d  o i  t r u s t e e s  f o r  th e  origin* 
d i s t r i c t  h a v i n g  b o n d e d  i n d e b t e d n e s s  a n d  t h e  o f f i c e r s  o f  t h e  r e o r g a n i z e d  o r  succcsso 
d i s t r i c t  s h a l l  b e  t h e  o f f i c e r s  f o r  t h e  o r i g i n a l  d i s t r i c t .  T h e  b o a r d  o f  t h e  reorganize *  
s u c c e s s o r  d i s t r i c t  s h a l l  c e r t i f y  a n d  o r d e i  t h e  l e v y '  o f  t a x e s  f o r  t h e  b o n d e d  in d e b t ^  
i n  t h e  n a m e  o f  t h e  o r i g i n a l  d i s t r i c t ,  s h a l l  n o t  c o m m i n g l e  t h e  d e b t  r e t i r e m e n t  1111 

t h e  o r i g i n a l  d i s t r i c t  w i t h  f u n d s  o f  t h e  r e o r g a n i z e d  o r  s u c c e s s o r  d i s t r i c t  a n d  shal 
t h i n g s  r e l a t i v e  t o  s u c h  b o n d e d  i n d e b t e d n e s s  r e q u i r e d  b y  l a w  a n d  b v  t h e  t e r m s ' 111 

w h i c h  t h e  i s s u e  a n d  s a l e  o f  t h e  b o n d s  w e r e  o r i g i n a l l y  a u t h o r i z e d .  A l l  o t h e r  tax o *  
f o r  p u i p o s e s  o f  t h e  r e o r g a n i z e d  d i s t r i c t  s h a l l  b e  s p r e a d  o v e r  t h e  e n t i r e  a r e a  o t t ' e 1 

g a n i z e d  d i s t r i c t .
HISTORY: New 1967, p. 353. Act 239, Imd. Eff. Jul. 12.



67aa

388.71 £ Reorganized school district; assum ption of bonded indebtedness 
of original school district; effect; certification, levy  of ta x e s ; election.

Sec. 9 . A n y  t i m e  a f t e r  3  y e a r s  f o l l o w i n g  r e o r g a n i z a t i o n ,  t h e  r e o r g a n i z e d  d i s t r i c t ,  o r  
that d i s t r i c t  w h i c h  h a s  s u c c e e d e d  t o  t h e  l a r g e s t  s h a r e  o f  t h e  a t t a c h e d  d i s t r i c t ’ s s t a t e  
e q u a lize d  v a l u a t i o n ,  m a y  a s s u m e  t h e  o b l i g a t i o n  o f  t h e  b o n d e d  i n d e b t e d n e s s  i n c u r r e d  
after D e c e m b e r  8 ,  1 9 3 2 ,  o f  t h e  o r i g i n a l  d i s t r i c t  w h i c h  h a s  b e c o m e  a  p a r t  o f  t h e  r e o r ­
g a n iza tio n  a n d  p a y  t h e  s a m e  f r o m  t h e  p r o c e e d s  o f  a  d e b t  r e t i r e m e n t  t a x  l e v y  s p r e a d  
u n ifo rm ly  o v e r  t h e  t e r r i t o r y  o f  t h e  r e o r g a n i z e d  o r  s u c c e s s o r  d i s t r i c t  w h e n e v e r  t h e  e l e c ­
tors o f  t h e  r e o r g a n i z e d  o r  s u c c e s s o r  d i s t r i c t  s h a l l  h a v e  a p p r o v e d  a n  i n c r e a s e  i n  t h e  l i m ­
itation o n  t a x e s  f o r  t h a t  p u r p o s e  a n d  t h e  s c h o o l  t a x  e l e c t o r s  o f  t h e  d i s t r i c t  h a v e  a p ­
proved t h e  a s s u m p t i o n  o f  s u c h  b o n d e d  i n d e b t e d n e s s .  A s s u m p t i o n  o f  t h e  b o n d e d  
in d e b te d n e s s  o f  a n  o r i g i n a l  s c h o o l  d i s t r i c t  s h a l l  n o t  r e l e a s e  t h e  t e r r i t o r y  o f  t h e  o r i g i n a l  
district f r o m  t h e  f i n a l  r e s p o n s i b i l i t y  o f  p a y i n g  t h e  o b l i g a t i o n  o r  r e s c i n d  t h e  i n c r e a s e  i n  
the l i m i t a t i o n  o n  t a x e s  p l e d g e d  t o  t h e  b o n d  i s s u e  o r  a v a i l a b l e  t o  i t  i n  t h e  o r i g i n a l  d i s ­
trict, n o r  b e  c o n s t r u e d  a s  s o  d o i n g .  W h e n  t h e  b o n d e d  i n d e b t e d n e s s  o f  a n  o r i g i n a l  d i s ­
trict h as b e e n  s o  a s s u m e d ,  t h e  b o a r d  o f  t h e  r e o r g a n i z e d  o r  s u c c e s s o r  d i s t r i c t  s h a l l  c e r ­
tify a n d  o r d e r  t h e  l e v y  o f  t a x e s  f o r  t h e  b o n d e d  i n d e b t e d n e s s  e q u i v a l e n t  i n  t e r m s  o f  
m oney t o  t h o s e  r e q u i r e d  b y  t h e  t e r m s  u n d e r  w h i c h  t h e  i n d e b t e d n e s s  w a s  o r i g i n a l l y  i n ­
curred a n d  c a r r y  o u t  a l l  p r o v i s i o n s  o f  t h e  o r i g i n a l  b o n d  c o n t r a c t .  T h e  e l e c t i o n  t o  a s ­
sume t h e  b o n d e d  i n d e b t e d n e s s  o f  a n  a t t a c h e d  d i s t r i c t  m a y  b e  h e l d  a t  a n y  t i m e  a f t e r  3  
years f o l l o w i n g  t h e  e f f e c t i v e  d a t e  o f  r e o r g a n i z a t i o n  w h e n  a  p r o p o s a l  is  p l a c e d  b e f o r e  
the s c h o o l t a x  e l e c t o r s  t o  i n c r e a s e  t h e  b o n d e d  i n d e b t e d n e s s  o f  t h e  c o m b i n e d  d i s t r i c t .

HISTORY: New 1967, p. 3 « ,  Act 239, Imd. EH. Jul. 12.

388,720 Petitions for em ergency reorgan ization ; interm ediate district su­
perintendent to furnish; form ; w ho m ay sign; circulation signatures.

S ec. 1 0 .  T h e  i n t e r m e d i a t e  d i s t r i c t  s u p e r i n t e n d e n t  u p o n  r e q u e s t  s h a l l  f u r n i s h  a n y  
sdiool d i s t r i c t  w i t h  p e t i t i o n s .  T h e  p e t i t i o n s  s h a l l  b e  p r i n t e d  o r  d u p l i c a t e d  a n d  t h e  f i r s t  
page s h a ll b e  i n  t h e  f o l l o w i n g  f o r m :

P e t i t io n  n o ......................................................................  c o n s i s t i n g  o f .................................................................. p a g e s .
(S ig n e d ) ........................................................................................................................................................................
S u p e r i n t e n d e n t  o f  i n t e r m e d i a t e  d i s t r i c t  o f ...................................................................................
T o  t h e  s t a t e  c o m m i t t e e  o n  r e o r g a n i z a t i o n  o f  s c h o o l  d i s t r i c t s ,  L a n s i n g ,  M i c h i g a n .  
W e , t h e  u n d e r s i g n e d ,  q u a l i f i e d  ( h e r e  i n s e r t  “ r e g i s t e r e d ”  i n  t h e  c a s e  o f  a  r e g i s t r a t i o n

district) e l e c t o r s  o f ....................................................................................................................................................................................................................................................
. ( n a m e  o f  s c h o o l  d i s t r i c t )

declare t h a t  i n  t h e  f o l l o w i n g  s c h o o l  d i s t r i c t  t h e r e  d o e s  e x i s t  a n  e m e r g e n c y  c a l l i n g  f o r  
im m e d ia te  r e o r g a n i z a t i o n ,  a n d  w e  d o  c a l l  u p o n  t h e  s t a t e  b o a r d  o f  e d u c a t i o n  t o  r e ­
o rg a n ize  t h e  d i s t r i c t :

N a m e  o f  s c h o o l  d i s t r i c t  t o  b e  r e o r g a n i z e d  t o  b e  l i s t e d  h e r e .......................................................................................
S ig n a t u r e s  o f  p e t i t i o n e r s
N a m e  A d d r e s s  D a t e  o f  s i g n i n g
E a c h  a d d i t i o n a l  p a g e  o f  a n y  s u c h  p e t i t i o n  s h a l l  h a v e  a t  o r  n e a r  t h e  t o p  o f  t h e  p a g e  

ihe f o l l o w i n g :



Official petition
P a g e  n o .\ To .

S i g n a t u r e  o f  i n t e r m e d i a t e  d i s t r i c t  s u p e r i n t e n d e n t  
E a c h  p a g e  s h a l l  h a v e  p r i n t e d  o r  d u p l i c a t e d  t h e  f o l l o w i n g  s t a t e m e n t  b e lo w  tie 

s p a c e  f o r  s i g n a t u r e  f o r  p e t i t i o n e r s :
T h e  u n d e r s i g n e d  c e r t i f i e s  t h a t  h e  i s  a  q u a l i f i e d  ( h e r e  i n s e r t  “ r e g i s t e r e d ”  i n  the case 

o f  a  r e g i s t r a t i o n  d i s t r i c t )  e l e c t o r  o f .............................................................................................................................................................................
( n a m e  o f  s c h o o l  d i s t r i c t )

a n d  t h a t  e a c h  s i g n a t u r e  a p p e a r i n g  o n  t h i s  p a g e  is  t h e  g e n u i n e  s i g n a t u r e  o f  t h e  person | 
s i g n i n g  t h e  s a m e  a n d  t h a t  t o  h i s  b e s t  k n o w l e d g e  a n d  b e l i e f  e a c h  s u c h  p e r s o n  was al 
t h e  t i m e  o f  s i g n i n g  a  q u a l i f i e d  ( h e r e  i n s e r t  “ r e g i s t e r e d ”  i n  t h e  c a s e  o f  a  registration 
d i s t r i c t )  e l e c t o r  o f  t h e  s c h o o l  d i s t r i c t .

D a t e d  t h i s ........................................................  d a y  o f ............................................................................................................... 1 9 .........................

E a c h  p e t i t i o n  s h a l l  b e  s i g n e d  b y  t h e  i n t e r m e d i a t e  d i s t r i c t  s u p e r i n t e n d e n t  as indi- i 
c a t e d  i n  t h e  f o r e g o i n g  f o r m  b e f o r e  b e i n g  i s s u e d  t o  a n y  p e r s o n  f o r  c i r c u l a t i o n .

O n l y  q u a l i f i e d  s c h o o l  e l e c t o r s  o f  t h e  d i s t r i c t s  i n  w h i c h  s i g n a t u r e s  t o  t h e  p e titio n s  are 
b e i n g  s o u g h t  s h a l l  c i r c u l a t e  s u c h  p e t i t i o n s  a n d  t h e  s t a t e m e n t  a p p e a r i n g  b e l o w  the sig- 
r . a t u r e s  o f  p e t i t i o n e r s  s h a l l  b e  d a t e d  o r  s i g n e d  o n  e a c h  p a g e  b e f o r e  r e t u r n i n g  to the 

s t a t e  c o m m i t t e e .
HISTORY: New 1967, p. 354, Act 239, Imd. Eff. Jul. 12.

3 8 8 .7 2 0 a  State comm ittee on reorganization  of school districts; continue' 1
tion.

S e e .  1 0 a .  T h e  s t a t e  c o m m i t t e e  o n  r e o r g a n i z a t i o n  o f  s c h o o l  d i s t r i c t s  s h a l l  co n tin u e  in 
e x i s t e n c e  f o r  p u q o o s e s  o f  t h i s  a c t ,  n o t w i t h s t a n d i n g  a n y  e x p i r a t i o n  d a t e  o t h e r w i s e  pro­

v i d e d  b v  l a w .
HISTORY: Add. 1968, p. 193, Act 130, Imd. Eff. Jun. 11.

388.721 Repealed . 1968, p. 193 , Act 130, Imd. Eff. Jun. 11.
Section related to termination of school aid act July 1, 1968.

388.731 Repealed . 1 955 , p. 597, Act 269 , Eff. Jul. 1.
Sittii n provided for payment of certain school bonds where a portion of district has l>een annexed to city school district with population- | 

250,000 or o\ or.

PUBLIC ACTS 1937—No. 306.

P u b l i c  o r  p r i v a t e  s c h o o l  b u i l d i n g s ;  c o n s t r u c t i o n  r e g u l a t i o n s  and require 
m e n t s .  _ _ , «

S e c t i o n  1 .  X o  s c h o o l  b u i l d i n g ,  p u b l i c  o r  p r i v a t e ,  o r  a d d i t i o n s  t h e r e t o ,  s > 
h e r e a f t e r  b e  e r e c t e d  i n  t h e  s t a t e  o f  M i c h i g a n  e x c e p t  i t  b e  i n  c o n f o r m i t y  
t h e  f o l l o w i n g  p r o v i s i o n s  o f  t h i s  a c t :  , .

1 .  T h i s  a c t  s h a l l  a p p l y  t o  s c h o o l  b u i l d i n g s  h a v i n g  m o r e ,  t h a n  o n e  s o  
If it s h a l l  b e  d e s i g n e d  f o r  c l a s s  r o o m s  i n  t h e  b a s e m e n t ,  t h e n  t l i e ^  ba se ffl ^ 
s h a l l  be c o n s i d e r e d  a s  o n e  f l o o r .  S c h o o l  g y m n a s i u m s ,  s c h o o l  cafeterias, s o  
a u d i t o r i u m s  a n d  s c h o o l  p l a c e s  o f  a s s e m b l y  s h a l l  b e  s p e c i f i c a l l y  i n c l u d e d  un 
t h e  p r o v i s i o n s  of t h i s  act.



69aa

2 . A l l  p l a n s  a n d  s p e c i f i c a t i o n s ,  f o r  b u i l d i n g s  u n d e r  t h e  s c o p e  o f  t h i s  a c t ,  
sh a ll b e  p r e p a r e d  b y ,  a n d  t h e  c o n s t r u c t i o n  s u p e r v i s e d  b y ,  a n  a r c h i t e c t  o r  
e n g in e e r  w h o  i s  r e g i s t e r e d  i n  t h e  s t a t e  o f  M i c h i g a n .

3 . A l l  w a l l s ,  f l o o r s ,  p a r t i t i o n s  a n d  r o o f s  s h a l l  b e  c o n s t r u c t e d  o f  f i r e - r e s i s t ­
in g  m a t e r i a l s  s u c h  a s  s t o n e ,  b r i c k ,  t i l e ,  c o n c r e t e ,  g y p s u m ,  s t e e l  o r  s i m i l a r  f i r e -  
r e s i s t i n g  m a t e r i a l s .  A l l  s t e e l  m e m b e r s  s h a l l  b e  p r o t e c t e d  b y  a t  l e a s t  t h r e e -  
f o u r t h s  o f  a n  i n c h  o f  f i r e - r e s i s t i n g  m a t e r i a l .

4 . No  w o o d  l a t h  o r  w o o d  f u r r i n g  s h a l l  b e  u s e d .  H o w e v e r ,  t h e s e  r e g u l a ­
tio n s  s h a l l  n o t  b e  c o n s t r u e d  a s  p r o h i b i t i n g  t h e  u s e  o f  w o o d  f l o o r i n g  o n  
m a s o n r y  s u b - f l o o r s ,  o r  t h e  u s e  o f  w o o d  s l e e p e r s ,  w o o d  c a b i n e t s ,  o r  w o o d  t r i m .

5 . E v e r y  r o o m  e n c l o s i n g  a  h e a t i n g  u n i t  s h a l l  b e  e n c l o s e d  b y  w a l l s  o f  f i r e -  
r e s i s t i n g  m a t e r i a l s  a n d  s h a l l  b e  e q u i p p e d  w i t h  a u t o m a t i c a l l y - c l o s i n g  f i r e -  
d o o r s ; a n d  s a i d  h e a t i n g  u n i t  s h a l l  n o t  b e  l o c a t e d  d i r e c t l y  b e n e a t h  a  c l a s s ­
r o o m : P ro v id e d  f u r t h e r ,  T h a t  i n  a n y  s c h o o l  w h e r e  n a t u r a l  g a s  o r  a n y  o t h e r  
k in d  o f  g a s  s h a l l  b e  u s e d  f o r  h e a t i n g  p u r p o s e s  s a i d  g a s  s h a l l  b e  c h e m i c a l l y  
t r e a t e d  b e f o r e  b e i n g  u s e d  i n  s u c h  a  m a n n e r  a s  t o  g i v e  a  v e r y  d i s t i n g u i s h a b l e  
o d o r i f  a n y  l e a k  s h o u l d  d e v e l o p  i n  t h e  b e a t i n g  s y s t e m .

6 . I n  g y m n a s i u m s ,  f i r e p r o o f i n g s  m a y  b e  o m i t t e d  f r o m  t h e  t r u s s e s  a n d  
p u r l i n s  i f  t h e y  a r e  m o r e  t h a n  s i x t e e n  f e e t  o f f  t h e  m a i n  f l o o r  l e v e l ;  a l s o ,  f r o m  
the s t e e l  s u p p o r t s  o f  t h e  r u n n i n g  t r a c k .  T h e  r u n n i n g  t r a c k  s h a l l  b e  c o n ­
s t r u c t e d  o f  w o o d  n o t  l e s s  t h a n  t w o  i n c h e s  t h i c k .  I t  s h a l l  b e  t h e  d u t y  o f  t h e  
a r c h i t e c t  o r  e n g i n e e r  t o  p r o v i d e  a d e q u a t e  e x i t s .  I n  a l l  e a s e s  t h e r e  s h a l l  b e  

at l e a s t  t w o  s t a i r w a y s  a n d  t h e  d i s t a n c e  f r o m  t h e  d o o r  o f  a n y  c l a s s  o r  a s ­
se m b ly  r o o m  t o  a  s t a i r w a y  o r  e x i t  s h a l l  n o t  e x c e e d  o n e  h u n d r e d  f e e t .

§ 1 ,  as amended by 1949 PA 231

388.851 Public or private school buildings; construction requirements. [M.S.A.
15.1961]
Sec. 1. No school building, public or private, or additions thereto, shall hereafter be 

erected, remodeled or reconstructed in the state of Michigan except it be in conformity 
Mth the following provisions:

(a) All plans and specifications for buildings shall be prepared by, and the construction 
supervised by, an architect or engineer who is registered in the state of Michigan. Before 

e construction, reconstruction or remodeling of any school building or addition thereto 
is commenced, the written approval of the plans and specifications by the superintendent ol 
Public instruction or his authorized agent shall be obtained. In the approval of plans and 
specifications the superintendent of public instruction or his authorized agent shall con-

er m addition to the considerations otherwise mentioned in this act the following fac­tors:
0 ) The adequacy and location of the site.
(3) The educational usefulness of the building.
(3) The provisions for health and safety.

set f 6 suPer'nt;en̂ ent ° f public instruction shall publish an informative bulletin which shall 
this °rt' sc^00' building planning procedures and interpret clearly the provisions of



70aa

(b) All walls, floors, partitions and roofs shall be constructed of fire-resisting materials 
such as stone, brick, tile, concrete, gypsum, steel or similar fire-resisting materials. All steel 
members shall be protected by at least -K of an inch of fire-resisting material.

(c) No wood lath or wood furring shall be used: Provided, however, That these regula­
tions shall not be construed as prohibiting the use of finished wood flooring, wood door 
and window frames, wood sash or wood furring and grounds, for the purpose of installing 
wood trim, panelling, acoustical units or similar facing materials on masonry walls, struc­
tural steel or concrete ceiling members.

(d) Every room enclosing a heating unit shall be enclosed by walls or fire-resisting 
materials and shall be equipped with automatically closing fire doors; and said heating uml 
shall not be located directly beneath any portion of a school building or addition thereto 
which is constructed or reconstructed after the effective date of this act: Provided. That 
this regulation shall not be construed to require the removal of an existing heating plant 
from beneath an existing building when an addition to such building is constructed unless 
the state superintendent of public instruction or his authorized agent, acting jointly with 
the state fire marshal, shall so require in the interests of public safety: Provided further, 
That in any school where natural gas or any other kind of gas shall be used for heating 
purposes said gas shall be chemically treated before being used in such a manner as to give 
a very distinguishable odor if any leak should develop in the heating system.

(e) In gymnasiums, fire-proofings may be omitted from the trusses and purlins if they 
are more than 16 feet off the main floor level. It shall be the duty of the architect or 
engineer to provide adequate exits from all parts of school buildings. In all cases there 
shall be at least 2 stairways and the distance from the door of any class or assembly room 
to a stairway or exit shall not exceed 100 feet.

§1 ,  as amended by 1962 PA 175

388.851 'P ublic or private school buildings; construction requirements, waiver.
[M .S.A . 15.1961]
Sec. 1. No school building, public or private, or additions thereto, shall hereafter be 

erected, remodeled or reconstructed in the state of Michigan except it be in conformity 
with the following provisions:

(a) All plans and specifications for buildings shall be prepared by, and the construc­
tion supervised by, an architect or engineer who is registered in the state of Michigan. 
Before the construction, reconstruction or remodeling of any school building or addition 
thereto is commenced, the written approval of the plans and specifications by the super­
intendent of public instruction or his authorized agent shall be obtained. The superintendent 
of public instruction or his authorized agent shall not issue such approval until he has 
secured in writing the approval of the state fire marshal relative to factors concerning urt 
safety and of the health department having jurisdiciton relative to factors affecting water 
supply, sanitation and food handling.

The superintendent of public instruction shall publish an informative bulletin wine 
shall set forth good school building planning procedures and interpret clearly the provisions 
of this act. The bulletin shall be prepared in cooperation with the state fire marshal ana 
the state health commissioner and, insofar as requirements for approval of plans are con­
cerned, shall be consistent with recognized good practice as evidenced by standards adop 
by nationally recognized authorities in the fields of fire protection and health.



71aa

(b) All walls, floors, partitions and roofs shall be constructed of fire-resisting mate­
rials such as stone, brick, tile, concrete, gypsum, steel or similar fire-resisting material. 
All steel members shall be protected by at least yi, of an inch of fire-resisting material.

(c) No wood lath or wood furring shall be used: Provided, however, That these 
regulations shall not be construed as prohibiting the use of finished wood flooring, wood 
door and window frames, wood sash or wood furring and grounds, for the purpose of 
installing wood trim, panelling, acoustical units or similar facing materials on masonry 
walls, structural steel or concrete ceiling members.

(d) Every room enclosing a heating unit shall be enclosed by walls or fire-resisting 
materials and shall be equipped with automatically closing fire doors; and said heating 
unit shall not be located directly beneath any portion of a school building or addition 
thereto which is constructed or reconstructed after the effective date of this act: Provided, 
That this regulation shall not be construed to require the removal of an existing heating 
plant from beneath an existing building when an addition to such building is constructed 
unless the state superintendent of public instruction or his authorized agent, acting jointly 
with the state fire marshal, shall so require in the interests of public safety: Provided 
further, That in any school where natural gas or any other kind of gas shall be used for 
heating purposes said gas shall be chemically treated before being used in such a manner 
as to give a very distinguishable odor if any leak should develop in the heating system.

(e) In gymnasiums, fire-proofings may be omitted from the trusses and purlins if they 
are more than 16 feet off the main floor level. It shall be the duty of the architect or 
engineer to provide adequate exits from all parts of school buildings. In all cases there 
shall be at least 2 stairways and the distance from the door of any class or assembly room

i to a stairway or exit shall not exceed 100 feet.
(f) Provisions in subsections (b) through (e) may be waived in writing by the state 

fire marshal

§ 1, as la s t  amended by 1968 PA 239

388.851 School buildings; construction requirements; waiver.
Sec. 1 .  N o  s c h o o l  b u i l d i n g ,  p u b l i c  o r  p r i v a t e ,  o r  a d d i t i o n s  t h e r e t o ,  s h a l l  b e  e r e c t e d ,  

remodeled o r  r e c o n s t r u c t e d  i n  t h e  s t a t e  e x c e p t  i t  b e  i n  c o n f o r m i t y  w i t h  t h e  f o l l o w i n g  
provisions:

(a) A H  p l a n s  a n d  s p e c i f i c a t i o n s  f o r  b u i l d i n g s  s h a l l  b e  p r e p a r e d  b y ,  a n d  t h e  c o n s t r u c ­
tion s u p e r v is e d  b y ,  a n  a r c h i t e c t  o r  e n g i n e e r  w h o  is  r e g i s t e r e d  i n  t h e  s t a t e  o f  M i c h i g a n .  
Before t h e  c o n s t r u c t i o n ,  r e c o n s t r u c t i o n  o r  r e m o d e l i n g  o f  a n y  s c h o o l  b u i l d i n g  o r  a d d i ­
tion th e r e to  is c o m m e n c e d ,  t h e  w r i t t e n  a p p r o v a l  o f  t h e  p l a n s  a n d  s p e c i f i c a t i o n s  b y  t h e  
s u p e rin te n d e n t o f  p u b l i c  i n s t r u c t i o n  o r  h i s  a u t h o r i z e d  a g e n t  s h a l l  b e  o b t a i n e d .  T h e  s u -  
p e n n te n d e n t o f  p u b l i c  i n s t r u c t i o n  o r  h i s  a u t h o r i z e d  a g e n t  s h a l l  n o t  i s s u e  s u c h  a p p r o v a l  
until he h a s  s e c u r e d  i n  w r i t i n g  t h e  a p p r o v a l  o f  t h e  s t a t e  f i r e  m a r s h a l ,  o r  t h e  a p p r o p r i ­
ate m u n ic ip a l  o f f i c i a l  w h e n  c e r t i f i c a t i o n  a s  d e s c r i b e d  i n  s e c t i o n  3  h a s  b e e n  m a d e ,  r e l a ­
t e  to  f a c t o r s  c o n c e r n i n g  f i r e  s a f e t y  a n d  o f  t h e  h e a l t h  d e p a r t m e n t  h a v i n g  j u r i s d i c t i o n  
re ‘f i v e  t o  f a c t o r s  a f f e c t i n g  w a t e r  s u p p l y ,  s a n i t a t i o n  a n d  f o o d  h a n d l i n g .

T h e  s u p e r i n t e n d e n t  o f  p u b l i c  i n s t r u c t i o n  s h a l l  p u b l i s h  a n  i n f o r m a t i v e  b u l l e t i n  w h i c h  
, a * 1  f o r t h  g o o d  s c h o o l  b u i l d i n g  p l a n n i n g  p r o c e d u r e s  a n d  i n t e r p r e t  c l e a r l y  t h e  p r o -  

^sions o f  t h i s  a c t .  T h e  b u l l e t i n  s h a l l  b e  p r e p a r e d  i n  c o o p e r a t i o n  w i t h  t h e  s t a t e  f i r e  
I s 'a l  a n d  t h e  s t a t e  h e a l t h  c o m m i s s i o n e r  a n d ,  i n s o f a r  a s  r e q u i r e m e n t s  f o r  a p p r o v a l  o f

a re  c o n c e r n e d ,  s h a l l  b e  c o n s i s t e n t  w i t h  r e c o g n i z e d  g o o d  p r a c t i c e  a s  e v i d e n c e d
l-y s ta n d a rd s  a d o p t e d  b y  n a t i o n a l l y  r e c o g n i z e d  a u t h o r i t i e s  i n  t h e  f i e l d s  o f  f i r e  p r o t e c -
tl0n a n d  h e a l t h .  7  7  V

w a l l s , f l o o r s ,  p a r t i t i o n s  a n d  r o o f s  s h a l l  b e  c o n s t r u c t e d  o f  f i r e - r e s i s t i n g  m a t e r i -  
s sueh as s t o n e , b r i c k ,  t i l e ,  c o n c r e t e ,  g y p s u m ,  s t e e l  o r  s i m i l a r  f i r e - r e s i s t i n g  m a t e r i a l .



72aa

A l l  s t e e l  m e m b e r s  s h a l l  b e  p r o t e c t e d  b y  a t  l e a s t  3 / 4  o f  a n  i n c h  o f  f i r e - r e s i s t i n g  mate­
r i a l .

( c )  N o  w o o d  l a t h  o r  w o o d  f u r r i n g  s h a l l  b e  u s e d .  T h e s e  r e g u l a t i o n s  s h a l l  n o t  b e  con­
s t r u e d  a s  p r o h i b i t i n g  t h e  u s e  o f  f i n i s h e d  w o o d  f l o o r i n g ,  w o o d  d o o r  a n d  w i n d o w  frames, 
w o o d  s a s h  o r  w o o d  f u r r i n g  a n d  g r o u n d s ,  f o r  t h e  p u r p o s e  o f  i n s t a l l i n g  w o o d  t r im , pa­
n e l l i n g ,  a c o u s t i c a l  u n i t s  o r  s i m i l a r  f a c i n g  m a t e r i a l s  o n  m a s o n r y  w a l l s ,  s t r u c t u r a l  steel or 
c o n c r e t e  c e i l i n g  m e m b e r s .

( d )  E v e r y  r o o m  e n c l o s i n g  a  h e a t i n g  u n i t  s h a l l  b e  e n c l o s e d  b y  w a l l s  o f  fire-resisting 
m a t e r i a l s  a n d  s h a l l  b e  e q u i p p e d  w i t h  a u t o m a t i c a l l y  c l o s i n g  f i r e  d o o r s ;  a n d  s a id  heating 
u n i t  s h a l l  n o t  b e  l o c a t e d  d i r e c t l y  b e n e a t h  a n y  p o r t i o n  o f  a  s c h o o l  b u i l d i n g  o r  addition 
t h e r e t o  w h i c h  is  c o n s t r u c t e d  o r  r e c o n s t r u c t e d  a f t e r  t h e  e f f e c t i v e  d a t e  o f  t h i s  a c t. This 
r e g u l a t i o n  s h a l l  n o t  b e  c o n s t r u e d  t o  r e q u i r e  t h e  r e m o v a l  o f  a n  e x i s t i n g  h e a t i n g  plant 
f r o m  b e n e a t h  a n  e x i s t i n g  b u i l d i n g  w h e n  a n  a d d i t i o n  t o  s u c h  b u i l d i n g  is  c o n s t r u c t e d  un­
l e s s  t h e  s t a t e  s u p e r i n t e n d e n t  o f  p u b l i c  i n s t r u c t i o n  o r  h i s  a u t h o r i z e d  a g e n t ,  acting 
j o i n t l y  w i t h  t h e  s t a t e  f i r e  m a r s h a l ,  s h a l l  s o  r e q u i r e  i n  t h e  i n t e r e s t s  o f  t h e  p u b l i c  safety. 
I n  a n y  s c h o o l  w h e r e  n a t u r a l  g a s  o r  a n y  o t h e r  k i n d  o f  g a s  is  u s e d  f o r  h e a t i n g  purposes, 
t h e  g a s  s h a l l  b e  c h e m i c a l l y  t r e a t e d  b e f o r e  b e i n g  u s e d  i n  s u c h  a  m a n n e r  a s  t o  give a 
v e r y  d i s t i n g u i s h a b l e  o d o r  i f  a n y  l e a k  s h o u l d  d e v e l o p  i n  t h e  h e a t i n g  s y s t e m .

( e )  I n  g y m n a s i u m s ,  f i r e - p r o o f i n g s  m a y  b e  o m i t t e d  f r o m  t h e  t r u s s e s  a n d  purlins if 
t h e y  a r e  m o r e  t h a n  1 6  f e e t  o f f  t h e  m a i n  f l o o r  l e v e l .  T h e  a r c h i t e c t  o r  e n g i n e e r  shall pro­
v i d e  a d e q u a t e  e x i t s  f r o m  a l l  p a r t s  o f  s c h o o l  b u i l d i n g s .  I n  a l l  c a s e s  t h e r e  s h a l l  b e  at least 
2  s t a i r w a y s  a n d  t h e  d i s t a n c e  f r o m  t h e  d o o r  o f  a n y  c l a s s  o r  a s s e m b l y  r o o m  t o  a  stairway 
o r  e x i t  s h a l l  n o t  e x c e e d  1 0 0  f e e t .

( f )  P r o v i s i o n s  i n  s u b d i v i s i o n s  ( b )  t o  ( e )  m a y  b e  w a i v e d  i n  w r i t i n g  b y  t h e  state fire 
m a r s h a l .

HISTORY: Am. 1941, p. 192, Art 148, Eff. Jan. 10, 1942;—C l, 1948. 388.551;—Am. 1949, p. 280, Act 231, Imil. Eff. Slav 3i;-Am. IK, 
p .375. Act 175, Im EE ff. May 17— Am. 1908. p. 366, Act 239. Eff.:Sep. 1.

CITED IN' OTHER SECTIONS: The above section is cited in ) 29.3c.

PUBLIC ACTS 1957—No. 312.

388.644 Uses of state aid; violations, audits, reports, public inspection. [M.S.A.
15.1919(84)]
Sec. 34. Except as provided in sections 3 to 6, inclusive, each school district shall 

apply the moneys received by it under the terms of this act on salaries of teachers, anil 
other employees, on tuition, on transportation, lighting, heating and ventilation and 'water 
service and on the purchase of textbooks and other supplies: Provided, That an amount
equal to not more than 5% of the total amount received by any school district under sec­
tions 8 et seq. of this act may be expended by the board of education of said district for 
capital costs or debt service for debts contracted after December 8, 1932; and no part» 
said money shall be applied or taken for any purpose whatsoever except as above provide • 
The superintendent of public instruction shall determine the reasonableness of such expendi­
tures and may withhold from any school district which violates the provisions of this sec 
tion. the apportionment otherwise due such school district under this act for the



73aa

year following the discovery' by said superintendent of public instruction of such' violation 
or violations by said school district. For the purpose of determining the reasonableness 
of such expenditures and whether any violation of the provisions of this act has occurred, 
the superintendent of public instruction shall require that school districts have audits of 
their financial and child accounting records at least once every 3 years at the expense of 
said districts by certified public accountants or by county school superintendents, as may 
be required by the superintendent of public instruction, or in the case of school districts of 
the first class by a certified public accountant, the county school superintendent or the 
auditor general of the city. Such audits shall be for such period or periods as the superin­
tendent of public instruction shall specify, and shall be subject to such regulations as the 
superintendent, in consultation with the auditor general of the state may prescribe. Copies 
of the reports of such audits shall be filed as required by the superintendent of public 
instruction and shall be available at all reasonable times for public inspection.

1957 PA 312 was repealed by 1972 PA 258 , § 179. 
§ 18 of 1972 PA 258 i s  the present equ iv alen t  
of 1957 PA 312, § 34.

3 8 8 .1 1 1 8  U s e s  o f  s t a t e  a i d ;  v i o l a t i o n s ;  a u d i t s ;  i n s p e c t i o n .  [ M . S . A .  1 5 . 1 9 1 9 ( 5 1 8 ) ]  

S e c . 1 8 .  ( 1 )  E x c e p t  a s  p r o v i d e d  i n  c h a p t e r s  3 ,  4  a n d  6 ,  e a c h  d i s t r i c t  s h a l l  
a p p ly  t h e  m o n e y s  r e c e i v e d  b y  i t  u n d e r  t h i s  a c t  o n  s a l a r i e s  o f  t e a c h e r s  a n d  o t h e r  
e m p lo y e e s , t u i t i o n ,  t r a n s p o r t a t i o n ,  l i g h t i n g ,  h e a t i n g  a n d  v e n t i l a t i o n  a n d  w a t e r  
se rvice a n d  o n  t h e  p u r c h a s e  o f  t e x t b o o k s  a n d  o t h e r  s u p p l i e s .  A n  a m o u n t  e q u a l  
to n o t  m o r e  t h a n  5 %  o f  t h e  t o t a l  a m o u n t  r e c e i v e d  b y  a n y  d i s t r i c t  u n d e r  c h a p t e r  2  
m a y  b e  e x p e n d e d  b y  t h e  b o a r d  f o r  c a p i t a l  c o s t s  o r  d e b t  s e r v i c e  f o r  d e b t s  c o n ­
tra c te d  a f t e r  D e c e m b e r  8 ,  1 9 3 2 .  N o  p a r t  o f  t h e  m o n e y  s h a l l  b e  a p p l i e d  o r  t a k e n  
for a n y  p u r p o s e  w h a t s o e v e r  e x c e p t  a s  p r o v i d e d  i n  t h i s  s e c t i o n .  T h e  d e p a r t m e n t  
shall d e t e r m i n e  t h e  r e a s o n a b l e n e s s  o f  e x p e n d i t u r e s  a n d  m a y  w i t h h o l d  f r o m  a n y  
d is tric t t h e  a p p o r t i o n m e n t  o t h e r w i s e  d u e  f o r  t h e  f i s c a l  y e a r  f o l l o w i n g  t h e  
d is c o v e r y  b y  t h e  d e p a r t m e n t  o f  a  v i o l a t i o n  b y  t h e  d i s t r i c t .

(2) F o r  t h e  p u r p o s e  o f  d e t e r m i n i n g  t h e  r e a s o n a b l e n e s s  o f  e x p e n d i t u r e s  a n d  
w h e th e r  a n y  v i o l a t i o n  o f  t h i s  a c t  h a s  o c c u r r e d ,  t h e  d e p a r t m e n t  s h a l l  r e q u i r e  t h a t  

istricts h a v e  a u d i t s  o f  t h e i r  f i n a n c i a l  a n d  c h i l d  a c c o u n t i n g  r e c o r d s  a t  l e a s t  
a n n u a lly  a t  t h e  e x p e n s e  o f  t h e  d i s t r i c t s  b y  c e r t i f i e d  p u b l i c  a c c o u n t a n t s  o r  b y  
m t e r m e d ia t e  d i s t r i c t  s u p e r i n t e n d e n t s ,  a s  m a y  b e  r e q u i r e d  b y  t h e  d e p a r t m e n t ,  

or ' n ^ le  c a s e  o f  d i s t r i c t s  o f  t h e  f i r s t  c l a s s  b y  a  c e r t i f i e d  p u b l i c  a c c o u n t a n t ,  t i r e  
i n t e r m e d i a t e  s u p e r i n t e n d e n t  o r  t h e  a u d i t o r  g e n e r a l  o f  t h e  c i t y .  T h e  a u d i t s  s h a l l  

e s u b je c t  t o  s u c h  r u l e s  a s  t h e  s t a t e  b o a r d ,  i n  c o n s u l t a t i o n  w i t h  t h e  s t a t e  a u d i t o r  
s en er a l , m a y  p r e s c r i b e .  C o p i e s  o f  t h e  r e p o r t s  o f  t h e  a u d i t s  s h a l l  b e  f i l e d  a s  

iW jt u r e d  b y  t h e  s t a t e  b o a r d  a n d  s h a l l  b e  a v a i l a b l e  a t  a l l  r e a s o n a b l e  t i m e s  f o r  
P u b lic  i n s p e c t i o n .



74aa

P U B L I C  A C T S  1 9 7 2 — N o .  2 5 8

3 8 8 . 1 1 2 1  B a s i c  a l l o t m e n t s ;  r e o r g a n i z a t i o n .  [ M . S . A .  1 5 . 1 9 1 9 ( 5 2 1 ) ]

S e c .  2 1 .  ( 1 )  E x c e p t  a s  o t h e r w i s e  p r o v i d e d  i n  t h i s  a c t ,  f r o m  t h e  amount 
a p p r o p r i a t e d  i n  s e c t i o n  1 1  t h e r e  i s  a l l o c a t e d  t o - e v e r y  d i s t r i c t  a  s u m  d e t e r m U  
a s  p r o v i d e d  i n  s u b s e c t i o n  ( 2 )  p l u s  t h e  a m o u n t s  a l l o c a t e d  f o r  t r a n s p o r t a t i o n  ii 
c h a p t e r  7  a n d  t u i t i o n  i n  c h a p t e r  1 1 .

( 2 )  T h e  s u m  a l l o c a t e d  t o  e a c h  s c h o o l  d i s t r i c t  s h a l l  b e  c o m p u t e d  fro m  tie 
f o l l o w i n g  t a b l e :

S t a t e  e q u a l i z e d  v a l u a t i o n  
b e h i n d  e a c h  c h i l d

G r o s s
A l l o w a n c e

D e d u c t i b l e
M i l l a g e

( a )  $ 1 7 , 7 5 0 . 0 0  o r  m o r e  $ 6 4 4 . 0 0  1 6
( b )  L e s s  t h a n  $ 1 7 , 7 5 0 . 0 0  $ 7 1 5 . 0 0  2 0

( 3 )  W h e n e v e r  2  o r  m o r e  d i s t r i c t s  a r e  r e o r g a n i z e d  i n t o  a  s i n g l e  district, 
e i t h e r  t h r o u g h  a  p r o c e d u r e  o f  a n n e x a t i o n  o r  c o n s o l i d a t i o n ,  t h e  a m o u n t  o f state 
a i d  t o  b e  r e c e i v e d  b y  t h e  n e w  d i s t r i c t  d u r i n g  t h e  2  y e a r s  i m m e d i a t e l y  subse­
q u e n t  t o  t h e  a n n e x a t i o n  o r  c o n s o l i d a t i o n  s h a l l  n o t  b e  l e s s  t h a n  t h e  to ta l sum 
o f  s t a t e  a i d  w h i c h  w a s  e a r n e d  b y  a l l  t h e  d i s t r i c t s  f o r m i n g  t h e  n e w  district 
d u r i n g  t h e  l a s t  f i s c a l  y e a r  i n  w h i c h  t h e  d i s t r i c t s  r e c e i v e d  a i d  a s  s e p a r a t e  district, 
e x c e p t  t h a t  n o  m o r e  t h a n  $ 4 0 0 , 0 0 0 . 0 0  s h a l l  b e  a l l o c a t e d  u n d e r  t h i s  subsection.

§  2 1 ( 1 ) ,  as amended b y  1 9 7 3  P A  1 0 1

§ 1 5 .1 9 1 9 ( 5 1 1 1 )  Sum s allocated to d istricts; levy of taxes.]
yA'C. 21. (1) Except as otherwise provided in this act, from
the amount appropriated in section 11 there is allocated to every 
district a sum determined as provided in [th is] subsection

♦ The sum allocated to each school district shall be fan amount 
per membership pupil to be] computed ❖  [by subtracting, from 
$38,000.00 in 1973-/4, $39,000.00 in 1974-75 and $40,000.00 in 
1975-76, the district’s state equalized valuation behind each 
membership pupil and then multiplying the resulting difference 
by the tax levied for purposes included in the operation cost of 
the oistnct as defined in .section 112, up to and including 22 mills 
in 1973-74, 25 mills in 1974-75 and without limitation thereafter.

A tax levied pursuant to subdivision (b) of subsection (4) of 
section 681 of the school code of 1955, as amended, being section 
o40.681 of the_Michigan Compiled Laws, for the retirement of an 
operating deficit shall be considered levied for operating pur­
poses in making computations under this section.



75aa

P U B L I C  A C T S  1 9 7 2 — N o .  2 5 8

3 8 8 .1 1 5 1  R e i m b u r s e m e n t  p r o g r a m ;  a l l o c a t i o n ;  r a t e  o f  r e i m b u r s e m e n t .
[ M . S . A .  1 5 . 1 9 1 9 ( 5 5 1 ) ]

S e c . 5 1 .  ( 1 )  T h e r e  i s  a u t h o r i z e d  a  $ 6 7 , 0 0 0 , 0 0 0 . 0 0  p r o g r a m  f o r  t h e  p u r p o s e  
of r e i m b u r s i n g  d i s t r i c t s  f o r  s p e c i a l  e d u c a t i o n  p r o g r a m s ,  s e r v i c e s  a n d  s p e c i a l  
e d u c a t io n  p e r s o n n e l  a s  d e f i n e d  i n  t h e  s c h o o l  c o d e  o f  1 9 5 5 .

(2) F r o m  t h e  a m o u n t  a p p r o p r i a t e d  i n  s e c t i o n  1 1 ,  t h e r e  i s  a l l o c a t e d  t h e  s u m  
of $ 5 0 ,0 0 0 ,0 0 0 .0 0  w h i c h  a m o u n t  s h a l l  b e  a u g m e n t e d  w i t h  $ 1 7 , 0 0 0 , 0 0 0 . 0 0  o f  
fe d e ra l f u n d s  a v a i l a b l e  u n d e r  a n  a g r e e m e n t  w i t h  t h e  d e p a r t m e n t  o f  s o c i a l  
se rvice s.

(3) R e i m b u r s e m e n t  s h a l l  b e  a t  7 5 %  o f  t h e  a c t u a l  c o s t  o f  s a l a r i e s ,  n o t  t o  
e xceed $ 8 , 1 0 0 . 0 0  f o r  a n y  i n d i v i d u a l  s a l a r y ,  f o r  s u c h  p r o g r a m s  a n d  s e r v i c e s  a s 
d e t e r m i n e d  b y  t h e  d e p a r t m e n t .  N o t  l a t e r  t h a n  M a r c h  1 ,  1 9 7 3  t h e  d e p a r t m e n t  
shall p r e p a r e  a  w r i t t e n  r e p o r t  f o r  t h e  l e g i s l a t u r e  i n d i c a r i n g  t h e  a m o u n t  o f  f e d e r a l  
m o n e y s  e a r n e d  u n d e r  t i r e  a g r e e m e n t  w i t h  t h e  d e p a r t m e n t  o f  s o c i a l  s e r v i c e s  f r o m  
J u l y  1 ,  1 9 7 2  t h r o u g h  J u n e  3 0 ,  1 9 7 3 .

§ 51 , as amended by 1973 PA 101

§ 1 5 .1 9 1 9 ( 5 5 1 )  Special education program s, services and 
personnel; authorization o f  fu nd s.] S E C .  5 1 .  ( 1 )  T h e r e  i s
a u t h o r i z e d  a  ♦  p r o g r a m  [ o f  n o t  t o  e x c e e d  $ 1 0 0 , 0 0 0 , 0 0 0 . 0 0 ]  f o r  
t h e  p u r p o s e  o f  r e i m b u r s i n g  d i s t r i c t s  f o r  s p e c i a l  e d u c a t i o n  p r o ­
g r a m s ,  s e r v i c e s  a n d  s p e c i a l  e d u c a t i o n  p e r s o n n e l  a s  d e f i n e d  i n  
t h e  s c h o o l  c o d e  o f  1 9 5 5 [ ,  i n c l u d i n g  a l t e r n a t i v e  e d u c a t i o n  p r o ­
g r a m s  f o r  p r e g n a n t  p e r s o n s  a p p r o v e d  b y  t h e  d e p a r t m e n t  i n  a c ­
c o r d a n c e  w i t h  A c t  N o .  2 4 2  o f  t h e  P u b l i c  A c t s  o f  1 9 7 0 ,  b e i n g  
s e c t i o n s  3 8 8 . 3 9 1  t o  3 8 8 . 3 9 4  o f  t h e  M i c h i g a n  C o m p i l e d  L a w s ,  a n d  
P r o g r a m s  f o r  p u p i l s  h a n d i c a p p e d  b y  l e a r n i n g  d i s a b i l i t i e s  a s  d e ­
f i n e d  b y  t h e  d e p a r t m e n t .  A n  a m o u n t  e q u a l  t o  t h e  d i f f e r e n c e  
b e t w e e n  t h e  $ 1 7 , 0 0 0 , 0 0 0 . 0 0  o f  f e d e r a l  f u n d s  a n t i c i p a t e d  f o r  t h e  
1 9 7 2 - 7 3  s c h o o l  y e a r  a n d  t h e  a m o u n t  o f  f e d e r a l  f u n d s  a c t u a l l y  
r e c e i v e d ,  b u t  n o t  t o  e x c e e d  $ 1 0 , 4 0 0 , 0 0 0 . 0 0 ,  s h a l l  b e  d i s t r i b u t e d  
t o  t h e  d i s t r i c t s  a s  r e i m b u r s e m e n t  f o r  p r o g r a m s  c o n d u c t e d ,  
s e r v i c e s  r e n d e r e d  a n d  p e r s o n n e l  e m p l o y e d  i n  1 9 7 2 - 7 3 ] .

Allocations; reports; deficiencies in anticipated federal fund­
ing-] ( 2 )  F r o m  t h e  a m o u n t  a p p r o p r i a t e d  i n  s e c t i o n  1 1 ,  t h e r e  
i s  a l l o c a t e d  t h e  s u m  o f  [ $ 8 4 , 0 0 0 , 0 0 0 . 0 0 ]  w h i c h  a m o u n t  s h a l l  h e  
a u g m e n t e d  w i t h  [ n o t  t o  e x c e e d  $ 1 6 , 0 0 0 , 0 0 0 . 0 0 ]  o f  f e d e r a l  f u n d s  
a v a i l a b l e  u n d e r  a n  a g r e e m e n t  w i t h  t h e  d e p a r t m e n t  o f  s o c i a l  
s e r v i c e s .  [ P r i o r  t o  D e c e m b e r  1 ,  1 9 7 3  a n d  A p r i l  1 ,  1 9 7 4  t h e  d e ­
p a r t m e n t  s h a l l  e v a l u a t e  t h e  a v a i l a b i l i t y  o f  s u c h  f e d e r a l  f u n d s ,



76aa

s h a l l  r e p o r t  t o  t h e  d i s t r i c t s  a n d  t h e  i n t e r m e d i a t e  d i s t r i c t s  t h e r e ­
u p o n  a n d  s h a l l  a d j u s t  t h e  a m o u n t  o f  s u b s e q u e n t  s t a t e m e n t s  p r e ­
p a r e d  p u r s u a n t  t o  s e c t i o n  1 7  o f  t h i s  a c t  a c c o r d i n g l y .  N o t h i n g  
i n  t h i s  s e c t i o n  s h a l l  b e  c o n s t r u e d  a s  a n  e x p r e s s e d  o r  i m p l i e d  
s t a t e m e n t  o f  i n t e n t ,  o n  t h e  p a r t  o f  t h e  S t a t e  o f  M i c h i g a n ,  to  
a s s u m e  r e s p o n s i b i l i t y  f o r  a n y  d e f i c i e n c y  i n  a n t i c i p a t e d  f e d e r a l  
f u n d i n g . ]

R e i m b u r s e m e n t ;  r e p o r t  t o  l e g i s l a t u r e . ]  ( 3 )  R e i m b u r s e m e n t  
s h a l l  b e  a t  7 5 %  o f  t h e  a c t u a l  c o s t  o f  s a l a r i e s ,  n o t  t o  e x c e e d  
$ 8 , 1 0 0 . 0 0  f o r  a n y  i n d i v i d u a l  s a l a r y ,  f o r  s u c h  p r o g r a m s  a n d  
s e r v i c e s  a s  d e t e r m i n e d  b y  t h e  d e p a r t m e n t ! ] ,  u n l e s s  t h e  a p p r o ­
p r i a t i o n  m a d e  i n  t h i s  s e c t i o n  e x c e e d s  t h e  a m o u n t  n e c e s s a r y  to  

f u n d  t h i s  s c a l e  o f  r e i m b u r s e m e n t ,  i n  w h i c h  c a s e  t h e  s c a l e  s h a ll  
b e  p r o r a t e d  u p w a r d  a c c o r d i n g l y ] .  N o t  l a t e r  t h a n  M a r c h  1 ,
[ 1 9 7 4 ]  t h e  d e p a r t m e n t  s h a l l  p r e p a r e  a  w r i t t e n  r e p o r t  f o r  t h e  
l e g i s l a t u r e  i n d i c a t i n g  t h e  a m o u n t  o f  f e d e r a l  m o n e y s  e a r n e d  u n ­
d e r  t h e  a g r e e m e n t  w i t h  t h e  d e p a r t m e n t  o f  s o c i a l  s e r v i c e s  f r o m  
J u l y  1 ,  [ 1 9 7 3 ]  t h r o u g h  J u n e  3 0 ,  [ 1 9 7 4 ,  a n d  s h a l l  d e v e l o p  a n d  
r e p o r t  t o  t h e  l e g i s l a t u r e  a  s y s t e m  f o r  r e i m b u r s i n g  s p e c i a l  e d u ­
c a t i o n  p r o g r a m s  a n d  s e r v i c e s  o n  a n  a d d e d  c o s t  b a s i s .

T r a n s f e r r e d  p e r s o n n e l ;  r i g h t s ,  b e n e f i t s ,  t e n u r e . ]  ( 4 )  S p e ­
c i a l  e d u c a t i o n  p e r s o n n e l  t r a n s f e r r e d  f r o m  1  s c h o o l  d i s t r i c t  to  
a n o t h e r  t o  i m p l e m e n t  t h e  s c h o o l  c o d e  o f  1 9 5 5 ,  a s  a m e n d e d ,  s h a ll  
b e  e n t i t l e d  t o  a l l  r i g h t s ,  b e n e f i t s ,  a n d  t e n u r e  t o  w h i c h  t h e  p e r s o n  
w o u l d  o t h e r w i s e  b e  e n t i t l e d  h a d  h e  b e e n  e m p l o y e d  b y  t h e  r e ­
c e i v i n g  d i s t r i c t  o r i g i n a l l y ] .

§ 15 o f  1947 PA 336,  as added by 1965 PA 379

423.215 Collective bargain ing ; duties of em ployer and employees rePre 
sentative; subjects and lim itations.

S e c .  1 5 .  A  p u b l i c  e m p l o y e r  s h a l l  b a r g a i n  c o l l e c t i v e l y  w i t h  t h e  r e p r e s e n t a t i v e s  o > 
e m p l o y e e s  a s  d e f i n e d  i n  s e c t i o n  1 1  a n d  is  a u t h o r i z e d  t o  m a k e  a n d  e n t e r  i n t o  col ec i' 
b a r g a i n i n g  a g r e e m e n t s  w i t h  s u c h  r e p r e s e n t a t i v e s .  F o r  t h e  p u r p o s e s  o f  t h i s  section, 
b a r g a i n  c o l l e c t i v e l y  is  t h e  p e r f o r m a n c e  o f  t h e  m u t u a l  o b l i g a t i o n  o f  t h e  e m p l o y e r *  
t h e  r e p r e s e n t a t i v e  o f  t h e  e m p l o y e e s  t o  m e e t  a t  r e a s o n a b l e  t i m e s  a n d  co n fe r in go 
f a i t h  w i t h  r e s p e c t  t o  w a g e s ,  h o u r s ,  a n d  o t h e r  t e r m s  a n d  c o n d i t i o n s  o f  e m p lo y in e n  
t h e  n e g o t i a t i o n  o f  a n  a g r e e m e n t ,  o r  a n y  q u e s t i o n  a r i s i n g  t h e r e u n d e r ,  a n d  tir e  exec“  .j 
o f  a  w r i t t e n  c o n t r a c t ,  o r d i n a n c e  o r  r e s o l u t i o n  i n c o r p o r a t i n g  a n y  a g r e e m e n t  reac |  
r e q u e s t e d  b y  e i t h e r  p a r t y ,  b u t  s u c h  o b l i g a t i o n  d o e s  n o t  c o m p e l  e i t h e r  p a r t y  t o  agrt 

a  p r o p o s a l  o r  r e q u i r e  t h e  m a k i n g  o f  a  c o n c e s s i o n .
HISTORY: Add. 19®, p. 74S, Acl 379. Imd. Elf. Jul. i i .



77aa

§ 46 of 1969 PA 306, as amended by 1971 PA 171

2 4 .2 4 6  P r o m u l g a t i o n ;  r e c o r d s .  [ M . S . A .  3 . 5 6 0 ( 1 4 6 ) ]

S e c . 4 6 .  ( 1 )  T o  p r o m u l g a t e  a  r u l e  a n  a g e n c y  s h a l l  f i l e  i n  t h e  o f f i c e  
o f  t h e  s e c r e t a r y  o f  s t a t e  3  c o p i e s  o f  t h e  r u l e  b e a r i n g  t h e  r e q u i r e d  c e r t i f i ­
c a te s  o f  a p p r o v a l  a n d  a d o p t i o n  a n d  t r u e  c o p i e s  o f  t h e  r u l e  w i t h o u t  t h e  
c e r t i f i c a t e s . A n  a g e n c y  s h a l l  n o t  f i l e  a  r u l e ,  e x c e p t  a n  e m e r g e n c y  r u l e  
u n d e r  s e c t i o n  4 8 ,  u n t i l  a t  l e a s t  1 0  d a y s  a f t e r  t h e  d a t e  o f  t h e  c e r t i f i c a t e  
o f  a p p r o v a l  b y  t h e  j o i n t  c o m m i t t e e  o n  a d m i n i s t r a t i v e  r u l e s  o r  u n t i l  a t  
le a s t  1 0  d a y s  a f t e r  e x p i r a t i o n  o f  t h e  a p p l i c a b l e  p e r i o d  o f  t i m e  p r e s c r i b e d  
i n  s u b s e c t i o n  ( 5 )  o f  s e c t i o n  4 5  w h e n  t h e  l e g i s l a t u r e  h a s  n o t  a d o p t e d  a  
c o n c u r r e n t  r e s o l u t i o n  d i s a p p r o v i n g  t h e  r u l e  d u r i n g  t h a t  p e r i o d .  A n  a g e n c y  
s h a ll  t r a n s m i t  a  c o p y  o f  t h e  r u l e  b e a r i n g  t h e  r e q u i r e d  c e r t i f i c a t e s  o f  
a p p r o v a l  a n d  a d o p t i o n  t o  t h e  o f f i c e  o f  t h e  g o v e r n o r  a t  l e a s t  1 0  d a y s  b e f o r e  
it  f i l e s  t h e  r u l e .

( 2 )  T h e  s e c r e t a r y  o f  s t a t e  s h a l l  i n d o r s e  t h e  d a t e  a n d  h o u r  o f  f i l i n g  o f  
r u le s  o n  t h e  3  c o p i e s  o f  t h e  f i l i n g  b e a r i n g  t h e  c e r t i f i c a t e s  a n d  s h a l l  m a i n ­
t a i n  a  f i l e  c o n t a i n i n g  1  c o p y  f o r  p u b l i c  i n s p e c t i o n .

(3 )  T h e  s e c r e t a r y  o f  s t a t e ,  a s  o f t e n  a s  h e  d e e m s  i t  a d v i s a b l e ,  s h a l l  
c a u s e  t o  b e  a r r a n g e d  a n d  b o u n d  i n  a  s u b s t a n t i a l  m a n n e r  t h e  r u l e s  h e r e ­
a f t e r  f i l e d  i n  h i s  o f f i c e  w i t h  t h e i r  a t t a c h e d  c e r t i f i c a t e s  a n d  p u b l i s h e d  i n  
a  s u p p l e m e n t  t o  t h e  M i c h i g a n  a d m i n i s t r a t i v e  c o d e .  H e  s h a l l  c e r t i f y  u n d e r  
h is  h a n d  a n d  s e a l  o f  t h e  s t a t e  o n  t h e  f r o n t i s p i e c e  o f  e a c h  v o l u m e  t h a t  i t  

c o n t a i n s  a l l  o f  t h e  r u l e s  f i l e d  a n d  p u b l i s h e d  f o r  a  s p e c i f i e d  p e r i o d .  T h e  
r u l e s , w h e n  s o  b o u n d  a n d  c e r t i f i e d ,  s h a l l  b e  k e p t  i n  t h e  o f f i c e  o f  t h e  
s e c r e t a r y  o f  s t a t e  a n d  n o  f u r t h e r  r e c o r d  t h e r e o f  i s  r e q u i r e d  t o  b e  k e p t .  
T h e  b o u n d  r u l e s  a r e  s u b j e c t  t o  p u b l i c  i n s p e c t i o n .









In The

SUPREME COURT OF THE UNITED STATES 
October Term 1973

No. 73-435

ALLEN PARK PUBLIC SCHOOLS, et aL,

-v-

RONALD BRADLEY, et al„

Petitioners,

Respondents.

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

BRIEF OF PETITIONERS 
ALLEN PARK PUBLIC SCHOOLS, ET AL.

BUTZEL, LONG, GUST, KLEIN 
& VAN ZILE

CONDIT AND MC GARRY, P.C. 
Richard P. Condi t,

Of Counsel

Ha r t m a n , b e i e r , h o w l e t t

Me CONNELL & GOOGASIAN 
Kenneth B. McConnell,
. Of Counsel

WILLIAM M. SAXTON 
JOHN B. WEAVER 
ROBERT M. VERCRUYSSE 
XHAFER ORHAN 
1881 First National Building 
Detroit, Michigan 48226

Counsel for Petitioners 
Allen Park Public Schools, et al., 
Southfield Public Schools, and 
School District of the City of 
Royal Oak





1

INDEX

T a b l e  o f  A u t h o r i t i e s  .............................................................................................................................................................  j j j

O p i n i o n s  a n d  O r d e r s  B e l o w  ................................................................................................................................... 1

J u r i s d i c t i o n  ..................................................................................................................................................................................................  3

S t a t e m e n t  o f  Q u e s t i o n s  P r e s e n t e d  ......................................................................................................... 3

C o n s t i t u t i o n a l  P r o v i s i o n s ,  S t a t u t e s  a n d  R u l e s  I n v o l v e d  .....................  4

S t a t e m e n t  o f  t h e  C a s e  ........................................................................................................................................................ 8

T h e  S t a t u s  o f  P e t i t i o n e r s  S c h o o l s  D i s t r i c t s  i n  T h i s  L i t i g a t i o n  8

T h e  B a s i s  o f  T h i s  L i t i g a t i o n ........................................................................................................................  9

T h e  D e c i s i o n  o f  t h e  C o u r t  o f  A p p e a l s  ..............................................................................  1 9

S u m m a r y ..................................................................................................................................................................................................  2 1

S u m m a r y  o f  A r g u m e n t  ................................................................................................................................................... 2 2

T h e  N a t u r e  o f  t h e  C o n s t i t u t i o n a l  V i o l a t i o n s  H e r e  F o u n d  

R e q u i r e s  A  R e m e d y  L i m i t e d  t o  t h e  D e t r o i t  S c h o o l  S y s t e m  2 2

T h e  N a t u r e  o f  t h e  C o n s t i t u t i o n a l  V i o l a t i o n s  H e r e  F o u n d  

N e i t h e r  R e q u i r e s  N o r  P e r m i t s  A  “ M e t r o p o l i t a n ”  R e m e d y  

D e s i g n e d  t o  E f f e c t  A  R a c i a l  B a l a n c e  B e t w e e n  t h e  D e t r o i t  

S c h o o l  S y s t e m  a n d  O t h e r  I n d e p e n d e n t  S c h o o l  S y s t e m s  . . 2 3

P e t i t i o n e r s  H a v e  B e e n  D e n i e d  D u e  P r o c e s s  o f  L a w  .............................. 2 6

I .  T h e  F a i l u r e  o f  t h e  D i s t r i c t  C o u r t  t o  J o i n  P e t i t i o n e r s

S c h o o l  D i s t r i c t s  I s  A  D e n i a l  o f  D u e  P r o c e s s  o f  L a w  . . 2 6

I I .  R e s t r i c t i n g  P e t i t i o n e r s  t o  A  H e a r i n g  O n l y  O n  t h e

S c o p e  o f  t h e  “ M e t r o p o l i t a n ”  R e m e d y  I s  A  D e n i a l  o f  

D u e  P r o c e s s  ..................................................................................................................................................................  2 7

Argument .......................................................................................  29

I .  B a s e d  U p o n  t h e  N a t u r e  o f  t h e  C o n s t i t u t i o n a l  V i o l a ­

t i o n s  H e r e  F o u n d ,  t h e  R e m e d y  M u s t  B e  L i m i t e d  t o  

C o n v e r t i n g  t h e  D e t r o i t  S c h o o l  S y s t e m  t o  A  U n i t a r y  

S y s t e m  ..................................................................................................................................................................................  2 9

I I .  T h e r e  I s  N o  C o n s t i t u t i o n a l  V i o l a t i o n  O n  W h i c h  t o

P r e d i c a t e  A  S o - C a l l e d  M e t r o p o l i t a n  R e m e d y ...................................  3 5

Page



11

Page
A .Brown v. Board o f Education and Its Progeny, Re­

visited ..................................................................  35
B. There Is No Constitutional Violation On Which A 

“Metropolitan” Remedy Can Be Predicated ........ 44
III. Petitioners Have Been and Will Continue to Be

Denied Due Process of Law .....................................  52
A. Failure to Join School Districts Whose Interests

Are to Be Affected Is A Denial Due Process ........ 53
B. Petitioners “Conditional” Intervention and the

Proceedings Thereafter Constitute A Denial of Due 
Process of Law ................................................ 55

Conclusion .......................................................................... 58



Ill

TABLE OF AUTHORITIES

Alexander v. Holmes County Board o f Education, 396
U.S. 19(1969) ......................................................  22, 33, 34

40
Armstrong v. Manzo, 380 U.S. 545 (1965) .............. 28, 56
Baltimore & O R. Co. v. Chicago River and Indiana R.

Co., 170 F.2d 654 (CA 7, 1948), cert. den. 336
U.S. 944(1949) ..................................................  27,53

Boris v. Moore, 152 F. Supp.(E.D. Wis. 1957), aff’d 
253 F.2d 523 (CA 7, 1958)..................................  27

Bradley v. Milliken, 338 F. Supp. 582 (E.D. Mich.
1971) ...................................................................... 2
Bradley v. Milliken, 433 F.2d 897 (CA 6, 1970) ___  1, 9, 11

30, 31
Bradley v. Milliken, 438 F.2d 945 (CA 6, 1971) ___  1, 25
Bradley v. Milliken, 468 F.2d 902 (CA 6, 1972), cert, 

den. 409 U.S. 844 (1972)   1,13
Bradley v. Milliken, 484 F.2d 215 (CA 6, 1973) ___  1,13,21

28, 29, 30, 
31, 32, 35
35,49, 50 
55, 57, 58

Bradley v. School Board o f the City o f Richmond,
338 F. Supp.67 (E.D. Va. 1972) ..........................  17,27,53

Bradley v. School Board o f the City o f Richmond,
462 F.2d 1058 (CA 4, 1972), aff’d. by equally
divided Court, 412 U.S. 92 (1973) ......................  17,24,27

52, 53
Brown v. Board of Education o f Topeka, 347 U.S. 40

Page

Cases

44,49, 50, 52
Brown v. Board of Education o f Topeka, 349 U.S.

294(1955)

40, 41,42

22,35,37 
38



IV

Brunson v. Board o f Trustees o f School District No.
1, Clarendon County, S.C., 429 F,2d 820 (CA 4,
1970)   51

Davis v. School District o f the City o f Pontiac, 443
F.2d 573 (CA 6, 1971), cert. den. 404 U.S. 913
(1971) .................................................................. 25

Deal v. Cincinnati Board o f Education, 369 F.2d 55
(CA 6, 1966), cert. den. 389 U.S. 847 (1969) ___  51

Dred Scott v. Sanford, 60 U.S. (19 How) 393 (1856) 36, 51
Green v. County School Board o f New Kent Countv,

391 U.S. 430 (1968) ........................................ .. . 33,34,39
40

Griffin v. County School Board o f Prince Edward
County, 377 U.S. 218 (1964) ................................. 31,38

Higgins v. Board o f Education o f the City o f Grand
Rapids, ___F. Supp— (W.D. Mich. 1973), Case-
No. 6386) ............................................................  27,31,54

55
In Re Gault, 387 U.S. 1(1967) ..........................  57
In Re Oliver, 333 U.S. 257 (1948) ..........................  28, 56
Jenkins v. McKeithen 395 U.S. 41 1 (1969) .............. 56
Jones v. Grand Ledge Public Schools, 349 Mich. 1, 84

N.W. 2d 327 (1957) .............................................  48,49
Keyes v. School District No. 1, Denver, Colo., 413

U.S. 189 (1973) 37 L. Ed. 2d 548 (1973)............ 28,31,32
43,44,58

Lee v. Macon County Board o f Education, 448 F.2d
746 (CA. 5, 1971) ...............................................  45,46

MacQueen v. City Commission o f Port Huron, 194
Mich. 328, 160 N.W. 627 (1916)..........................  49

The People ex rel Joseph Workman v. The Board of 
Education o f the City o f Detroit, 18 Mich. 399 
(1869) ......................     23,24,45

Page

Cases



V

Page

Plessy v. Ferguson, 163 U.S. 537 (1896) ..................  36, 50
Railroad Commission o f California v. Pacific Gas &

Electric Co., 302 U.S. 388 (1938) ........................  56
Raney v. Board of Education o f Gould School Dis­

trict, 391 U.S. 443 (1968)....................................  34
San Antonio Independent School District v. Rod­

riguez, 411 U .S. 1 (1973) ....................................  23,31,46
49

School District of the City o f Lansing v. State Board 
of Education, 367 Mich. 591, 116 N.W.2d 866 
(1962) ..................................................................  49

Spencer v. Kugler, 326 F. Supp. 1235 (N.J. 1971),
aff’d 404 U.S. 1027 (1972) ..................................  24,42,43

50, 52
Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1 (1971) ................................................  22, 23, 25
26, 29, 32 
33, 34, 37

Cases

40, 41, 42 
46, 50, 51 

52, 60
United States v. Board of Education, Independent 

School District No. 1, Tulsa, Oklahoma, 459 F.2d
720 (CA 10, 1972) ..............................................  25,60

United States v. Scotland Neck City Board of Educa­
tion, 407 U.S. 484 (1972) ....................................  23, 43

Waterman v. The Canal-Louisiana Bank and Trust 
Company, 215 U.S. 33 (1909) ............................  27,53,54

Wright v. Council o f the City o f Emporia, 407 U.S.
451 {1912) ..........................................................  23,34,43

United States Constitution

Fifth Amendment ................................................  4, 29
Tenth Amendment ..............................................  4,5



United States Constitution
Thirteenth Amendment........................................  36
Fourteenth Amendment ......................................  5,36,38

42,60
Fifteenth Amendment..........................................  36

United States Statutes
62 Stat. 928 (1948), 28 U.S.C. 1254(1) ..............  3
62 Stat. 929 (1948), as amended 72 Stat. 1770 
(1958), Pub. L. 85-919, 28 U.S.C. 1292 (b) ........  19

Federal Rules of Civil Procedure
Fed. R. Civ. P. 19 ................................................  20,29
Fed. R. Civ. P. 54(b) ............................................  19

Michigan Constitution of 1963
art VIII, §2 ..........................................................  5,26,45

46,53
art VIII, §3 ..........................................................  5,6

Michigan Statutes
Act No. 34, Public Acts of Michigan 1867 (amend­

ed Act No. 319, Public Acts of Michigan 1927) 7,44,45
Act No. 319, Public Acts of Michigan 1927 (Michi­

gan Compiled Laws 340.1-386.12, amended Act 
No. 269, Public Acts of Michigan 1955) ..........  8, 45

Act No. 269, Public Acts of Michigan 1955 (Michi­
gan Compiled Laws 340.1 et seq.)......................  45
Mich. Comp. Laws 340.26..................................  31,47
Mich. Comp. Laws 340.77   26,31,47

53
Mich. Comp. Laws 340.113 ..............................
Mich. Comp. Laws 340.165 ..............................
Mich. Comp. Laws 340.192 ..............................  47
Mich. Comp. Laws 340.352 ..........................  6, 7, 8,47

vi

Page



Michigan Statutes
Mich. Comp. Laws 340.355 ............................  7, 45
Mich. Comp. Laws 340.569 ............................ 26,47,53
Mich. Comp. Laws 340.575 ............................ 27, 47, 53
Mich. Comp. Laws 340.582 ............................ 26, 47, 53
Mich. Comp. Laws 340.583 ............................ 27, 47, 53
Mich. Comp. Laws 340.589 ............................ 26, 48
Mich. Comp. Laws 340.591 .............................. 48
Mich. Comp. Laws 340.594   48
Mich. Comp. Laws 340.609   48
Mich. Comp. Laws 340.614   27,48,53
Mich. Comp. Laws 340.643a ............................ 48
Mich Comp. Laws 340.711   48
Mich. Comp. Laws 340.882 ............................ 27, 48, 53

Act No. 175, Public Acts of Michigan 1962 (Michi­
gan Compiled Laws 388.85 1-388.853,
388.855a) ........................................................  31

Act No. 48, Public Acts of Michigan 1970 (Michi­
gan Compiled Laws 388.171a, 388.172a,
388.173a, 388.174-388.183)............................ 9,10
Section 12 Mich. Comp. Laws 388.182) .......... 7, 1 1, 13

30, 31

Miscellaneous
Official Record, Michigan Constitutional Convention,

Volume II ............................................................ 45
Equality o f Educational Opportunity, Fred­

erick Mosteller and Daniel P. Moynihan, Random 
House 1972; ........................................................ 59

The Evidence On Busing” , David J. Armor, The 
Public Interest, No. 28 (Summer 1972)................  59

Do Schools Make A Difference” , Godfrey Hodgson,
The Atlantic, March 1973 .................................... 59

vii

Page



Miscellaneous

viii

“Equality of Educational Opportunity” , Office of 
Education, U.S. Department of Health, Education 
and Welfare, U.S. Government Printing Office,
1966. OE-38001; Superintendent of Documents
Catalog No. FS 5-238: 38001.................................  59

“Coleman On The Coleman Report” , Educational 
Researcher, American Educational Research Assoc­
iation, Vol. 1, No. 3 (March 1972) ......................  59

Through the Looking Glass, Lewis Carroll................  35, 36



1

In The

SUPREM E C O U R T  O F  T H E  U N ITE D  STATES  

October Term 1973

N o . 7 3 -4 3 5

ALLEN P A R K  PUBLIC SC H O O LS, et al„
Petitioners,

-v-

RONALD B R A D L E Y , et a l„
Respondents.

ON W R IT O F  C E R T IO R A R I T O  T H E  U N ITE D  STATES  
C O U R T  O F  APPEALS F O R  TH E SIX T H  CIR CU IT

B R IEF  O F  PETITIO N ER S  
A L L E N  P A R K  PUBLIC SC H O O L S, ET A L .

O PINION S A N D  O R D E R S  BE LO W

The opinions in the Court of Appeals for the Sixth Circuit 
filed June 12, 1973, are printed in the Appendix to the Petition 
For Writ Of Certiorari filed by Allen Park Public Schools, et al., in 
Case No. 73-435, at pages 110a through 240a (Pet. A. 
110a-240a)t1J and are reported at 484 F.2d 215 (CA 6, 1973). 
The judgment of the United States Court of Appeals for the Sixth 
Circuit entered June 12, 1973, is unreported and appears in the 
Appendix to the Petition for Writ of Certiorari at pages 244a 
through 245a. (Pet. A. 244a-245a).

Opinions of the Court of Appeals for the Sixth Circuit ren­
dered at prior stages of the case are reported at 433 F.2d 897 (CA 
6, 1970), 438 F.2d 945 (CA 6, 1971) and 468 F.2d 902 (CA 6,
1972), cert, den. 409 U.S. 844 (1972).

Citations denoted “ Pet. A____ ” refer to the single volume Appendix
filed with the Petition For Writ Of Certiorari filed by Petitioners Allen Park
Public Schools, et al., in Case No. 73-435. Citations denoted “ A____”  refer to
the volume and page o f the five volume single Appendix filed subsequent to 
the grant of the Petitions For Writ Of Certiorari in Nos. 73-434, 73-435 and 
73-436.



2

The Ruling On Issue Of Segregation, dated September 27,
1971, issued by the District Court for the Eastern District of 
Michigan is printed in the Appendix to the Petition For Writ Of 
Certiorari at pages 17a through 39a (Pet. A. 17a-39a) and is re­
ported at 338 F. Supp. 582 (E.D. Mich. 1971).

The Findings of Fact and Conclusions of Law On Detroit- 
Only Plans of Desegregation, dated March 28, 1972, issued by the 
District Court, is printed in the Appendix to the Petition For Writ 
Of Certiorari at pages 53a through 58a (Pet. A. 53a-58a).

The Ruling On Propriety of Considering A Metropolitan 
Remedy to Accomplish Desegregation of the Public Schools of the 
City of Detroit, dated March 24, 1972, issued by the District 
Court, is printed in the Appendix to the Petition For Writ Of Cer­
tiorari at pages 48a through 52a (Pet. A. 48a-52a).

The Ruling On Desegregation Area and Order For Develop­
ment of Plan of Desegregation, dated June 14, 1972, issued by the 
District Court, is printed at pages 97a-105a in the Appendix to the 
Petition For Writ Of Certiorari (Pet. A. 97a-105a). The District 
Court’s Findings of Fact and Conclusions of Law In Support of 
Ruling On Desegregation Area and Development of Plans, also 
dated June 14, 1972, is printed in the Appendix to the Petition 
For Writ Of Certiorari at pages 59a through 96a (Pet. A. 59a-96a).

The Order for Acquisition of Transportation, dated July 11,
1972, entered by the District Court, is printed in the Appendix to 
the Petition For Writ Of Certiorari at pages 106a through 107a 
(Pet. A. 106a-107a).

The Ruling and Order On Petitions for Intervention entered 
by the District Court on March 15, 1972, is set forth in the de­
cision of the Court of Appeals for the Sixth Circuit printed in the 
Appendix to the Petition For Writ Of Certiorari at pages 208a to 
209a, footnote 6 (Pet. A. 208a-209a) and at pages 232a to 233a 
(Pet. A. 232a-233a), respectively, and in the joint Appendix at A. 
Ia204-207.



3

JU R ISD ICTIO N

The jurisdiction of this Court is invoked under 28 U.S.C. 
1254(1). The Judgment of the United States Court of Appeals for 
the Sixth Circuit was entered on June 12, 1973. This Petition For 
Writ Of Certiorari was timely filed on September 6, 1973. Cer­
tiorari was granted on November 19, 1973.

ST A T E M E N T  O F  Q U E STIO N S PRESEN TED

I

ASSUMING, ARGUENDO, A DE JURE SEGREGATED 
PUBLIC SCHOOL SYSTEM IN OPERATION WITHIN THE 
DETROIT SCHOOL SYSTEM, CAN THE VESTIGES OF 
SUCH SEGREGATION BE ELIMINATED AND THE DE­
TROIT PUBLIC SCHOOL SYSTEM BE CONVERTED TO A 
UNITARY SYSTEM UNDER A DESEGREGATION PLAN 
LIMITED TO SAID SCHOOL DISTRICT? II

II

WHERE A DE JURE SEGREGATED PUBLIC SCHOOL 
SYSTEM IS FOUND IN OPERATION IN THE CITY OF 
DETROIT SCHOOL DISTRICT, DOES THE UNITED 
STATES CONSTITUTION REQUIRE OR PERMIT A 
UNITED STATES DISTRICT COURT TO ISSUE A DESEG­
REGATION ORDER EMBRACING UP TO EIGHTY-FIVE 
(85) OTHER GEOGRAPHICALLY AND POLITICALLY 
SEPARATE, IDENTIFIABLE AND UNRELATED SCHOOL 
DISTRICTS AND REQUIRING THE FORCED REASSIGN­
MENT AND CROSS-DISTRICT TRANSPORTATION OF 
HUNDREDS OF THOUSANDS OF CHILDREN, ABSENT
(i) ANY CLAIM OR FINDING THAT SUCH OTHER 
SCHOOL DISTRICTS HAVE FAILED TO OPERATE UNI­
TARY SCHOOL SYSTEMS, AND (ii) ABSENT ANY CLAIM 
OR FINDING THAT THE BOUNDARY LINES OF ANY 
SCHOOL DISTRICTS WERE ESTABLISHED WITH THE 
PURPOSE OF CREATING OR FOSTERING RACIAL SEG­
REGATION IN THE PUBLIC SCHOOLS?



4

DOES THE FAILURE TO ACCORD PETITIONERS 
SCHOOL DISTRICTS, AGAINST WHOM RELIEF IS 
SOUGHT, A MEANINGFUL OPPORTUNITY TO PRESENT 
EVIDENCE AND BE HEARD ON ALL CONTROLLING IS­
SUES, INCLUDING THE ISSUE OF SEGREGATION, A 
“ DETROIT-ONLY” PLAN OF DESEGREGATION AND 
THE PROPRIETY OF A SO-CALLED METROPOLITAN 
REMEDY TO DESEGREGATE THE DETROIT PUBLIC 
SCHOOL SYSTEM, DENY PETITIONERS DUE PROCESS 
OF LAW?

III

C O N S T IT U T IO N A L  P R O V ISIO N S,
S T A T U T E S  A N D  R U L E S IN V O L V E D

Constitutional Provisions

United States Constitution, Amendment V:
AMENDMENT V -  CAPITAL CRIMES; DOUBLE JEOPAR­
DY; SELF-INCRIMINATION; DUE PROCESS; JUST COM­
PENSATION FOR PROPERTY

“No person shall be held to answer for a capital, or 
otherwise infamous crime, unless on a presentment or 
indictment of a Grand Jury, except in cases arising in the 
land or naval forces, or in the Militia, when in actual service 
in time of War or public danger; nor shall any person be sub­
ject for the same offence to be twice put in jeopardy of life 
or limb; nor shall be compelled in any criminal case to be a 
witness against himself, nor be deprived of life, liberty, or 
property, without due process of law; nor shall private 
property be taken for public use, without just compensa­
tion.”

United States Constitution, Amendment X:
AMENDMENT X -  POWERS RESERVED TO THE 
STATES

“The powers not delegated to the United States by the 
Constitution, nor prohibited by it to the States, are reserved 
to the States respectively, or to the people.”



5

United States Constitution, Amendment XIV, Section 1:

“ Section 1. All persons bom or naturalized in the 
United States, and subject to the jurisdiction thereof, are citi­
zens 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 citizens 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 per­
son within its jurisdiction the equal protection of the laws.”

Michigan Constitution of 1963, Art. 8, § 2:
Free public elementary and secondary schools; discrimi­
nation.
“ Sec. 2. The legislature shall maintain and support a 

system of free public elementary and secondary schools as 
defined by law. Every school district shall provide for the 
education of its pupils without discrimination as to religion, 
creed, race, color or national origin.”

Michigan Constitution of 1963, Art. 8, §3:
State board of education; duties.
“Sec. 3. Leadership and general supervision over all pub­

lic education, including adult education and instructional 
programs in state institutions, except as to institutions of 
higher education granting baccalaureate degrees, is vested in a 
state board of education. It shall serve as the general planning 
and coordinating body for all public education, including 
higher education, and shall advise the legislature as to the fi­
nancial requirements in connection therewith.”

Superintendent o f  public instruction; appointment,
powers, duties.

The state board of education shall appoint a super­
intendent of public instruction whose term of office shall be 
determined by the board. He shall be the chairman of the 
board without the right to vote, and shall be responsible for 
the execution of its policies. He shall be the principal execu­
tive officer of a state department of education which shall 
have powers and duties provided by law.”



6

State board of education; members, nomination, elec­
tion, term.
“The state board of education shall consist of eight 

members who shall be nominated by party conventions and 
elected at large for terms of eight years as prescribed by law. 
The governor shall fill any vacancy by appointment for the 
unexpired term. The governor shall be ex-officio a member of 
the state board of education without the right to vote.”

Boards of institutions of higher education, limitation.
“The power of the boards of institutions of higher edu­

cation provided in this constitution to supervise their respec­
tive institutions and control and direct the expenditure of the 
institutions’ funds shall not be limited by this section.”

Michigan Statutes

Michigan Compiled Laws, §340.352:
340.352 Body corporate; powers, rights, liabilities; presump­

tions.
“Sec. 352. Every school district shall be a body cor­

porate under the name provided in this act, and may sue and 
be sued in its name, may acquire and take property, both real 
and personal, for educational purposes within or without its 
corporate limits, by purchase, gifts, grant, devise or bequest, 
and hold and use the same for such purposes, and may sell 
and convey the same as the interests of such district may 
require, subject to the conditions of this act contained. As 
such body corporate, every school district shall be the succes­
sor of any school district previously existing within the same 
territorial limits and shall be vested with all rights of action, 
with the title of all property, real and personal, of the district 
of which it is the successor, and the indebtedness and obliga­
tions of the district superseded shall become and be the in­
debtedness and obligations of the succeeding district, except 
as otherwise provided in chapters 3, 4 and 5, part 2 of this 
act. Every school district shall in all cases be presumed to 
have been legally organized when it shall have exercised the 
franchises and privileges of a district for the term of 2 years,



7

and such school district and its officers shall be entitled to all 
the rights, privileges and immunities, and be subject to all the 
duties and liabilities conferred upon school districts by law.”

Michigan Compiled Laws, §340.355:
340.355 Discrimination; race, color, intellectual progress.

“Sec. 355. No separate school or department shall be 
kept for any person or persons on account of race or color. 
This section shall not be construed to prevent the grading of 
schools according to the intellectual progress of the pupil, to 
be taught in separate places as may be deemed expedient.”

Act 34, Sec. 28, Mich. Pub. Acts of 1867:
“ (2271) Sec. 28. All residents of any district shall have 

an equal right to attend any school therein; Provided, That 
this shall not prevent the grading of schools according to the 
intellectual progress of the pupils, to be taught in separate 
places when deemed expedient.”

Act 48, Sec. 12, Mich. Pub. Acts of 1970:
388.182 Attendance provisions, implementation; conditions.

“Sec. 12. The implementation of any attendance provi­
sions for the 1970-71 school year determined by any first 
class school district board shall be delayed pending the date 
of commencement of functions by the first class school dis­
trict boards established under the provisions of this amenda­
tory act but such provision shall not impair the right of any 
such board to determine and implement prior to such date 
such changes in attendance provisions as are mandated by 
practical necessity. In reviewing, confirming, establishing or 
modifying attendance provisions the first class school district 
boards established under the provisions of this amendatory 
act shall have a policy of open enrollment and shall enable 
students to attend a school of preference but providing prior­
ity acceptance, insofar as practicable, in cases of insufficient 
school capacity, to those students desiring to attend the 
school for participation in vocationally oriented courses or 
other specialized curriculum.”



Act 3 19, Part Ii, Ch. 2, Sec. 9, Mich. Pub. Acts of 1927:
“ Sec. 9. All persons residents of any school district, and 

five years of age, shall have an equal right to attend any 
school therein; and no separate school or department shall be 
kept for any person or persons on account of race or color: 
Provided, That this shall not be construed to prevent the 
grading of schools according to the intellectual progress of 
the pupil, to be taught in separate places as may be deemed 
expedient.”

8

S T A T E M E N T  O F  T H E  C A SE

The Status o f Petitioners School Districts 
In This Litigation

Petitioners are forty-two (42) separate, unrelated and identi­
fiable Michigan school districts in Wayne, Oakland and Macomb 
counties within varying degrees of geographical proximity to the 
city of Detroit. Each of Petitioners School Districts is an indepen­
dent municipal body corporate organized and existing pursuant to 
the Constitution and laws of the State of Michigan.Each ot 
said school districts is governed by its respective duly elected 
Board of Education. There is no claim or finding that any of the 
Petitioners has failed to operate a unitary school system or that 
any of the Petitioners’ school district boundaries were established 
for the purpose of fostering racial segregation in the public 
schools. The complaint in this cause asserts no unlawful action re­
specting Petitioners and makes no claim for relief against Petition­
ers. Petitioners are before this Court because the United States 
District Court and the United States Court of Appeals for the 
Sixth Circuit have decreed that Petitioners can be used for the pur­
pose of changing the racial composition of the Detroit public 
school system from predominantly black to predominantly white.

t2 l M ich ig a n  C o m p ile d  L a w s , S e c t io n  3 4 0 .3 5 2 .



9

The Basis o f  This Litigation

This action was commenced by the filing of a complaint by 
the plaintiffs on August 18, 1970. (Pet. A. 2a). The defendants 
named in the complaint are the Governor of the State of Michigan, 
the Attorney General of the State of Michigan, the Michigan State 
Board of Education, the Superintendent of Public Instruction for 
the State of Michigan, the Board of Education of the City of 
Detroit, and its then members, and the Superintendent of the 
Detroit Public Schools.

The complaint is directed solely at the operation of the 
Detroit public school system and alleges that as a result of actions 
and policies of the Detroit Board of Education and a section of 
Act No. 48 of the Public Acts of Michigan, 1970, [3] said school 
system is not being operated on a unitary basis. No claim is made 
that the Detroit school district was established for the purpose of 
fostering racial segregation. No claim is made that the establish­
ment or operation of any other school district has any causal con­
nection with the alleged failure to operate the Detroit school 
system as a unitary system. The gravamen of the complaint is 
stated in paragraph I thereof as follows:

“ . . . this being a suit for declaratory judgment declaring 
certain parts of Act No. 48 of the Michigan Public Acts of 
1970 (a copy of which is attached hereto as Exhibit A) 
unconstitutional. This is also an action for injunctive relief 
against the enforcement of certain portions of said Act No. 
48 and to require the operation o f the Detroit, Michigan 
public schools on a unitary basis.” (Pet. A. 2a). [Emphasis 
added.]

The Complaint alleged that in the 1969-70 school year the 
overall racial mix of the student population of the Detroit schools 
was 61.9% Negro, 36.4% white and 1.7% were of other racial 
ethnic minorities (Pet. A. 6a). It was further alleged that some of 
the schools in the City of Detroit were identifiable as “white”
[ 31  7

Said A c t  a p p lie d  o n ly  t o  s o -c a l le d  F irst C lass s c h o o l  d is tr ic ts  in  th e  S ta te  
o f  M ich igan . T h e  C ity  o f  D e t r o it  S c h o o l  D is tr ic t  is th e  o n ly  F irst C lass s c h o o l  
district in  th e  S ta te , Bradley et al. v . Milliken e t  al., 4 3 3  F 2 d  8 9 7 ,  9 0 0  (C A 6 ,  
19 7 0 ). T h e  e f f e c t  o f  o n e  s e c t io n  o f  th e  A c t  w a s  t o  d e la y  im p le m e n t a t io n  o f  a 
P rop osed  p lan  t o  e f f e c t  a m o r e  b a la n c e d  d is t r ib u t io n  o f  b la ck  a n d  w h ite  s tu ­
dents in  ce rta in  D e tro it  s e n io r  h ig h  s c h o o ls  (P e t . A . 1 1 0 a -l  1 l a ) .



1 0

schools or as “Negro” schools (Pet. A. 6a), and that -

“Plaintiffs allege that they are being denied equal educa­
tional opportunities by the defendants because o f the segre­
gated pattern o f pupil assignments and the racial identifiabil- 
ity o f the schools in the Detroit public school system. Plain­
tiffs further allege that said denials of equal educational op­
portunities contravene and abridge their rights as secured by 
the Thirteenth and Fourteenth Amendments to the Constitu­
tion of the United States.” (Pet. A. 1 la). [Emphasis added.]

Plaintiffs further alleged that the Detroit School Board had 
followed a racially discriminatory policy in assigning faculty and 
staff members employed in the Detroit school system on the basis 
of race and color. (Pet. A. 12a).

The concluding paragraph of the complaint reiterates that the 
matters complained of related solely to the City of Detroit School 
District:

“Plaintiffs and those similarly situated and affected on 
whose behalf this action is brought are suffering irreparable 
injury and will continue to suffer irreparable injury by reason 
of the provision of the Act complained of ^  herein and by 
reason of the failure or refusal of defendants to operate a 
unitary school system in the City o f Detroit. . . . ” (Pet. A. 
12a). [Emphasis added.]

On April 7, 1970, the Detroit Board of Education adopted a 
plan to effect a more balanced distribution of black and white 
students in certain senior high schools by changing attendance 
zones involving some 12,000 pupils, to be carried out over a three 
year period (Pet. A. 114a-115a). Before this plan could be imple­
mented the Michigan legislature enacted Act No. 48 of the Public 
Acts of 1970. The principal purpose of said Act was internal re­
organization of the management of the Detroit school system. 
However, the Act delayed implementation of the above-mentioned 
plan to achieve a more balanced distribution of black and white 
high school students by providing that —

A c t  4 8 ,  P u b lic  A c t s  o f  M ic h ig a n , 1 9 7 0 .



11

“Sec. 12. The implementation of any attendance provi­
sions for the 1970-71 school year determined by any first 
class school district board shall be delayed pending the date 
of commencement of functions by the first class school dis­
trict boards established under the provisions of this amenda­
tory act but such provision shall not impair the right of any 
such board to determine and implement prior to such date 
such changes in attendance provisions as are mandated by 
practical necessity. . . .” Act No. 48, Section 12, Public Acts 
of Michigan, 1970; Michigan Compiled Laws Section 
388.182. [Emphasis added.]

The relief requested By plaintiffs was the implementation of 
the Detroit School Board’s partial plan of senior high school deseg­
regation adopted on April 7, 1970, the restraining of Section 12 
of Act 48, restraining of new school construction, requiring the 
assignment of faculty and staff to each school in Detroit according 
to the system-wide racial ratio, and a plan for the operation of the 
Detroit school system on a non-racial, unitary basis. (Pet. A. 
13a-15a).

Before trial on the issues framed by the complaint ever com­
menced, plaintiffs appealed to the United States Court of Appeals 
for the Sixth Circuit from denial of plaintiffs’ request for a preli­
minary injunction to require implementation of the Detroit Board 
of Education’s proposed April 7th plan to effect a more balanced 
ratio of black and white students in certain senior high schools. 
The Court of Appeals sua sponte declared that Section 12 of Act 
48 was unconstitutional because it delayed implementation of the 
Detroit Board of Education plan. Bradley et al. v. Milliken et al, 
433 F2d 897 (CA6, 1970).

Trial on the merits limited to the; issue o f segregation within 
the Detroit public school system [5] commenced on April 6, 
1971, and concluded on July 22, 1971. During the course of said 
trial, Intervenors Denise Magdowski, et al, moved to join eighty- 
four (84) school districts in Wayne, Oakland, and Macomb 
Counties, including Petitioners herein, as parties. (A. Ia 119). The 
District Court never ruled on such motion.

 ̂ “ R u lin g  O n  Issu e  o f  S e g r e g a t io n ”  (P e t . A . 1 8 a ) .



12

On September 27, 1971, the District Court issued a “ Ruling 
On Issue of Segregation” (Pet. A. 17a) finding “a de jure segre­
gated school system in operation in the City o f Detroit” (Pet. 
A. 38a).

The District Court stated that the principal causes for the seg­
regation found to exist in Detroit were population movement and 
housing patterns —

“ . . .A current condition of segregation exists. . . The 
principal causes undeniably have been population movement 
and housing patterns, but state and local governmental ac­
tions, including school board actions, have played a substan­
tial role in promoting segregation. . .” (Pet. A. 33a).

The District Court concluded, however, that -

. . both the State of Michigan and the Detroit Board 
of Education have committed acts which have been causal 
factors in the segregated condition of the public schools of 
the City of Detroit. . . .”  (Pet. A. 33a)

The acts of the Detroit Board of Education found by the Dis­
trict Court, and affirmed by the Court of Appeals for the Sixth 
Circuit, to have resulted in the de jure segregation of the Detroit 
school system can be summarized as follows:

1. The Detroit Board’s creating and maintaining optional 
attendance zones in neighborhoods undergoing racial 
transition in a manner which has had the natural, pro­
bable and actual effect of continuing black and white 
pupils in racially segregated schools. (Pet. A . 24a-27a; 
34a-35a; 139a-140a).

2. The Detroit Board’s practice of transporting black stu­
dents from overcrowded black schools to other identi- 
fiably black schools, while passing closer identifiably 
white schools, within the Detroit school system, which

[61 E m p h a s is  a d d e d .



13

could have accepted the black pupils. (Pet. A. 35a; 
136a-l 39a).

3. The Detroit Board’s creating and altering attendance 
zones, maintaining and altering grade structures and 
creating and altering feeder school patterns in a manner 
which has had the effect of continuing black and white 
pupils in racially segregated schools within the Detroit 
school system. I7! (Pet. A. 25a-26a; 35a-36a; 118a- 
136a).

4. Constructing new schools within the City of Detroit 
school district in such manner as to contain the black 
population. (Pet. A. 26a-27a; 144a-151a).

The Court of Appeals for the Sixth Circuit further affirmed 
the District Court’s conclusion that the State of Michigan ^  
abetted the de jure segregation of the Detroit school system on the 
grounds that -

1. The acts of the Detroit Board of Education as a subor­
dinate entity of the State government are attributable to 
the State of Michigan, thus creating a vicarious liability 
on the part of the State (Pet. A. 151 a).

2. The Michigan legislature delayed the implementation of 
the Detroit Board’s April 7, 1970, desegregation plan by 
the passage of Section 12 of Act 48, Public Acts of 
Michigan, 1970 (Pet. A. 151a).

3. The effects of the Detroit school system construction 
program are held to be attributable to the State Board 
of Education (Pet. A. 151a).

4. The Michigan legislature for many years did not provide * 8

[71
T h e  D is tr ic t  C o u r t  n o t e d  th a t  s im p ly  b y  d ra w in g  b o u n d a r y  lin es  in  an  

east-west d ir e c t io n  t h e  D e t r o i t  B o a r d  c o u ld  a c h ie v e  “ s ig n if ica n t  in t e g r a t io n ” . 
(Pet. A . 2 6 a ).
[ 8 ]

A s n o t e d  b y  th e  C o u r t  o f  A p p e a ls ,  h o w e v e r ,  t h e  S ta te  o f  M ich ig a n  is n o t  
a Party t o  th is  l it ig a t io n  (P e t .  A .  1 1 5 a ) ;  Bradley  v . M illiken, 4 8 4  F .2 d  2 1 5 ,  
220. (C A  6 , 1 9 7 3 ) .



14

funds specifically for the transportation of pupils within 
the Detroit school district (Pet. A. 151a). ^

5. In 1957 and 1958 some unidentified number of black 
high school students were transported from a black 
school district outside Detroit to a high school within 
Detroit because of inadequate high school facilities (Pet. 
A. 137a-l38a) with the assumed approval of the State 
Board of Education (Pet. A. 152a).

Nowhei'e in the findings and conclusions issued by the 
District Court or in the opinion of the Court of Appeals is there 
any assertion that a single school district, except Detroit, has 
defaulted in the constitutional obligation to maintain a unitary 
school system. Nor is there any claim or finding that the establish­
ment or operation of any other school district had any causal con­
nection with the de jure segregation found extant in the operation 
of the Detroit school system.

On November 5, 1971, the District Court ordered the Detroit 
Board of Education to submit a plan of desegregation for the 
Detroit schools within sixty (60) days and ordered the State Peti­
tioners to submit a so-called metropolitan plan of desegregation 
within one-hundred-twenty (120) days (Pet. A. 46a-47a). [l°l

The District Court’s Order of November 5, 1971, adumbrated 
a dramatic change in the nature of the proceedings. Despite having 
conducted a trial limited to the issue of unlawful segregation 
within the Detroit school system and having made findings limited 
to such issue, the District Court perceived its remedial powers to 
be infinite. Some eighty-five (85) independent school districts in 
Wayne, Oakland and Macomb counties were, and are, suddenly 
confronted with the prospect of being subjected to judicial fiat

[^1 T h e  S ta te  d id  n o t  p r o v id e  s p e c i f i c  fu n d s  f o r  s o -c a l le d  in - c i t y  transporta­
t io n  t o  a n y  o f  th e  m a n y  c i t y  s c h o o l  d is tr ic ts  w ith in  t h e  S ta te  o f  Michigan 
(P e t . A . 1 5 4 a - l  5 7 a ) .

[1 9 1  In a s m u ch  as th e r e  w a s , a n d  is , n o  c la im , e v id e n c e  o r  f in d in g  o f  ‘ m etro­
p o l i t a n ”  s e g r e g a t io n , it  is s u b m it t e d  th a t  th e  D is t r ic t  C o u r t  e rred  In ordering 
th e  s u b m is s io n  o f  a “ m e t r o p o l i t a n ”  p la n  o f  d e s e g re g a t io n .



15

without any claim, trial or finding that either their establishment 
or operation was, or is, tainted by unconstitutional acts. Pursuant 
to the aforementioned Order of November 5, 1971 (Pet. A. 46a), a 
so-called metropolitan plan of desegregation was filed with the 
District Court on or about February 4, 1972.

On February 9th, 16th and 17th, respectively, Grosse Pointe 
Public Schools, Allen Park Public Schools, et al., Southfield Public 
Schools and School District of the City of Royal Oak filed mo­
tions to intervene for the purpose of representing their interests 
and those of the parents and children situate in said school 
districts. (A. Ial85, 189, 192, 196).

On March 15, 1972, the District Court granted said school 
districts’ motions to intervene as a matter of right, and simul­
taneously imposed the following conditions designed to circum­
scribe Petitioners School Districts’ participation in the proceed­
ings:

“ 1. No intervenor will be permitted to assert any claim or 
defense previously adjudicated by the court.

“ 2. No intervenor shall reopen any question or issue which 
has previously been decided by the court.

3. The participation of the intervenors considered this day 
shall be subordinate to that of the original parties and 
previous intervenors.

“4. The new intervenors shall not initiate discovery proceed­
ings except by permission of the court upon application 
in writing, accompanied by a showing that no present 
party plans to or is willing to undertake the particular 
discovery sought and that the particular matter to be 
discovered is relevant to the current stage of the pro­
ceedings.

“5. No new intervenor shall be permitted to seek a delay of 
any proceeding in this cause; and he shall be bound by 
the brief and hearing schedule established by the Court’s 
Notice to Counsel, issued March 6, 1972.



16

“ 6. New intervenors will not file counterclaims or cross­
complaints; nor will they be permitted to seek the 
joinder of additional parties or the dismissal of present 
parties, except upon a showing that such action will not 
result in delay.

“ 7. New intervenors are-granted intervention for two prin­
cipal purposes: (a) To advise the court, by brief, of the 
legal propriety or impropriety o f considering a metro­
politan plan; (b) To review any plan or plans for the de­
segregation o f the so-called larger Detroit Metropolitan 
area, and submitting objections, modifications or alter­
natives to it or them, and in accordance with the re­
quirements o f the United States Constitution and the 
prior orders of this Court.

“ 8. New intervenors shall present evidence, if any they have, 
through witnesses to a number to be set, and limited, if 
necessary by the court, following conference.

“ 9. With regard to the examination of witnesses, all new in­
tervenors shall among themselves select one attorney per 
witness to act for them, unless one or more of the new 
intervenors show cause otherwise.” (Pet. A. 232a-233a; 
A. Ia 206-207). [Emphasis added.]

Petitioners School Districts filed written objections (A. 
Ia208, 218, 220) with the District Court to the imposition of such 
conditions. To date, the District Court has not ruled on said 
objections.

The District Court precluded Petitioners School D i s t r i c t s  

from participation in hearings on a Detroit-only plan of dese­
gregation by withholding ruling on the motions for intervention 
until after said hearing had commenced (Pet. A. 53a) and by ex­
press limitation in the order granting intervention:

“ 7. New intervenors are granted intervention for two prin­
cipal purposes: (a) To advise the court, by brief, of the 
legal propriety or impropriety of considering a metro­
politan plan; (b) To review any plan or plans for the de­
segregation of the so-called larger Detroit Metropolitan



17

area, and submitting objections, modifications or alter­
natives to it or them, and in accordance with the re­
quirements of the United States Constitution and the 
prior orders of this court.” (Pet. A. 232a; A. Ia. 206).

Upon being granted right to intervene on March 15, 1972, 
the District Court advised Petitioners School Districts that the 
Court had previously set March 22, 1972 (A. Ia203-207), as the 
date for filing of briefs on the legal propriety of a “metropolitan” 
plan of desegregation and that said School Districts thus had one 
(1) week to present their legal arguments on such issue. On March 
24, 1972, two (2) days after the due date for the filing of briefs, 
the District Court issued a “ Ruling On Propriety Of Considering A 
Metropolitan Remedy To Accomplish Desegregation Of The Pub­
lic Schools Of The City Of Detroit” (Pet. A. 48a).

The District Court commenced taking testimony on a “ met­
ropolitan” plan of desegregation at 10:10 a.m. on March 28, 1972. 
About two (2) hours after Petitioners School Districts’ counsel 
had first appeared in the District Court and before completion of 
testimony of a single witness, the District Judge announced that 
all counsel could stop by his office and pick up his “Findings Of 
Fact And Conclusions Of Law On Detroit-Only Plans Of Desegre­
gation” (Pet. A. 53a). Relying upon inapposite cases f1 ^ where a 
state-wide dual school system was fostered and operated pursuant 
to state policy, the District Court declared its intention to change 
the racial composition of the Detroit school system by means of a 
metropolitan” plan of desegregation.

During the period from March 28, 1972, to April 14, 1972, 
the District Court conducted hearings on the so-called metro­
politan plan for desegregating the Detroit school system (Pet. A. 
59a). Counsel for Petitioners School District was directed by the 
District Court to confine his participation to “ the size and expanse 
of the metropolitan plan” (A. IVa225-226), which effectively pre­
cluded Petitioners from offering any evidence in opposition to 
such a remedy.

Q1.1 ' Bradley v .R ichm ond, 3 3 8  F . S u p p . 6 7  (E .D . V a . 1 9 7 2 ) ,  u p o n  w h ic h  th e  
n c  C o u rt  P 'a c e d  p r in c ip a l  r e l ia n c e  f o r  its “ m e t r o p o l i t a n ”  r e m e d y ,  w a s  

d e ., b y  th e  C o u r t  o f  A p p e a ls  f o r  th e  F o u r t h  C ir cu it  o n  J u n e  5 , 1 9 7 2 ,
d iir ir fp jV ' R lchm ond ’ 4 6 2  F .2 d  1 0 5 8  (C A  4 ,  1 9 7 2 ) ,  a f f ir m e d  b y  a n  e q u a lly  
a m d ed  C o u rt , 4 1 2  U .S . 9 2  ( 1 9 7 3 ) .



18

On June 14, 1972, the District Court issued “ Findings Of 
Fact And Conclusions Of Law In Support Of Ruling On Desegre­
gation Area And Development Of Plans” (Pet. A. 59a) and 
“ Ruling On Desegregation Area And Order For Development Of 
Plan Of Desegregation” (Pet. A. 97a). In the opening paragraph of 
the Findings of Fact and Conclusions of Law, the court stated -

. . It should be noted that the court has taken no 
proofs with respect to the establishment o f the boundaries of 
the 86 public school districts in the counties o f  Wayne, 
Oakland and Macomb, nor on the issue o f whether, with the 
exclusion o f the city o f Detroit school district, such school 
districts have committed acts o f de jure segregation. ” (Pet. A. 
59a-60a). [Emphasis added.]
The District Court’s Order For Development of Plan of De­

segregation is premised on the self-serving assertion that “ ‘relief of 
segregation in the Detroit public schools cannot be accomplished 
within the corporate geographical limits of the city’ ” (Pet. A. 
98a). 112]

The June 14, 1972, Order of the District Court created a 
panel of nine (9) H3] persons to prepare and submit a so-called 
metropolitan plan of desegregation. (Pet. A. 99a). Despite the fact 
that the fifty-two (52) school districts, outside Detroit, who were 
included in the so-called desegregation area have approximately
503,000 students compared to Detroit’s approximately 276,000 
students, the District Court directed they should have a single rep­
resentative on the panel while the Detroit Board of Education was 
granted three (3) panel members (Pet. A. 99a).

The District Court’s command was not to simply desegregate 
the Detroit public schools but to reassign pupils in order to arrive 
at a racial balance among the Detroit public schools and tie * 13

1 1 2 1 A s  w ill b e  m o r e  fu l ly  d e a lt  w it h  in  t h e  a r g u m e n t , s u ch  co n te n t io n  ex­
h ib its  a m is a p p lic a t io n  o f  th e  c o n s t i t u t io n a l  c o m m a n d  t o  d esegregate  segr 
g a te d  s c h o o ls .  T h e  D is t r ic t  C o u r t  a n d  th e  C o u r t  o f  A p p e a ls  e rro n e o u s ly  vi 
ra c ia l b a la n c in g  a n d  d e s e g re g a t io n  as s y n o n y m o u s .

[ 1 3 ]  S u b s e q u e n t ly  in c r e a s e d  b y  t h e  D is tr ic t  C o u r t  t o  e le v e n  ( 1 1 )  people 
p e rm it  r e p r e s e n ta t io n  o n  t h e  p a n e l b y  t w o  ( 2 )  t e a c h e r  o r g a n iz a t io n s .



19

schools within the fifty-two (52) independent school districts 
selected by the District Court. While assiduously avoiding the use 
of the words “racial balance” , the overriding objective of the Dis­
trict Court to achieve a racial balance is patently expressed in the 
following statement:

. .pupil reassignments shall be effected within the 
clusters described in Exhibit P.M. 12 so as to achieve the 
greatest degree of actual desegregation to the end that, upon 
implementation, no school, grade or classroom b[e] sub­
stantially disproportionate to the overall racial composi­
tion. . .”  (Pet. A. 101a-102a). [Emphasis added.]

Despite having previously found that there was no unlawful 
segregation of faculty and staff in the Detroit school district (Pet. 
A. 28a-32a) and having opined that the matter of faculty reassign­
ment was “ already litigated” (A. IVa71), “ foreclosed” and that 
the court was “precluded from considering the matter of faculty” 
(A. IVa73), the court’s Order of June 14, 1972, mandates the 
reassignment of faculty and staff (Pet. A. 102a-103a, para. F.)

On July 11, 1972, the District Court ordered the Detroit 
Board of Education to purchase at least 295 buses (estimated cost 
approximately $3,000,000) for the purpose of transporting pupils 
under a desegregation plan not then in esse, and sua sponte added 
the State Treasurer as a party defendant to disburse the necessary 
monies (Pet. A. 106a).

The Decision o f  the Court o f  Appeals

On July 20, 1972, the District Court entered an Order de­
claring its prior rulings and orders, concerning its findings of de 
jure segregation in Detroit and its rulings on a Detroit-only and a 
so-called metropolitan plan of desegregation, to be deemed final 
orders under Rule 54(b) of the Federal Rules of Civil Procedure 
and certifying the issues presented therein under the provisions of 
28 U.S.C. 1292(b). (A. Ia265).

Appeal was taken from the aforementioned orders and on 
ecember 8, 1972, the United States Court of Appeals for the 
ix r Circuit rendered an opinion, by a panel of three judges, 

a irming the Ruling On Issue of Segregation (Pet. A. 17a) and



20

Findings of Fact and Conclusions of Law On “ Detroit-Only” Plans 
of Desegregation (Pet. A. 53a). The decision of the panel vacated 
the remaining orders appealed from, but affirmed in principle the 
ruling of the District Court that Petitioners and other school dis­
tricts could be used as instrumentalities for altering the racial 
balance in the Detroit school district (Pet. A. 11 la-112a).

On January 16, 1973, the Court of Appeals for the Sixth 
Circuit granted rehearing in banc which had the effect of vacating 
the previous opinion and judgment of the court (Pet. A. 112a). 
Oral arguments before the court in banc were heard on February 
8, 1973, and the opinion and judgment of the court issued on 
June 12, 1973.

By majority decision the Court of Appeals for the Sixth Cir­
cuit affirmed the Ruling On Issue of Segregation, dated September 
27, 1971, (Pet. A. 17a) and the Findings of Fact and Conclusions 
of Law On “Detroit-Only” Plans of Desegregation (Pet. A. 53a). 
The Court of Appeals further affirmed in principle the ruling of 
the District Court that Petitioners and other school districts may, 
without any finding of segregative establishment or operation, be 
included in a remedy (Pet. A. 173a), the principal objective of 
which is racial balancing.

The Court of Appeals declared that any school district to be 
affected by the decree of the District Court is a necessary party 
under Rule 19, Fed. R. Civ. P. (Pet. A. 177a) and as a pre-requisite 
to implementation of a multi-school district remedy, school dis­
tricts to be affected must be made a party to the litigation and 
afforded an opportunity to be heard (Pet. A. 177a).

The Court of Appeals, while holding that affected school 
districts D 4 ]  m u s t  b e  afforded an opportunity to be heard, so 
circumscribes such right as to render it meaningless. The Court of 
Appeals states that -

t 1 4 ]  S u b s e q u e n t  t o  th e  f i l in g  o f  th e  P e t i t io n  F o r  W rit  O f  C e r t io ra r i  herein, 
P la in t i f fs -R e s p o n d e n t s  f i l e d  an  a m e n d e d  c o m p la in t  a d d in g  all b u t  o n e  o f  the 
m o re  th a n  8 6  s c h o o l  d is tr ic ts  in  W a y n e , O a k la n d  a n d  M a c o m b  c o u n tie s  to 
th e se  p r o c e e d in g s .  N o  c la im  o f  u n la w fu l  a c t io n  is  m a d e  a g a in st  a n y  o f  said 
s c h o o l  d is tr ic ts . T h e  a m e n d e d  c o m p la in t  a lle g e s  th e ir  in c lu s io n  is n ecessa ry  to 
d e se g re g a te  th e  D e t r o i t  s c h o o l  s y s te m  ( A .  I a 2 9 6 -2 9 7 ) .



21

. . .the District Court will not be required to receive 
any additional evidence as to the matters contained in its 
Ruling on the Issue of Segregation, dated September 27, 
1971, and reported at 338 F. Supp. 582, or its Findings of 
Fact and Conclusions of Law on the ‘Detroit-only’ plans of 
desegregation, dated March 28, 1972.” (Pet. A. 178a).

The net result is that Petitioners and other school districts are 
foreclosed from any hearing whatever with respect to the con­
trolling issues. The final remedy -  a “metropolitan” racial 
balancing plan — is already ordained. Pursuant to the decision of 
the Court of Appeals, there remains only the selection of the 
school districts to be used to effectuate such plan.

Summary

In summary, the salient facts attendant to this litigation may 
be stated as follows:

1. The singular issue framed by the complaint filed in 
this case, and the sole issue tried on the merits, is whether the 
Detroit school system has been operated as a de jure segre­
gated system.

2. There is no claim, no proofs and no finding that any 
school district in the State of Michigan was established for 
the purpose, or with the foreseeable effect, of fostering racial 
segregation.

3. There is no claim, no proofs and no finding that any 
of the independent school districts, except the City of De­
troit school district, included in a so-called metropolitan 
remedy have committed any acts of de jure segregation 
individually or by virtue of State action.

4. The separate, unrelated and identifiable school dis­
tricts intended to be used to effect a change in the racial 
balance of the Detroit school system have been and are 
operating unitary school systems. 5

5. There is no causal connection between the found 
operation of the Detroit school system as a de jure segregated



22

system and the establishment or operation of other separate, 
unrelated and identifiable school districts in the State of 
Michigan.

6. The change in the racial composition of the Detroit 
school system from majority white to majority black in re­
cent years is the result of demographic factors common to 
large cities throughout the United States.

7. The so-called metropolitan remedy conceived by the 
District Court, and approved in principle by the Court of 
Appeals, is a racial balancing scheme having the sole purpose 
and effect of creating a white majority in all schools within 
the Detroit school system.

SUMMARY OF ARGUMENT
The Nature of the Constitutional Violations 

Here Found Requires A Remedy Limited 
to the Detroit School System

Assuming, arguendo, that the Detroit school district is a de 
jure operated school system, the “nature of the violation deter­
mines the scope of the remedy” . Swann v. Charlotte-Mecklenburg 
Board o f Education, 402 U.S. 1, 16 (1971). The nature of the 
violation found in the instant case is that the Detroit Board of 
Education, aided and abetted by the action and inaction of State 
officials, engaged in segregative zoning and student assignment 
practices within the Detroit school system (Pet. A. 118a), created 
optional attendance areas (Pet. A. 139a), and pursued building 
construction and transportation policies (Pet. A. 136a, 144a, 
151a), all calculated to assign students, or deny students ad­
mission, to particular schools solely within the Detroit school 
system on account of race or color.

The appropriate remedy is one that will “ achieve a system of 
determining admission to the public schools on a non-racial basis”. 
Brown v. Board o f Education, 349 U.S. 294, 300-301 (1955). 
( “Brown II”.) The District Court has “broad power to fashion a 
remedy that will assure a unitary school system” . Swann v. 
Charlotte-Mecklenburg Board o f Education, 402 U.S. 1, 16
(1971). A unitary school system is one “ within which no person is 
to be effectively excluded from any school because of race or 
color” . Alexander v. Holmes County Board o f Education, 396 
U.S. 19, 20 (1969).



23

The District Court can fashion a remedy which will convert 
the Detroit school district to a unitary system by requiring the 
establishment of attendance zones and the transportation of stu­
dents in such manner that no person will be effectively excluded 
from any school in the Detroit system because of race or color. 
While the Detroit school system as a whole would still be 
composed of a majority of black students, desegregation in the 
constitutional sense can be accomplished. Compare Wright v. 
Council o f the City o f Emporia, 407 U.S. 451 (1972) and United 
States v. Scotland Neck City Board o f Education, 407 U.S. 484
(1972). This Court has stated, in unequivocal terms, that the 
attainment of a racial balance within a school system is beyond 
the permissible scope of a desegregation remedy. Swann v. 
Chariotte-Mecklenburg Board o f Education, 402 U.S. 1, 24 
(1971); Wright v. Council o f the City o f Emporia, supra, at page 
465.

The constitutional violations here found do not require or 
permit a judicial remedy extending beyond the Detroit school 
district.

The Nature of the Constitutional Violations Here 
Found Neither Requires Nor Permits A “Metropolitan” 
Remedy Designed to Effect A Racial Balance Between 

the Detroit School System and Other Independent 
School Systems

While school districts in the State of Michigan are instrumen­
talities of the State subject to ultimate control by the State 
legislature, education is largely a local function with the day- 
to-day authority over the management, control and operation of 
the schools exercised by the local school board. San Antonio Inde­
pendent School District v. Rodriguez, 411 U.S. 1, 52 (1973). The 
State of Michigan has for over 100 years maintained a policy 
prohibiting racial segregation in the public schools. The People v. 
Board of Education o f Detroit, 18 Mich. 399 (1869).

The only constitutional violations found in this case relate to 
the internal operation of the Detroit school system. No proofs 
were taken and no findings made with respect to whether any 
school district was established for the purpose, or with the foresee- 
3 e effect, of fostering racial segregation (Pet. A. 60a). No proofs 
were taken and no findings made with respect to whether any



24

school district, other than Detroit, has committed any acts of de 
jure segregation (Pet. A. 60a). There is no finding that the establish­
ment of any school district, or the operation of any school district 
other than Detroit, is causally connected with the acts found to 
constitute de jure segregation in the Detroit school system. With 
or without the acts of commission and omission by the Detroit 
Board of Education and the State Petitioners found to constitute 
de jure segregation with respect to the Detroit school system, 
there is no basis for concluding that the racial composition of the 
Detroit school system would be any different than it is today.

The Detroit school district boundaries have been co­
terminous with the boundaries of the City of Detroit by legisla­
tive enactments dating back over 130 years to 1842. The People v. 
Board of Education o f Detroit, 18 Mich. 399,408 (1869). The 
black population as a total percentage of the population of Detroit 
has increased at a dramatic rate since 1940, increasing from 9.2% 
in 1940 to 43.9% in 1970 (Pet. A. 21a). Whatever the root causes 
for this concentration of blacks in Detroit, there is no evidence 
that it has been school assignments. Bradley v. School Board of 
the City of Richmond, 462 F.2d 1058, 1066 (CA 4, 1972), aff’d. 
by equally divided Court, 412 U.S. 92 (1973).

The system of local school districts as provided by legislative 
enactments is unitary in nature and intent. Any racial imbalance 
between the Detroit school district and other school districts re­
sults from an imbalance in the population due to demographic 
factors. Racially balanced municipalities are beyond the pale of 
judicial intervention. Spencer v. Kugler, 326 F. Supp 1235, 1240 
(N.J. 1971), aff’d 404 U.S. 1027 (1972). The fact that the D e t r o i t  

school district would be predominantly black even if operated as a 
unitary system does not provide a federal court with the power to 
prescribe a remedy designed to effect a more desirable racial 
balance between Detroit and other school districts.

The majority opinion of the Sixth Circuit Court of Appeals 
erroneously concludes that a racial imbalance between separate, 
unrelated and identifable school districts is a constitutional 
violation (Pet. A. 173a, 224a) without regard to the lack of causal 
relationship with respect to such imbalance and the actions of 
school authorities. Absent a showing of a constitutional violation 
on the part of school authorities, equity does not require a federal 
court to effect changes in the racial composition of the public



25

schools. United States v. Board o f Education, Independent School 
District No. 1, Tulsa, Oklahoma, 459 F.2d 720, 724 (CA 10, 
1972); Davis v. School District o f the City o f Pontiac, 443 F.2d 
573, 575 (CA 6, 1971), cert. den. 404 U.S. 913 (1971).

The task is to correct the condition that offends the Consti­
tution. Swann v. Charlotte-Mecklenburg Board o f Education, 402 
U.S. 1, 16 (1971). The issue in this case is not what might be a 
desirable Detroit school plan, but whether or not there are consti­
tutional violations in the school system as presently operated, and, 
if so, what relief is necessary to avoid further impairment of con­
stitutional rights. Bradley v. Milliken, 438 F.2d 945, 946 (CA 6,
1971); Swann, supra, at page 23.

The condition that offends the Constitution is not the exis­
tence of predominantly white school districts in geographical 
proximity to the predominantly black Detroit school district. The 
condition that offends the Constitution is the assignment of pupils 
within the Detroit school system on the basis of race or color. 
Assuming, arguendo, that the Detroit Board of Education and 
State executive officials can be faulted for the racial imbalance in 
particular schools within the Detroit school system, there is abso­
lutely no basis to support a conclusion that the racial imbalance 
vis-a-vis Detroit and other school systems is attributable to any 
action of State or local school authorities.

The effect of the de jure segregated operation of the Detroit 
school system is that, but for the acts complained of, children in 
the Detroit school system would be attending schools within the 
Detroit school system having a racial composition more nearly in 
accord with the racial composition of that school system. Apply­
ing the teachings of Swann v. Charlotte-Mecklenburg Board of 
Education, 402 U.S. 1, 23 (1971), the appropriate remedy is to 
prohibit the assignment of children to schools on account of race 
or color within the Detroit school district, and to remove the ves­
tiges of segregation by re-assigning children in the Detroit school 
system to schools on a basis which is more nearly reflective of the 
condition which would prevail had the Detroit school system been 
operated as a unitary system.



2 6

T h e  h o ld in g  th at the D e tro it  s c h o o l  system  can  o n ly  b e  de­
segregated  b y  m ean s o f  a “ m e tr o p o l ita n ”  re m e d y  ig n ores  the 
c o n tro ll in g  p r in c ip le  that th e  n atu re  o f  th e  co n s titu t io n a l v iola tion  
determ in es  th e  s c o p e  o f  th e  re m e d y . T h e  C o u r t  o f  A p p e a ls ’ m ajor­
ity  e rro n e o u s ly  assum es th at d esegrega tion  m ean s e ffe c t in g  a racial 
ba lan ce  w h ich  is p re d o m in a n tly  w h ite . T h e  co n s t itu t io n a l co m ­
m a n d  t o  desegregate n o n -u n ita ry  s ch o o ls  d o e s  n o t  req u ire  or 
p erm it racial b a lan cin g . Swann v. Charlotte-Mecklenburg Board of 
Education, 4 0 2  U .S . 1, 2 4  (1 9 7 1 ) .

B ased  u p o n  the p r o n o u n c e m e n t  o f  th is C o u r t  that the 
“ n ature o f  th e  v io la t io n  d e term in es  th e  s c o p e  o f  th e  rem e d y ”  
(Swann v. Charlotte-Mecklenburg Board o f Education, supra, at 
page 1 6 ), th e  in c lu s io n  o f  separate, u n rela ted  and  identifiab le  
s c h o o l  d istricts  in  a re m e d y  a im ed  at a lterin g  th e  racia l ba lance in 
the D e tro it  s c h o o l  system  m u st b e  re je c te d . A  “ m e tro p o lita n ” 
re m e d y , o n  th e  fa cts  in  th is case, g o e s  far b e y o n d  the n atu re  o f  the 
co n s titu t io n a l v io la t io n  w h ich  is ex p ress ly  lim ite d , b y  th e  findings 
o f  the D istrict C o u r t , t o  th e  operation o f  th e  D e tro it  school 
d istrict as a de jure segregated  s c h o o l  sy stem .

Petitioners Have Been Denied Due Process O f  Law

I .

The Failure o f  the District Court to Join 
Petitioners School Districts Is A  Denial o f  

Due Process o f  Law

T h e  re m e d y  in v o k e d  in  this case w o u ld  e ffe c t iv e ly  emasculate 
th e  ex ten s iv e  righ t o f  lo ca l c o n tr o l  o v e r  P etition ers  S ch o o l Dis­
tricts p ro v id e d  b y  legislative en a ctm en ts  o f  the M ich igan  legis­
lature. F o r  e x a m p le , said re m e d y  in te rd ic ts  the e x e rc ise  o f  local 
s c h o o l d istrict a u th o r ity  o v e r  su ch  m atters as c o n tr o l  o f  attend­
an ce  o f  n on -re s id e n t stu den ts (M ich  C o n st  1 9 6 3 , art V III, §2; 
M ich . C o m p ile d  L aw s 3 4 0 .5 8 2 , 3 4 0 .5 8 9 ) ;  the e m p lo y m e n t  and 
a llo ca t io n  o f  tea ch in g  and  a dm in istra tive  s ta f f  to  e d u ca te  resident 
pupils (M ich . C o m p ile d  L aw s 3 4 0 .5 6 9 ) ;  the c o n s tr u c t io n , expan­
s ion  and use o f  s c h o o l fa c ilit ies  (M ich . C o m p ile d  L aw s 340 .77 ); 
and  th e  cu rr icu lim , a ctiv ities  an d  standards o f  c o n d u c t  and the



2 7

safety o f  stu den ts, fa cu lty , s ta f f  an d  parents w ith in  each  s ch o o l 
district (M ich . C o m p lie d  L aw s 3 4 0 .5 7 5 , 3 4 0 .5 8 3 , 3 4 0 .6 1 4 , 
3 4 0 .8 8 2 ).

W hile th e  co m p la in t  filed  in  th is case m ade n o  a llegation s 
with resp ect t o  P etition ers  S c h o o l  D istricts , the m atter o f  a “ m e t­
rop o lita n ”  re m e d y  was raised d u rin g  the cou rse  o f  the trial on  the 
issue o f  de jure segregation  w ith in  th e  D e tro it  s c h o o l d istrict. A t  
the very o u tse t o f  th e  trial o n  th e  m erits , P la in tiffs -R e sp o n d e n ts ’ 
counsel stated  t o  th e  co u r t  that a “ m e tro p o lita n  s o lu t io n ”  m igh t 
be ap p rop ria te  (A . I Ia 4 4 ). O n  June 17 , 1 9 7 1 , in terven in g  d e fe n ­
dants D enise M a g d ow sk i, et al, filed  a fo rm a l m o t io n  t o  a d d  P eti­
tioners, and  th e  rem ain in g  s c h o o l  d istricts  in  W a yn e , O ak lan d  and 
M acom b co u n tie s , as parties d e fe n d a n t (A . Ia 1 1 9 -1 2 9 ).

If, as c o n te n d e d  b y  the S ix th  C ircu it m a jo r ity , the re m e d y  in 
this case requ ires th at P etition ers  be  su b je c te d  t o  the orders o f  the 
court, P etition ers  are in d isp en sab le  parties an d  th ey  sh ou ld  have 
been in c lu d ed  as parties at th e  co m m e n c e m e n t  o f  th e  litigation . 
Baltimore & O.R. Co. v. Chicago River and Indiana R. Co., 170  
F .2d 6 5 4  (C A  7 , 1 9 4 8 ), cert. den. 3 3 6  U .S . 9 4 4  (1 9 4 9 f  Bradley v. 
School Board o f the City o f Richmond, 3 3 8  F . S u pp . 6 7  (E .D . V a.
1972), reversed o n  o th e r  g ro u n d s  4 6 2  F .2 d  1 0 5 8  (C A  4 , 1 9 7 2 ), 
aff'd. b y  equ a lly  d iv id e d  C o u rt , 4 1 2  U .S . 9 2  (1 9 7 3 ) .

P etition ers w ere n o t  in c lu d e d  in this litig a tion  u n til a fter  the 
case was in  fa ct d e c id e d . It is, th e re fo re  a den ia l o f  du e p ro ce ss  o f  
law to  su b ject th em  to  a ju d ic ia l re m e d y  w h ich  d ire c t ly  a ffe cts  
their law fu l in terests. Waterman v. The Canal-Louisiana Bank and 
Trust Company, 2 1 5  U .S . 3 3 , 4 8  (1 9 0 9 )\ Boris v. Moore, 152  F. 
Supp. 6 0 2  (E .D . Wis. 1 9 5 7 ) , aff’d. 2 5 3  F .2 d  5 2 3  (C A  7 , 1 9 5 8 ). 
Petitioners h ad  p o te n t ia lly  adverse interests to  b e  a ffe c te d  and 
they w ere en tit led  t o  n o t ic e  t o  d e fe n d  and  an o p p o r tu n ity  to  be  
heard u p o n  th ose  issues w h ich  c o u ld  a ffe c t  th e m , i f  d e c id e d  ad­
versely to  th eir in terests. Higgins v. Board o f Education o f the City
of Grand Rapids,.____  F . S u p p ______ (W .D . M ich ., Ju ly  18 , 1 9 7 3 ),
Slip O p in ion , page 80 .

II.

Restricting Petitioners to A  Hearing Only On  
the Scope o f  the “ M etropolitan”  Rem edy Is 

A  Denial o f  Due Process

It is im p o ss ib le  t o  eq u a te  the p ro ce e d in g s  in the D istrict



28

C o u rt  w ith  the req u irem en ts  set fo r th  by  this C o u rt  as m in im al to 
due p ro ce ss  o f  law . D u e p ro ce ss  o f  law requ ires an o p p o r tu n ity  to 
b e  heard  at a m ea n in g fu l tim e and  in a m ea n in g fu l m an n er. Arm­
strong v. Manzo, 3 8 0  U .S . 5 4 5 , 5 5 2  ( 1 9 6 5 )\In Re Oliver, 3 3 3  U.S. 
2 5 7  (1 9 4 8 ) .

T h e  D istrict C o u rt  im p o s e d  c o n d it io n s  u p o n  Petitioners 
w h ich  lim ited  th em  to  e x a m in a tio n  o f  w itn esses and  the presenta­
t io n  o f  e v id e n ce  w h ich  a c c o r d e d  w ith  th e  c o u r t ’ s p recon ce iv ed  
v iew  th at a “ m e tr o p o lita n ”  re m e d y  was req u ired . T h e  con d ition s  
im p o se d  b y  th e  D istr ict C o u rt e f fe c t iv e ly  p re c lu d e d  Petitioners 
fr o m  raising q u e stio n s  n ecessary  t o  p r o te c t  th e ir  in terests. Bradley 
v . Milliken, 4 8 4  F .2 d  2 1 5 , 2 6 7 -2 6 8  (C A  6 , 1 9 7 3 ). (P et. A. 
2 0 8 a -2 0 9 a ).

T h e  m a jo r ity  o p in io n  o f  the S ix th  C ircu it  h o ld s  that Peti­
tion ers , an d  o th e r  s c h o o l  d istricts  t o  be  a ffe c te d  b y  the decree o f  
the D istrict C o u r t , are “ n e ce ssa ry ”  parties an d  m u st b e  afforded  
an o p p o r tu n ity  to  b e  h eard . Bradley v. Milliken, 4 8 4  F .2 d  215, 
2 5 1 -2 5 2  (C A  6 , 1 9 7 3 ), (P et. A . 1 7 7 a ). H o w e v e r , the hearing to  be 
a ffo r d e d  said s c h o o l d istricts  is m ean in gless in so fa r  as th e  protec­
t io n  o f  th e ir  in terests is c o n c e r n e d . U n d er  th e  m a jo r ity  opin ion  
said s c h o o l d istricts have no right t o  p resen t e v id e n ce  o r  b e  heard 
on  th e  issue o f  segregation  o r  o n  w h e th e r  a D e tr o it -o n ly  desegrega­
t io n  plan m eets  c o n s t itu t io n a l req u irem en ts . Bradley v. Milliken, 
supra, at page 2 5 2  (P et. A . 1 7 8 a ). T h e  n et resu lt is that a “ m etro­
p o lita n ”  re m e d y  is o rd a in e d  an d  P e tit io n e rs ’ righ t t o  a hearing is 
illu sory .

T h e  fu n d a m en ta l right to  du e p ro ce ss  o f  law  in  the fo rm  o f  a 
c o m p le te  an d  m e a n in g fu l hearing as a c o n d it io n  p re ce d e n t to  the 
d e term in a tion  o f  the s c o p e  o f  a d esegregation  re m e d y  is exem­
p lified  b y  the h o ld in g  o f  this C o u r t  in  Keyes v. School District No. 
1, Denver, Colo, 4 1 3  U .S . 189  (1 9 7 3 ) .  In  Keyes, supra, this Court 
h e ld  that w h ere a single s c h o o l d is tr ict  was fo u n d  t o  have engaged 
in  in ten tion a l segregative a c t io n  b u t co n te n d e d  that said segrega­
tive a ct io n  a ffe c te d  o n ly  a part o f  the s c h o o l d istr ict, said school 
d istrict m ust b e  a ffo r d e d  th e  o p p o r tu n ity  to  p ro v e  that the unlaw­
fu lly  segregated  area is separate, id e n tifia b le  and  u nrela ted  and 
sh ou ld  be  treated  as iso la ted  fr o m  the rest o f  the d istrict.

T o  p erm it P etit ion ers , and o th e r  a ffe c te d  s c h o o l  d i s t r i c t s ,  t o  

be heard o n ly  in the n a rrow ly  restr icted  sense set fo r th  in the



2 9

Sixth C ircu it m a jo r ity  o p in io n  is t o  d e n y  th em  du e p rocess  guaran­
teed b y  R u le  19 , F edera l R u les o f  C ivil P roced u re  and b y  the C o n - 
sitution  (A m e n d m e n t  V )  itse lf. Bradley v.Milliken, 4 8 4  F .2 d  215  
284 (C A  6 , 1 9 7 3 ). (P et A . 2 3 9 a -2 4 0 a ).

A R G U M E N T

I

Based U pon the Nature o f  the Constitutional
Violations Here F ound, the Rem edy Must Be 

Lim ited to Converting the Detroit School 
System  to A  Unitary School System

T his C o u rt  in Swann v. Charlotte-Mecklenburg Board o f Edu­
cation, 4 0 2  U .S . 1 (1 9 7 1 )  c lea rly  delin ea ted  the s c o p e  o f  the 
pow ers o f  fed era l cou rts  u n d er  th e  m an d ate  o f  the C o u r t  to  e lim i­
nate racia lly  segregated  sch o o ls  resu ltin g  fr o m  govern m en ta l a ct io n  
and to  establish  u n itary  system s at o n ce .

“ • • • a s c h o o l  d esegregation  case d oes  n o t  d if fe r  fu n d a ­
m en ta lly  fr o m  o th e r  cases in v o lv in g  the fram in g o f  equ itab le  
rem ed ies t o  repa ir th e  den ia l o f  a co n stitu t io n a l right. The 
task is to correct, b y  a ba la n cin g  o f  the in d iv idu a l and c o l le c ­
tive in terests , the condition that offends the Constitution.

“ In seek in g  to  d e fin e  even  in  b ro a d  and general term s 
h o w  far th is rem ed ia l p o w e r  e x te n d s  it  is im p o rta n t to  re ­
m em b er th at judicial powers may be exercised only on the 
basis o f a constitutional violation.” Swann, supra, at pages 
15 -16 . [E m ph asis  a d d e d .]

In short, th e  C o u r t  sta ted  the perim eters o f  ju d ic ia l a u th or ity  as 
fo llow s:

“ A s  w ith  an y  e q u ity  case, the nature o f the violation 
determines the scope o f the remedy. ” Swann, supra, at page 
16. [E m ph asis  a d d e d .]

The rem e d y  in  this case m ay  n o t  g o  b e y o n d  the d im en sion  o f  the 
con stitu tion a l v io la tio n s .

T h e  n ature o f  the co n s titu t io n a l v io la tio n s  is that the D e tro it  
Board o f  E d u ca tio n , a ided  and  a b etted  b y  th e  a ction  and in a ctio n



3 0

o f  S tate  o f f ic ia ls , engaged  in segregative p ra ctice s  w ith  resp ect to 
th e  o p e ra t io n  o f  th e  D e tro it  s c h o o l  system  w h ich  w ere  calculated 
to  iso la te  ch ild ren  in certa in  s c h o o ls  a c c o r d in g  to  race o r  c o lo r .

T h e  co n s t itu t io n a l v io la t io n s  fo u n d  to  have been  com m itted  
by the Detroit Board o f Education are:

1. F o rm u la tin g  and m o d ify in g  a tten d a n ce  zo n e s  within 
th e  D e tro it  s c h o o l  sy stem  to  crea te  o r  p e rp e tu a te  racia l segre­
g a tion . Bradley y. Milliken, 4 8 4  F. 2 d  2 1 5 , 221 (C A  6 , 1973), 
(P et. A . 11 8 a ).

2 . T ra n sp o rt in g  b la ck  ch ild ren  past w h ite  s ch o o ls  with 
availab le s c h o o l  sp ace . Bradley v. Milliken, supra, at page 
2 2 1 , (P et. A . 11 8 a ).

3. C rea tin g  o p t io n a l a tte n d a n ce  areas w h ich  permitted 
w h ite  stu den ts to  tran sfer to  all w h ite  o r  predom inantly 
w h ite  s c h o o ls  lo c a te d  n earer the c ity  lim its. Bradley v. Milli­
ken, supra, at page 2 2 1 , (P et. A . 1 18a -l 19a).

4 . C o n stru ct in g  s c h o o ls  in e ith er  ov erw h e lm in g ly  all 
b la ck  o r  all w h ite  n e ig h b o r h o o d s . Bradley v. Milliken, supra, 
at page 2 3 5 , (P et. A . 144a).

T h e  State is fo u n d  t o  have co n tr ib u te d  to  th e  “ segregation 
fo u n d  in th e  D e tro it  s c h o o l  sy s te m ” , Bradley v. Milliken, 4 8 4  F.2d 
2 1 5 , 2 4 2  (C A  6 , 1 9 7 3 ), (P et. A . 1 5 7 a ), b y  th e  fo l lo w in g  action , or 
in a c t io n :

1. T h e  e n a ctm e n t o f  A c t  4 8  o f  the P u b lic  A cts  of 
1 9 7 0 , S e c tio n  12 o f  w h ich  d e la y e d  ch anges in attendance 
zo n e s  w ith in  the D e tro it  s c h o o l system  [15] p en din g  other­
w ise co n s titu t io n a l reorga n iza tion  o f  th e  in ternal manage­
m en t stru ctu re  o f  the D e tro it  s c h o o l system . T h e  e ffe ct  of 
S e c t io n  12 o f  A c t  4 8  was t o  d e la y  im p le m e n ta tio n  o f  a De-

1^1 Act 48 applied only to First Class school districts in the State of 
Michigan. The City o f Detroit school district is the on ly  First Class school
district in the State. Bradley v. Milliken, 433 F. 2d 897, 900 (CA 6, 1970).



31

tro it  s c h o o l  b o a rd  plan t o  e f fe c t  a m o re  desirable racial bal­
ance in so m e  se n io r  h igh  s c h o o ls  in D e tro it . Bradley v . Mil- 
liken, supra, at pages 2 1 9  and  2 3 8 , (P et. A . 1 1 4 a -l 15a and 
151a). [16]

2. T h e  a tta ch in g  o f  v ica riou s  re sp o n s ib ility  to  th e  State 
B oard  o f  E d u ca tio n  f o r  the segregative results o f  the s c h o o l 
co n s tru ctio n  program  o f  th e  D e tro it  B oa rd  o f  E d u ca tio n . 
Bradley v. Milliken, 4 8 4  F .2 d  2 1 5 , 2 3 8  (CA 6 , 1 9 7 3 ), (P et. 
A. 15 1 a ). [17]

3. T h e  S tate  o f  M ich igan  d id  n o t  a llo ca te  fu n ds to  the 
D e tro it  s c h o o l  d is tr ict  f o r  the s p e c if ic  p u rp ose  o f  p u p il trans­
p o rta tio n  th o u g h  su ch  tra n sp orta tion  fu n d s  w ere  m ade gen ­
erally available fo r  stu d en ts  w h o  live over  a m ile  and o n e -h a lf 
from  th eir assigned s ch o o ls  in  rural M ich igan . 1181

4. T h e  assu m ed  “ ta cit o r  ex p re ss ”  a p p rova l o f  the 
State B oa rd  o f  E d u ca t io n  o f  th e  cross-d istrict tra n sp orta tion

t16l Within approximately ninety (90) days of its enactment, the Sixth 
Circuit Court o f Appeals declared Section 12 o f Act 48 unconstitutional. 
Bradley v. Milliken, 433 F.2d 897, 900 (CA 6, 1970). Said legislative 
enactment thus had little, if any, impact upon the de jure segregation found 
extant in the operation o f the Detroit school system.
[171 Since 1962, the period during which virtually all o f the asserted 
segregative construction occurred, the State Board of Education had no 
power or authority to approve or disapprove site location. Act No. 175, 
Public Acts of Michigan, 1962, Michigan Compiled Laws 388.851 et seq. Site 
selection has always been primarily the subject of local control and since 
1962 has been exclusively a matter o f local control. Michigan Compiled Laws 
340.77.
r i o l

There is no evidence or finding that the urban-rural classification used 
as the determinative factor for providing transportation funds was founded 
upon considerations o f race or any purpose or intent to segregate so as to 
constitute an act o f de jure segregation. Keyes v. School District No. 1, 

enver, Colo., 413 U.S. 189 (1973). Under such classification predominantly 
white urban schools are also denied transportation funds. In Griffin v. County 
school Board o f  Prince Edward County, 377 U.S. 218, 230 (1964) the Court 
noted that a State could treat school districts differently so long as such 
isparate treatment is not founded upon the purposeful objective o f denying 
e erally protected rights. San Antonio Independent School District v. 
0 riquez, 411 U.S. 1 (1973) further negates the conclusion that a constitu- 

lona violation can be predicated upon the naked existence of a state school 
lnancing system which results in unequal revenues between school districts. 
n jSgins v. Board o f  Education o f  the City o f  Grand Rapids,___ F. Supp.

(W.D. Mich. July 18, 1973), Judge Engel held that said method of 
ocating transportation funds was not related to racial differences and did 

not offend the Constitution.



3 2

o f  so m e  h igh  s c h o o l  stu d en ts in a p re d o m in a n tly  b la ck  sch ool 
d istrict to  a p re d o m in a n tly  b la ck  h igh  s c h o o l in the D etroit 
s c h o o l  d istrict. Bradley v . Milliken, 4 8 4  F .2 d  2 1 5 ,  2 3 1 -2 3 2 , 
2 3 8  (C A  6 , 1 9 7 3 ), (P et. A . 1 3 7 a -1 3 8 a , 1 5 2 a ) J 19)

T h e  e f f e c t  o f  the co n s titu t io n a l v io la t io n s  is sta ted  b y  the 
m a jo r ity  o p in io n  o f  th e  S ix th  C ircu it as fo l lo w s :

“ T h e  d iscr im in a to ry  p ra ctices  on  the part o f  th e  Detroit 
S c h o o l  B oard  and th e  S tate  o f  M ich igan  revea led  b y  this re­
c o r d  are s ig n ifica n t, pervasive and cau sa lly  re la ted  t o  the sub­
stantial a m o u n t o f  segregation  fo u n d  in the Detroit school 
system b y  th e  D istr ict J u d g e .”  Bradley v . Milliken, 4 8 4  F.2d 
2 1 5 , 2 4 2  (C A  6 , 1 9 7 3 ), (P et. A . 1 5 7 a ). [E m p h a sis  a d d e d .]

T h e  n ature o f  th e  v io la t io n  is th a t, as a resu lt o f  segregative actions 
w ith  re sp e ct  to  th e  o p e ra tio n  o f  th e  D e tro it  s c h o o l system , the 
racial c o m p o s it io n  o f  s c h o o ls  within the Detroit school system has 
b een  co n tr iv e d  b y  assign m en t o f  pu pils  t o  s ch o o ls  on  the basis of 
race  o r  c o lo r . In sh o rt, th e  D e tro it  s c h o o l  system  is n o t  a unitary 
system  b e ca u se , within that system, p erson s have b e e n  effectively 
e x c lu d e d  fr o m  so m e  s ch o o ls  b eca u se  o f  race  o r  c o lo r .

T h ere  is n o  e v id e n ce  an d  n o  fin d in g  that the constitutional 
v io la tio n s  fo u n d  have an y  causal re la tion sh ip  w ith  the racial com­
p o s it io n  o f  th e  D e tro it  s c h o o l  system  as a w h o le  vis-a-vis the racial 
c o m p o s it io n  o f  P etition ers  S c h o o l  D istr icts , o r  an y  o th e r  school 
d istrict. T h ere  is n o  e v id e n ce  and  n o  fin d in g  th at Petitioners 
S c h o o l  D istricts have en gaged  in  any a c tio n  w ith  the purpose or 
in ten t to  segregate. Keyes v . School District No. 1, Denver, Colo., 
4 1 3  U .S . 189  (1 9 7 3 ) .

S in ce th e  natu re o f  th e  co n s t itu t io n a l v io la t io n , and the 
vestiges th e re o f, is lim ited  to  th e  perim eters  o f  th e  D etro it school 
system , th e  s co p e  o f  th e  re m e d y  m u st b e  so  lim ited . Swann v. 
Chariotte-Mecklenburg Board o f Education, 4 0 2  U .S. 1, 16 
(1 9 7 1 ) .  T h e  requ ired  o b je c t iv e  o f  th e  re m e d y  is to  see that school 119

119] Said finding is lacking evidentiary support and is premised upon 
self-serving assumptions. Moreover, the situation referred to was short-live 
In 1960 the predominantly black Carver school district was merged into a 
predominantly white school district (Pet. A. 169a).



3 3

authorities e x c lu d e  n o  p u p il o f  a racial m in o r ity  fr o m  a n y  s c h o o l 
on a cco u n t o f  race. Swann v. Charlotte-Mecklenburg Board o f 
Education, 4 0 2  U S  1, 23  (1 9 7 1 ) .

P la in tiffs -R e sp o n d e n ts  in  this case p ro d u c e d  as a w itn ess Dr. 
G ordon  F o ste r , an e x p e r t  in  th e  area o f  s c h o o l d esegregation . Dr. 
Foster d e scr ib e d  a racia lly  id e n tifia b le  s c h o o l  as on e  that “ is d is­
p rop ortion a te  in  racial m ak e-u p  to  the o th e r  s c h o o ls  in  that 
system ”  (A . IV a 8 0 ). H e ex p ressed  the o p in io n  that a D e tro it  
school having a s tu d e n t p o p u la t io n  o f  6 5 %  b la ck  and 3 5 %  w h ite  
w ould n o t  b e  a racia lly  id e n tifia b le  s c h o o l  “ in term s o f  D e tro it  as 
a desegregated sy stem  w h ere  th e  racia l m ix  is 6 5 -3 5 ”  (A . IV a 8 1 ) 
because su ch  racia l c o m p o s it io n  re fle c ts  th e  to ta l p u p il p o p u la t io n  
ratio in th e  system  (A . IV a 8 2 ).

Dr. F o s te r  sta ted  that a b la ck  ch ild  in the D e tro it  s c h o o l 
system w o u ld  n o t  p e rce iv e  o f  h is s c h o o l  s itu a tion  b e in g  racia lly  
isolated o r  segregated  i f  th e  p u p il c o m p o s it io n  re f le c te d  the racial 
popu lation  in  th e  D e tro it  s c h o o l  sy stem , b ecau se  the ch ild  w o u ld  
know  he had the sam e s itu a tion  as all o th e r  ch ild ren  in  the D e tro it  
school system  (A . I V a 8 2 -8 3 ) . E xp ressed  a n o th e r  w a y , he stated  
that so lo n g  as a ch ild  in  the D e tro it  s c h o o l system  is o f fe r e d  the 
same o p p o rtu n it ie s  o ffe r e d  to  all o th e r  ch ild ren  in  th e  D e tro it  
school system , th e  ch ild  w o u ld  n o t  fe e l racia lly  iso la te d  o r  c o n ­
tained in  a segregated  s itu a tion  (A . IV a 8 4 ).

Dr. F o ste r  su b m itte d  a d esegrega tion  p lan  lim ited  t o  the 
Detroit s c h o o l system  w h ich  h e  sta ted  w o u ld  w o r k  now (A . 
IV a76-77 ), w o u ld  m eet co n s t itu t io n a l req u irem en ts  (A  IV a 9 5 -9 5 ) , 
w ould elim in ate racia lly  id e n tifia b le  s ch o o ls  (A . I V a 9 7 -9 8 ) , and 
w o u ld  i m p r o v e  e d u ca tio n a l o p p o r tu n it ie s  o f  D e tro it  s c h o o l 
children (A . I V a 9 8 ), Green v. County School Board o f New Kent 
County, 391 U .S . 4 3 0 ( 1 9 6 8 ) .

Dr. F o s te r ’ s p ro p o s e d  plan and te s t im o n y  is c o n so n a n t w ith  
the con stitu tion a l m a n d a te  t o  c o n v e rt  the D e tro it  s c h o o l system  
to  a unitary system  in  w h ich  n o  ch ild  w o u ld  be e f fe c t iv e ly  e x ­
cluded fro m  an y  s c h o o l  becau se  o f  race  o r  c o lo r . Alexander v. 
Holmes, supra, at page 2 0 ; Swann, supra, at pages 17, 2 2 -2 3 , 28 .



3 4

T h e F in d in gs o f  F a ct and  C o n c lu s io n s  o f  L aw  O n  D etroit- 
O n ly  Plans o f  D esegrega tion  issued  b y  th e  D istrict C o u r t  (P et. A. 
5 3 a -5 8 a ) re fle c t  a p re d isp o s it io n  t o  pu rsu e a “ m e tr o p o l ita n ”  area 
racial ba la n cin g  sch em e  to  re d u ce  the p r o p o r t io n  o f  b la ck  students 
in  th e  D e tro it  s c h o o l  d istrict and  a d isregard  fo r  th e  lim ita tion s  on 
th e  ex erc ise  o f  ju d ic ia l a u th o r ity  as ex p ressed  in  Swann v. 
Charlotte-Mecklenburg Board o f Education, 4 0 2  U .S  1 16
(1 9 7 1 ) .

T h e  fa ct  th at th e  D e tro it  s c h o o l  system  has a racia l com p os i­
t io n  a p p ro x im a te ly  6 5 %  b la ck  an d  3 5 %  w h ite  d o e s  n o t  preclude 
desegregation  o f  th e  s c h o o l  system  in  th e  co n s titu t io n a l sense by 
m ean s o f  a D e tr o it -o n ly  re m e d y . T h is C o u r t  a p p ro v e d  desegrega­
t io n  plans in  Wright v. Council o f the City o f Emporia, 4 0 7  U.S. 
4 5 1  (1 9 7 2 )  and Raney v . Board o f Education o f the Gould School 
District, 391  U .S . 4 4 3  (1 9 6 8 ) ,  re sp e ctiv e ly , w h ich  resu lted  in a 
racial ra tio  o f  6 6 %  b la ck  and  3 4 %  w h ite .

T h e  su m m ary  r e je c t io n  o f  the D e tr o it -o n ly  p lan o f  desegrega­
tion  e x h ib its  e ith er  a m isu n d ersta n d in g  o f  th e  m an d ate  that the 
re m e d y  f o r  a segregated  s c h o o l  sy stem  is c o n v e rs io n  to  a unitary 
sy stem , o r  a re je c t io n  o f  su ch  m a n d a te  in  fa v o r  o f  a socio log ica lly - 
c o n c e iv e d  d u ty  t o  e f f e c t  a m o re  desirab le  racial b a la n ce  between 
the D e tro it  s c h o o l  sy stem  as a w h o le  an d  o th e r  separate, unrelated 
and  id e n tifia b le  s c h o o l  d istricts .

T h e  tran sition  o f  th e  D e tro it  s c h o o l  system  to  a u n itary , non- 
racial system  is th e  u ltim a te  en d  t o  b e  b ro u g h t  a b o u t. Green v. 
County School Board o f New Kent County, 391  U .S . 4 3 0 , 436 
(1 9 6 8 ) .  A  u n itary  s c h o o l  system  is o n e  w ith in  w h ich  n o  person is 
to  be e ffe c t iv e ly  e x c lu d e d  fr o m  an y  s c h o o l b eca u se  o f  race or 
c o lo r . Alexander v. Holmes County Board o f Education, 396  U.S. 
19 (1 9 6 9 ) .  R a cia l ba la n cin g  o r  m ix in g  is n o t  con stitu tion a lly  re­
qu ired  o r  p e rm itte d . Swann, supra, at page 2 4 .

T h e  o n ly  perm issib le  r e m e d y , based  o n  th e  constitutional 
v io la tio n s  h ere fo u n d , is t o  co n v e rt  the D e tro it  s c h o o l system  to a 
u n itary  system . T h is can  and  m u st be a c co m p lis h e d  b y  a judicial 
re m e d y  lim ited  to  th e  D e tro it  s c h o o l s y s t e m .!2 0 ]

[20] j j j e District Court noted that simply by drawing boundary lines in an 
east-west direction the Detroit Board could achieve “ significant integration” . 
(Pet. A. 26a).



3 5

II

There Is N o Constitutional Violation On Which  
to Predicate A  So-Called M etropolitan Rem edy

A s n o te d  h e re in a b o v e , th is litiga tion  was in stitu ted , tr ied , and 
findings and  co n c lu s io n s  issued  so le ly  o n  th e  grou n d s that the 
D etroit s c h o o l system  has b een  o p e ra te d  as a de jure segregated  
system . T h e  u n iq u e  p o stu re  o f  this case on  appea l is n o te d  at the 
very ou tse t o f  th e  m a jo r ity  o p in io n  o f  the C o u rt  o f  A p p e a ls  fo r  
the S ixth  C ircu it :

“ T h is  is a s c h o o l  desegregation  case w h ich , as orig ina lly  
filed , w as d irected  against th e  s c h o o l  system  o f  D e tro it , 
M ich igan , b u t on  th is appea l in vo lves  b o th  D e tro it  and  s c h o o l 
d istricts lo c a te d  in  th e  su rrou n d in g  m e tro p o lita n  area .”  
Bradley v. Milliken, 4 8 4  F .2 d  2 1 5 , 2 1 7  (C A  6 , 1 9 7 3 ). (P et.
A . 11 la ) .

D espite  th e  fa c t  that the o n ly  co n s titu t io n a l v io la tio n s  fo u n d  
are lim ited  to  the o p e ra tio n  o f  o n e  s c h o o l d istrict, D e tro it , so m e  
u nspecified  n u m b e r  o f  th e  8 6  u n re la ted , separate and id e n tifia b le  
sch ool d istricts I21 l in  three co u n tie s , em b ra cin g  an area in excess  
o f  1 ,000  square m iles , are fa ce d  w ith  the p ro s p e c t  o f  b e in g  su b ­
jected  to  a ju d ic ia l d e cre e  requ irin g  th e  fo r c e d  re-assignm ent o f  
hundreds o f  th ou sa n d s o f  p u p ils  fo r  the p u rp o se  o f  racial 
balancing.

A.
Brown C22J v. Board o f  Education and 

Its Progeny, Revisited.

“  ‘W hen I use a w o r d , ’ H u m p ty  D u m p ty  said, in  a rather 
scorn fu l to n e , ‘ it m ean s ju st w h at I c h o o s e  it t o  m ean , n e ith er  
m ore  n o r  less .’

[ 2 i i
J The District Court Ruling On Desegregation Area and Development of 

Plans (Pet. A. 59a) embraced fifty-three (53) school districts within three 
counties, covering an area of approximately 700 square miles, and contem­
plated the transportation of over 300,000 children (Pet. A. 72a).

Brown v. Board o f  Education o f  Topeka, 347 U.S. 483 (1954)
( Brown / ” ), and Brown v. Board o f  Education, 349 U.S. 294 (1955) 
( “Brown II” ).



3 6

“  ‘T h e  q u e stio n  is ,’ said A lic e , ‘ w h eth er  y o u  can m ake 
w o rd s  m ean  so  m a n y  d if fe re n t  th in g s .’

“  ‘ T h e  q u e stio n  is ,’ said H u m p ty  D u m p ty , ‘ w h ich  is to 
b e  th e  m aster — th a t ’ s a ll.’ ”  L ew is  C a rro ll, Through The 
Looking Glass.

T h e  term s “ seg reg a tion ”  an d  “ d e se g re g a tio n ”  have b e e n  given 
w e ll-d e fin e d  m ea n in g  b y  th is C o u r t  in  re la tion  to  the p r o te c t io n  o f  
co n s titu t io n a l rights gu aran teed  b y  the E q u a l P r o te c t io n  C lause o f 
th e  F o u rte e n th  A m e n d m e n t . S egregation  an d  d eseg reg a tion  may 
b e , and are, u sed  rh e to r ica lly  in exp ressin g  d if fe r in g  soc io lo g ica l 
v ie w p o in ts  b u t  th eir ju d ic ia lly -p re scr ib e d  m ean in g  d o e s  n o t  perm it 
a c o u rt  to  ascribe  its o w n  d e fin it io n  t o  said term s as the linch­
p in  fo r  a ju d ic ia l r e m e d y . It is su b m itte d  th at th e  D istr ict C ourt 
and  th e  m a jo r ity  o f  th e  C o u r t  o f  A p p e a ls  fo r  the S ix th  Circuit 
have d is to r te d  th e  m ean in g  o f  th ese  term s, as laid d o w n  b y  this 
C o u rt , in  d e cre e in g  th at a “ m e tr o p o lita n ”  re m e d y  is requ ired  to 
desegregate th e  D e tro it  s c h o o l  system .

A  p ro p e r  assessm ent o f  th e  p r in c ip le  e n u n cia te d  in  Brown /, 
3 4 7  U .S . 4 8 3  (1 9 5 4 ) ,  b eg in s  w ith  Dred Scott v. Sanford, 6 0  U.S. 
(1 9  H o w ) 3 9 3  (1 8 5 6 ) .  In Dred Scott, supra, C h ie f  Ju stice  Taney 
stated  th at the C o n s t itu tio n  o f  th e  U n ite d  S tates d id  n o t  a ffo rd  to 
b la ck  c it izen s  th e  sam e rights as a ffo r d e d  to  w h ite  c it izen s  because 
b la ck  c it izen s  w ere  in fe r io r  a c co rd in g  to  law . S u b se q u e n tly , the 
T h irte e n th , F o u rte e n th  and  F ifte e n th  A m e n d m e n ts  t o  the United 
S tates C o n s t itu tio n  re c o g n iz e d  th at th ere w as n o  ju stifica tion  
w h atever fo r  a tta ch in g  a badge  o f  legal in fe r io r ity  t o  b la ck  citizens 
and  d ecla red  th at the sa n ctio n  o f  law  c o u ld  n o t  b e  u sed  to  den y  to 
b la ck  citizen s  th e  sam e rights a f fo r d e d  to  w h ites . H ow ev er , in 
Plessy v. Ferguson, 163 U .S . 5 3 7  (1 8 9 6 ) ,  a m a jo r ity  o f  the Court 
gave ap p rova l t o  the “ separate b u t equ a l d o c tr in e ”  in h o ld in g  that 
a state statute req u ir in g  racial segregation  in ra ilw ay service did 
n o t  a m o u n t t o  a den ial o f  equ a l p r o te c t io n  o f  the law s. T h e  separ­
ate b u t equ a l d o c tr in e  was then  used  b y  so m e  states as justifica­
tion  fo r  legally  e n fo r c e d  segregation  o f  p u p ils  in  the p u b lic  schools 
on  th e  basis o f  race o r  c o lo r .



3 7

In 1 9 5 4  ca m e  Brown / ,  3 4 7  U .S . 4 8 3  (1 9 5 4 ) . T h is case, and 
its co m p a n io n  cases fr o m  S ou th  C arolin a , V irgin ia  and D elaw are, 
presented a situ ation  w h ere  b la ck  ch ild ren  had  b een  den ied  adm is­
sion to  s ch o o ls  a tten d ed  b y  w h ite  ch ildren  u n d e r  state law s req u ir­
ing or p e rm ittin g  segregation  a c co rd in g  to  race. T h e  C o u rt  c o n ­
cluded that w h ere th e  S tate  has u n d erta k en  to  p ro v id e  free p u b lic  
edu cation , it m u st be m ade “ available to  all on  equ a l term s” , 
Brown / ,  supra, at page 4 9 3 .

T he ra tion a le  o f  the C o u r t  was that a state sa n ctio n e d  p o l ic y  
o f  racial segregation  in fa ct  e m b o d ie s  a legal p h ilo s o p h y  prem ised  
on in equ ality  b e tw e e n  b la ck s  and w h ites. T h e  C ou rt exp ressed  its 
agreem ent w ith  the Kansas D istrict C ou rt that -

“  • . . S egregation  with the sanction o f law, th e re fo re , 
has a te n d e n cy  t o  [re ta rd ] th e  ed u ca tio n a l and  m ental 
d e v e lo p m e n t o f  n eg ro  ch ild ren  and t o  deprive  th em  o f  som e 
o f  the b e n e fits  th ey  w o u ld  rece ive  in  a r a c ia l[ ly ]  in tegrated  
s ch o o l sy s te m .”  Brown I, supra, at page 4 9 4 . [E m ph asis 
a d d ed .]

Thus, Brown I, 3 4 7  U .S . 4 8 3  (1 9 5 4 ) ,  stands fo r  the p rin ­
ciple that a state and  its agencies m ay  n o t , in e f f e c t ,  h ang signs on  
the sch o o l h ou se  d o o r  that say “ fo r  w h ites o n ly ”  o r  “ fo r  b lacks 
on ly” . A s stated  in Swann v. Charlotte-Mecklenburg Board o f 
Education, 4 0 2  U .S . 1 ,6  (1 9 7 1 )  -

“ T h a t was w h at Brown v. Board o f Education was all 
a b o u t .”

There is n o th in g  in Brown I, 3 4 7  U .S . 4 8 3  (1 9 5 4 ) ,  w h ich  says 
that a p rep o n d e ra n ce  o f  b la ck  stu den ts in a particu lar s c h o o l , o r  a 
particular s c h o o l  d istrict, o f fe n d s  th e  C o n st itu tio n . W hat is c o n ­
dem ned in Brown I  is n o t  the p resen ce  o f  t o o  m an y o r  t o o  fe w  
black students in a s c h o o l  b u t use o f  the fo r c e  o f  law to  d en y  
black ch ildren  en tran ce  to  a s c h o o l o r  c la ssroom  so le ly  becau se  o f  
race o r  co lo r .

In Brown v. Board o f Education, 3 4 9  U .S . 2 9 4  (1 9 5 5 )
( Brown II”), the C o u rt  addressed  it s e lf  to  the m atter o f  r e lie f  to  
be a ccord ed  w h ere it is fo u n d  that the state o r  its agen cies have 
denied b lack  ch ild ren  access to  s c h o o ls  on  the basis o f  race. T he



3 8

C o u rt  d id  n o t  set d o w n  w ith  pa rticu la rity  the in c id e n ts  o f  the 
rem ed ia l a c t io n  t o  be  tak en  b u t sta ted  as fo l lo w s :

“ In  fa sh io n in g  and  e ffe c tu a t in g  the d e cre e s , th e  courts 
w ill be  g u id ed  b y  e q u ita b le  p r in cip les . T ra d it io n a lly , equity 
has b een  ch a ra cter ized  b y  a p ractica l f le x ib il ity  in shaping its 
rem ed ies  an d  b y  a fa c ility  f o r  ad ju stin g  and re co n c il in g  public 
and private n eed s . These cases ca ll f o r  the ex erc ise  o f  these 
tra d ition a l a ttr ib u tes  o f  e q u ity  p o w e r .”  Brown II, supra, at 
page 3 0 0 . [E m p h asis  a d d e d .]

T h e  gu idelines f o r  rem ed ia l a c t io n  in  Brown II, supra, m ust be 
a p p lied  in th e  c o n te x t  o f  th e  s itu a tion  p resen ted  b y  th e  cases to 
w h ich  the C o u rt  re fe rre d , i .e .,  a dual s c h o o l  sy stem  which 
separated  ch ild ren  in th e  p u b lic  s ch o o ls  o n  th e  basis o f  race, by 
sa n ction  o f  law . T h e  C o u r t ’ s s ta tem en t d o e s  n o t  grant federal 
cou rts  u n lim ited  licen se  w ith o u t  regard  t o  th e  c o n te x t  in which 
rem ed ia l a u th o r ity  is t o  b e  e x e rc ise d . N o r  w as the C o u r t  authoriz­
in g  racial ba la n cin g  as a re m e d y . T h e  o b je c t iv e  o f  th e  exercise  of 
the co u r ts ’ e q u ity  p o w e rs  was clearly  sta ted  as fo l lo w s :

“  . . .  A t  stake is the p erson a l in terest o f  the p la intiffs  in 
admission to public schools as s o o n  as p ra ctica b le  on a non- 
discriminatory basis” Brown II, 3 4 9  U .S . 2 9 4  (1 9 5 5 ) , at 
page 3 0 0 . [E m ph asis  a d d e d .]

In Griffin v. County School Board o f Prince Edward County, 
3 7 7  U .S . 2 1 8  (1 9 6 4 ) ,  a c o u n ty  c lo se d  its p u b lic  s c h o o l  system, 
u n d er  a u th ority  o f  state law , in  an a tte m p t to  evade the mandate 
o f  Brown I, 3 4 7  U .S . 4 8 3  (1 9 5 4 ) .  T h e  C o u r t  ex p ress ly  n o te d  that 
the E qual P ro te c t io n  C lause relates to  equ a l p r o te c t io n  o f  the laws 
“between persons as such rather than between areas’’, Griffin, 
supra, at 2 3 0 , an d  th at th e  State c o u ld  p ro p e r ly  treat o n e  county 
s c h o o l d istrict d if fe re n t  th an  a n oth er  so  lo n g  as su ch  treatm ent was 
n o t  fo u n d e d  u p o n  the p u rp o se fu l o b je c t iv e  o f  d e n y in g  federally- 
p r o te c te d  rights. E xpressin g  its d issa tis fa ction  w ith  the e fforts of 
th e  P rince E dw a rd  C o u n ty  s c h o o l a u th orities  t o  c ircu m ven t the 
in te rd ic t io n  o f  Brown I, supra, the C o u rt  d ecla red  that the time 
fo r  co n v e rtin g  to  a u n itary  system  w ith  “ m ere  de lib era te  speed 
had run o u t  and that su ch  phrase, u sed  in Brown I, supra, cou ld  no 
lon ger be  used as a basis fo r  fa ilure to  co n v e rt  to  a un itary  school 
system .



3 9

In Green v. County School Board o f New Kent County, 391 
U.S. 4 3 0  (1 9 6 8 ) ,  the C o u r t  d eterm in ed  that a so -ca lled  “ fre e d o m  
o f c h o ic e ”  plan d id  n o t  m eet the req u irem en t to  con v ert a dual 
school system  to  a u n ita ry  s c h o o l  system  w h en , in  fa ct , s ch o o ls  
that w ere fo rm e r ly  all b la ck  b y  san ction  o f  law  rem ain ed  all b la ck .

T he N ew  K e n t C o u n ty  s c h o o l system  was in itia lly  estab lish ed  
and m ainta in ed  u n d e r  c o m p u ls io n  o f  the V irg in ia  co n s titu t io n  and 
statutory p rov is ion s  m an datin g  racial segregation  in th e  p u b lic  
schools. In 1 965  the s c h o o l b o a rd  a d o p te d  a “ fre e d o m  o f  c h o ic e ”  
plan w h ereb y  ea ch  p u p il, e x c e p t  th ose  en terin g  the first and  eighth  
grades, co u ld  e le c t  t o  a tten d  e ith er o f  the tw o  s ch o o ls  in  the 
school system , o n e  o f  w h ich  had b een  e x clu s ive ly  fo r  w h ites and 
the o th er  e x c lu s iv e ly  fo r  b lack s. T h ree  years a fter the plan w en t 
into o p e ra tio n , n o t  a single w h ite  ch ild  had  ch o se n  to  a tten d  the 
all black s c h o o l.

T h e C o u rt  h e ld  that w h en  s c h o o l  au th orities  have in e f fe c t  
erected signs on  th e  s c h o o l h ou se  d o o r s  sayin g  “ this s c h o o l fo r  
whites o n ly ”  o r  “ th is s c h o o l f o r  b la ck s  o n ly ” , m erely  rem ov in g  
the signs d oes  n o t  sa tisfy  the o b lig a tio n  t o  co n v e rt t o  a u n itary  
school system . T h e  a ffirm a tiv e  d u ty  o f  the s c h o o l  au th orities  to  
convert to  a u n itary  system , ra th er than p la ce  such bu rd en  on  the 
children an d  th eir paren ts, w as ex p ressed  as an o b lig a tio n  o f  the 
school b oa rd  to  fo rm u la te  a p lan  to  c o n v e rt  t o  a system  “ w ith o u t a 
‘white’ s c h o o l and  a ‘N e g r o ’ s c h o o l ,  b u t ju st s c h o o ls ” . Green v. 
County School Board o f New Kent County, 391  U .S. 4 3 0 , 4 4 2  
(1968).

T he co m m a n d  to  co n v e rt  to  a system  w ith o u t a w h ite  s c h o o l 
and a N egro  s c h o o l ,  b u t ju st s ch o o ls , was n o t  an ex p ress ion  o f  a 
requirem ent fo r  racial ba lan cin g . T h e  e ffe ctiv e n e ss  o f  a desegrega­
tion plan is n o t  to  b e  m easu red  in term s o f  racial ba lan ce  b u t in 
terms o f  its p ro sp e cts  fo r  d ism an tlin g  a system  o f  separate s ch o o ls  
for blacks and w h ites.

“  . . . W here th e  co u r t  fin d s  the b oa rd  to  be a ctin g  in 
g o o d  faith  an d  the p ro p o s e d  p lan  to  have real p ro sp e cts  fo r  
dismantling the state-imposed dual system ‘ at the earliest 
practicable  d a te ’ , th en  the plan m ay be said to  p rov id e  e f f e c ­
tive re lie f.”  Green, supra, at page 4 3 9 . [E m ph asis a d d e d .]



40

F o llo w in g  its d e c is io n  in  Green v. County School Board of 
New Kent County, 391  U .S . 4 3 0  (1 9 6 8 ) ,  th e  C o u rt  in  Alexander 
v. Holmes County Board o f Education, 396 U .S . 19 (1 9 6 9 ) ,  in 
co n s id e r in g  th e  d eseg reg a tion  o f  segregated  s ch o o ls  in  M ississippi, 
sa id :

“  . . . co n t in u e d  o p e ra t io n  o f  segregated  s c h o o ls  under a 
standard  o f  a llo w in g  ‘ all d e lib era te  s p e e d ’ f o r  desegregation  is 
n o  lo n g e r  c o n s t itu t io n a lly  perm issib le . U n d er  e x p lic it  hold­
ings o f  th is C o u r t  the obligation o f  every  s c h o o l  d istrict is to 
terminate dual systems at once an d  to  operate n o w  and here­
a fter  o n ly  unitary schools.” Alexander v. Holmes, supra, at 
page 2 0 . [E m p h asis  a d d e d .]

T h e  C o u r t  d e fin e d  a u n ita ry  system  as o n e  —

“  . . . w ith in  w h ich  n o  p erson  is t o  b e  e ffe c t iv e ly  ex­
c lu d e d  fr o m  a n y  s c h o o l  b e ca u se  o f  ra ce  o r  c o lo r . ”  Alexander 
v. Holmes, supra, at page 2 0 .

In Swann v. Charlotte-Mecklenburg Board o f Education, 402 
U .S . 1, 5 , 6  (1 9 7 1 ) ,  th e  C o u rt  n o te d  th e  reason s f o r  its  grant of 
certiorari, as fo l lo w s :

“ W e gran ted  ce rtio ra ri in  th is case to  rev iew  im portant 
issues as to  the duties o f school authorities and the scope of 
powers o f federal courts u n d e r  th is C o u r t ’ s m an dates to  eli­
m in a te  racially separate public schools estab lish ed  and main­
ta ined  b y  state a c t io n . Brown v . Board o f Education, 347 
U .S . 4 8 3  ( 1 9 5 4 )  {Brown I).

“ T h is  case an d  th o se  argued  w ith  it a rose  in  states hav­
in g  a lo n g  h is to ry  o f  m a in ta in in g  tw o  sets o f  s ch o o ls  in a 
single s c h o o l  system  d e lib e ra te ly  o p e ra te d  t o  carry  out a 
g ov ern m en ta l p o l i c y  to  separate p u p ils  in  s c h o o ls  solely  on 
th e  basis o f  race . T h at w as w h at Brown v. Board o f Educa­
tion w as all a b o u t .”  [E m p h asis  a d d e d .]

T h e  C ou rt in  Swann, supra, ex p ress ly  n o te d  that —

“ W e are c o n c e r n e d  in these cases w ith  the elim ination  of 
th e  d iscr im in a tion  in h eren t in the dual s c h o o l system s, not



41

w ith  th e  m y ria d  fa c to rs  o f  hum an  e x is te n ce  w h ich  can  cause 
d iscr im in a tion  in a m u ltitu d e  o f  w ays o n  racia l, re lig iou s  or 
e th n ic  g rou n d s. The target o f the cases from Brown I to the 
present was the dual school system.” Swann, supra, at page 
22 . [E m ph asis  a d d e d .]

S egregation  in th e  p u b lic  s ch o o ls  in the c o n te x t  o f  th e  d e c i­
sions o f  this C ou rt m eans th e  de lib era te  separation  o f  w h ite  and 
black ch ildren  so le ly  on  th e  basis o f  race , b y  g ov ern m en ta l a ction . 
That is the ev il s tru ck  d o w n  b y  Brown I  and  its p ro g e n y  and  that 
is the v io la tio n  t o  b e  co r re c te d  b y  ju d ic ia l re m e d y . A s  stated  in 
Swann v. Charlotte-Mecklenburg Board o f Education, 4 0 2  U .S . 1 
(1971):

“ O u r o b je c t iv e  in  dea lin g  w ith  th e  issues p resen ted  b y  
these cases is t o  see that s c h o o l  a u th orities  e x c lu d e  n o  p u p il 
o f  a racial m in o r ity  fr o m  an y  s c h o o l , d ire c t ly  o r  in d ire c t ly , 
on  a c c o u n t  o f  ra ce ; it does r\pt and cannot embrace all the 
problems o f  racial prejudice, even when those problems con­
tribute to disproportionate racial concentrations in some 
schools. ’’Swann, supra, at page 2 3 . [E m ph asis  a d d e d .]

T he C o u rt ex p ressed  th e  p red ica te  fo r  ju d ic ia l a c t io n  and the 
limitations on  th e  s co p e  o f  the rem ed ia l p o w e rs  o f  th e  federal 
courts as fo l lo w s :

“  . . . The task is to correct, b y  a b a lan cin g  o f  th e  in d i­
vidual and co lle c t iv e  in terests, the condition that offends the 
Constitution.

“ In seek in g  t o  d e fin e  even  in b ro a d  and general term s 
h ow  far this rem ed ia l p o w e r  e x te n d s  it is important to re­
member that judicial powers may be exercised only on the 
basis o f a constitutional violation. R em ed ia l ju d ic ia l a u th or­
ity  d oes  n o t  p u t ju d g e s  a u to m a tica lly  in th e  sh oes  o f  s c h o o l 
a u th orities  w h o se  p o w e rs  are p len ary . J u d icia l a u th ority  
enters o n ly  w h en  lo c a l a u th o r ity  d efau lts .

“ S c h o o l  a u th orities  are tra d ition a lly  ch arged  w ith  b ro a d  
p ow er to  fo rm u la te  and im p le m e n t e d u ca tio n a l p o lic y  and 
might w ell c o n c lu d e , fo r  e x a m p le , that in o rd er  t o  prepare 
students to  live in  a p lu ra listic  s o c ie ty  each  s c h o o l  sh ou ld



4 2

have a p re scr ib e d  ra tio  o f  N e g ro  to  w h ite  stu den ts reflecting 
the p r o p o r t io n  fo r  the d istrict as a w h o le . T o  d o  this as an 
e d u ca tio n a l p o l ic y  is w ith in  the b roa d  d iscre t io n a ry  powers 
o f  s c h o o l a u th or ities ; absen t a fin d in g  o f  a con stitu tion a l 
v io la t io n , h o w e v e r , that w o u ld  n o t  be  w ith in  the a u th ority  of 
a fed era l co u r t . A s  w ith  any e q u ity  case, the nature o f the 
violation determines the scope o f the remedy. In d e fa u lt by 
the s c h o o l au th orities  o f  their o b lig a tio n  to  p r o f fe r  ac­
ce p ta b le  rem ed ies , a d istr ict c o u r t  has b ro a d  p o w e r  t o  fashion 
a remedy that will assure a unitary school system." Swann v. 
Charlotte-Mecklenburg Board o f Education, 4 0 2  U .S . 1, 16 
(1 9 7 1 ) . [E m ph asis  a d d e d .]

T h e  C o u rt  exp ressly  stated  that racial ba la n cin g  o r  m ix in g  is 
n e ith er req u ired  n o r  p e rm itte d  to  sa tisfy  the m an d ate  o f  the Equal 
P r o te c t io n  C lause.

“  . . .  I f  w e w ere t o  #read  the h o ld in g  o f  the District 
C ou rt t o  req u ire , as a m a tter  o f  su bstan tive  constitutional 
righ t, an y  particu lar degree  o f  racia l b a la n ce  o r  m ix in g , that 
a p p ro a ch  w o u ld  be  d isa p p rov ed  an d  w e  w o u ld  be  obliged 
to  reverse .”  Swann v. Charlotte-Mecklenburg Board o f Educa­
tion, 4 0 2  U .S . 1 , 2 4 ( 1 9 7 1 ) .

W hile th e  cases p resen ted  to  th is C o u rt  fr o m  Brown /, 347 
U .S . 4 8 3  (1 9 5 4 )  to  Swann v. Charlotte-Mecklenburg Board of 
Education, 4 0 2  U .S . 1 (1 9 7 1 ) ,  dea lt w ith  s itu a tion s  w h ere  there 
had  b e e n  a lo n g  h is to ry  o f  leg a lly  s tru ctu red  separate s ch o o ls  for 
w h ites and  b la ck s , Spencer v. Kugler, 3 2 6  F . S u p p . 1 2 3 5  (N.J. 
1 9 7 1 ), aff’d. 4 0 4  U .S . 1 0 2 7  (1 9 7 2 ) ,  in v o lv e d  a state w h ere , like 
M ich igan , th ere is n o  h is to ry  o f  s ta te -w id e  im p o s e d  segregation  in 
the p u b lic  s ch o o ls . T h e  d e c is io n  o f  th e  th ree  ju d g e  cou rt in 
Spencer v. Kugler, supra, a ff irm e d  b y  this C o u rt , n o te d  as follow s:

“  . . . Brown never req u ired  a n yth in g  m o re  than a uni­
tary s c h o o l  system  . . . . ”  Spencer v. Kugler, supra, at page 
1241 .

*  *  *

“ T h e  C o u rt  in Swann draw s a critical distinction 
b etw een  th ose  states w h ich  have a h is tory  o f  dual school



43

system s and a separa tion  o f  the races . . . and  th ose  w h erein  
so -ca lled  ‘de facto’ segregation  results fr o m  h ou s in g  patterns 
and co n v e n tio n a l d raw in g  o f  s c h o o l d istrict z o n e s .”

*  * *

“ T h e  cre a tio n  o f  th ose  s c h o o l d istricts b y  a p prova l o f  
the legislature o n  S e p te m b e r  18, 1 9 5 3 , p re ce d e d  the h is tor ic  
d ecis ion  o f  Brown I, d e c id e d  on  M ay 17 , 1 9 5 4 . T h e  o b v io u s  
in tent o f  th e  leg islature was to  m ainta in  a u n ita ry  s c h o o l  sys­
tem  as Brown I  la ter req u ired . While the result o f such legisla­
tion some 18 years later may be racial imbalance, within 
certain school districts, it does not amount to segregation. ”

* * *

“ A  c o n t in u in g  tren d  tow a rd  racial im b a la n ce  caused  b y  
housing patterns w ith in  the variou s  s c h o o l d istricts is n o t  
su sceptib le  to  fed era l ju d ic ia l in terv en tion . . . . ”  Spencer v. 
Kugler, supra, at pages 1 2 4 2 -1 2 4 3 . [E m ph asis  a d d e d ] .

In Wright v. Council o f the City o f Emporia, 4 0 7  U .S. 451
(1 9 7 2 ), and United States v . Scotland Neck City Board o f Educa­
tion, 407  U .S. 4 8 4  (1 9 7 2 ) ,  the C o u rt  addressed  itse lf to  the “ nar­
row q u estion ”  o f  w h e th e r  a n ew  s c h o o l d istrict c o u ld  be carved  
out o f  an ex istin g  s c h o o l  d istrict w h ich  was in  the p ro ce ss  o f  dis­
mantling a dual s c h o o l  system  pu rsuan t t o  c o u r t  ord er. T h e  C o u rt  
held that a n ew  s c h o o l d istrict m ay n o t  be created  w h ere its e f fe c t  
would be to  im p ed e  the p ro ce ss  o f  d ism antlin g  a dual system . 
Emporia, supra, at page 4 6 5 .

In Keyes v. School District No. 1, Denver, Colo., 4 1 3  U .S.
1 8 9 ,------ (1 9 7 3 ) , 3 7 L . E d. 2d  5 4 8 , 5 6 3  (1 9 7 3 ) ,  th e  C o u rt h e ld  that
where a s ta tu tory  du a l s c h o o l  system  n ever ex is te d , th e  u n d er­
pinning to  su p p ort a f in d in g  o f  de jure segregation  is “ p u rp o se  o r  
intent to  segregate” . T h e  C o u r t  fu rth er  h e ld  that even w ith in  a 
single s ch o o l d istrict a sy stem -w id e  d esegregation  rem edy  is n o t  re­
quired i f  the s c h o o l d istr ict can p ro v e  that its in ten tion a l segrega­
tive acts w ere co n fin e d  t o  an area o f  the s ch o o l d istrict w h ich  is a



44

separate, id e n tifia b le  an d  u n re la ted  s e c t io n  o f  the s c h o o l  district 
that sh ou ld  be  trea ted  as iso la te d  fr o m  the rest o f  th e  d istrict.

F ro m  Brown I  to  Keyes v. School District No. 1. Denver, 
Colo., 4 1 3  U .S . 189  ( 1 9 7 3 ) ,  it is c lea r  that -

1. De jure segregation  in  the p u b lic  s c h o o ls  m ean s the 
sep a ra tion  o f  ch ild re n  in s ch o o ls  s o le ly  o n  th e  basis of 
race  o r  c o lo r  b y  in te n tio n a l a c t io n  o f  state authorities.

2 . T h e  m ere  e x is te n ce  o f  racial im b a la n ce  in the public 
s c h o o ls  d o e s  n o t  o f fe n d  th e  C o n s t itu t io n .

3. D esegregation  m ean s the assignm ent o f  ch ildren  to 
p u b lic  s c h o o ls , an d  w ith in  su ch  s c h o o ls , w ith o u t  regard 
to  th eir race  o r  c o lo r .

4 . A  u n itary  s c h o o l  system  is a system  in  w h ich  n o  person 
is e f fe c t iv e ly  e x c lu d e d  fr o m  an y  s c h o o l  becau se  o f  race 
o r  c o lo r .

5. R acia l ba la n cin g  is n o t  req u ired  in  re m e d y in g  even a 
dual s c h o o l  sy stem .

A p p ly in g  the teach in gs o f  th is C o u rt  fr o m  Brown I  to  date, a 
so -ca lled  m e tro p o lita n  p lan  o f  desegregation  t o  a cco m p lish  deseg­
regation  o f  the p u b lic  s c h o o ls  o f  th e  C ity  o f  D e tro it  is imper­
m issible.

B.

There Is N o  Constitutional Violation On Which  
A  “ M etropolitan”  R em edy Can Be Predicated

In Brown I, 3 4 7  U .S . 4 8 3  (1 9 5 4 ) ,  the C o u r t  d eclared  that 
w h ere a S tate  has u n d erta k en  to  p ro v id e  free  p u b lic  ed u cation , it 
m u st b e  m ad e available t o  all on  equ a l term s. T h e  constitutional 
and  sta tu tory  law o f  the S tate  o f  M ich igan  has m a n d a ted  such 
p o lic y  fo r  over  100  years. P u b lic  A c t  N o . 3 4 , S e c tio n  2 8 , o l the 
M ich igan  P u b lic  A cts  o f  1 8 6 7  expressly  p ro v id e d  that -

“ A ll residents o f  an y  d istr ict shall have an equ a l right to 
a tten d  an y  s c h o o l  th ere in  . . .”



In The People v. Board o f Education o f Detroit, 18 M ich . 3 9 9  
(1 8 6 9 ), the M ich igan  S u prem e C o u rt h e ld  that u n d e r  said statute 
children c o u ld  n o t  be  d en ied  a dm ission  to  an y  s c h o o l on  the basis 
o f  race o r  c o lo r .

In 1927  the M ich igan  legislature en a cted  A c t  N o . 3 1 9 , Part 
II, C hapter 2 , S e c tio n  9 o f  w h ich  p ro v id e d  as fo l lo w s :

“ A ll p erson s residen ts o f  an y  s c h o o l  d istrict, and  five  
years o f  age, shall have an equ a l right t o  a tten d  an y  s c h o o l 
th ere in ; an d  n o  separate s c h o o l  o r  d ep a rtm en t shall be  k ept 
fo r  an y  p erson  o r  p erson s o n  a c c o u n t  o f  race o r  c o lo r  . . .”

The M ich igan  S c h o o l  C o d e  o f  195 5  p rov id es  that —

“ N o  separate s c h o o l o r  d ep a rtm en t shall be  k ep t f o r  any 
person  o r  person s o n  a c c o u n t  o f  race o r  c o lo r .”  M ich . C o m p . 
Laws § 3 4 0 .3 5 5 .

T he lon g -estab lish ed  State p o lic y  against racial separation  in 
the p u b lic  s ch o o ls  was re a ffirm e d  in the M ich igan  C o n s t itu tio n  o f  
1963:

“  . . . E very  s c h o o l  d istr ict shall p rov id e  f o r  the e d u ca ­
tion  o f  its p u p ils  w ith o u t  d iscr im in a tion  as to  re lig ion , creed , 
race, c o lo r  o r  n a tion a l o r ig in .”  M ich  C on st 1 9 6 3 , art V III . 
§2.123]

T here is n o  c o n te n t io n  and n o  fin d in g  that th e  S tate  o f  
M ichigan has fo s te re d  dual s c h o o l system s. T h e  o n ly  fin d in g  o f  
con stitu tion a l v io la t io n  is that w ith in  the D e tro it  s c h o o l system  
children have n o t  been  assigned to  s ch o o ls  w ith o u t  regard to  race 
or co lo r . In Lee v. Macon County Board of Education, 4 4 8  F .2 d  
746, 752  (C A  5 , 1 9 7 1 ), the co u r t  a rticu la ted  the basis f o r  treating 
separate s c h o o l d istricts as o n e  fo r  p u rp oses  o f  desegregation , as 
fo llow s:

[231 “ The anti-discrimination clause is placed in this section as a declaration 
which leaves no doubt as to where Michigan stands on this question.”  State of 
Michigan Constitutional Convention, 1961, Official Record, Volume II, page



4 6

“  . . . h is to r ica lly  separate s c h o o l  d istricts , where shown 
to be created as a part o f a state-wide dual system or to have 
cooperated together in the maintenance o f such a system, 
have b een  trea ted  as o n e  fo r  p u rp oses  o f  desegregation .” 
[E m ph asis  a d d e d .]

H ere, th e  a b sen ce  o f  a S tate  p o lic y  fo s te r in g  a dual s c h o o l  system, 
the co m p le te  ab sen ce  o f  c o o p e ra t iv e  a c t io n  b e tw e e n  D e tro it  and 
o th e r  s c h o o l  d istricts  w ith  re sp e ct to  the de jure segregated  opera­
t io n  o f  the D e tro it  s c h o o l  sy stem , and th e  la ck  o f  any causal rela­
t io n sh ip  w ith  re sp e ct to  th e  segregation  fo u n d  in  D e tro it  and other 
s c h o o l d istricts  p ro h ib its  a m u lt i-s ch o o l d is tr ict  re m e d y  u n der the 
guise o f  desegregatin g  th e  D e tro it  s c h o o l  sy stem .

T h e  a p p a ren t rea son in g  u sed  b y  the m a jo r ity  o p in io n  o f  the 
C o u rt  o f  A p p ea ls  t o  su p p o rt  a m u lt i-s ch o o l d istrict re m e d y  is that 
( i )  all s c h o o l d istricts  are agen cies  o f  the S tate , and ( i i )  de jure 
segregation  w ith  resp ect to  any s c h o o l d istr ict is, accord ingly , 
State a c t io n , e rg o  (i i i)  any s c h o o l d istricts  o p e ra tin g  u n d e r  the egis 
o f  State a u th or ity  m a y  b e  in c lu d e d  in  a d esegrega tion  remedy. 
T his e rro n e o u s  p ostu la te  is co n tra ry  to  th e  p r o n o u n c e m e n t  o f  this 
C o u rt  that the nature o f  the v io la t io n  d eterm in es  th e  s c o p e  o f  the 
re m e d y , Swann v . Charlotte-Mecklenburg Board o f Education, 402 
U .S . 1, 16 (1 9 7 1 ) ,  and  ig n ores  the fa c t  th a t s c h o o l  d istricts  in the 
State o f  M ich igan , th o u g h  crea ted  b y  legislative e n a ctm e n t, have 
p len ary  a u th ority  ov er  the m a tter  o f  p u p il assignm ents and that 
the o p e ra tio n  o f  said s c h o o l  d istricts  is largely  a lo c a l function. 
San Antonio Independent School District v . Rodriguez, 411 U.S. 
1, 5 2 -5 3  (1 9 7 3 ) .

T h e  M ich igan  C o n s t itu tio n  p rov id es  that -

“ T h e  legislature shall m ainta in  and  su p p o rt a system  of 
free  p u b lic  e lem en tary  and  se co n d a ry  s ch o o ls  as d e fin ed  by 
law . E very s c h o o l  d istr ict shall p ro v id e  f o r  the ed u ca tion  of 
its p u p ils  w ith o u t  d iscr im in a tion  as to  re lig io n , creed , race, 
c o lo r  o r  n a tion a l o r ig in .”  M ich  C o n st  1 9 6 3 , art V III , § 2 .

Pursuant to  said co n s titu t io n a l m an d ate , a s c h o o l d istrict as es­
tab lish ed  b y  legislative e n a ctm e n t is an in d e p e n d e n t  “ b o d y  cor­

p o ra te ” .



4 7

“ S ec. 3 5 2 . E very  s c h o o l d istrict shall be a b o d y  c o r ­
porate u n d er  the n am e p ro v id e d  in this a ct, and m a y  sue and 
be sued in its n a m e, m ay  a cq u ire  and take p ro p e r ty , b o th  real 
and p erson a l, fo r  e d u ca tio n a l p u rposes w ith in  o r  w ith o u t  its 
corp ora te  lim its, b y  p u rch ase , g ifts , grant, devise o r  b eq u est, 
and h o ld  and use the sam e fo r  su ch  p u rp oses , and m ay  sell 
and co n v e y  the sam e as the in terests o f  such  d istrict m a y  re ­
quire, su b je ct to  the co n d it io n s  o f  this a ct co n ta in e d . A s su ch  
b o d y  co r p o r a te , every  s c h o o l d istr ict shall be  the su ccessor  o f  
any s c h o o l  d istr ict p rev iou s ly  ex istin g  w ith in  the sam e terri­
torial lim its and  shall be vested  w ith  all rights o f  a c t io n , w ith  
the title  o f  all p r o p e r ty , real and p erson a l, o f  the d istrict o f  
w h ich  it is th e  su cce sso r , and  the in d eb ted n ess  and  ob lig a ­
tions o f  th e  d istr ict su p ersed ed  shall b e c o m e  and be the in ­
debtedness and o b lig a tio n s  o f  the su cce e d in g  d istr ict, e x ce p t  
as o th erw ise  p ro v id e d  in  ch apters 3 , 4  and 5 , part 2 o f  this 
act. E very s c h o o l d istrict shall in all cases be  p resu m ed  to  
have been  legally  org a n ized  w h en  it shall have e x e rc ise d  the 
franchises an d  priv ileges o f  a d istrict fo r  the term  o f  2 years; 
and such  s c h o o l d istrict and  its o f f ic e r s  shall be  en tit le d  to  all 
the rights, privileges and im m u n ities , an d  be su b je ct t o  all the 
duties and liab ilities co n fe r re d  u p o n  s c h o o l d istricts  b y  la w .”  
M ichigan C o m p ile d  L aw s 3 4 0 .3 5 2 .

I l l u s t r a t i v e  o f  t h e  b r o a d  a u t h o r i t y  w h i c h  t h e  l e g i s l a t u r e  h a s  

v e s t e d  i n  a  l o c a l  s c h o o l  d i s t r i c t  a r e  t h e  p o w e r s  t o :

1. A cq u ire  real and p erson a l p ro p e r ty . M ich . C o m p . Law s 
§ §  3 4 0 . 2 6 ;  3 4 0 . 7 7 ;  3 4 0 .1 1 3 ; 3 4 0 .1 6 5 ; 3 4 0 .1 9 2 ; 
3 4 0 .3 5 2 .

2. H ire and  c o n tr a c t  w ith  d u ly  q u a lified  teach ers. M ich . 
C o m p . L aw s § 3 4 0 .5 6 9 .

3. D eterm in e  th e  len gth  o f  the s c h o o l  term . M ich . C om p . 
Law s § 3 4 0 .5 7 5 .

4. C o n tro l th e  adm ission  o f  n on -res id en t pu p ils . M ich . 
C o m p . L aw s § 3 4 0 .5 8 2 .

5 -  D e t e r m i n e  c o u r s e  o f  s t u d y  a n d  c a r r y  o n  s u c h  g r a d e s ,  

s c h o o l s  a n d  d e p a r t m e n t s  a s  i t  s h a l l  d e e m  n e c e s s a r y .  

M ich . C o m p . Law s § 3 4 0 .5 8 3 .



4 8

6. E stablish  a tte n d a n ce  areas w ith in  its d istr icts . Mich. 
C o m p . L aw s § 3 4 0 .5 8 9 .

7. A rran ge f o r  tra n sp o rta tio n  o f  n o n -re s id e n t students. 
M ich . C o m p . L aw s § 3 4 0 .5 9 1 .

8 . A c q u ir e  tra n sp o rta tio n  e q u ip m e n t . M ich . C o m p . Laws § 
3 4 0 .5 9 4 .

9. E m p lo y  legal c o u n s e l. M ich . C o m p . L aw s § 3 4 0 .6 0 9 .

10 . M ake ru les an d  reg u la tion s  relative t o  th e  p u b lic  schools 
o f  th e  d istr ict. M ich . C o m p . L aw s § 3 4 0 .6 1 4 .

11 . L e v y  a u t h o r i z e d  m i l l a g e .  M ic h . C o m p . Laws § 
3 4 0 .6 4 3 a .

12. A c q u ir e  p r o p e r ty  b y  e m in e n t d o m a in . M ich . Comp. 
L aw s § 3 4 0 .7 1 1 .

13. A p p r o v e  an d  se lect t e x tb o o k s . M ich . C o m p . Laws § 
3 4 0 .8 8 2 .

In ch aracteriz in g  th e  n atu re  o f  lo ca l s c h o o l  d istricts  and their 
exten sive  c o n tr o l  o v e r  e d u ca t io n , th e  M ich igan  S u p rem e  Court 
n o te d  in  Jones v. Grand Ledge Public Schools, 3 4 9  M ich . 1, 5; 84 
N .W .2 d  3 2 7 , 3 2 9  (1 9 5 7 ) ,  as fo l lo w s :

“ . . . T h e  gen eral p o l i c y  o f  the S tate  has b e e n  to  retain 
c o n tr o l  o f  its s c h o o l  system , t o  b e  ad m in istered  throughout 
th e  S tate  u n d e r  State law s b y  local State agencies organized 
with plenary powers in d e p e n d e n t  o f  th e  lo c a l governm ent 
w ith  w h ich , b y  lo c a t io n  an d  g eog ra p h ica l b ou n d a r ies , they 
are n ecessarily  c lo s e ly  a ssocia ted  and  t o  a greater or  less 
e x te n t  a u th o r ize d  t o  c o -o p e r a te . E d u ca t io n  b e lo n g s  to  the 
State. It is n o  part o f  th e  lo c a l se lf-g o v e rn m e n t inherent in 
th e  to w n s h ip  o r  m u n ic ip a lity  e x c e p t  so  fa r  as th e  legislature 
m a y  c h o o s e  t o  m ak e  it su ch . * * * T h e  gen era l s c h o o l laws 
w ere ca re fu lly  p la n n ed  and e n a cte d  to  guard that distinction; 
provision was made for organization o f the common school 
districts, with officers elected at school meetings by electors 
with defined qualifications, and who as a school board were 
given large plenary powers and control o f  school matters,



4 9

p ra ctica lly  in d e p e n d e n t fr o m  the lo c a l g o v e rn m e n t o f  m u n ic i­
p a lit ie s  in  w h ich  th e  s ch o o ls  w ere  s itu a ted .”  [E m ph asis  
a d d ed .]

See also MacQueen v. City Commission o f City o f Port Huron, 194  
Mich. 3 2 8 , 160  N .W . 6 2 7  (1 9 1 6 ) ;  School District o f the City o f 
Lansing v. State Board o f Education, 3 6 7  M ich . 5 9 1 , 116  N .W . 2d  
8 6 6 (1 9 6 2 ) .

H ere, as n o te d  in  San Antonio Independent School District v. 
Rodriguez, 411  U .S . 1, 5 2  n .1 0 8 , ( 1 9 7 3 ) -

“  . . .  It ca n n o t b e  ser iou sly  d o u b te d  that . . . e d u ca tio n  
rem ains largely  a lo ca l fu n c t io n , and that the p rep on d era tin g  
bu lk  o f  all d e c is io n s  a ffe c t in g  th e  s ch o o ls  is m a d e  an d  e x e cu te d  
at th e  lo c a l level, gu aranteein g  th e  greatest p a rtic ip a tion  
by  th ose  m o s t  d ire c t ly  c o n c e r n e d .”

T h e m a jo r ity  o p in io n  o f  the S ix th  C ircu it ord a in in g  a 
“ m etropo lita n ”  re m e d y , and  the ord er  o f  the D istrict C o u rt , is 
founded on  th e  p rem ise  that a p re d o m in a n tly  b la ck  s c h o o l  d is­
trict geogra p h ica lly  su rrou n d ed  b y  separate, u n rela ted  and id en ti­
fiable p red om in a n tly  w h ite  s c h o o l  d istricts  o f fe n d s  the C o n st itu ­
tion.

“  . . . a rem ed ia l o rd e r  o f  a co u r t  o f  e q u ity  w h ich  le ft 
the D e tro it  s c h o o l  system  o v e rw h e lm in g ly  b la ck  ( f o r  the 
foreseeab le  fu tu re ) su rrou n d ed  b y  su bu rban  s c h o o l  system s 
overw h elm in g ly  w h ite  ca n n o t c o r r e c t  the co n s titu t io n a l v io la ­
tions herein  fo u n d .”  Bradley v. Milliken, 4 8 4  F .2 d  2 1 5 , 2 5 0  
(C A  6 , 1 9 7 3 ), (P et. A . 17 3 a ). t2 4 l

* *  *

“  . . . A  large m e tro p o lita n  area su ch  as w e have in ou r 
case ca n n o t be  m ade the su b je c t  o f  instant in tegra tion . W e 
m ust bear in  m in d  th at the task w e are ca lled  u p o n  to  per­
form  is a soc ia l o n e , w h ich  s o c ie ty  has b een  u n ab le  to  a c­
com plish . In rea lity  o u r  cou rts  are ca lled  u p o n , in  these

[2 4 ] In the opinion of the three-judge panel initially issued in this case on 
December 8, 1972, and vacated by granting of rehearing in banc, the same 
concept was expressed as “ big city school systems for blacks surrounded by 
suburban school systems for whites cannot represent equal protection under 
the law.” Bradley v. Milliken, 484 F.2d 215, 261, 276 (CA 6, 1973), (Pet. A. 
195a, 224a).



50

s c h o o l  cases, to  attain  a so c ia l g o a l, th rou gh  the education  
sy stem , b y  u sin g  the law  as a lev er .”  U n ited  S tates District 
C o u r t , E .D . M ich  (P et. A . 4 0 a -4 1 a ).

O bsessed  w ith  th e  n o t io n  that racia l im b a la n ce  between 
s c h o o l  d istricts  sh ou ld  n o t  b e  to le ra te d , th e  m a jo r ity  o p in io n  of 
the C o u rt  o f  A p p e a ls  states that -

“ I f  s c h o o l  b o u n d a ry  lines c a n n o t  b e  ch a n g ed  fo r  an 
u n co n s t itu t io n a l p u rp o se , it fo l lo w s  lo g ica lly  th at existing 
b o u n d a ry  lines c a n n o t  b e  fr o z e n  f o r  an uncon stitu tiona l 
p u r p o s e .”  Bradley v. Milliken, 4 8 4  F .2 d  2 1 5 , 2 5 0  (C A  6,
1 9 7 3 ), Pet. A . 1 7 4 a ).

In  light o f  th e  fa ct  that th ere  have b e e n  n o  p r o o fs  tak en  in this 
case w ith  resp ect t o  th e  esta b lish m en t o f  th e  b o u n d a r ie s  o f any 
school district, n o r  o n  th e  issue o f  w h e th e r , w ith  th e  exclu sion  of 
th e  D e tro it  s c h o o l  sy stem , a n y  s c h o o l  d is tr ict  has co m m itte d  acts 
o f  de jure segregation  (P et. A . 6 0 a ), th e  c o n c lu s io n  that school 
d istrict b o u n d a r ie s  have b e e n  fr o z e n  f o r  an unconstitutional 
p u rp o se  is in cre d ib le . T h ere  is n o  c o n s t itu t io n a l requ irem en t to 
ch ange s c h o o l d istr ict b o u n d a r ie s  f o r  th e  p u rp o se  o f  m aking ad­
ju s tm e n ts  o f  the racia l c o m p o s it io n  o f  s tu d en t b o d ie s  where, as 
h ere , th ere is n o  sh ow in g  that s c h o o l  a u th orities  o r  o th e r  agencies 
o f  th e  S tate d e lib e ra te ly  estab lish ed  o r  a ltered  su ch  s c h o o l district 
b ou n d a r ies  w ith  the p u rp o se  o f  a ffe c t in g  th e  racia l c o m p o s it io n  of 
said s c h o o l d istricts . Swann v . Charlotte-Mecklenburg Board of 
Education, 4 0 2  U .S . 1, 3 1 -3 2  (1 9 7 1 ) ;  Spencer v. Kugler, 326 F. 
S u pp  123 5  (N .J . 1 9 7 1 ), a ff’d. 4 0 4  U .S . 1 0 2 7  (1 9 7 2 ) .

T h e  s ta tem en t in th e  m a jo r ity  o p in io n  o f  th e  S ix th  Circuit 
that th e  instant case calls up h a u n tin g  m e m o r ie s  o f  th e  “ separate 
b u t  e q u a l”  d o c tr in e  o f  Plessy v . Ferguson, 163 U .S . 5 3 7  (1896), 
and  that a “ m e tr o p o lita n ”  re m e d y  is n ecessary  to  c o m p ly  with the 
m an date  o f  Brown v. Board o f Education o f Topeka, 3 4 7  U.S. 483 
(1 9 5 4 ) ,  is n augh t b u t  rh e to r ic . Bradley v . Milliken, 4 8 4  F .2d  215, 
2 4 9  (C A  6 , 1 9 7 3 ), (P et. A . 172 a ). T h ere  is n o  ev id en ce  in this case 
that any s c h o o l  d is tr ict , in c lu d in g  D e tr o it , has, w ith  the sanction 
o f  law , m a in ta in ed  separate s ch o o ls  ex c lu s ive ly  fo r  blacks and ex­
clu sive ly  fo r  w h ites. Brown I. supra, d id  n o t  d eclare  that racial 
im b a la n ce  o f fe n d s  th e  C o n s t itu t io n . T h e  co m m a n d  o f  Brown I, 
supra, was n o t  d ire cte d  at th e  racial c o m p o s it io n  o f  school



51

districts b u t  at a d e lib era te  govern m en ta l p o lic y  o f  m ainta in ing  
two sets o f  s c h o o ls  in a single s c h o o l system  so le ly  o n  the basis o f  
race. Swann v. Chariotte-Mecklenburg Board o f Education 4 0 7  
U.S. 1 ,6 ( 1 9 7 1 ) .

T he im p lic it  ra tion a le  fo r  a “ m e tr o p o lita n ”  rem e d y  is that 
black stu den ts m u st b e  c o n fin e d  to  a n u m erica l m in o r ity  in every 

sch oo l, grade o r  c la ss ro o m ”  (P et. A . 101a) becau se  a p re­
dom inance o f  b la ck  ch ild ren  in a s c h o o l system  co n stitu te s  in ­
vidious d iscr im in a tion  against b la ck  ch ild ren . A  “ m e tro p o lita n ”  
rem edy im p lies  that m a jo r ity  b la ck  sch o o ls  are b y  ju d ic ia l d e fin i­
tion in fe r io r  and is in e f fe c t  a retu rn  to  th e  spirit o f  Dred Scott v. 
Sanford, 6 0  U .S . (1 9  H o w ) 3 9 3  (1 8 5 6 ) .  See o p in io n  o f  Judge 
S o b e lo ff  in Brunson v. Board o f Trustees o f School District No. 1, 
Clarendon County, S.C., 4 2 9  F . 2d  8 2 0  (C A  4 , 1 9 7 0 ).

T h e lim ita tio n  exp ressed  in Swann v. Charlotte-Mecklenburg 
Board o f Education, 4 0 2  U .S . 1, 16 (1 9 7 1 ) ,  that the “ nature o f  
the v io la tion  d eterm in es  th e  s co p e  o f  th e  r e m e d y ”  m akes a 
“ m etrop o lita n ”  re m e d y  im p erm issib le  in this case. T h e  C o u rt  o f  
Appeals fo r  the S ix th  C ircu it re co g n ize d  th e  e x te n t o f  this lim ita ­
tion in Deal v. Cincinnati Board o f Education, 3 6 9  F. 2 d  5 5 , 63  
(CA 6 , 1 9 6 6 ), cert. den. 3 8 9  U .S . 8 4 7  (1 9 6 7 ) :

“ . . . I f  the s c h o o l  o ff ic ia ls , th rou g h  overt p ra ctice  o r  b y  
su bterfu ge , have treated  stu den ts d if fe re n t ly  so le ly  becau se  
o f  race, th en  th ey  n o t  o n ly  m u st cease d o in g  so , b u t also 
m ust take affirmative action to remedy the condition which 
they have caused. ”
T he nature o f  the co n stitu t io n a l v io la t io n  is that w ith in  the 

Detroit s c h o o l system  ch ild ren  have b een  assigned to  s ch o o ls  on  
the basis o f  race o r  c o lo r . T h e  result o f  such segregative a ction  is 
that som e s ch o o ls  w ith in  the D e tro it  system  are co m p rise d  o f  a 
majority o f  b la ck  o r  w h ite  ch ild ren  in  substantial d is p ro p o r t io n  to  
the racial c o m p o s it io n  o f  that s c h o o l system .

Had n o n e  o f  the acts fo u n d  to  co n s titu te  de jure segregation , 
with respect to  the D e tro it  s c h o o l system , o c cu rre d , n o  pu pil 
resident in D e tro it  w o u ld  have b een  assigned to  any o th e r  s c h o o l 
district o r  v ice-versa. T h ere  is n o  ev id en ce  and n o  fin d in g  that the 
■acial im balance b e tw e e n  D e tro it  and o th e r  s c h o o l d istricts is a 
condition  caused b y  the de jure segregated o p e ra tio n  o f  the 

etroit s c h o o l system . N o r  is there any fin d in g  that any o f  the 
separate, u nrela ted  and id en tifia b le  s c h o o l  d istricts , o th e r  than the



52

D e tro it  s c h o o l  d is tr ict , are in a n y  w a y  resp o n s ib le  fo r  th e  de jure 
segregation  w ith in  th e  D e tro it  s c h o o l  system . T h ere  is n o  consti­
tu tion a l v io la t io n  o n  w h ich  to  p re d ica te  a “ m e tr o p o lita n ”  rem edy.

T h e  o b v io u s  in ten t o f  th e  M ich igan  legislature has b e e n , and 
is, t o  m ainta in  a u n itary  s c h o o l  system  as req u ired  b y  Brown I, 347 
U .S . 4 8 3  (1 9 5 4 ) ,  and su b seq u en t d e c is io n s  o f  th is C o u rt . This 
in ten t has b e e n  carried  o u t  e x c e p t  w ith in  th e  D e tro it  school 
system . T o  u p h o ld  a “ m e tr o p o l ita n ”  re m e d y  req u ires  d isobed ience 
to  th e  p r in c ip le s  e n u n cia te d  b y  th is C o u r t  fr o m  Brown I, supra, to 
date . T h e  use o f  a “ m e tr o p o lita n ”  re m e d y  to  e f fe c t  a racial 
b a la n ce  is c lea rly  p r o s c r ib e d  b y  th e  h o ld in g  in Spencer v. Kugler, 
3 2 6  F . S u pp . 1 2 3 5 , 1 2 4 3  (N .J . 1 9 7 1 ), aff’d 4 0 4  U .S . 1 0 2 7  (1972), 
th at —

“ A  co n t in u in g  tren d  to w a rd  racial im b a la n ce  caused by 
h ou s in g  p a ttern s  w ith in  th e  v a r iou s  s c h o o l  d istricts  is not 
su scep tib le  to  fed era l ju d ic ia l in te rv e n tio n .”

See also Swann v. Charlott e-Mecklenburg Board o f Education, 402 
U .S . 1, 3 1 - 3 2 ( 1 9 7 1 ) .

T h is  lit ig a tion  w as c o m m e n c e d , tried  and fin d in g s  issued on 
th e  so le  g rou n d s  that o n e  s c h o o l  d is tr ict , D e tr o it , was being 
o p e ra te d  in  v io la t io n  o f  th e  C o n s t itu t io n . A  “ m etropo lita n ” 
rem e d y  using o th e r  separate, u n re la ted  and  id e n tifia b le  unitary 
s c h o o l system s to  e f f e c t  a racia l b a la n ce  is b e y o n d  the scope  of 
this litiga tion ,

“ . . . fo r  th ere  is n o  right t o  racia l b a la n ce  w ith in  even a 
single s c h o o l d is tr ict , Swann v. Charlott e-Mecklenburg Board 
o f Education, 4 0 2  U .S . at 2 4 , 91 S C t. 1 2 6 7 , b u t  o n ly  a right 
t o  a tten d  a u n ita ry  s c h o o l sy s te m .”  Bradley v. School Board 
o f the City o f Richmond, 4 6 2  F . 2 d  1 0 5 8 , 106 9  (C A  4, 
1 9 7 2 ), aff’d b y  an e q u a lly  d iv id ed  C o u rt , 4 1 2  U.S. 92
(1 9 7 3 ) .

Ill

Petitioners Have Been And Will Continue T o Be 
Denied Due Process o f Law Under the Decision Below

A  “metropolitan” remedy directly affects th e  lives o f  hun­
dreds of thousands of children and parents w ith in  Petitioners



53

School D istricts and requ ires the e x p e n d itu re  o f  u n to ld  m illion s  o f  
dollars. T h e  re m e d y  in v o k e d  in  this case w o u ld  e f fe c t iv e ly  em a scu ­
late the exten sive  righ t o f  lo c a l c o n tr o l  ov e r  P etition ers  S c h o o l  
Districts p ro v id e d  b y  legislative en a ctm en ts . F o r  e x a m p le , said 
remedy in terd icts  th e  ex erc ise  o f  lo c a l s c h o o l d istr ict a u th o r ity  
over such m atters as c o n t r o l  o f  a tten d a n ce  o f  n on res id en t stu den ts 
(Mich C on st 1 9 6 3 , art V III , § 2 ;  M ich . C o m p . L aw s 3 4 0 .5 8 2 ) ;  the 
em ploym ent an d  a llo ca t io n  o f  te a ch in g  an d  adm inistrative s ta f f  t o  
educate residen t p u p ils  (M ich . C o m p . L aw s 3 4 0 .5 6 9 ) ;  the c o n ­
struction, e x p a n s io n  and use o f  s c h o o l  facilit ies  (M ich . C o m p . 
Laws 3 4 0 .7 7 ) ;  and th e  cu rr icu lu m , activ ities  an d  standards o f  c o n ­
duct and the sa fe ty  o f  s tu d en ts , fa cu lty , s ta f f  and  paren ts w ith in  
each  s c h o o l  d istr ict (M ich . C o m p . L aw s 3 4 0 .5 7 5 , 3 4 0 .5 8 3 , 
340.614, 3 4 0 .8 8 2 ) .

A .

Failure to Join School Districts W hose Interests 
Are to Be A ffected  Is A  Denial o f  Due Process

A n in d ispen sab le  p a rty  is d e fin e d  as o n e  w h o se  in terest in the 
subject m atter o f  th e  suit and  in  th e  relief sought is so  b o u n d  up  
with that o f  the o th e r  parties that h is legal p resen ce  as a p a rty  to  
the p roceed in g  is an a b so lu te  n ecess ity  w ith o u t  w h ich  the co u rt  
cannot p ro ce e d . Baltimore & O.R. Co. v. Chicago River and 
Indiana R. Co.. 170  F .2 d  6 5 4  (C A  7 , 1 9 4 8 ), cert. den. 3 3 6  U .S . 
9 4 4 (1 9 4 9 ).

Petitioners S c h o o l  D istricts w h o se  in terests are d ire c t ly  a f­
fected b y  th e  re m e d y  d e cre e d  in  this case w ere , and are, in d isp en ­
sable parties t o  th is lit ig a tio n . A s  su ch , P etit ion ers  w ere  en tit led  to  
be made parties before th e  d istr ict c o u r t  d e c id e d  th e  case. Water­
man v. The Canal-Louisiana Bank and Trust Company, 2 1 5  U .S. 
33, 48 (1 9 0 9 ) ;  Bradley v. School Board o f the City o f Richmond, 
338 F. Supp. 67  (E .D . V a . 1 9 7 2 ), reversed  o n  o th e r  g ro u n d s  4 6 2  
F.2d 1058 (C A  4 , 1 9 7 2 ) , aff’d b y  an e q u a lly  d iv id ed  C ou rt 4 1 2  
U.S. 92 (1 9 7 3 ) .

A  fo rm a l m o t io n  to  add  th e  P etition ers , and o th e r  s c h o o l 
districts, was filed  w ith  th e  D istrict C o u rt o n  July 17, 1971 (A . Ia 
119). T he cou rt d id  n o t  rule o n  this m o t io n , b u t  d iscu ssed  it in  th e  
September 27 , 1 9 7 1 , “ R u lin g  O n  Issue o f  S egrega tion ”  (P et. A . 
17) and co n c lu d e d  th at th e  m o t io n  sh ou ld  n o t  b e  co n s id e re d  at 
that tim e becau se  “ in  co n s id e r in g  the m o t io n  to  ad d  th e  listed  
school districts w e pause to  n o te  that the p ro p o s e d  a c tio n  has to



54

d o  w ith  r e lie f .”  (P et. A . 3 8 a ). T h is  C o u rt  u n d e r  sim ilar circum­
stan ces, sta ted :

“ T h e re  is a n o th e r  class o f  p erson s  w h o se  re la tion s  to  the 
suit are su ch  th at i f  th e ir  in terest and th e ir  absen ce  are 
fo rm a lly  b r o u g h t  to  th e  a tte n t io n  o f  th e  c o u r t , it will require 
them to be made parties, i f  w ith in  its ju r is d ic t io n , before 
deciding the case.” Waterman v. The Canal-Louisiana Bank 
and Trust Company, 2 1 5  U .S . 3 3 , 4 8 -4 9  (1 9 0 9 ) .  [Emphasis 
a d d e d .]

W hile th e  fa ilu re  t o  jo in  an  in d isp en sa b le  p a rty  d o e s  n o t de­
prive th e  c o u r t  o f  ju r is d ic t io n  t o  d e te rm in e  th e  p e n d in g  a ction  be­
fo re  it , it  d o e s  p r o h ib it  th e  c o u r t  fr o m  gran tin g  a n y  r e lie f  which 
w o u ld  a f fe c t  an absen t p a rty .

“ I f  the c o u r t  can  d o  ju s t ic e  to  th e  parties  b e fo re  it 
w ith o u t  in ju rin g  absen t p e rso n s  it w ill d o  so , and shape its 
re lie f  in su ch  a m a n n er as t o  preserve th e  rights o f  th e  persons 
n o t  b e fo r e  th e  c o u r t . I f  n ecessa ry , th e  c o u r t  m a y  requ ire  that 
th e  b ill b e  d ism issed  as to  su ch  absen t parties, and may 
gen era lly  shape its d e cre e s  so  as to  d o  ju s t ice  to  th ose  made 
parties , w ith o u t  p re ju d ice  to  su ch  absen t p e rso n s .”  Waterman 
v. The Canal-Louisiana Bank and Trust Company, 2 1 5  U.S. 
3 3 , 4 9  (1 9 0 9 ) .

P etit ion ers  are in d isp en sa b le  parties  in litiga tion  involv in g  the 
co n t in u e d  e x is te n ce  and b a sic  fu n c t io n s  o f  su ch  s c h o o l  districts. 
Y e t  P etit ion ers  w ere  n o t  in c lu d e d  as parties  to  th is a ct io n  at the 
c o m m e n c e m e n t  o f  p ro ce e d in g s . N o r  w ere  th ey  jo in e d  as parties as 
req u ested  b y  in terv en ors  D en ise  M a g d o w sk i, e t al, in  Ju ly  o f  1971. 
It w as n o t  u n til th e  c lo s in g  w e e k s  o f  the tw o -y e a r  o ld  law suit that 
P etit ion ers  o n  th e ir  o w n  m o t io n  (A . Ia 1 9 2 ), o v e r  the o b je c t io n  of 
P la in tiffs -R e sp o n d e n ts , w ere  p e rm itte d  “ c o n d it io n a l”  participa­
tion  in  th e  p ro ce e d in g s  (A . Ia 2 0 4 ).

In  Higgins v . Board o f Education o f the City o f Grand
Rapids,____ F . S u p p _____ (W .D . M ich . 1 9 7 3 ), Judge E n gel granted a
m o t io n  to  jo in  s c h o o l  d istr icts  in a sim ilar s itu a tion , saying:

“ . . .A lth o u g h  th e  p re c ise  issue h ad  n o t  b e e n  decided, 
general c o n c e p ts  o f  d u e  p ro ce ss  s tron g ly  suggested  that i f  the 
su bu rban  s c h o o l  d istr icts  h ad  p o te n t ia lly  adverse interests to 
b e  a ffe c te d , th e y  w ere  en tit le d  to  n o t ic e  to  d e fe n d  and an 
o p p o r tu n ity  t o  b e  heard  u p o n  th o se  issues w h ich  co u ld  affect



55

th em , i f  d e c id e d  adversely  to  their in terests. A c c o r d in g ly , the 
cou rt o rd ered  th e  jo in d e r .”  Slip O p in io n , page 80 .

As stated b y  Judge W eick  in  d issen tin g  fr o m  the m a jo r ity  o p in io n  
below:

“ A ll s c h o o l  d istricts  w h o se  b o rd e rs  w ere  b e in g  in vaded  
were en tit le d  as a m a tter  o f  righ t and  n o t  o f  m ere  grace , t o  be  
m ade parties d e fe n d e n t  in  th e  case and to  b e  a c c o r d e d  the 
same rights as an y  o th e r  d e fen d a n ts . T h e y  w ere  en tit le d  to  b e  
heard o n  all issues in th e  case w h ich  a ffe c te d  th em , an d  w ere  
en titled  t o  p a rtic ip a te  e f fe c t iv e ly  in  the p ro ce e d in g s . T h e y  
were en tit le d  t o  b e  h eard  o n  th e  issues o f  segregation , the 
‘ D etro it-O n ly  p la n ’ an d  th e  ‘ M e tro p o lita n  p la n ’ . ”  Bradley v. 
Milliken, 4 8 4  F .2 d  2 1 5 , 2 6 7  (C A  6 , 1 9 7 3 ), (P et. A . 2 0 6 a ).

P etition ers have b een  d e n ie d  d u e  p ro ce ss  o f  law  b y  th e  D is­
trict C o u rt ’ s fa ilure t o  jo in  th em  as parties, and any re lie f  d e cre e d  
in this suit m u st b e  sh aped  in a m an n er that w ill n o t  a ffe c t  
Petitioners’ in terests.

B.

Petitioners “ Conditional”  Intervention and the
Proceedings Thereafter Constitute A  Denial o f  

Due Process o f  Law

Seven d ays a fter  a llow in g  P etition ers  t o  in terven e, as a m atter 
o f  right b u t su b je ct to  oppressive  c o n d it io n s , !251 th e  trial co u rt  
required the filin g  o f  w ritten  b r ie fs  o n  th e  legal p ro p r ie ty  o f  a 
m etropolitan p lan  o f  d esegrega tion . (A . Ia 2 0 3 ). T h e  c o u r t  d id  n o t 
require o r  p erm it ora l argu m en t. Less than th irty -s ix  (3 6 )  h ou rs 
later the co u rt  issued  its “ R u lin g  O n  P ro p r ie ty  o f  C on sid erin g  A  
M etropolitan R e m e d y  t o  A c c o m p lis h  D esegregation  o f  the P u b lic  
Schools o f  the C ity  o f  D e tr o it ”  (P et. A . 4 8 )  re je ct in g  the c o n te n ­
tions o f  P etition ers. T e s t im o n y  regard in g  “ m e tr o p o lita n ”  plans 
com m enced  fo u r  d ays later (a w e e k e n d  and M o tio n  d ay  falling 
betw een) at 1 0 :1 0  a .m . P rior  to  the n o o n  recess, ju st tw o  h ou rs 
after P etition ers ’ co u n se l h ad  first appeared  in the D istrict C o u rt  
and b e fore  c o m p le t io n  o f  te s t im o n y  o f  a single w itn ess, the D is­
trict Judge a n n o u n ce d  that co u n se l c o u ld  s to p  b y  h is o f f ic e  and 
pick up his “ F in d in gs o f  F a ct and C o n c lu s io n s  o f  L aw  on  D e tro it-

1251 Petitioners submit that the conditions imposed by the trial court on 
their participation (A. Ia206-Ia207) in themselves constitute a denial o f due 
Process requiring reversal. See “ Objections to Conditions Placed On Inter­
i o r s ” , (A. Ia209) and (A. Ia220).



5 6

O n ly  Plans o f  D ese g re g a tio n ”  (P et. A . 5 3 a ) w h ere in  th e  court 
d ecla red  its in te n tio n  to  seek  a m o re  desirab le  racial m ix  b y  means 
o f  a “ m e tr o p o lita n ”  p lan .

T h u s, w ith o u t  an y  o p p o r tu n ity  fo r  ora l a rgu m en t, without 
o p p o r tu n ity  to  e x a m in e  o r  cross -ex a m in e  o n e  w itn ess, without 
o p p o r tu n ity  to  p resen t o n e  shred o f  e v id e n ce , an d , in d e e d , with­
o u t  o p p o r tu n ity  t o  o b ta in  c o p ie s  o f  p re v io u s  p lead in gs and testi­
m o n y , th e  P e tit io n e rs  h ad  b e e n  e f fe c t iv e ly  fo r e c lo s e d  fro m  pro­
te c t in g  th e ir  in terests. P erm ittin g  P etit ion ers  a lim ite d  hearing on 
the s c o p e  o f  th e  r e m e d y  a fter  issues a ffe c t in g  th e ir  in terests had 
b e e n  d e c id e d  a dversely  th e re to  d o e s  n o t  a c c o r d  w ith  th e  principles 
o f  d u e  p ro ce ss  as e n u n cia te d  b y  th is C o u r t :

“ A  fu n d a m e n ta l re q u ire m e n t o f  du e  p ro ce ss  is ‘ the op­
p o r tu n ity  t o  b e  h ea rd ’ . . .  It is an o p p o r tu n ity  w h ich  m ust be 
gran ted  at a m e a n in g fu l t im e  and in  a m e a n in g fu l manner.” 
Armstrong v. Manzo, 3 8 0  U .S . 5 4 5 , 5 5 2  (1 9 6 5 ) .

“ A  p e rs o n ’ s right to  a rea son a b le  n o t ic e  o f  a charge 
against h im , an d  an o p p o r tu n ity  to  b e  heard  in his defense -  
a right t o  his d ay  in co u rt  — are basic  in o u r  system  of 
ju r isp ru d e n ce ; and these rights in c lu d e , as a m in im u m , a right 
t o  e x a m in e  th e  w itnesses against h im , t o  o f f e r  testi­
m o n y , [26] and  t o  b e  rep resen ted  b y  c o u n s e l .”  In Re Oliver, 
3 3 3  U .S . 2 5 7 , 2 7 3  (1 9 4 8 ) .

“ T h e  righ t to  a fair and o p e n  hearin g  is o n e  o f  the 
ru d im en ts  o f  fair p la y  assured t o  every  litigant b y  th e  Federal 
C o n s t itu tio n  as a m in im al re q u ire m e n t.”  Railroad Com­
mission o f California v . Pacific Gas & Electric Co., 302  U.S. 
3 8 8 , 3 9 3  (1 9 3 8 ) .

“ W e have fre q u e n tly  em p h a sized  that th e  right to  con­
fr o n t  and cross -ex a m in e  w itn esses is a fu n d a m en ta l aspect of 
p ro ce d u ra l du e p r o c e s s .”  Jenkins v . McKeithen, 395  U.S. 
4 1 1 ,4 2 8  (1 9 6 9 ) .  26

[26] §ee trial court’s ruling quashing the subpoena to Wells (A. IVa 278); 
refusal to receive the deposition of Dr. David Armor (A. IVa 283). Indicative 
of the trial court’s differing treatment o f Petitioners as opposed to other 
parties in receiving evidence is the court’s ruling on Exhibit 16. After counsel 
for Petitioners established that the witness had no personal knowledge as to 
Exhibit 16 the court decided to “ follow Justice of the Peace Cane’s rule. 
‘We will let it in for what it’s worth.’ ”  (A. IVa 197). Yet Mr. Wells’ testimony 
regarding safety in the schools was excluded as not relevant despite previous 
testimony (A. IVa 212-213) on the same subject.



5 7

It is im p o ss ib le  to  equ ate  the p ro ce e d in g s  b e lo w  w itli the 
requirem ents set fo r th  b y  th is C o u r t  as m in im al to  du e p ro ce ss  o f  
law.

A llo w in g  co u n s e l t o  ex a m in e  o r  cross-ex a m in e  w itnesses a fter 
the w itnesses ’ v iew s have b een  a d o p te d  b y  th e  co u rt  can h a rd ly  be 
considered du e p ro ce ss , or  even  w o rth w h ile .

T he co n se q u e n ce s  o f  the trial c o u r t ’ s a c t io n s  w ere clearly  
foreto ld  b y  Mr. Justice  F orta s  in In Re Gault, 3 8 7  U .S . 1, 19-21 
(1 967 ):

“Failure to observe the fundamental requirements o f 
due process has resulted in instances, which might have been 
avoided, o f unfairness to individuals and inadequate or in­
accurate findings o f fact and unfortunate prescriptions o f 
remedy. D u e p ro ce ss  o f  law  is the p rim a ry  and in d ispen sab le  
fo u n d a tio n  o f  in d iv id u a l fr e e d o m . * * *  A s  M r. Ju stice  F rank­
fu rter has said : ‘ T h e  h is to ry  o f  A m e rica n  F re e d o m  is, in  n o  
sm all m easure, th e  h is to ry  o f  p r o c e d u r e .’ B ut in  a d d it io n , the 
p roced u ra l ru les w h ich  have b een  fa sh ion ed  fro m  th e  gen ­
erality o f  d u e  p ro ce ss  are o u r  best in stru m en ts fo r  the d istil­
lation  and eva lu ation  o f  essential fa cts  fr o m  the co n flic t in g  
w elter o f  data  that life  and  ou r  adversary m e th o d s  presen t. It 
is these in stru m en ts o f  d u e  p ro ce ss  w h ich  en h a n ce  th e  p o s ­
sibility  th at tru th  w ill em erge  fr o m  th e  c o n fr o n ta t io n  o f  
op p os in g  vers ion s  and  c o n flic t in g  data. ‘P ro ce d u re  is to  law  
what “ s c ie n tific  m e t h o d ”  is to  s c ie n ce .’ ”  [E m ph asis  a d d e d .]

Judge M iller, d issen tin g  b e lo w , set fo r th  th e  fu n d a m en ta l re­
quirements o f  d u e  p ro ce ss  in  re la tion  t o  th is case:

“ Parties to  be  a ffe c te d  and against w h o m  re lie f  is sou ght 
should be a c c o r d e d , in  co m p lia n ce  w ith  basic p r in cip les  o f  
due p ro ce ss , an o p p o r tu n ity  to  b e  h eard  at a m ea n in g fu l tim e 
and in a m ea n in g fu l m an n er n o t  o n ly  w ith  respect to  the 
u ltim ate s c o p e  o f  the re m e d y  t o  be fa sh io n e d , b u t a lso w ith  
respect to  im p o rta n t, s ign ifican t and perh aps even  co n tro llin g  
issues, in c lu d in g  th e  issue o f  segregation , a ‘ D e t r o it -o n ly ’ 
s ch o o l p lan and  the p ro p r ie ty  o f  a m e tro p o lita n  re m e d y . I f  
any on e  o f  these issues is reso lved  in fa v or  o f  parties ou ts id e



5 8

the D e tro it  S c h o o l  D is tr ic t , the n atu re  and s c o p e  o f  a remedy 
e m b ra c in g  o u t ly in g  d istr icts  w o u ld  n o t  b e  re a ch e d . H e n ce  the 
o u t ly in g  d is tr icts  h ave a v ita l in terest in  ea ch  issue separately 
and sh ou ld  b e  h eard  o n  ea ch  in  a true adversary sense. Until 
this is d o n e  o u r  e x p re ss io n  o f  v ie w  o n  th e  m erits  o f  the 
several q u e s tio n s  is u n ca lled  fo r  and  ill-advised . To permit 
these additional parties to be heard only in the restricted 
sense set forth in the majority opinion is to deny them basic 
rights guaranteed n o t  o n ly  b y  R u le  19 , F e d era l R u les  o f  Civil 
P ro ce d u re , b u t  by the Constitution itself. ”  Bradley v. Mil- 
liken, 4 8 4  F .2 d  2 1 5 , 2 8 4  (C A  6 , 1 9 7 3 ), (P et. A . 239a-240a). 
[E m p h a sis  a d d e d .]

M in im al re q u ire m e n ts  o f  d u e  p ro ce s s  req u ire  that Petitioners 
be  a ffo r d e d  a m e a n in g fu l hearin g  o n  all issues in th is litigation 
w h ich  c o u ld  a f fe c t  th em  i f  d e c id e d  a d versely  to  th e ir  interests.

C O N C L U S IO N

T h e  co n s t itu t io n a l v io la t io n  h ere fo u n d  is th e  de jure segre­
gated  o p e r a t io n  o f  o n e  s c h o o l  d istr ict, th e  C ity  o f  D e tro it . The 
o b je c t iv e , th e re fo re , is t o  redress th is co n s t itu t io n a l evil. Thus, the 
re m e d y  is lim ite d  t o  o n e  w h ich  w ill co n v e r t  th e  D e tro it  school 
system  to  a u n ita ry  sy stem  w h ere in  n o  p e rso n  is e f fe c t iv e ly  ex­
c lu d e d  fr o m  a n y  s c h o o l  w ith in  th e  D e tro it  s c h o o l  system  because 
o f  race o r  c o lo r . T h is  o b je c t iv e  d o e s  n o t  p erm it th e  exten sion  of 
the re m e d y  b e y o n d  th e  D e tro it  s c h o o l  d istr ict.

A s  n o te d  b y  M r. Ju stice  P o w e ll in his separate o p in io n  in Keyes
v. School District No. 1, Denver, Colo., 4 1 3  U .S . 1 8 9 , ____ , 37
L .E d .2 d  5 4 8 , 5 8 0  (1 9 7 3 ) ,  n o th in g  in  th e  C o n s t itu t io n  comm ands 
o r  en cou ra g es  th e  c o u r t -c o m p e lle d  d is ru p tio n  o f  p u b lic  educa­
t io n , t27 ] an d  th e  seriou s  e c o n o m ic  b u rd e n s , t28 l in h eren t in the 
fo r c e d  re -assignm ent an d  large sca le  tra n sp o rta tio n  o f  hundreds of 
th ou san ds o f  s c h o o l  ch ild re n , w h ich  th e  “ m e tr o p o l ita n ”  remedy 
d e cre e d  in th is case co m m a n d s .

^ 7 ] see Findings o f Fact and Conclusions of Law In Support of Ruling On 
Desegregation Area and Development o f Plans (Pet. A. 59a-96a).

I28) As an example, the annual operating costs for merely transporting the 
3 1 0 ,0 0 0  p u p ils  to be re-assigned under the District Court’s ruling (Pet. A. 72a, 
para. 43), if accomplished at the conjectural cost referred to by the District 
Court, would range from $15,500,000 to $18,600,000. (Pet. A. 73a, para. 45) •



5 9

M oreover, th ere is n o  su bstan tia l e v id en ce  that a “ m e tr o p o l i ­
tan”  rem edy w o u ld  resu lt in any e d u ca tio n a l b e n e fit  f o r  e ith er 
black or w h ite  stu den ts, l 29  ̂ In d e e d , soc ia l s c ie n ce  fin d in g s  have 
revealed that th e  e d u ca tio n a l b e n e fits  h is tor ica lly  assum ed t o  d e ­
rive from  racial b a la n cin g  are grea tly  exaggera ted . On Equality o f 
Educational Opportunity, F red er ick  M oste lle r  and  D an ie l P. 
Moynihan, page 3 1 , R a n d o m  H ou se  1 9 7 2 ; “ T h e  E v id en ce  O n  Bus­
ing” , David J. A rm o r , The Public Interest, N o . 28  (S u m m e r  1 9 7 2 ); 
“ Do S ch oo ls  M ake A  D iffe r e n c e ” , G o d fr e y  H o d g so n , The At­
lantic, M arch 1 9 7 3 , pages 3 5 -4 6 . D r. Jam es C o le m a n , w h o  h eaded  
the team o f  soc ia l scien tists  c o m m is s io n e d  t o  p rep are  th e  re p o rt 
on “ E quality o f  E d u ca tio n a l O p p o r tu n ity ”  fo r  th e  U n ite d  States 
Office o f  E d u ca tio n , has sta ted  that —

“ . . .T h ere is n o t su ffic ie n t  ev id en ce  to  sh ow  that the k ind  
o f  b en efits  t o  low er-class  ch ild ren  that arise fr o m  a s o c io ­
e co n o m ica lly  h e te ro g e n e o u s  o r  racia lly  h e te ro g e n e o u s  s ch o o l 
can ’ t a lso b e  p ro v id e d  b y  o th e r  m eans. I d o n ’ t th ink  a ju d g e  can 
say there is prim a fa c ie  e v id en ce  o f  in eq u a lity  in e d u ca tion a l 
o p p o rtu n ity  on  a ch iev em en t g ro u n d s  i f  there is s c h o o l segrega­
tion. In th is sense, I th in k  ju d g e s  have lo o k e d  at that stu dy  
and used the resu lts m o re  s tron g ly  than  the results w arran t.”  
“ C olem an  O n  the C o le m a n  R e p o r t ” , Educational Researcher, 
A m erican  E d u ca tio n a l R esea rch  A s s o c ia t io n , V o l . 1, N o . 3 
(M arch 1 9 7 2 ).

T he “ m e tr o p o lita n ”  re m e d y  d e cre e d  b y  th e  S ix th  C ircu it 
Court o f  A pp ea ls  g o e s  far b e y o n d  the a ffirm ative  co n stitu t io n a l 
duty to  desegregate th e  D e tro it  s c h o o l  system . Said re m e d y  presum es 
a constitutional d u ty  t o  m a x im ize  in tegra tion  am on g  s c h o o l d is­
tricts. T he m a jo r ity  o p in io n  o f  the C o u rt  o f  A p p e a ls  creates, b y  
judicial legerdem ain , a n ew  co n s titu t io n a l standard, t o  w it: desegre­
gation o f  a n on -u n ita ry  s c h o o l system  requ ires racial ba lan ce  n ot 
merely w ithin  the o ffe n d in g  s c h o o l  system  b u t a m on g  separate, u n ­
related and id en tifia b le  u n ita ry  s c h o o l  system s w ith in  such  geogra-

Dr. Gordon Foster, the expert witness for Plaintiffs-Respondents, whose
concept of a “ metropolitan”  plan was adopted by the District Court (Pet. A. 
69a, para. 32), testified that “ quality of education” was not a criteria for said 
Plan (Pet. A. IVa255). The District Court rejected proffered evidence relative to 
the questionable educational benefit of a “ metropolitan”  remedy as irrelevant
(Pet. A.lVa283-284).
DO] The £0[eman rep0r(; on “ Equality of Educational Opportunity” , Office 
of Education, U.S. Department o f Health, Education and Welfare, U.S. 
Government Printing Office, 1966. OE-38001; Superintendent of Documents 
Catalog No. FS5-238:38001.



6 0

p h ica l area as the co u r t  d e e m s  relevan t. S u ch  an e x te n s io n  o f  consti­
tu tion a l d o c tr in e  is n o t  req u ired  to  satisfy  the gu arantee o f  the Equal 
P r o te c t io n  C lause an d  is in te rd ic te d  b y  th e  d e c is io n s  o f  this Court, | 
Swann v. Charlotte-Mecklenburg Board o f Education, 4 0 2  U.S. 1, i 
2 4 ,3 1 - 3 2 ( 1 9 7 1 ) .

In United States v. Board o f Education, Independent School̂  
District No. 1, Tulsa, Okla., 4 5 9  F .2 d  7 2 0 , 7 2 4  (C A  10 , 19 7 2 ), the 
c o u r t  stated  that the va lid ity  o f  d esegrega tion  plans —

“ . „ .sh ou ld  n o t  d e p e n d  o n  the w h im  o r  preferences of 
m em b ers  o f  th e  fed era l ju d ic ia r y . T h e y  m u st be ju dged  by 
co n s titu t io n a l standards. . .”

R a cia l im b a la n ce  as a soc ie ta l evil is s im p ly  b e y o n d  the scope of 
this lit ig a tion . A s  sta ted  in  Swann v. Charlotte-Mecklenburg Board 
o f Education, supra, at page 22 .

“ W e are c o n ce rn e d  in  these cases w ith  the elim ination  of 
the d iscr im in a tion  in h eren t in th e  dual s c h o o l  system s, not 
w ith  m y ria d  fa c to rs  o f  h u m a n  e x is te n ce  w h ich  can  cause dis­
cr im in a tion  in a m u lt itu d e  o f  w ays o n  racia l, re lig iou s  o r  ethnic 
g rou n d s. . . O n e  v eh ic le  ca n  carry  o n ly  a lim ited  am ount of : 
ba gga ge .”

In  a c c o r d  w ith  th e  p r in c ip le s  h e r e to fo r e  en u n cia ted  by  this 
C o u rt , the “ m e tr o p o l ita n ”  re m e d y  c o m m a n d e d  b y  the decisions of ' 
the co u rts  b e lo w  is im perm issib le .

P etit ion ers  S c h o o l  D istr icts  req u est th at this C o u r t  reverse the 
ju d g m e n t o f  the C o u rt  o f  A p p e a ls  fo r  th e  S ix th  C ircu it w ith  respect 
t o  a “ m e tr o p o lita n ”  re m e d y  and d ism iss P etit ion ers  fr o m  this litiga­
tio n .

R e s p e c t fu lly  su b m itted ,

BUTZEL, LONG, GUST, KLEIN 
& VAN ZILE

WILLIAM M. SAXTON 
JOHN B. WEAVER 
ROBERT M. VERCRUYSSE 
XHAFER ORHAN 
1881 First National Building 
Detroit, Michigan 48226

CONDIT AND MC GARRY, P.C. 
Richard P. Condit,

O f Counsel

HARTMAN, BE1ER, HOWLETT, 
MC CONNELL & GOOGASIAN 

Kenneth B. McConnell,
O f Counsel

Dated: January 3, 1974

Counsel for Petitioners 
Allen Park Public Schools, et al, 
Southfield Public Schools, and 
School District o f the 
City o f  Royal Oak







IN  T H E

SU P R E M E  C O U R T  O F  T H E  U N IT E D  S T A T E S  

O c to b e r  T erm  1 9 7 3

N o . 7 3 -4 3 6

THE G R O S S E  P O IN T E  P U B L IC  S C H O O L  S Y S T E M ,

Petitioner,

vs.

RO N ALD  B R A D L E Y , e t  a l„

Respondents.

ON W R IT  O F  C E R T I O R A R I  T O  T H E  U N IT E D  S T A T E S  

C O U R T  O F  A P P E A L S  F O R  T H E  S IX T H  C IR C U IT

B R IE F  F O R  P E T IT IO N E R  

THE G R O S S E  P O IN T E  P U B L IC  S C H O O L  S Y S T E M

D O U G L A S  H . W E ST  
3 7 0 0  P e n o b s c o t  B u ild in g  
D e tro it , M ich igan  4 8 2 2 6  
9 6 2 -6 4 8 5
Counsel fo r  Petitioner

T H O M A S  E . C O U L T E R , and 
H IL L , L E W IS , A D A M S , G O O D R IC H  

&  T A IT
3 700  P e n o b s co t  B u ild in g  
D etroit, M ich igan  4 8 2 2 6  
9 6 2 -6 4 8 5  
O f Counsel





1

INDEX

Opinions and O rders B e lo w  ............................................................... 1

Jurisdiction ......................................................................................................  2

Questions P resen ted  ..................................................................................  2

Constitutional P rov is ion s , S tatu tes and R u le s  In v o lv ed  . . 3

Statement o f  the C ase .......................................        3

Summary o f  A rg u m e n t ..........................................................................  7

Argument ............................................................................................................  9

I. IN T R O D U C T IO N  .................................................................  9

II. T H E  C O N S T IT U T IO N A L  V IO L A T IO N S  ........... 13

A . T h e  U n ita ry  E sta b lish m en t and O p e ra t io n
o f  P e tit io n e r  S c h o o l  D istr ict  .......................... 13

B. V i o l a t i o n s  o f  th e  D e tro it  S c h o o l  D istr ict 15

C . A c t io n s  o f  D e fe n d a n ts  M illik en , et al . . 18

D. S u m m a ry  as t o  th e  A lle g e d  V io la t io n s  . . 31

III. T H E  R E M E D Y ...................................................................  3 4

A . T h e  S c o p e  o f  th e  P l a n ................................. 3 4

B. T h e  P r e d i c a t e s  f o r  R e l i e f :  In te n t and
N exu s ................................................................................... 3 6

IV  T H E  P R O P O S E D  D E C L A R A T I O N  O F  N E W
C O N S T IT U T IO N A L  R I G H T S ................................... 39

A . T h e  R a cia l In d e n tifia b ility  T h e o r y  ..................3 9

B. M a in t e n a n c e  o f  L o c a l  S c h o o l  D istricts  as
a L eg itim a te  S tate  In terest .....................................  4 6

C. S u m m ary  as to  N e w  C o n st itu tio n a l R ig h ts  5 7

V. V I O L A T I O N  O F  P E T IT IO N E R ’ S R IG H T S  O F
DU E P R O C E S S  ....................................................................  58

Conclusion ..........................................  55

Constitutional P rov ision s, S tatu tes and R u les  In v o lv ed  ............. la a

Page



11

TABLE OF AUTHORITIES

Cases (Federal):

Armstrong v. Manzo, 3 8 0  U .S . 5 4 5 , 14 L. E d . 2d  6 2  ( 1 9 6 5 ) .  . .  61 

Bradley v. Milliken, 4 3 3  F . 2 d  8 9 7  ( 6 th  C ir. 1 9 7 0 ). . . 4,20,21,23

Bradley v. Milliken, 4 3 8  F . 2 d  9 4 5  ( 6 th  C ir. 1 9 7 1 ) .......................  23

Bradley v. Milliken, 7 2 -1 8 0 9 -1 8 1 4  ( 6 th  C ir., D e c . 8 , 1 9 7 2 ). . 1,34

Bradley v. Milliken, 4 8 4  F . 2d  2 1 5  ( 6 th  C ir. 1 9 7 3 ) _ 1,34,39,58

Bradley v. School Board o f the City o f Richmond, 3 3 8  F. 
S u pp . 6 7  (E . D . V a . 1 9 7 2 ). ....................................................................  62

Bradley v. School Board o f the City o f Richmond, 4 6 2  F . 2d 
1058  (4 th  Cir. 1 9 7 2 ), A ff’d by an equally divided court, 
--------------U .S ---------------- , 3 6  L . E d . 2d  771  ( 1 9 7 3 ) .................. 38,39,49

Bradley v. State Board o f Education,___________U .S ._________ ,
3 6  L . E d . 2 d  771  ( 1 9 7 3 ) ..........................................................................  24

Briggs v. Elliot, 132  F . S u pp . 7 7 6  (E .D .S .C . 1 9 5 5 ) ........................ 52

Brown v. Board o f Education o f Topeka, 3 4 7  U .S . 4 8 3 , 98 
L. E d . 8 7 3  ( 1 9 5 4 ) .................................................................... 19 ,4 3 ,4 4 ,45,57

Brown v . Board o f Education o f Topeka, 3 4 9  U .S . 2 9 4 , 9 9  L.
E d. 1083  ( 1 9 5 5 )     10,57

Brunson v. Board o f Trustees o f School District No. 1, 
Clarendon, S.C., 429 F. 2d 820 (4th Cir. 1970). . 39,43,44,45

Davis v. School District o f the City o f Pontiac, 4 4 3  F . 2d  573 
( 6 th Cir. 1 9 7 1 ) ...............................................................................................  41

Deal v. Cincinnati Board o f Education, 369 F 2d 55 (6th Cir. 
1 9 6 6 ), cert, denied, 3 8 9  U .S . 8 4 7 , 19 L . E d . 1 1 4 (1 9 6 7 ) .  . 41

Dred Scott v. Sanford, 6 0  U .S . 3 9 3  ( 1 8 5 6 )  .......................... 4 3 ,44,45

Gomillion v. Lightfoot, 3 6 4  U .S . 3 3 9 , 5 L . E d . 2d 110 
( 1 9 6 0 ) ................................................................................................................. 46

Green v. County School Board o f New Kent County, 391 
U .S . 4 0 3 , 2 0  L. E d. 2 d  7 1 6  ( 1 9 6 8 ) ......................................  . 52,54,55

Hadley v. Junior College District o f Metropolitan Kansas 
City, 3 9 7  U .S . 5 0 , 25  L. E d. 2d  4 5  ( 1 9 7 0 ) ...................................  20

Page



Ill

Higgins v. Board o f Education o f City o f Grand Rapids, C iv.
No. 6 3 8 6  (W . D . M ich ., Ju ly  18, 1 9 7 3 ) ..........................................  2 8 ,6 2

In Re Oliver, 3 3 3  U .S . 2 5 7 , 9 2  L. E d. 6 8 2  ( 1 9 4 8 ) .......................... 61

Jenkins v. MeKeithen, 3 9 5  U .S . 4 1 1 , 23  L . E d. 2 d  4 0 4  (1 9 6 9 )  . 61

Keyes v. School District No. 1, Denver, Colorado,__________
U.S______, 3 7 L  E d . 2 d  5 4 8  ( 1 9 7 3 ) ......................... 1 2 ,2 1 ,3 3 ,3 7 ,5 2 ,5 3 ,5 5 ,5 6

Plessy v. Ferguson, 163  U .S . 5 3 7  ( 1 8 9 6 ) ..............................................  4 3 ,4 4 ,4 5

Railroad Commission o f California v. Pacific Gas & Electric,
302 U .S. 3 8 8 , 8 2  L . E d . 3 1 9  ( 1 9 3 8 ) ................................................ 61

Reynolds v. Sims, 3 7 7  U .S . 5 3 3 , 12 L. E d . 2 d . 5 0 6  (1 9 6 4 ) .  . 4 6

San Antonio Independent School District v. Rodriguez,
________U .S __________ , 3 6  L . E d . 2d  16 ( 1 9 7 3 ) ................. 2 7 ,2 8 ,4 6 ,5 0 ,5 1 ,5 8

Shelley v. Kraemer, 3 3 4  U .S . 1, 9 2  L . E d. 1161 ( 1 9 4 8 ) .............. 19

Sparrow v. Gill, 3 0 4  F . S u pp . 86  (3  Ju dge C o u rt , M .D .N .C .
1969) .................................................................................................................. 2 8

Spencer v. Kugler, 3 2 6  F . S u p p . 1 235  (D . N . J. \91 \),a ffd ,
404 U .S. 1 0 2 7 , 3 0  L . E d . 2d  7 2 3  ( 1 9 7 2 ) ........................................ 3 9 ,4 1 ,4 2

Swann v. Charlotte-Mecklenburg Board o f Education, 4 0 2  
U.S. 1, 28  L . E d. 2d  5 4 4  ( 1 9 7 1 ) .  .9 ,1 0 ,1 2 ,3 3 ,3 6 ,3 7 ,4 0 ,4 1 ,5 1 ,5 3 ,5 4 ,5 6

United States v. Scotland Neck Board o f Ecuation, 4 0 7  U .S .
484, 33 L. E d. 2d  75 ( 1 9 7 2 ) .......................................................................  4 3 ,4 6

United States v. State o f Texas, 321  F . S u pp . 1 043  (E .D .
Texas 1 9 7 0 )......................................................................................................  4 9

Wright v. Council o f City o f Emporia, 4 0 7  U .S . 4 5 1 , 3 3  L .
Ed. 2d 51 ( 1 9 7 2 ) ............................................................................................ 4 0 ,4 3 ,4 6 ,5 0

Zenith Radio Corp. v. Hazeltine, 3 9 5  U .S . 1 00 , 2 3  L. E d . 2d  
129 (1 9 6 9 ) .

Page

6 4



IV

hge
State C ases:

Ex Rel Workman, 18 M ich . 4 0 0  ( 1 8 6 9 ) ................................................14

Governor v. State Treasurer, 3 8 9  M ich . 1 ( 1 9 7 2 ) ,  vaca ted  and 
cause d ism isse d ,_________  M ic h ._________ (D e c . 7 , 1 9 7 3 ) . . .27,64

Jones v. Grand Ledge Public Schools, 3 4 9  M ich . 1 (1 9 5 7 ) .  . . 56 

Lansing Dist. v. State Bd. ofEduc., 3 6 7  M ich . 591  (1 9 6 2 ) .  . . 48 

Senghas v. L ’anse Creuse P .S ., 3 6 8  M ich . 5 5 7  ( 1 9 6 2 )  ..............  48

U n ited  S tates C o n s t itu t io n :

F ifth  A m e n d m e n t  ...........................................................................................3 62

F o u rte e n th  A m e n d m e n t  ....................................................................... 3,13,40

U n ited  S tates C o d e :

28  U .S .C . § 1 2 5 4 ( 1 ) ........................................................................................  2

2 8 U .S .C . § 129 2  ( b )  .....................................................................................  1,7

28  U .S .C . § 2 2 8 1  et s e q ................................................................................... 65

F ed era l R u les  o f  C iv il P ro ce d u re :

F e d  R .  C iv. P. 5 4  ( b )  .....................................................................................  1,7

F ed . R .  C iv. P. 19 ..........................................................................................61,63

F e d . R .  C iv. P. 2 4 (a )  .................................................................................. 61 ,62

M ich igan  C o n s t itu t io n  o f  1 9 6 3 :

A rt. 8 , § 2  ..........................................................................................................  46

A rt. 8 , § 3  .........................................................................................................18,49

A rt. 9 , § 6  ...........................................    46

A rt . 9 , § 11 .......................................................................................................  46

A rt. 9 , § 16 .......................................................................................................  46

M ich igan  C o m p ile d  L a w s A n n o ta te d

§ 3 3 8 .6 2 1    27

§ 3 4 0 .2 6  ..............................................................................................................  48

§ 3 4 0 .2 7  ..............................................................................................................  48

§ 3 4 0 .5 5  .................................................................................................................  48

§ 3 4 0 .7 7  ..................................................................   48



V

§ 3 4 0 .1 0 7  .............................................      4 8

§ 3 4 0 .1 1 3  ............................................................................................................  4 8

§ 3 4 0 .1 4 8 -9  . ....................................................................................................... 4 8

§ 3 4 0 .1 6 5  ............................................................................................................  4 8

§ 3 4 0 .1 8 8  ............................................................................................................  48

§ 3 4 0 .1 9 2  ............................................................................................................  4 8

§ 3 4 0 .3 5 2  ...........................................................................................................4 8 ,6 1

§ 3 4 0 .3 5 5 -3 5 7  .................................................................................................... 15

§ 3 4 0 .5 6 3  ..................................... ..........., .............................................. 4 8

§ 3 4 0 .5 6 9  ....................................................................... .. ................................ .  48

§ 3 4 0 .5 6 7  ............................................................................................................  4 8

§ 3 4 0 .5 7 4  ............................................................................................................  4 8

§3 4 0 .5 7 5  ...............................................................................................................  4 8

§ 3 4 0 .5 7 6 b  ........................................................................................................2 6 ,4 8

§ 3 4 0 .5 8 2  .........................................................................................................  4 8

§ 3 4 0 .5 8 3  ............................................................................................................  48

§ 3 4 0 .5 8 4  ............................................................................................................  48

§ 3 4 0 .5 8 5  ............................................................................................................  48

§ 3 4 0 .5 8 6  ............................................................................................................  4 8

§ 3 4 0 .5 8 9  ............................................................................................................  48

§3 4 0 .5 9 1  ..........................................    48

§ 3 4 0 .5 9 4  ............................................................................................................  48

§3 4 0 .6 0 5  ............................................................................................................  4 8

§ 3 4 0 .6 0 9  ............................................................................................................  4 8

§ 3 4 0 .6 1 3  ............................................................................................................  48

§ 3 4 0 .6 1 4  ............................................................................................................  4 8

§ 3 4 0 .6 4 3 (a ) ......................................................................................................  4 8

§340 .7 1 1  et. s e q ............................................................................................... 2 6 ,4 8

§ 3 4 0 .8 8 2  ......................................................................................................  4 8

§388 .1 7 1  et. s e q .................................................................................................  20

§388 .85  1 e t. s e q .................................................................................................. 2 4

Page



VI

Michigan Public A cts

P .A . 1 8 6 7 , N o . 3 4 , § 2 8 ................................................................................  14

P .A . 1 9 2 7 , N o . 3 1 9  (P art II, C h a p te r  2 , § 9 )  ..................................  15

P .A . 1 9 3 7 , N o . 3 0 6  ......................................................................................... 24

P .A . 1 9 4 9 , N o . 231  ......................................................................................... 24

P .A . 1 9 6 2 , N o . 175 .......................................................................................24,25

P .A . 1 9 6 9 , N o . 2 4 4  .........................................................................................  20

P .A . 1 9 7 0 , N o . 4 8 , ......................................................   4 ,8 ,1 9 ,2 0 ,2 1 ,2 2 ,2 3

Legislative Journals

Senate o f  th e  State o f  M ich iga n , 1 9 7 0  S. J. 9 7 , P. 1 6 8 4  ____  21

H o u se  o f  th e  S tate  o f  M ich iga n , 1 9 7 0  H . J. 1 0 4 , P . 2 8 5 6  . . .  21

Page

Treatises

Paul R . D im o n d , School Segregation in the North: There is 
But One Constitution, 7 H arvard C ivil R igh ts  — C ivil L iber­
ties L aw  R e v ie w  1 (1 9 7 1 - 1 9 7 2 ) ............................................................ 44

J en ck s, C h ris to p h e r : Inequality: A Reassessment o f the
Effect o f Family and Schooling in America ( 1 9 7 2 ) ................. 44

T a e u b e r , Negroes in Cities ..............................................................  38

T a e u b e r , Residential Segregation, S c ie n t ific  A m e r ica n , A u ­
gu st, 1 965  ......................................................................................................  38



1

IN THE

SUPREME COURT OF THE UNITED STATES 

October Term 1973 

No. 73-436

THE GROSSE POINTE PUBLIC SCHOOL SYSTEM,

vs.
Petitioner,

RONALD BRADLEY, et al„
Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SIXTH COURT

BRIEF FOR PETITIONER 
THE GROSSE POINTE PUBLIC SCHOOL SYSTEM

OPINIONS AND ORDERS BELOW
The ju d g m e n t o f  th e  U n ite d  S tates C o u r t  o f  A p p ea ls  fo r  the 

Sixth C ircuit, re p o r te d  in Bradley v. Milliken, 4 8 4  F 2 d  2 1 5  ( 6 th 
Cir. 1973 ), is co n ta in e d  in  th e  A p p e n d ix  fi le d  w ith  th e  P e tit io n  fo r  
Writ o f  C ertiorari. T h is  ju d g m e n t  w as issued u p o n  a rehearing b y  
the Court o f  A p p e a ls  s ittin g  in  b a n c , and  w as d e c id e d  and filed  o n  
June 12, 1973  ( 1 10a). A  p r io r  ju d g m e n t  o f  th e  C o u rt  o f  A p p e a ls , 
decided and file d  o n  D e c e m b e r  8 , 1 9 7 2 , w as v a ca te d  b y  th e  gran t­
ing o f  the rehearing in  b a n c. T h e  ju d g m e n t  o f  D e ce m b e r  8 , 1 9 7 2  is 
reported in Bradley v. Milliken, 7 2 -1 8 0 9 -1 8 1 4  ( 6 th  C ir. D e c . 8 , 
1972).

The ju d g m e n t o f  th e  C o u rt  o f  A p p e a ls  rev iew ed  th e  fo l lo w in g  
Rulings and O rders o f  th e  D istr ict C o u rt , u n d e r  th e  p rov is ion s  o f  
28 U.S.C. § 1 2 9 2 (b )  an d  R u le  5 4 (b )  F ed . R . C iv . P .:



2

1. R u lin g  o n  Issue o f  S eg reg a tion , d a te d  S ep tem b er 27,
1 9 7 1 , re p o r te d  at 3 3 8  F . S u p p . 5 8 2  ^  (1 7 a ) .

2 . R u lin g  o n  P ro p r ie ty  o f  C o n s id e r in g  a M etropolitan 
R e m e d y  to  A c c o m p lis h  D esegreg a tion  o f  th e  P u b lic  Schools 
o f  th e  C ity  o f  D e tro it , d a ted  M arch  2 4 , 1 9 7 2  (4 8 a ) .

3 .  F in d in g s  o f  F a ct  and  C o n c lu s io n s  o f  Law  on 
D e tro it -O n ly  P lans o f  D esegreg a tion , d a te d  M arch  2 8 , 1972 
(5 3 a ) .

4 .  R u lin g  o n  D esegreg a tion  A re a  and O rder for 
D e v e lo p m e n t o f  P lan o f  D ese g re g a tio n , and F in d in gs  o f  Fact 
and C o n c lu s io n s  o f  L a w  in  S u p p o r t  th e r e o f , d a te d  June 14,
1 9 7 2 , r e p o r te d  at 3 4 5  F .S u p p . 9 1 4  ( 1 9 7 2 )  (9 7 a  and 59a 
re sp e ctiv e ly ).

5 . O rd e r  f o r  A c q u is it io n  o f  T ra n s p o rta tio n , dated July 
11 , 1 9 7 2  (1 0 6 a ) .

JURISDICTION
T h is  C o u r t ’ s j u r i s d i c t i o n  is in v o k e d  u n d e r  28  U.S.C. 

§ 1 2 5 4 (1 ) .  C ertiora ri w as gran ted  o n  N o v e m b e r  19 , 1 9 7 3 .

QUESTIONS PRESENTED
1. Is a P lan o f  D esegreg a tion , lim ite d  t o  th e  boundaries of 

th e  S c h o o l  D istr ict o f  th e  C ity  o f  D e tr o it , co n s titu t io n a lly  insuf­
fic ie n t  as a resu lt o f  a fin d in g  that it  has a p re d o m in a tly  Black 
s c h o o l e n ro llm e n t an d  th e re fo re  m a y  b e  p e rce iv e d  as a Black 
s c h o o l d istr ict?

2 . Is a “ M e tr o p o lita n ”  P lan  o f  D ese g re g a tio n , intended to 
ach ieve  a certa in  p u p il racia l b a la n ce  in  all s c h o o ls  in the Detroit 
S c h o o l  D istr ict a n d  o th e r  s c h o o l  d istr icts  o u t ly in g  therefrom, 
w h ich  are in d e p e n d e n t  m u n ic ip a l b o d ie s  c o r p o r a te , legally proper 
in th e  a bsen ce  o f  a n y  fin d in g  o f  in te n tio n a l d iscr im in a tory  acts by 
su ch  o u t ly in g  s c h o o l  d istricts , o r  in th e  estab lish m en t o f  their 
b o u n d r y  lines, and  in  th e  a b sen ce  o f  a n y  f in d in g  o f  a causal con­
n e c t io n  b e tw e e n  a lleged  d is cr im in a to ry  acts  o f  S tate defendants 111
111 The parenthetical page references followed by the letter “ a”  refer to the 
page number o f the separate Appendix filed with the Petition for Writ of Cer­
tiorari. The parenthetical page references with the Roman numeral and ‘ a 
prefix, e.g., (Ila 25), refer to the page numbers o f the principal five volume 
Appendix filed with this Brief. The Constitutional Provisions, Statutes and 
Rules Involved, which are reprinted at the end of this brief, are referenced to 
the number o f the page at which they appear, followed by the letters “a ■



3

and the p r e d o m in a n ce  o f  B lack  o r  W h ite  s tu d en ts  in D e tro it  o r  th e  
outlying s c h o o l  d istricts?

3. H ave all s c h o o l  d istricts  o th e r  th an  D e tro it , p o te n tia lly  
the o b je c t  o f  a “ M e tr o p o l ita n ”  P lan o f  D esegreg a tion , b e e n  d en ied  
due p rocess  o f  la w : ( 1) b y  th e ir  e x c lu s io n  fr o m  a n y  e ffe c t iv e  parti­
cipation in  the D e tro it  C o u rt p ro ce e d in g s  cu lm in a tin g  in  its R u l­
ings on  D e Jure S egrega tion  in  D e tro it , s u ff ic ie n c y  o f  a D e tro it -  
Only Plan, an d  legal p ro p r ie ty  o f  a M e tro p o lita n  P lan, and ( 2 )  b y  
the ruling o f  th e  C o u rt  o f  A p p e a ls  that in  a “ M e tro p o lita n ”  d ese­
gregation case, o u t ly in g  s c h o o l  d istricts  have a righ t t o  p a rtic ip a te  
only in the re m e d y  stage o f  th e  p ro ce e d in g s?

CONSTITUTIONAL PROVISIONS, 
STATUTES AND RULES INVOLVED

T he c o n s t itu t io n a l p ro v is io n s , statutes an d  ru les p articu larly  
relevant to  th e  issues in th is case are: U .S . C o n st . A m e n d . V ;  U .S . 
Const. A m e n d . X I V ;  M ich . C o n st . A r t ’ s 8 &  9 ;  2 8  U .S .C . 
§ § 1 2 5 4 (1 ) ,  1 2 9 2 (b )  &  2 2 8 1 ; M ich igan  S c h o o l  C o d e  o f  1 9 5 5 , 
Mich. C om p . L a w s A n n ., § 3 4 0 .1 ,  e t s e q .; A c t  3 4 , S ec. 2 8 , M ich . 
Pub. A cts  o f  1 8 6 7 ; A c t  3 1 9 , M ich . P u b . A c ts  o f  1 9 2 7 ; A c t  3 0 6 , 
Mich. Pub. A c ts  o f  1 9 3 7 ; A c t  2 3 1 , M ich . P u b . A c ts  o f  1 9 4 9 ; A c t  
175, M ich. P ub . A c ts  o f  1 9 6 2 ; A c t  2 4 4 , M ich . P u b . A c ts  o f  1 9 6 9 ; 
Act 48 , M ich . P u b . A c ts  o f  1 9 7 0 ; F e d . R . C ir. P ., § § 19 , 2 4 a  & 
54(b).

STATEMENT OF THE CASE
P etition er is o n e  o f  85  in d e p e n d e n t  s c h o o l  d istricts  lo ca te d  in 

the M ichigan c o u n t ie s  o f  W ayn e , O ak lan d  an d  M a c o m b , c o n s t itu t ­
ing what was d e fin e d  b y  th e  D istr ict Ju dge t o  b e  th e  “ D e tro it  
m etropolitan area” . O f  th ese  85  s c h o o l  d istr icts , 4 3  w ere  de- 
fendant-intervenors in  th is a c t io n  at th e  tim e  ju d g m e n t  was en ter­
ed by the C ou rt o f  A p p ea ls . O f  th e  4 3  in terven in g  d istricts , 3 4  
are in cluded  w ith in  th e  “ d eseg reg a tion  area”  o r ig in a lly  estab lish ed  
by the D istrict C o u rt in its O rd e r  o f  Ju ne 14 , 1 9 7 2  ( 9 7 a ) , [4]
[ 2 ]

[3]
Ruling on Propriety of Considering a Metropolitan Plan, (49a).

I „ Subsequent to the entry of the Court o f Appeals’ judgment of June 12, 
73, the District Court entered an order on September 10, 1973 joining the 

remaining 42 outlying school districts as parties defendant.
Vacated by the June 12, 1973 judgment o f the Court of Appeals. As to 

1 s continued significance, See Note 62, and discussion on pg. 35, infra.



4

w h ich  “ d eseg reg a tion  area”  in c lu d e s  a to ta l o f  53  d istricts , en com ­
passing th e  3 4  in te rv e n o rs , an a d d it io n a l 18 s c h o o l  d istricts which 
d id  n o t  in terv en e  an d  w ere  n o t  parties  t o  th is a c t io n  at th e  tim e of 
th e  o r d e r , p l u s  th e  S c h o o l  D istr ict o f  th e  C ity  o f  D e tro it . A ll o f 
these s c h o o l  d istricts  are a u to n o m o u s  m u n ic ip a l b o d ie s  corporate, 
b e in g  g e o g ra p h ica lly  an d  p o lit ic a l ly  separate an d  in d e p e n d e n t, and 
org a n ized  an d  ex is t in g  pu rsu an t t o  th e  law s o f  th e  S ta te  o f  Michi­
gan ; ea ch  b e in g  g o v e rn e d  b y  its resp e ctiv e  d u ly  e le c te d  board  of 
e d u ca tio n .

O n  A u g u st 19 , 1 9 7 0 , th is a c t io n  w as c o m m e n c e d  in the 
U n ited  S tates D istr ict  C o u rt  f o r  th e  E astern  D is tr ic t  o f  Michigan, 
S ou th ern  d iv is ion , b y  certa in  n a m ed  in d iv id u a ls  an d  th e  N A A C P  as 
P la in tiffs , n a m in g  in  th e  C o m p la in t  ( l a ) :  T h e  B oa rd  o f  Education 
o f  th e  C ity  o f  D e tro it  and  its S u p e r in te n d e n t o f  S ch o o ls , the 
G o v e rn o r , A t to r n e y  G en era l, an d  th e  S tate  B o a rd  o f  E d u ca tion  and 
State S u p erin ten d en t o f  P u b lic  In stru ctio n  o f  th e  S tate  o f  Michi­
gan. T h e  D e tro it  F e d e ra t io n  o f  T e a ch ers  and  M a g d ow sk i, et al., a 
D e tro it  h o m e o w n e rs  g ro u p , w ere  p e rm itte d  in te rv e n tio n  prior to 
c o m m e n c e m e n t  o f  th e  trial.

P la in tiffs ’ C o m p la in t  c la im ed  that as a resu lt o f  o ff ic ia l poli­
cies  an d  p ra ctices  o f  th e  or ig in a l n a m ed  D e fe n d a n ts , a constitu­
t io n a lly  im p erm issib le  ra cia lly  id e n tifia b le  p a ttern  o f  fa cu lty  and 
stu d en t assignm ents e x is te d  w ith in  th e  s c h o o ls  o f  th e  S ch oo l Dis­
tr ict o f  th e  C ity  o f  D e tro it . P la in tiffs  a lso  c la im e d  that Section  12 
o f  A c t  4 8  o f  th e  M ich igan  P u b lic  A c ts  o f  1 9 7 0  ( “ A c t  4 8 ” ) was 
u n c o n s t itu t io n a l as in te r fe r in g  w ith  th e  im p le m e n ta tio n  o f  a 
v o lu n ta ry  p lan  o f  partia l h igh  s c h o o l  p u p il d esegregation  within 
the S c h o o l  D istr ict  o f  th e  C ity  o f  D e tro it , p re v io u s ly  adopted  by 
th e  D e tro it  B oa rd  o f  E d u ca t io n  o n  A p r il 7 , 1 9 7 0 . B y  judgment 
o f  th e  C o u rt o f  A p p e a ls  o n  O c t o b e r  13 , 1 9 7 0 , 4 3 3  F .2 d  897 (6th 
Cir. 1 9 7 0 ), th is  cla im  o f  p la in t iffs  w as d isp o se d  o f  b y  the Court’s 
ru ling that S e c t io n  12 o f  A c t  4 8  w as u n co n s t itu t io n a l (although 
that q u e stio n  h ad  n o t  y e t  b e e n  ru led  o n  b y  th e  D istrict Court). 
P la in tiffs ’ C o m p la in t , w h ich  w as th u s lim ited  to  th e  operation  of 
the D e tro it  S c h o o l  D istr ict a lo n e , w as a m e n d e d  f o r  th e  first time 
pursuant t o  d ire c t io n  o f  th e  D istr ict  C o u rt  o n  A u gu st 15, 1973, 
and  p u rp o rte d  t o  “ c o n fo r m  to  th e  e v id e n ce ”  p re v io u s ly  presented 
in th e  D istrict C o u rt . S u ch  A m e n d e d  C o m p la in t  ( la  2 9 1 )  does not 
in c lu d e  an y  a llega tion s w ith  re sp e ct  t o  a ction s  o f  s ch o o l official8

t^l See Note 3 supra.



5

nor the esta b lish m en t o r  o p e ra tio n  o f  an y  s c h o o l  o r  s c h o o l  d is­
trict, o th e r  th an  th e  D e tro it  S c h o o l  S ystem .

T h e  trial o n  th e  m erits c o m m e n c e d  o n  A p r il 6 , 1 9 7 1 , c o n ­
cluded o n  J u ly  2 2 , 1 9 7 1 , and  co n ce rn e d  o n ly  th e  q u e stio n  o f  
whether th e  D e tro it  P u b lic  S c h o o l  S ystem  w as o p e ra te d  in a m an ­
ner w h ich  im p a ired  th e  co n s titu t io n a l rights o f  th e  P la in tiffs  w ith ­
in that s c h o o l  d istrict.

D u ring  th e  trial, o n  Ju ly  17, 1 9 7 1 , in terv en ors  M a g d ow sk i, et 
al., m ov ed  t o  jo in  as parties th e  8 4  s c h o o l  d istricts  in th e  co u n tie s  
o f  W ayne, O a k la n d  an d  M a c o m b , o u t ly in g  fr o m  th e  C ity  o f  
Detroit. (Ia  1 1 9 )  T h a t M o t io n  w as n o t  a cted  u p o n  until a lm ost 
one year later, w h e n  th e  C o u rt  d e e m e d  it to  b e  w ith draw n .

T he D istr ict  C o u rt  issued  its R u lin g  o n  S egregation  o n  S ep ­
tember 2 7 , 1971  (1 7 a ) , w h ich  fo u n d  th e  e x is te n ce  o f  d e  ju re  
segregation o f  stu d en ts  b u t fo u n d  n o  segregation  o f  fa cu lty  w ith in  
the S ch o o l D istrict o f  th e  C ity  o f  D e tro it .

A lth o u g h  th e  p ro ce e d in g s  b e fo r e  th e  D istrict C o u rt had  
theretofore  b e e n  lim ited  t o  th e  issue o f  u n la w fu l segregation  in  the 
Detroit S c h o o l  S y stem , o n  O c t o b e r  4 , 1971 th e  D istr ict C o u rt  o r ­
dered the S tate  d e fe n d a n ts  t o  su b m it a “ M e tro p o lita n  Plan o f  D e ­
segregation”  f o r  th e  S c h o o l  D istr ict  o f  th e  C ity  o f  D e tro it , w h ich  
would em b ra ce  th e  th ree  c o u n t ie s  w h ich  th e  D istr ict C ou rt d e ­
fined as co m p ris in g  th e  D e tro it  m e tr o p o lita n  area. Pursuant t o  th is 
Order, o n  January 4 , 1 9 7 2  th e  S tate  B oa rd  o f  E d u ca tio n  file d  a 
so-called “ M e tro p o lita n  P lan  o f  D e se g re g a t io n ” , w h ich  su bstan ­
tially a ffe c te d  th e  in terests  o f  P e tit io n e r  and  th e  o th e r  83 s c h o o l  
districts w ith in  th e  th ree  co u n t ie s , o u t ly in g  fr o m  th e  C ity  o f  
Detroit.

C on seq u en tly , in te rv e n tio n  in  these p ro ce e d in g s  was sou gh t 
by P etitioner ( la  1 8 5 )  and 4 2  o th e r  s c h o o l  d istr icts  (Ia  1 8 9 , 192 
and 196 ) fo r  th e  p u rp o se  o f  rep resen tin g  th e ir  in terests  as m u n ic i­
pal bod ies c o rp o ra te  and  th e  in terests o f  th e  paren ts and  ch ild ren  
residing therein . A lth o u g h  b y  O rd er  o f  th e  D istrict C o u rt o n  
March 15, 197 2  (Ia  2 0 4 )  th ese  M o tio n s  t o  in terven e  w ere  granted  
as a m atter o f  r igh t, th e  D istr ict  C o u rt  in  su ch  O rder, im p o se d  cer­
tain very restrictive  an d  b u rd e n so m e  c o n d it io n s  u p o n  su ch  in ter- 
Ygndion, T h e  in terven in g  s c h o o l  d istricts  filed  w ritte n  o b je c t io n s  to
[ 6 ]  p

Killing on Issue of Segregation, dated September 27, 1971 (17a), herein- 
a er referred to as “ Ruling on Segregation” .



6

th ese  c o n d it io n s , ( la  2 0 8 , 2 1 8  and  2 2 0 ) w h ich  o b je c t io n s  were 
never a c te d  u p o n  b y  th e  co u r ts  b e lo w .

O n  M arch  2 4 , 1 9 7 2  th e  D is tr ic t  C o u r t  issued  its R u lin g  on 
P ro p r ie ty  o f  M e tro p o lita n  P lan (4 8 a ) . f ? ] O n ly  4  d ays later, on 
M arch  2 8 , 1 9 7 2 , th e  D istr ict C o u r t  issued  its R u lin g  o n  Detroit- 
O n ly  P lan  ( 5 3 a ) .7 [8]

O n  Ju ne 14 , 1 9 7 2 , th e  D is tr ic t  C o u r t  e n te re d  its R uling  on 
D esegregation  A re a  (5 9 a  and  9 7 a ). ^  T h e  F in d in gs  th erein  (59a) 
w ere  v irtu a lly  v erb a tim  co p ie s  o f  th o se  p r o p o s e d  b y  Plaintiffs, 
w ith  th e  e x c e p t io n  o f  th e  o p e n in g  paragraph  o f  its F indings of 
F a c t , w h ere in  th e  D istr ict  C o u rt  sta ted :

“ It sh o u ld  b e  n o te d  th at th e  co u r t  has tak en  n o  p r o o fs  with 
re sp e ct to  th e  esta b lish m en t o f  th e  b o u n d a r ie s  o f  th e  86  pub­
lic  s c h o o l  d istricts  in  th e  c o u n t ie s  o f  W a y n e , O ak land  and 
M a c o m b , n o r  o n  th e  issue o f  w h e th e r , w ith  th e  ex c lu s ion  o f 
th e  c ity  o f  D e tr o it  s c h o o l  d is tr ic t , su ch  s c h o o l  d istricts have 
c o m m it te d  acts o f  d e  ju r e  se g re g a tio n .”  (5 9 -6 0 a ) .

N o tw ith sta n d in g  th is  ca n d id  a d m iss ion , th e  D is tr ic t  C o u r t ’ s Order 
o f  June 14 , 1 9 7 2  (9 7 a )  d ire c te d  that final deta ils  b e  form ulated 
fo r  a p lan  o f  d eseg reg a tion  o f  th e  S c h o o l  D istr ic t  o f  th e  C ity o f 
D e tro it , in v o lv in g  5 2  o th e r  in d e p e n d e n t  s c h o o l  d is tr icts  and order­
ing th e  tra n sp o rta tio n  an d  tran sfer o f  p u p ils  as b e tw e e n  said 
s c h o o l  d istricts  “ . . . t o  th e  en d  th at, u p o n  im p le m e n ta tio n , no 
s c h o o l, grade o r  c la ss ro o m  b [ e ]  su b sta n tia lly  d isp ro p o rtio n a te  to 
th e  overa ll p u p il racia l c o m p o s i t io n ”  ( 101 - 10 2 a) o f  all s ch o o l dis­
tr icts  w ith in  th e  d eseg reg a tion  area.

[7] Ruling on Propriety o f considering a Metropolitan Remedy to Accom­
plish Desegregation o f the Public Schools of the City of Detroit, dated March 
24, 1972, (48a) hereinafter referred to as “ Ruling on Propriety o f Metropoli­
tan Plan” .
[81 Findings of Fact and Conclusions o f Law on Detroit-Only Plans of De­
segregation, dated March 28, 1972, (53a) hereinafter referred to as “ Ruling 
on Detroit-Only Plan” .
191 Findings of Fact and Conclusions o f Law in Support of Ruling on De­
segregation Area and Development o f Plan, dated June 14, 1972, (59a) and 
Ruling on Desegregation Area and Order for Development of Plan of D e se g re ­
gation, dated June 14, 1972 (97a), hereinafter collectively referred to as 
“ Ruling on Desegregation Area” .



7

O n Ju ly  2 0 , 1 9 7 2  th e  D istrict C o u rt en tered  an O rd er  (la  
265) d ecla rin g  its p r in cip a l p r io r  O rders as fin a l in p u rsu an ce  o f  
the p rov is ion s  o f  R u le  5 4 (b ) ,  F e d .R .C iv .P ., and fu rth er  certify in g , 
in pursuan ce o f  th e  p ro v is io n s  o f  2 8  U .S .C . § 1 2 9 2 (b ) ,  that the 
said O rders co n ta in e d  certa in  c o n tro ll in g  q u e stio n s  o f  law .

O n D e ce m b e r  8 , 1 9 7 2 , th e  C o u rt o f  A p p e a ls  d e c id e d  and 
filed its first ju d g m e n t , w h ich  w as v a ca ted  b y  its grant o f  a rehear­
ing in b a n c  o n  Jan uary  16, 197 3 .

On June 12 , 1 9 7 3  th e  C o u rt  o f  A p p e a ls , sitting in ba n c, d e ­
cided and file d  its ju d g m e n t, fr o m  w h ich  th is appea l has been  
taken, a ffirm in g  th e  D istr ict C o u r t ’ s R u lin gs t h a t ( l )  D e tro it  w as a 
de ju re segregated  s c h o o l  sy stem ; (2 ^  that a “ D e tr o it -O n ly ”  p lan  
was co n s titu t io n a lly  in su ffic ie n t  as a resu lt o f  D e tro it  b e in g  a 
“ racially id e n t ifia b le ”  s c h o o l  d is tr ic t ; and (3 )  th at a m e tro p o lita n  
desegregation p lan  w as “ essential to  a so lu tio n  o f  th is p r o b le m ,”  
and w o u ld , in  all even ts, b e  im p le m e n te d  in th is case in o n e  fo rm  
or another. T h e  C o u rt  o f  A p p e a ls , h o w e v e r , rem a n d ed  the m atter 
to the D istrict C o u rt  f o r  th e  n a rro w  p u rp o se  o f  p erm ittin g  each  o f  
the o u tly in g  s c h o o l  d istr icts  an o p p o r tu n ity  t o  p resen t e v id e n ce  on  
the exact s co p e  an d  deta ils  o f  th e  m e tro p o lita n  rem e d y .

T his C o u rt gran ted  C ertiora ri o n  N o v e m b e r  19, 19 7 3 .

SUMMARY OF ARGUMENT
The lo w e r  co u r ts  have h e ld  that o n c e  u n co n s t itu tio n a l segre­

gation is fo u n d  t o  e x is t  in  th e  o p e ra t io n  o f  a single s c h o o l d istrict, 
the rem edial o rd e r  m u st b e  ex ten s iv e  e n o u g h  t o  m ak e  the stu den t 
racial c o m p o s it io n  o f  every  s c h o o l  in  that d istr ict m in o r ity  B lack , 
so that the s c h o o l  d istrict as a w h o le  w ill n o t  b e  “ racia lly  id e n tifi­
able”  o r  “ p e rce iv e d  as B la ck ” . T h is  is n ecessary , it is reason ed , 
even i f  it requ ires th e  reassign m en t and tra n sp orta tion  o f  h u n dreds 
o f thousands o f  stu den ts fr o m  a n u m b e r  o f  u n itary  s c h o o l  system s 
outlying th e re fro m , in  o rd e r  to  ach ieve  a s u ffic ie n t  racial b a la n ce  
m each s c h o o l n ecessary  t o  e lim in ate  su ch  “ racia l id e n t ifia b ility ” . 
The P laintiffs , th e re fo re , a p p ro a ch  th e  issues in th is case o n  the 
basis o f  assum ing th at th e  co n s titu t io n a l v io la tio n s  fo u n d  to  ex ist 
necessitate a r e m e d y  o f  su ch  s c o p e , so  that th e  o n ly  q u e stio n  re­
maining is w h eth er  F ed era l C ou rts  have th e  p o w e r  to  o rd e r  its im ­
plem entation .



8

P e tit io n e r , o n  th e  o th e r  h a n d , su b m its  th at th e  first question 
in vo lves  e x a m in a tio n  o f  th e  a lleged  v io la tio n s . W hat is th e  extent 
and n ature o f  th e  co n s t itu t io n a l v io la t io n s , i f  a n y , c o m m itte d  by 
P e tit io n e r , th e  D e tro it  S c h o o l  S y stem  a n d /o r  th e  State defendants, 
and w h a t n e x u s  is th ere , i f  a n y , b e tw e e n  su ch  v io la t io n s  and any 
segregated  c o n d it io n  fo u n d  t o  e x is t?  T h ese  q u e s tio n s  m u st first be 
e x p lo r e d  and th e n , and o n ly  th en , can  th e  a p p ro p r ia te  scop e  of 
the rem ed ia l O rd e r  b e  d e te rm in e d .

P e tit io n e r  fu rth e r  su b m its  that a lth o u g h  th e  r e c o r d  m ay  sup­
p o r t  th e  fin d in g  o f  d is c r im in a to ry  acts  o n  th e  part o f  the Detroit 
S c h o o l  S y stem , t10! th ere  is n o th in g  in th e  r e c o r d  substantiating a 
causal c o n n e c t io n  b e tw e e n  su ch  acts  an d  a n y  segregated  condition  
fo u n d  t o  e x is t  w ith  re sp e ct  t o  D e tro it  an d  th e  areas o u tly in g  there­
fro m . T h e  sam e a b sen ce  o f  causal re la tion sh ip  is tru e  w ith  respect 
t o  th e  a lleged  a c t io n s  b y  th e  S tate  d e fe n d a n ts , an d  m oreov er , the 
re co rd  su bstan tia tes n o  u n c o n s t itu t io n a l c o n d u c t  w h atsoever on 
th e  part o f  th e  S tate  d e fe n d a n ts  an d  n o  d is cr im in a to ry  intent on 
the part o f  th e  M ich igan  L eg isla tu re  w ith  re sp e ct  t o  A c t  4 8 , pre­
v io u s ly  fo u n d  b y  th e  C o u r t  o f  A p p e a ls  t o  have h a d  an unconstitu­
tio n a l e f fe c t .  T h is  b e in g  th e  case , th e  p r o p o s e d  r e m e d y , w hich  has 
the n ecessa ry  e f fe c t  o f  tran sferrin g  ch ild re n  fr o m  o n e  com m unity 
t o  a n o th e r  f o r  th e  so le  p u rp o se  o f  a ch iev in g  a p a rticu la r racial mix 
in ea ch  s c h o o l  in  th e  tr i -c o u n ty  area, ra th er th an  correctin g  the 
lim ite d  c o n s t itu t io n a l v io la t io n s  w h ich  m a y  b e  fo u n d  in  the record 
w ith  resp ect t o  D e tr o it , is an im p r o p e r  ex erc ise  o f  the pow er of 
th e  F ed era l J u d ic ia ry .

L o c a l s c h o o l  d istricts  have a lw ays b e e n  estab lish ed  and oper­
ated  b y  th e  S tate  o f  M ich igan  o n  a u n ita ry  basis. Consequently, 
there has n ever b e e n  an a ffirm a tiv e  co n s t itu t io n a l d u ty  on  the part 
o f  th e  S tate  o f  M ich igan  t o  a lter th e  n o n -d is c r im in a to ry  manner in

[t 0] Petitioner takes no position on the Correctness of these findings -  the 
Detroit Board o f Education having decided not to further prosecute their ap­
peal on that question. As Petitioner stated in its letter to the District Court 
(la 201) regarding conditions on intervention, “ . . . we do not wish to litigate 
the question o f de jure segregation in the Detroit Public School System.” The 
question of whether such findings are correct or not, however, is totally to' 
material to the issue of causal connection between any such discriminatory 
acts and demographic patterns in the Detroit metropolitan area. Consequent­
ly, it will be necessary to review such findings in relation to such causal con­
nection; particularly in so far as acts of the Detroit Board are imputed to the 
State defendants.



9

w hich  it has e x e rc ise d  its legislative d is cre t io n  b y  m ainta in in g  the 
present system  o f  a u to n o m o u s  s c h o o l  d istr icts  f o r  th e  p u rp o se  o f  
preserving its leg itim a te  in terest in lo c a l  c o n t r o l  o f  th e  e d u ca tio n  
o f  its ch ild ren .

F in a lly , b eca u se  o f  th e  fa ilu re  o f  th e  D istr ict  C o u rt  to  perm it 
P etition er ’ s m e a n in g fu l p a rtic ip a tio n  in  th e  p re v io u s  trial p r o c e e d ­
ings, and b e ca u se  o f  th e  fa ilu re o f  th e  C o u rt  o f  A p p e a ls  t o  o rd e r  a 
full trial w ith  re sp e ct t o  all v io la t io n  issues w h ich  fo r m  th e  n eces ­
sary p red ica tes  f o r  th e  im p le m e n ta tio n  o f  a m e tro p o lita n  rem ed ia l 
order, P e tit io n e r  w as d e n ie d  d u e  p ro ce ss  o f  law .

ARGUMENT
I

I n tr o d u c t io n

T he c o n c lu s io n s  re a ch e d  in  th e  p ro ce ss  o f  an a lyzin g  a p r o b ­
lem o f  first im p re ss io n , su ch  as that p resen ted  b y  th e  “ M e tro ­
politan d e se g re g a tio n ”  D l ]  issue, w ill g rea tly  d e p e n d  u p o n  the 
initial p ersp ective  tak en  in  a p p ro a ch in g  su ch  analysis. O n e  d if ­
ference in su ch  p e rsp e ctiv e , as b e tw e e n  th e  P la in tiffs  t * 12 131 and all 
o f  the P etition ers  in  th is cau se , has b e e n  th e  in itia l ch aracteriza ­
tion o f  this m a tter  as a “ v io la t io n ”  case o r  a “ r e m e d y ”  case.

P la in tiffs ’ C o m p la in t  w as lim ite d  t o  th e  o p e ra tio n  o f  th e  
Detroit S c h o o l  S y stem  I *3 [ , an d  th e  co u r ts  b e lo w  fo u n d  o n ly  
con stitu t io n a l v io la t io n s  w ith  re sp e ct  t o  th e  D e tro it  s ch o o ls .

The word “ Metropolitan”  has been used throughout this case to mean 
a multiple school district area, as distinguished from this Court’s use o f the 
word (e.g. in Swann, at 21) to mean a large urban area, that was covered by a 
single school district.
[12] Because o f the Detroit Board o f Education’s present posture with re­
spect to the issues presented in this cause, unless otherwise clearly indicated
y the context, the word “ Plaintiff”  is intended to include the Detroit Board 

o Education in addition to the named Plaintiffs, Ronald Bradley, et al. and 
the NAACP.
[ 13] Indeed, the Amended Complaint recently filed by Bradley, et al. (Ia 

) still fails to allege any acts whatsoever by any School District other than 
01 "'ll!1 respect to the non-unitary operation of any School District

other than Detroit.



1 0

D e tro it  h av in g  b e e n  fo u n d  a d e  ju r e  segregated  sy stem , how ever, 
P la in tiffs  n o w  assert th at th e  so le  rem a in in g  q u e s t io n  is whether 
s c h o o l  d is tr ict  b o u n d a ry  lines are so  in h eren tly  in v io la te  and sacro­
sanct as t o  re n d e r  an y  d eseg reg a tion  p lan  th at in v o lv es  multiple 
s c h o o l  d istricts , an im p r o p e r  e x e rc ise  o f  th e  eq u ita b le  remedial 
p o w e rs  o f  th e  D istr ict C o u rt . P e tit io n e r  r e s p e c t fu lly  submits, 
h o w e v e r , th at u n d e r  th e  m a n d a te  o f  Swann, I15 ] it is essential that 
w e e x a m in e  th e  tru e  e x te n t  an d  n atu re  o f  th e  a lleged  underlying 
co n s titu t io n a l v io la t io n s  w h ich , it is c la im e d , req u ires  a multi­
d istrict r e m e d y , b e fo r e  th e  u ltim a te  p r o p r ie ty  o f  su ch  a rem edy  is 
it s e lf  e x a m in e d . [ i 6 l

T h e  R u lin g  o n  S eg reg a tion  (1 7 a )  h e ld  that b y  rea son  o f  cer­
tain  a c t io n s  an d  in a c t io n s  o f  th e  D e tro it  S c h o o l  D istr ict  and the

[14 ] Brown v. Board o f  Education o f  Topeka, 349 U.S. 294, 99 L.Ed. 1083 
(1955); Swann v Charlotte-Mecklenberg, Board of Education 402 U.S .1,28 
L.Ed. 2d 544 (1971).
[15] “ As with any equity case, the nature of the violation determines the 
scope o f the remedy.”  402 U.S. at 16.
1161 In their opening Brief filed in the Court o f Appeals, Bradley, et al. 
quite perceptively summarized Petitioner’s position with respect to the lower 
Court’ s failure to relate the remedy to the violation, when they stated, at 
page 81, “ The defendants-appellants would have this court believe that the 
district court leaped from finding limited violations to fashioning virtually un­
limited relief.”  That is, in fact, precisely the position o f Petitioner.



11

D efendants M illik en , et al., D e tro it  w as a d e  ju r e  segregated  s c h o o l 
system. 1171 T h ere  is n o  e v id e n ce  o n  r e c o r d , n o r  w ere  an y  fin d in gs  
made in th e  R u lin g  o n  S egrega tion  (a n d  in d e e d , o n  th e  basis o f  th e  
record, n o n e  c o u ld  b e  m a d e ) th at in  a n y  w a y  re la ted  t o  th e  q u es­
tion o f  w h eth er  a c t io n s  o f  a n y  s c h o o l  o ff ic ia ls  in  D e tro it  o r  o f  th e  
State D e fen d a n ts  h a d  a n y  seg reg a tory  e f fe c ts  o u ts id e  D e tr o it , o r  
whether any s c h o o l  o f f ic ia ls  c o m m it te d  a n y  acts  o f  d e  ju re  segre­
gation o u ts id e  o f  D e tro it  that h ad  a n y  e ffe c ts  e ith er in side  o r  o u t ­
side o f  D etro it .

In th e  D istr ict  C o u r t ’ s R u lin g  o n  P ro p r ie ty  o f  M e tro p o lita n  
Plan, the C o u rt  first in d ica te d  in  an O rd er  118 1 that it b e lie v e d  a 
racial im b a la n ce  in th e  s c h o o ls  t o  co n s t itu te  a c o n s t itu t io n a l v io la ­
tion. T he C o u rt  sta ted :

“ U n der th e  c ircu m sta n ce s  o f  th is case, (6) the q u e stio n  p re­
sented is w h e th e r  th e  c o u r t  m a y  co n s id e r  r e lie f  in  th e  fo r m  o f  
a m e tro p o lita n  p la n , e n co m p a ss in g  n o t  o n ly  th e  C ity  o f  
D etro it, b u t  th e  larger m e tr o p o lita n  area. . . .

[171 The District Court’s approach o f using a multi-district remedy with re­
spect to a single district violation, irrespective o f the necessity for multi-dis­
trict violations or multi-district causation, by treating it is a remedy question 
only, was implicitly foretold in the following passage from the Ruling on Seg­
regation:

Having found a de jure segregated public school system in operation in 
the City of Detroit, our first step, in considering what judicial remedial steps 
must be taken, is the consideration o f intervening parent defendants’ motion 
to add as parties defendant a great number of Michigan school districts . . . 
Plaintiffs have opposed the motion to join the additional school districts, ar­
guing that the presence of the State defendants is sufficient and all that is 
required, even if, in shaping a remedy, the affairs o f these other districts will 
be affected.

In considering the motion to add the listed school districts we pause to 
note that the proposed action has to do with relief. Having determined that 

e circumstances o f the case require judicial intervention and equitable re- 
ie it would be improper for us to act on this motion until the other parties
o the action have had an opportunity to submit their proposals for desegre- 

gahon. (38_39a) emphasis added)

The District Court had previously indicated from the bench its predis­
position to ordering a multi-district plan, because o f the preponderance of 

ack students in Detroit. See page 59, supra.



1 2

(6 )  See ‘ R u lin g  o n  Issue o f  S e g re g a tio n ,’ in d ica t in g  a black 
s t u d e n t  p r o je c t io n  fo r  th e  s c h o o l  yea r  1 9 8 0 -8 1  of 
8 0 .7 % .”

T hu s, o n  th e  basis o f  sp ecu la tiv e , lon g -ra n ge  s tu d en t p opu lation  
p r o je c t io n s  f o r  D e tro it , th e  C o u rt  c o n c lu d e d  that th e  “ circum ­
stan ces”  o f  an in crea sin g ly  p r e d o m in a n t  B la ck  s tu d en t enrollm ent 
in D e tro it  m a d e  th e  im p le m e n ta t io n  o f  a m u lt i-d is tr ic t  rem edy 
lega lly  p ro p e r .

F in a lly , in  its R u lin g  o n  D e tr o it -O n ly  P lan , th e  D istr ict  Court 
h e ld  that any d eseg reg a tion  p lan  lim ite d  t o  D e tr o it  w as constitu­
tio n a lly  in s u ffic ie n t , and th at o n ly  a m u lt i-d is tr ic t  p lan  w o u ld  be 
an a p p ro p r ia te  re m e d y . In  su ch  R u lin g , th e  D is tr ic t  C o u rt  set forth 
F in d in gs o f  F a c t  as t o  w h y  a D e tr o it -o n ly  p lan  w as con stitu tion ­
a lly  in su ffic ie n t . T h e  so le  su bstan tive  rea son  w as th e  assertion 
that th e  racia l c o m p o s it io n  o f  th e  s tu d e n t b o d y  in  D e tro it  is such 
that th e  D e tro it  P u b lic  S c h o o l  S y stem  w o u ld  b e  “ ra c ia lly  identifi­
ab le  as B la ck ” , o r  w o u ld  b e  “ p e rce iv e d  as B la ck ”  (5 4 - 5 5a ).

W e m u st a c c e p t  as c o r r e c t  th e  p rem ise  f o r  r e lie f  cou n se led  in 
Swann, supra, th at th e  n atu re  o f  th e  v io la t io n  d e term in es  the 
s c o p e  o f  th e  r e m e d y , and  th e  p re d ica te  f o r  a fin d in g  o f  violation 
re a ffirm e d  in Keyes, th at th ere  b e  in te n t io n a lly  discrim ina­
to r y  acts an d  a causal c o n n e c t io n  b e tw e e n  su ch  acts  and th e  segre­
gated  c o n d it io n  fo u n d  t o  ex is t . T h a t b e in g  so , it m u st be con­
c lu d e d  th at th e  C o u rts  b e lo w  h ave a ctu a lly  tak en  th e  b o ld  and un­
p re ce d e n te d  step  o f  h o ld in g  th at racia l im b a la n ce  in  a large m etro­
p o lita n  area, resu ltin g  in  racia l id e n t ifia b ility  o r  p e rce p tio n  as 
B lack , is p e r  se, u n co n s t itu t io n a l. T h e  lo w e r  co u r ts  m u st have so 
h e ld  beca u se  th e y  have o rd e re d  a m u lt i-d is tr ic t  re m e d y  to  be im­
p le m e n te d  w ith o u t  an y  an alysis o f  th e  e f fe c ts  o f  the alleged un­
co n stitu t io n a l a c t io n s , o r  an y  fin d in g s  w h a tso e v e r  th at there is a 
causal n ex u s b e tw e e n  su ch  racia l im b a la n ce  and  in ten tion a l or 
p u rp o se fu l segrega tory  acts  o n  th e  part o f  s c h o o l  o ff ic ia ls .

[ 191 Actually, the District Court also made the finding, which is far more a 
matter o f bootstrapping than o f substance, that a Detroit-only plan was insuf­
ficient, and thus a metropolitan plan necessary, because a Detroit-only plan 
would “ not lend itself as a building block for a metropolitan plan.”
[201 Keyes v School Dist. No. 1, Denver, Colorado, U.S. , 37 L.Ed. 
2d 548 (1973).



13

T hat th e  lo w e r  co u r ts  have m a d e  su ch  a h o ld in g  is th e  reason  
for the o b se rv a tio n  a b o v e , that P la in tiffs  an d  P e tit io n e rs  have d if ­
ferent in itia l p e rsp e ctive s  in a p p ro a ch in g  th is m a tter; resp e ctiv e ly , 
as a rem ed y  case and  as a v io la t io n  case. P la in tiffs  have th u s far 
succeeded in  p reva ilin g  u p o n  th e  lo w e r  co u r ts  to  c o m m e n c e  w ith  
the initial p rem ise  that o n c e  th ere  is any fin d in g  o f  in te n tio n a lly  
discrim inatory acts b y  s c h o o l  o ff ic ia ls , resu ltin g  in  a co n s titu t io n a l 
violation, su ch  f in d in g  w ill a u to m a tica lly  trigger a righ t to  re lie f  
from racial im b a la n ce  and racia l id e n tifia b ility . A p p r o a c h in g  th e  
problem fr o m  th is d ire c t io n  fa c ilita tes  lim ita tio n  o f  fu rth e r  in­
quiry to  o n ly  th e  re m e d y  issue o f  w h e th e r  th e  u ltim a te  p o w e rs  o f  
the Federal C o u rt  are b ro a d  e n o u g h  t o  in c lu d e  m u lt ip le  s c h o o l  dis­
tricts in a d esegrega tion  plan.

O b v iou s ly , h o w e v e r , th is a p p ro a ch  t o  th e  m e tr o p o lita n  deseg­
regation issue sk ew s th e  resu lt, and th is is w h ere  th e  lo w e r  co u rts  
have erred. T h e  n ecess ity  f o r  th e  im p le m e n ta tio n  o f  any ju d ic ia l 
relief m ust first b e  d e te rm in e d  b y  an analysis o f  the u n d erly in g  
violation. O n ly  a fin d in g  o f  in te n tio n a l segregative acts b y  resp on s­
ible s ch o o l o f f ic ia ls , h avin g  a causal c o n n e c t io n  w ith  th e  segre­
gated co n d it io n  fo u n d  t o  ex is t , w ill fo r m  th e  p re d ica te  f o r  re lie f. 
It is on ly  th en  that th e  q u e s t io n  o f  th e  p r o p r ie ty  and  s c o p e  o f  a 
multi-district re m e d y  in  this case n e e d  b e  co n s id e re d .

Unless this C o u rt  is n o w  p rep a red  t o  d e c la re  th e  e x is te n ce  o f  
previously u n re c o g n iz e d  F o u r te e n th  A m e n d m e n t  R igh ts  — that 
Black ch ildren  have th e  c o n s t itu t io n a l right t o  a tten d  a p u b lic  
school w here W hite ch ild ren  are in th e  m a jo r ity  — th e  lo w e r  co u rts  
must be reversed f o r  having  b e e n  m isgu id ed  b y  P la in tiffs  in their 
approach to  th e  “ m e tr o p o lita n  d e se g re g a tio n ”  issues. II

II
THE CONSTITUTIONAL VIOLATIONS

- A -
The Unitary Establishment and Operation 

of Petitioner School District
In their C o m p la in t , P la in tiffs  m a d e  n o  a llega tion s w h a tsoever  

with respect t o  an y  d iscr im in a to ry  o r  segregatory  a c t io n s  o r  in ac-



14

t io n s  o f  o f f ic ia ls  o f  s c h o o l  d istr icts  o u t ly in g  fr o m  th e  S c h o o l  Dis­
tr ict o f  th e  C ity  o f  D e tro it , an d  th e  D istr ict  C o u r t  expressly 
a ck n o w le d g e d  m a k in g  n o  su ch  fin d in g s . It is c lear, h o w e v e r , that 
P e tit io n e r  a n d  its p re d e ce sso rs  an d  every  o th e r  o u t ly in g  s c h o o l  dis­
tr ict in  th e  tr i -c o u n ty  area o f  W a y n e , O a k la n d  an d  M a c o m b , main­
ta in  and  o p e ra te  u n ita ry  s c h o o l  system s, and  have d o n e  so  fo r  at 
least 1 0 0  years. [211

T h e  in itia l cre a tio n  o f  P e t it io n e r ’ s S c h o o l  D istr ict  boundary 
lines, as w ell as th o se  o f  all o th e r  M ich igan  s c h o o l  d istr icts , were 
b a sed  o n  n eu tra l an d  n o n -d is c r im in a to ry  criteria . F o r  ex a m p le , as 
in d ica te d  in  th e  A ff id a v it  o f  G rosse  P o in te  S c h o o ls  R e : Boundary 
l i n e s  an d  T ra n sp o rta tio n  F a c ilit ie s  ( la  2 5 4 )  f ile d  p u rsu a n t to  the 
d ire c t io n  o f  th e  D istr ict  C o u r t , th e  p resen t g e o g ra p h ica l bound­
aries o f  T h e  G rosse  P o in te  P u b lic  S c h o o l  S y stem  w e re , w ith  one 
m i n o r  m o d i f i c a t i o n ,  last d e te rm in e d  in  1921 [22] b y  the 
c o n s o lid a t io n  o f  fiv e  sm aller rural s c h o o l  d istricts  w h o s e  boundary 
lin es w ere  o r ig in a lly  d ra w n  a lo n g  to w n s h ip  lin es a n d /o r  naturally 
ex is t in g  b o u n d a rie s . T h ere  has n ever  b e e n  an y  gerrym an d erin g  of 
P e tit io n e r ’ s g eog ra p h ica l b o u n d a r ie s  fo r  any rea son  whatsoever, 
m u ch  less f o r  reason s m o t iv a te d  b y  segregative p u rp o se .

T h e  a b sen ce  in  th e  r e c o r d  o f  any e v id e n ce  p erta in in g  to  the 
co m m is s io n  o f  seg reg a tory  acts  b y  P e tit io n e r , o r  any o th e r  out­
ly in g  s c h o o l  d istr ict, o r  w ith  re sp e ct  t o  th e  esta b lish m en t o f  their 
b o u n d a r ie s , w as e x p lic it ly  a c k n o w le d g e d  b y  th e  D istr ict C ourt in 
its R u lin g  o n  D esegreg a tion  A rea , as fo l lo w s :

“ I t  sh o u ld  b e  n o te d  th at th e  c o u r t  has ta k en  n o  p r o o fs  with 
re sp e ct t o  th e  esta b lish m en t o f  th e  b o u n d a r ie s  o f  th e  86  pub­
lic  s c h o o l  d istricts  in  th e  c o u n t ie s  o f  W a y n e , O ak land  and 
M a co m b , n o r  o n  th e  issue o f  w h e th e r , w ith  th e  exclu sion  of 
th e  c ity  o f  D e tro it  s c h o o l  d is tr ict , su ch  s c h o o l  d istricts  have 
c o m m it te d  acts o f  de ju re  se g re g a tio n .”  (5 9 -6 0 a )

[211 Ex Rel Workman, 18 Mich. 400 (1869), Act 34, Sec. 28 of Mich. Pub. 
Acts o f 1867.
[22] ^t that time, Grosse Pointe Schools had a student population of 947, 
as compared with the commencement of the 1971 school year, when there 
were 13,529 students.



15

In  su m m ary  P e tit io n e r  has a lw ays o p e ra te d  a u n itary  s c h o o l  
system pu rsu an t t o  th e  C o n s t itu t io n  an d  th e  law s o f  th e  S tate  o f  
Michigan , fr o m  w h ich  n o  ch ild  has ever o r  m a y  n o w  b e  e x ­
cluded o n  a c c o u n t  o f  race. T h ere  is absolutely nothing in  th e  re­
cord o f  th is cau se that w o u ld  in d ica te  a c t io n s  b y  P e tit io n e r  t o  th e  
contrary. *̂ 2 4  25̂

- B -

Violations of the Detroit School District

T h e  O p in io n  o f  th e  C o u rt  o f  A p p e a ls  rev iew ed  in so m e  deta il 
the d iscr im in a tory  acts w h ich  th e  D istr ict C o u rt fo u n d  th e  D e tro it  
Sch ool D istrict t o  have c o m m itte d . A lth o u g h  it w as an A p p e lla n t 
before  th e  C o u rt  o f  A p p e a ls  w ith  re sp e ct  t o  th ose  fin d in gs , the 
Detroit S c h o o l  D istr ict has n o t  sou g h t rev iew  o f  sam e b y  this 
Court. It is p e rtin e n t, h o w e v e r , t o  rev iew  th e  n ature o f  th e  acts 
which th e  D e tro it  S c h o o l  D istr ict  w as fo u n d  t o  have c o m m itte d , 
insofar as th e y  m a y  b e  re levan t t o  th e  q u e stio n  o f  a m u lti-d is tr ict 
rem edy.

T h e C o u rt o f  A p p e a ls  a ffirm e d  th e  D istr ict C o u r t ’ s fin d in g s  
that the D e tro it  S c h o o l  D is tr ic t  w as g u ilty  o f  segregative p ra ctices  
falling in to  3 ca te g o r ie s : ( 1 )  S egregative z o n in g  and assignm ent 
practices; ( 2 )  O p t io n a l a tte n d a n ce  z o n e s ; and  (3 )  S c h o o l  co n s tru c ­
tion. W ith  th e  e x c e p t io n  o f  o n e  s p e c if ic  in c id e n t, re la tin g  to  the 
Carver S c h o o l  D is t r ic tJ 2 3  ̂ th ere  is n o th in g  in th e  r e c o r d  in d ica ­
ting any re la tion sh ip  w h a tso e v e r  b e tw e e n  th e  o p e ra t io n  o f  th e  
Detroit S c h o o l  D istrict and  o th e r  s c h o o l  d istricts  o u t ly in g  th ere­
from .

[231 . . Every school district shall provide for the education of its pupils
without discrimination as to religion, creed, race, color or national origin. 
Mich. Const. 1963, Art 8, Sec 2.
“No separate school or department shall be kept for any person or persons on 
account of race or color.”  Mich. Comp. Laws Annotated, §340.355 
“ All persons, residents o f a school district . . . shall have an equal right to 
attend school therein.”  Mich. Comp. Laws Annotated, §340.35 6 See also Act 
319, Part II, Ch.2, Sec. 9, Mich. Pub. Acts of 1927, at p. 3aa, infra.
[24] -phis is at least one distinction between the facts o f this case and those 
before the Court in Bradley v. State Bd. o f  Educ., U.S. , 36 L.Ed. 2d 
771 (1973), aff’d by an equally divided Court, where all three school districts 
which were the subject of the proposed multi-district Richmond, Virginia 
plan had unquestionably been dual school districts.
[25] pjjg c arver s chool District will be discussed below, in the section on 
Actions of the Defendants Milliken, et al., at pg 28, infra.



16

T h e  D e tro it  S c h o o l  D is tr ic t  a d o p te d  a u n iq u e  p o s tu re  before 
th e  C o u rt  o f  A p p e a ls  b y  argu ing  it w as n o t  g u ilty  o f  d e  ju re  segre­
g a tio n ; b u t i f  su ch  f in d in g  b e  a ff ir m e d , a m e tr o p o lita n  p la n  should 
b e  im p le m e n te d  as th e  rem e d ia l o rd e r . T h e  D e tr o it  S c h o o l  District 
has n o w  a b a n d o n e d  its in itia l p o s it io n , and  is cu rre n tly  advocating 
o n ly  fo r  a m e tr o p o lita n  p lan , thus ren d erin g  it a p a rty  in  total 
o p p o s it io n  t o  th e  in terests  o f  P e tit io n e r . A  su m m a ry  o f  the 
D e tro it  S c h o o l  D is tr ic t ’ s argu m en t co n ce rn in g  th e  n ature and ef­
fe c t  o f  th e  v io la tio n s  fo u n d  to  have b e e n  c o m m it te d  b y  D etroit, 
and th e  causal re la tion sh ip  b e tw e e n  su ch  v io la t io n s  and  the cur­
rent c o n d it io n  in  su ch  S c h o o l  D istr ict  is p a rticu la rly  instructive; 
e sp ecia lly  in  ligh t o f  th e  fa c t  th at th is argu m en t w as previously 
m a d e  in  c o n ju n c t io n  w ith  its s im u lta n eou s  argu m en t in  fa v or  o f  a 
m u lti-d istr ict r e m e d y . In  its b r ie f  t o  th e  C o u rt  o f  A p p e a ls , the 
D e tro it  S c h o o l  D istrict a rg u e d :

“ A s  t o  th e  ro le  o f  th e  acts  o f  th e  D e tro it  B oa rd  fo u n d  to 
be  w ro n g fu l in causing th e  cu rren t c o n d it io n  o f  segregation 
P la in tiffs  p ro fe rre d  t o  th e  C o u rt  th e ir  f in d in g  o f  fa c t  which 
co n ta in e d  o n ly  th e  o p in io n  te s t im o n y  o f  several exp erts  to 
th e  e f fe c t  th at a ll-B lack  an d  a ll-W hite  s c h o o ls  te n d e d  to  rein­
fo r c e  a fe e lin g  o f  sperarateness o n  th e  part o f  b o t h  races, 
w h ich , in  tu rn , m a n ife s te d  it s e lf  t o  so m e  u n d e fin a b le  degree 
in  th e  c h o ic e  o f  re s id e n ce  in  u n iracia l n e ig h b o r h o o d s  on  the 
part o f  b o th  races.

The mind boggles at the meaning o f this assumed, un­
measured phenomenon against the standard o f proximate 
cause. F irst, th e  fin d in g s  o f  th e  D istr ict C o u r t  as t o  specific 
acts o f  d iscr im in a tio n  rela te  t o  a re la tive ly  sm all proportion  
o f  th e  to ta l s c h o o l  d is tr ic t : th e  c o n s tr u c t io n  o f  o n e  specified 
e lem en ta ry  s c h o o l ,  o u t  o f  a to ta l s c h o o l  c o n s tr u c t io n  pro­
gram  in v o lv in g  a m u lt itu d e  o f  s c h o o ls ; several instances of 
B la ck -to -B la ck  b u s in g ; and th e  m a in te n a n ce  o f  six  optional 
z o n e s , w h ich  w ere  in  th e  p ro ce ss  o f  seriatim  e lim in a tio n , rep­
resen tin g  b u t a sm all fr a c t io n  o f  th e  to ta l o f  tw e n ty -o n e  high 
s c h o o l  c o n s te lla t io n s  in  th e  C ity  o f  D e tro it . There is not an 
iota o f evidence which shows or which even attempts to show 
that any person living in the City o f Detroit made housing 
decisions any differently, because o f the “acts or failures to
act” o f the Detroit Board.

*  *  *



17

T h e  m o s t  v iv id  in d ica to r  o f  th e  la ck  o f  any causal n exus 
b e tw e e n  th e  a c t io n s  o f  th e  D e tro it  B oard  and  th e  current 
c o n d it io n  o f  segregation  is th e  fin d in g  (s ic  ) th e  C o u r t ’ s “ R u l­
in g  o n  D e tro it -O n ly  P lans” , that even  had  it gran ted  all th e  
r e lie f  re q u e ste d  b y  P la in tiffs , th e  im p le m e n ta tio n  o f  a p u p il 
assignm ent p lan  w ith in  th e  ju r is d ic t io n  o f  th e  S c h o o l  D istrict 
o f  th e  C ity  o f  D e tro it  w o u ld  n on eth e less  retain  ra cia lly  id en ­
tifia b le  s ch o o ls . A p p . I a 4 5 9 , V o l. ITS. I f  the District Court, 
with its broad equitable jurisdiction, is unable to overcome 
residential housing patters within the City o f Detroit to elimi­
nate the condition o f racial identifiability in its schools, then 
the same condition o f segregation would exist even if the 
Detroit Board had acted exactly as the District Court would 
have had it act. H o w  th en  can  th e  D e tro it  B oard  b e  fo u n d  to  
have p r o x im a te ly  cau sed  th at c o n d it io n , w h ich  even  th e  D is­
tr ict C o u rt  fo u n d  it s e lf  p o w e r le ss  t o  re m e d y ?  T h e  fin d in g  is 
really  th en  n o t  that th e  D e tro it  B oa rd  sh ou ld  have su cce e d e d  
in  e lim in a tin g  racia l id e n t if ic a t io n  in its s ch o o ls , b u t  that it 
sh ou ld  have d o n e  a b e tte r  j o b  o f  fa iling. I f  fa ilu re  t o  alleviate 
the c o n d it io n s  is in ev ita b le  even  fo r  th e  C o u rt  itse lf, as th e  
C ou rt has e f fe c t iv e ly  fo u n d , th en  th e  p articu lar q u a lity  o f  the 
B oa rd ’ s fa ilu re  ca n  h a rd ly  b e  said to  have cau sed  that c o n d i­
tion . A b se n t  th at ca u sa tio n , D e tro it  ca n n o t b e  h e ld  to  a de 
jure segregated  du a l sy s te m .”  t26 l (E m ph asis  a d d e d )

P etition er  agrees that o n  th e  basis o f  th e  re c o r d , th e  D e tro it  
Board o f  E d u ca t io n  has n ever o p e ra te d  a dual s c h o o l  system . 
Detroit has a lw ays m a in ta in ed  s c h o o ls  a tten d ed  b y  b o t h  B lacks 
and W hites, in  v a ry in g  p r o p o r t io n s , d e p e n d in g  o n  th e  d e m o g ra p h ic  
patterns o f  h o u s in g  in  th e  c ity  and  p o p u la t io n  sh ifts  ov er  the 
years. T here  have a lw ays b een  in tegra ted  s ch o o ls  in th e  C ity  o f  
D etroit, and  th ere  has n ever b e e n  a p o lic y  o f  th e  D e tro it  B oard  o f  
E ducation  to  estab lish  separate s c h o o ls  fo r  B lack  and W h ite  ch ild ­
ren in th e  D e tro it  S c h o o ls  an y  m o r e  th an  th ere has b e e n  a statu ­
tory or  co n s t itu t io n a l p ro v is io n  o f  M ich igan  L aw  req u ir in g  sepa­
rate e d u ca tion a l fa c ilit ie s  f o r  B lack  and  W hite ch ildren  in the State 
o f  M ichigan.

Brief of the School District of the City o f Detroit in the United States 
Court of Appeals for the Sixth Circuit, pp. 35-38.



1 8

It is a lso  a p p a ren t that certa in  adm in istrative  o f f ic e r s  o f  the 
D e tro it  S c h o o l  D istr ict  m a y  have b e e n  g u ilty  o f  certa in  acts which 
had  e ith er a seg reg a tory  p u rp o s e , a lim ite d  segregative e f fe c t ,  or 
b o th . H ow e v e r , P e t it io n e r  agrees w ith  th e  R e s p o n d e n t  D etroit 
S c h o o l  D is tr ic t ’ s d e sc r ip t io n  o f  su ch  acts as b e in g  e x tr e m e ly  insig­
n ifica n t (in  re la tion  t o  th e  to ta l o p e r a t io n  o f  that large s c h o o l  dis­
tr ic t ), an d  th e ir  e f fe c ts  as b e in g  so  m in u te  as t o  ren d er  them 
n o n -e x is te n t  in  term s o f  a causal n e x u s  w ith  segregated  housing 
pattern s th e  p resen t racia l m a k e -u p  o f  th e  D e tro it  s c h o o ls , and the 
s c h o o l  p o p u la t io n  in  D e tr o it  in  gen era l, b e in g  de minimus, it is 
in co n ce iv a b le  th at su ch  acts  c o u ld  have had an y  ca u sa lly  related 
ra m ifica t io n s  in  u n re la ted , sep ara te ly  o p e ra te d , a u ton om ou s 
s c h o o l d istricts  o u t ly in g  th e re fro m .

- C -

Actions of Defendants Milliken, et al

T h e  C o u rt o f  A p p e a ls  a ff irm e d  th e  D istr ict  C o u r t ’ s findings 
that th e  State o f  M ich igan  * has b e e n  g u ilty  o f  certa in  constitu­
tion a l v io la tio n s , an d  has d iv id e d  th e m  in to  fiv e  ca tegories . Be­
cause o f  th e  p articu lar s ig n ifica n ce  w h ich  su ch  fin d in g s  m ig h t have 
u p o n  th e  m e tr o p o lita n  r e m e d y  issue, P e tit io n e r  w ill d iscu ss  them 
in  som e  deta il:

1. T h e  en tire  te x t  o f  th e  first f in d in g  is as fo l lo w s :

“ S c h o o l  d istricts  in  th e  S tate  o f  M ich igan  are instrumen­
ta lities  o f  the S tate an d  su b o rd in a te  to  its S tate  B oard of 
E d u ca tio n  an d  leg isla tu re (p a g e  r e fe re n ce ). H en ce , the

Since “ State o f Michigan”  has never been made a party to this action, 
it is difficult to conceive of how the State, as an entity, could have been 
found guilty of anything. As to the distinction between the State o f Michigan 
and the State Defendants, reference is to the Brief o f Milliken, et al. 28

[28] Actually, the Detroit School District is “ subordinate”  only to the 
Michigan Legislature. The language o f the Michigan Constitution of 1963 
states that the State Board of Education shall have responsibility for “ leader­
ship and general supervision”  o f local school districts (Mich. Const. 1963, Art 
8, Sec 3). Also see discussion of the significance of local school districts under 
Michigan law, page 48, infra.



19

segregative a c t io n s  and in a ctio n s  o f  th e  D e tro it  B oa rd  o f  E du ­
ca tion  p re v io u s ly  o u tlin e d  are th e  a ctio n s  o f  an a g e n cy  o f  th e  
State o f  M ich ig a n .”  ( 1 5 1 a )

P etit ion er  is at so m e w h a t o f  a loss  as to  th e  s ig n ifica n ce  o f  
this separately  e n u m era ted  s ta tem en t; m o r e  su cc in c t ly  sta ted , th e  
the D etro it  B oa rd  o f  E d u ca t io n  is an a g en cy  o f  th e  S tate  o f  M ich i­
gan. I f  th e  C o u rt m ea n t that th e  “ S tate  o f  M ich iga n ” , and  all levels 
in its g ov ern m en ta l s tru ctu re , are t o  have im p u te d  t o  th em , and 
are to  b e c o m e  ta in ted  w ith  th e  sam e “ g u ilt”  as th e  D e tro it  S c h o o l 
District m a y  have a d ju d g ed  against it, P e tit ion er  m u st tak e  e x c e p ­
tion. S u ch  a fin d in g , b e in g  essen tia lly  a legal c o n c lu s io n , w o u ld  
certainly b e  a n o v e l a p p lica tio n  and e x te n s io n  o f  th e  d o c tr in e  o f  
respondeat superior.

N o  c ita t io n  o f  a u th o r ity  having b e e n  given , and  n o  fu rth er 
elucidation  o f  su ch  th e o r y  h avin g  b e e n  exp ressed , h o w e v e r , it 
must be  assum ed that the fin d in g  is m ere ly  declara tive  o f  fu n d a ­
mental C o n st itu tio n a l la w ; [29] that a ction  o f  a S c h o o l  D istrict is 
“ state a c t io n ”  fo r  p u rp o se s  o f  the F o u rte e n th  A m e n d m e n t  t o  the 
United States C o n s t itu tio n .

2. T h e  s e co n d  C o n s t itu tio n a l v io la t io n  fo u n d  t o  have b een  
com m itted  b y  th e  “ S tate  o f  M ich iga n ”  w as th e  en a ctm e n t b y  th e  
Michigan L egislature o f  S e c t io n  12 o f  A c t  4 8  o f  th e  M ich igan  P u b ­
lic A cts  o f  1 9 7 0  ( “ A c t  4 8 ” ). W ith  re sp e ct t o  th is statute, th e  
Court o f  A p p e a ls  h e ld :

“ W hile th is sta tu te  has sin ce  b e e n  in va lidated  b y  ju d g m e n t  o f  
this co u rt , 4 3 3  F .2 d  8 9 7 , its c o n tr ib u t io n  to  p rev en tin g  dese­
gregation  an d  t o  co n t in u in g  and  in creasing  segregation  o f  the 
D etro it s c h o o l  system  ca n n o t b e  o v e r lo o k e d .”  (1 5 1 a ) .

It is su bm itted  th at based  o n  th e  r e co rd  in  th is cause, th e  c o n ­
clusion expressed  in  th is f in d in g  is to ta lly  w ith o u t  fo u n d a t io n  and 
am ounts to  exa ggera ted  su p p o s it io n  and  sp e cu la tio n  o n  th e  part o f  
the C ourt o f  A pp ea ls .

Brown v. Board o f  Education o f  Topeka, 347 U.S. 483, 98 L.Ed. 873 
0954fShelleyw.Kraemer, 334 U.S. 1,92 L.Ed. 1161 (1948).



20

T h e  fa cts  re la tin g  t o  A c t  4 8  are, f o r  th e  m o s t  part, set forth  
in th e  r e p o r te d  o p in io n  o f  th e  C o u rt  o f  A p p e a ls , I3° l  an d  are also 
ascerta in ab le  f r o m  a rev iew  o f  th e  sta tues th em selves. T h ese  facts 
m a y  b e  b r ie f ly  su m m a rized  as fo l lo w s .

In 1 9 6 9 , th e  M ich iga n  L eg isla tu re  e n a cte d  A c t  2 4 4  o f  the 
M ich igan  P u b lic  A c ts  o f  1 9 6 9 ,13 1 1 ( “ A c t  2 4 4 ” ) th e  p u rp ose  of 
w h ich  w as to  e ffe c tu a te  th e  “ d e c e n tra liz a t io n ”  o f  th e  D e tr o it  Pub­
lic  S c h o o l  S y stem . D e ce n tra liza tio n  w as in te n d e d  t o  d iv id e  the 
co m p a ra tiv e ly  large D e tro it  S c h o o l  D istr icts  in to  sem i-au ton om ou s 
reg ion s  p ro v id in g  so m e  m easu re  o f  c o m m u n ity  c o n tr o l  b y  the citi­
zens o v e r  th e  o p e r a t io n  o f  s c h o o l  w ith in  a p articu lar re g ion . The 
e x p e r im e n t in to  d e ce n tra liza tio n  o f  th e  D e tr o it  S c h o o l  District 
w as w id e ly  su p p o r te d  b y  th e  B la ck  c o m m u n ity  w ith in  Detroit, 
an d  n o  c la im  has ever b e e n  m a d e  th at th e  d e ce n tra liz a tio n  pro­
gram  w as m o t iv a te d  b y  d is cr im in a to ry  p u rp o se s . O n  A p r il 7 , 1970, 
pu rsuan t t o  A c t  2 4 4 , the D e tro it  B oa rd  o f  E d u c a t io n  ad op ted  a 
p lan  f o r  th e  d iv is ion  o f  D e tro it  in to  7  reg ion s . In  that sam e action, 
th e  D e tro it  B oa rd  a lso  a d o p te d  a p la n  m a k in g  ch an ges  in  the at­
te n d a n ce  areas o f  12  o f  th e  S c h o o l  S y s te m ’ s 21 h igh  schools, 
fo s te r in g  a greater d egree  o f  in teg ra tion . T h e  p lan  w as t o  b e  imple­
m e n te d  o v e r  a 3 -y e a r  p e r io d ; c o m m e n c in g  w ith  th e  10th  grade 
stu den ts in th e  F a ll o f  1 9 7 0 , an d  th en  th e  1 1th grade  student in 
the F all o f  1 9 7 1 , an d  fin a lly  th e  1 2 th  grad e  s tu d en ts  in  th e  Fall of 
1 9 7 2 .

D u rin g  its 1 9 7 0  term  th e  M ich igan  L eg islatu re  enacted a 
n u m b e r  o f  a m e n d m e n ts  to  A c t  2 4 4  b y  e n a ctin g  A c t  4 8 . T he pur­
p o s e  o f  A c t  4 8  w as t o  fa c ilita te  th e  m e ch a n ics  o f  decentralization 
in  the D e tro it  S c h o o l  D istr ict  b y  rea d ju stin g  th e  reg ion a l areas to 
take in to  a c c o u n t  o n e -m a n , o n e -v o te  re q u ire m e n ts  I3 2 ! and to  ad­
ju st certa in  o th e r  p ro v is io n s  re la tin g  t o  salaries, fa c ilit ie s , central 
b o a rd  rep resen ta tives and  a n u m b e r  o f  o th e r  m atters. S ection  12 
o f  A c t  4 8 , a lso  c o n ta in e d  th e  fo l lo w in g  p ro v is io n :

“ S ec. 12 . T h e  im p le m e n ta t io n  o f  a n y  a tte n d a n ce  provi­
s ion s  f o r  th e  1 9 7 0 -7 1  s c h o o l  y ea r  d e te rm in e d  b y  any first

[ 3 0 ]  Bradley  v M illiken, 4 3 3  F .2 d  8 9 7  ( 1 9 7 0 ) .
1311

M ic h . C o m p .  L a w s  A n n o t a t e d ,  § 3 8 8 .1 7 1 ,  e t  s e q .

13 2 1 H adley  v. Junior C ollege D istrict o f  M etropolitan  Kansas City, 397 
U . S . 5 0 ,  2 5 L .  E d . 2 d  4 5  ( 1 9 7 0 )



21

class s c h o o l  d istr ict b o a rd  shall b e  d e la y e d  p en d in g  th e  date 
o f  c o m m e n c e m e n t  o f  fu n c t io n s  b y  th e  first class s c h o o l 
d i s t r i c t  b o a rd s  estab lish ed  u n d e r  th e  p ro v is io n s  o f  this 
a m e n d a to ry  a ct b u t  su ch  p ro v is io n  shall n o t  im p a ir  th e  right 
o f  an y  su ch  b o a rd  to  d e te rm in e  and im p le m e n t p r io r  t o  su ch  
date su ch  ch an ges in a tten d a n ce  p ro v is io n s  as are m an d ated  
b y  p ra ctica l n ece ss ity . . .

The C ou rt o f  A p p e a ls  h e ld  o n  O c t o b e r  13, 1 9 7 0  [33] th at S e c t io n  
12 o f  A c t  4 8  h ad  th e  e f fe c t  o f  d e la y in g  im p le m e n ta tio n  o f  th e  
D etroit B o a rd ’ s A p r il 7  Plan f o r  in creased  in tegra tion  in th e  10 th  
grades, and  w as th e re fo re  “ u n co n s t itu t io n a l and o f  n o  e f fe c t  as 
violative o f  the F o u rte e n th  A m e n d m e n t .”

T h e m o tiv a tin g  p u rp o se  b e h in d  S e c t io n  12 o f  A c t  4 8  d o e s  
not appear fr o m  th e  re c o r d , and o n e  can  o n ly  surm ise its p u rp o se  
from  the fa ce  o f  th e  statute. 3̂3 3 4  ̂ It is certa in ly  clear th at th ere  is 
nothing in th e  r e c o r d  in d ica tin g  a segregative p u rp o se  o r  d iscr im i­
natory m o t iv e  b e h in d  A c t  4 8 . 3̂ 5  ̂ In d e e d , th e  Jou rn a l o f  th e  
Senate o f  the S tate  o f  M ich igan  3̂6  37 * *̂ reveals that th e  S en ate  v o te  
on A ct  4 8  w as 21 yes , 0  n o . T h e  y es  v o te s  in c lu d e d  all 3 B lack  
Michigan senators, In  a d d it io n , th e  Jou rn a l o f  th e  H o u se  o f  
the State o f  M ich igan  reveals that th e  H ou se  v o te  o n  A c t  4 8  
was 87  yes , 2 n o . T h e  y e s  v o te  in c lu d e d  all 5 B lack  M ich igan  R e p -

[3 3 ] Bradley v . M illiken, 4 3 3  F .2 d  8 9 7  ( 6 th  C ir . 1 9 7 0 ) ,  at 9 0 4 .

3̂ 4  ̂ It w o u ld  a p p e a r  f r o m  t h e  fa c e  o f  th e  s ta tu te  th a t  at least th e  p r im a r y  
intent o f  A c t  4 8  w a s  t o  e n a b le  t h e  n e w ly  e l e c t e d  r e g io n a l  b o a r d s ,  u n d e r  d e ­
ce n tra liza tio n , t o  p a r t ic ip a te  in  t h e  d e c is io n  m a k in g  p r o c e s s  w it h  r e s p e c t  t o  
such m atters  as a t te n d a n c e  areas.
[351

S ee  K eyes, supra, w h e r e in  t h e  C o u r t  s ta te d : “ . . . W h e re  n o  s t a t u t o r y  
dual sy s te m  has e v e r  e x is t e d ,  p la in t i f fs  m u st  p r o v e  n o t  o n l y  th a t  s e g re g a te d  
sch oo lin g  e x is ts  b u t  a ls o  th a t  it  w a s  b r o u g h t  a b o u t  o r  m a in ta in e d  b y  inten- 
tional state a c t i o n . ”  (e m p h a s is  a d d e d ) ,  U .S . at , 3 7  L .E d .2 d  a t  5 5 7 .

1361 1 9 7 0  S .J .9 7 ,  p g . 1 6 8 4 .
[37]

O n e  o f  t h e  S e n a to r s  v o t in g  in  fa v o r  o f  A c t  4 8  w a s  S e n a to r  C o le m a n  
°u n g ; n o w  th e  fir s t  B la c k  m a y o r  o f  t h e  C ity  o f  D e t r o it .

1381 1 9 7 0  H .J . 1 0 4 ,  p g . 2 8 5 6 .



22

resen tatives w h o  w ere  p resen t and  v o t in g , w ith  th e  o n ly  n o  votes 
b e in g  cast b y  W h ite  R epresen ta tiv es . 3̂9 ̂

T h e  p o in t  o f  th is analysis, s im p ly  sta ted , is th at even  though 
it is argu able  th at th ere  w e re  s u ff ic ie n t  g ro u n d s  f o r  th e  C ou rt of 
A p p e a ls  t o  ru le S e c t io n  12 o f  A c t  4 8  u n co n s t itu t io n a l, p u re ly  as a 
resu lt o f  its e f fe c t  o n  th e  im m e d ia te  im p le m e n ta t io n  o f  th e  A pril 7 
P lan, th ere  is n o th in g  in  th e  r e c o r d  o r  o th e rw ise  indicating a 
d iscr im in a to ry  p u rp o s e  o r  in te n t o n  th e  part o f  th e  Michigan 
L egislature, f40 4 1 1 T h e  C o u rt  o f  A p p e a ls  m a d e  n o  fin d in g  as to  in­
ten t at th e  t im e  S e c t io n  12 w as ru led  u n co n s t itu t io n a l, and any 
such  fin d in g  w o u ld  have h ad  t o  b e  b a sed  s o le ly  u p o n  speculation.

T h e  o th e r  a sp ect o f  A c t  4 8  w h ic h  m u st b e  e x a m in e d  is the 
causal c o n n e c t io n  w h ich  it h ad  w ith  in tegra ted  a n d /o r  segregated 
e d u ca t io n  in  th e  C ity  o f  D e tro it . D u rin g  th e  1 9 7 0 -7 1  school

[3 9 J  o f t h e  8 B la c k  S e n a to r s  a n d  R e p r e s e n ta t iv e s  v o t in g  o n  t h e  A c t ,  all 8 
v o t e d  y e s . N o t w it h s t a n d in g  t h e  a rg u a b le  v a l id i ty  o f  t h e  C o u r t  o f  Appeals 
e a r lie r  d e c is io n  as t o  its  u n c o n s t i t u t io n a l i t y  s o le ly  b e c a u s e  o f  its  e f f e c t  o n  the 
A p r i l  7 p la n ,  P e t i t io n e r  is  c o n f id e n t  t h a t  e a c h  o f  t h o s e  B la c k  le g is la to rs  would 
b e  a f f r o n t e d  b y  t h e  s t a t e m e n t  c o n t a in e d  in  t h e  D e t r o i t  B o a r d ’ s R e sp o n se  to 
th e  P e t i t io n  f o r  W rit o f  C e r t io r a r i ,  at p .  4 8 ,  ch a r g in g  “ T h e  A c t ’ s statutory 
s t ig m a t iz a t io n  o f  b la c k  c h i ld r e n , b e c a u s e  o f  r a c e . . . .”

[ 4 0 ]  p e t i t io n e r  s e r io u s ly  q u e s t io n s  w h e t h e r  A c t  4 8  d id  in  fa c t  have the 
necessary  e f f e c t  a t t r ib u t e d  t o  it  b y  t h e  C o u r t  o f  A p p e a ls .  S e c t io n  12  specific­
a lly  p e r m it t e d  th e  D e t r o i t  B o a r d  t o  im p le m e n t  a t te n d a n c e  area  ch a n g e s  in the 
e v e n t  t h e y  w e r e  “ m a n d a t e d  b y  p r a c t ic a l  n e c e s s i t y ” . T h e  J u ly  2 8 ,  1 9 7 0  opin­
i o n  o f  t h e  D e t r o i t  B o a r d ’ s a t t o r n e y  ( la  3 0 ) ,  s o  h e a v ily  r e l ie d  u p o n  by  the 
C o u r t  o f  A p p e a ls ,  in t e r p r e t e d  th is  la n g u a g e  t o  m e a n  th a t  w h e r e  th ere  were 
“ c o m p e l l in g  e d u c a t io n a l  r e a s o n s ” , ch a n g e s  in  a t te n d a n c e  areas cou ld  be 
m a d e . It is r e s p e c t fu l ly  s u b m it t e d  th a t  th is  la n g u a g e  w a s  a m p ly  b r o a d  t o  have 
p e r m it t e d  th e  D e t r o i t  B o a r d  o f  E d u c a t io n  t o  a c t u a l ly  im p le m e n t  th e  April 7 
p la n  in  S e p t e m b e r ,  1 9 7 0 ,  in  t h e  e v e n t  t h e y  d e e m e d  th a t  t h e  r e a so n s  were all 
th a t  c o m p e l l in g ;  w it h  t h e  l ik e l ih o o d  o f  ju d ic ia l  in t e r fe r e n c e  w it h  so  proceed­
in g  b e in g  n i l .  T h e  u lt im a te  d e c is io n  n o t  t o  p r o c e e d  st ill  r e s te d  w ith  the
D e t r o it  B o a r d .

t44 5 It  is s u b m it t e d  th a t  i f  th e r e  h a d  t r u ly  b e e n  a d is c r im in a t o r y  motive or
in te n t  b e h in d  S e c t io n  1 2 , it  is m o r e  l ik e ly  th a t  th e  L e g is la tu re  w o u ld  have 
prohibited  c h a n g e s  in  a t te n d a n c e  areas f o r  p u r p o s e s  o f  in c r e a s in g  integration, 
ra th e r  th a n  o n l y  q u a l i f i e d ly  p o s t p o n in g  t h e  e f f e c t iv e  d a te  o f  a n y  su ch  changes 
f o r  4  m o n t h s  a n d  a lso  le a v in g  a la rg e  “ l o o p h o l e ”  w h ic h  p e r m it t e d  attendance 
area  ch a n g e s  “ m a n d a t e d  b y  p r a c t ic a l  n e c e s s i t y ”  t o  p r o c e e d .

t 4 2  *l A s s u m in g  arguendo  th a t  it w a s  A c t  4 8  th a t  h a d  th e  n e ce ssa ry  effect of 
d e la y in g  im p le m e n t a t io n  o f  th e  A p r i l  7  P la n . S ee  n o t e  4 0 , supra.



23

year, th ere  w e re  a lm o st 2 9 0 ,0 0 0  stu d en ts  in th e  D e tro it  S c h o o l  
System . T h e  A p r il 7 P lan, in its first year, w as in te n d e d  t o  a ffe c t  
on ly  10th  grade s tu d en ts  in  12 o f  th e  21 D e tro it  h igh  sch o o ls . T h e  
resulting d e la y  in im p le m e n ta t io n , th e re fo re , a ffe c te d  litt le  m o re  
than 3 ,0 0 0  stu d en ts , b o t h  B la ck  and  W h ite , rep resen tin g  o n ly  
slightly m o r e  than  1%  o f  the en tire  D e tro it  s c h o o l  p o p u la t io n .

In a d d it io n , th is d e la y  w as, b y  th e  term s o f  th e  sta tute , fo r  a 
four m o n th  p e r io d  fr o m  th e  o p e n in g  o f  s c h o o l  in S ep te m b e r , 
1970, u n til January  1, 1 9 7 1 J 43  ̂ T h e  C o u rt  o f  A p p e a ls , h ow e v e r , 
ruled on  O c t o b e r  13 th  that that S e c t io n  12 w as u n co n s t itu tio n a l 
and o f  n o  e f fe c t  — a little  o v e r  a m o n th  a fter  s c h o o l started. T h e  
failure t o  im p le m e n t th e  A p r il 7 P lan  at that ju n c tu re  resu lted  
from  th e  re fu sa l o f  th e  C o u rt  o f  A p p e a ls  and  th e  D istrict 
Court t o  o rd e r  it in to  e f fe c t ,  as w ell as th e  u n w illin gn ess o f  
the D etro it  B oa rd  o f  E d u ca t io n  t o  v o lu n ta r ily  d ire c t  its im p le m e n ­
tation.

T hus, th e  p o ss ib le  e x te n t  o f  an y  d e la y  in  th e  im p le m e n ta tio n  
o f  the A p r il 7 P lan w h ich  ca n  b e  a ttr ib u ta b le  t o  A c t  4 8  e x te n d s  
from  n o n e  at all t o  a m a x im u m  o f  o n e  m o n th  ( f r o m  th e  start o f  
school in S e p te m b e r , 1 9 7 0  u n til th e  C o u rt  o f  A p p e a ls  d e c is io n  o n  
O ctober 13, 1 9 7 0 ), w ith  th e  n u m b e r  o f  ch ild ren  a ffe c te d  b e in g  
less than 1 -1 /2 %  o f  th e  en tire  s tu d en t b o d y  o f  th e  D e tro it  S c h o o l  
District. T h e  u ltim a te  e f fe c t  o f  th e  d e la y  m a y  b e  to ta lly  unascer- 
tainable, b u t at th e  sam e tim e , c o m m o n  sense d icta tes  that w h a t­
ever the e f fe c t ,  it w as in s ig n ifica n t in term s o f  th e  d e m o g ra p h ic  
patterns that P la in tiffs  n o w  c o m p la in  o f .  T h e  n ex u s b e tw e e n  this 
delay, i f  an y , an d  th e  p resen t racia l c o m p o s it io n  o f  th e  s tu d en ts  in 
the sch oo ls  o f  th e  C ity  o f  D e tro it  is, in an y  even t, n o t  t o  b e  fo u n d  
in the re co rd , an d  P e tit io n e r  r e s p e c t fu lly  su bm its that an assertion  
o f  anyth ing m o r e  th an  a de minimus n e x u s  w o u ld  req u ire  greater 
cla irvoyance th an  w o u ld  b e  req u ired  to  spirit o u t  the u n d erly in g  
m otivations o f  th e  B la ck  and W h ite  M ich igan  leg isla tors w h o  v o te d  
for passage o f  A c t  4 8 .

[4311 C f . O p in io n  o f  t h e  a t t o r n e y  f o r  t h e  D e t r o i t  B o a r d  o f  E d u c a t io n  th a t  
im p le m e n ta t io n  w o u ld  b e  d e la y e d ,  as a p r a c t ic a l  m a tte r , u n t i l  S e p te m b e r , 
1971 (la  3 0 ) .

[4 4 ] Bradley v  M illiken, 4 3 3  F .2 d  8 9 7  ( 6th  C ir . 1 9 7 0 )  at 9 0 4 .

1451 Bradley v  M illiken, 4 3 8  F .2 d  9 4 5  ( 6 th  C ir . 1 9 7 1 ) .



24

3. T h e  th ird  fin d in g  a ff irm e d  b y  th e  C o u rt  o f  A p p e a ls  with 
resp ect t o  a c t io n s  o f  th e  D e fe n d a n ts  M illik en , et al, re la ted  to  the 
p o w e r  an d  re sp o n s ib ility  o f  th e  S tate  B oa rd  o f  E d u c a t io n  to  ap­
p ro v e  s c h o o l  b u ild in g  c o n s tr u c t io n  p lan s and  s c h o o l  site selection. 
A t  o n e  p o in t , th e  O p in io n  states that th e  S tate  B oa rd  h a d , p rior  to 
1 9 6 2 , “ s p e c if ic  s ta tu to ry  a u th o r ity  t o  su pervise  s c h o o l  site selec­
t io n ”  (1 5 1 a ) , an d  at a n o th e r  p o in t , “ d ire c t  s ta tu to ry  c o n t r o l  over 
site p lan n in g  fo r  n e w  s c h o o l  c o n s t r u c t io n ”  (1 5 7 a ) . H o w e v e r , the 
C ou rt o f  A p p e a ls ’ o p in io n  d o e s  n o t  d iscu ss e x a c t ly  h o w  these sup­
p o se d  p o w e rs  and  re sp o n s ib ilit ie s  are d eriv ed  fr o m  th e  statutes in­
v o lv e d , an d  th e re fo re , th is o m iss io n  req u ires  d e ta iled  rev iew .

T h e  M ich igan  sta tu te  w h ich  gov ern s  th e  e x te n t  o f  th e  control 
b y  the State B oard  o f  E d u ca t io n  o v e r  p u b lic  and private  school 
c o n s tru c t io n  and  s c h o o l sites f o r  th e  p e r io d  fr o m  1 9 4 9 -1 9 6 2  is 
A c t  3 0 6  o f  th e  M ich igan  P u b lic  A c t s  o f  1 9 3 7 , as a m e n d e d  ( “ Act 
3 0 6 ” ) , C4 6 l and  p a rticu la rly  S e c t io n  1 th e r e o f  (4 a a ) . In 1949, 
S e c tio n  1 o f  A c t  3 0 6  w as a m e n d e d  t o  p r o v id e  as fo l lo w s :

“ S ec. 1. N o  s c h o o l  b u ild in g , p u b lic  o r  p r iv a te , o r  addi­
tio n s  th e re to , shall h e re a fte r  b e  e re c te d , re m o d e le d  o r  recon­
stru cted  in  th e  state o f  M ich igan  e x c e p t  it b e  in  con form ity  
w ith  th e  fo l lo w in g  p ro v is io n s :

(a ) A ll p lan s and  sp e c if ic a t io n s  fo r  b u ild in g s  shall be 
p rep a red  b y , an d  th e  c o n s tr u c t io n  su perv ised  b y ,  an architect 
o r  en g in eer w h o  is reg istered  in  th e  state o f  M ich igan . Before 
th e  co n s tr u c t io n , r e c o n s tr u c t io n  o r  re m o d e lin g  o f  a n y  school 
b u ild in g  o r  a d d it io n  th e re to  is c o m m e n c e d , th e  w ritten  ap­
p ro v a l o f  th e  p lan s an d  s p e c if ica t io n s  b y  th e  superintendent 
o f  p u b lic  in s tru ctio n  o r  h is a u th o r ize d  agent shall be ob­
ta in ed . In the approval o f plans and specifications the super­
intendent o f public instruction or his authorized agent shall 
consider in addition to the considerations otherwise men­
tioned in this act the following factors:

( 1 )  The adequacy and location o f the site,
(2 )  The educational usefulness o f the building,

[ 4 6 ]  M ic h . C o m p .  L a w s  A n n o t a t e d ,  § 3 8 8 . 8 5 1 , e t  s e q . T h e  e n t ir e  A c t  306 is 
r e p r in t e d  in  fu l l  at th e  e n d  o f  th is  B r ie f  ( 4 a a ) ,  t o g e t h e r  w i t h  th e  1 9 4 9  and 
1 9 6 2  a m e n d m e n t s  t h e r e t o ,  b e in g  A c t  2 3 1 ,  M ic h . P u b . A c t  o f  1 9 4 9  ( 5 aa) and 
A c t  1 7 5 ,  M ich . P u b . A c t s  o f  1 9 6 2  ( 8 a a ) ,  r e s p e c t iv e ly .



25

( 3 )  The provisions for health and safety.
The superintendent o f public instruction shall publish 

an informative bulletin which shall set forth good school 
building planning procedures and interpret clearly the provi­
sions o f this act. ” (6 a a , em ph asis  a d d e d )

Subsections (b ) ,  ( c ) ,  ( d )  an d  (e )  o f  S e c t io n  1 g o  o n  to  set fo r th  
basic sp e c if ica t io n s  f o r  use o f  fire -resistin g  m ateria ls an d  fire  
proofing  o f  s c h o o l  b u ild in gs . T h e  rem ain in g  se c t io n s  p ro v id e  fo r  
inspections b y  th e  S tate  fire  m arshal, th e  re sp on s ib ilit ie s  o f  th e  ar­
chitect, etc.

In 1 9 6 2 , th e  ita lic iz e d  p o r t io n  o f  S e c t io n  1, q u o te d  a b o v e , 
was su bstitu ted  b y  th e  fo l lo w in g :

“ T h e su p er in ten d en t o f  p u b lic  in s tru ctio n  o r  h is a u th o r ize d  
agent shall n o t  issue su ch  a p p rov a l u n til h e  has secu red  in 
w riting th e  a p p rov a l o f  th e  state fire  m arshal relative t o  fa c ­
tors  c o n ce rn in g  fire  sa fe ty  and  o f  th e  h ea lth  d e p a rtm e n t hav­
ing ju r is d ic t io n  rela tive t o  fa c to rs  a ffe c t in g  w a ter  su p p ly , 
san itation  and  f o o d  handlin g .

T h e  su p e r in te n d e n t o f  p u b lic  in s tru ctio n  shall p u b lish  
an in fo rm a tiv e  b u lle tin  w h ich  shall set fo r th  g o o d  s c h o o l 
bu ild in g  p la n n in g  p ro ce d u re s  and in terp re t c learly  the p ro v i­
sions o f  th is act. T h e  b u lle t in  shall b e  p rep a red  in  c o o p e r a ­
tion  w ith  th e  state fire  m arshal and th e  state h ea lth  co m m is ­
sioner and, in so fa r  as re q u ire m e n ts  fo r  a p p rova l o f  p lan s are 
co n ce rn e d , shall b e  co n s is te n t  w ith  re co g n iz e d  g o o d  p ra ctice  
as e v id e n ce d  b y  standards a d o p te d  b y  n a tio n a lly  r e co g n iz e d  
au th orities in th e  fie ld s  o f  fire  p r o te c t io n  and h e a lth .”  
(8 -9aa )

It is p e r fe c t ly  o b v io u s  fr o m  a read in g  o f  th is statute as a 
whole, and p a rticu la rly  th e  1 9 6 2  a m e n d m e n t that b ro a d e n e d  and 
made m ore  gen eral th e  fa c to rs  to  b e  co n s id e re d  b y  th e  S tate  
Superintendent, th at th ese  p ro v is io n s , in c lu d in g  th e  re fe re n ce  to  
“ loca tion ” , w ere  in te n d e d  t o  re la te  so le ly  t o  th e  a p p rov a l o f  c o n ­
struction plans f o r  s c h o o l  b u ild in g s  in so fa r  as fire , h ea lth , sa fe ty  
and related m atters w ere  c o n c e r n e d . A s  far as a u th o r ity  ov er  
school sites fo r  th e  p e r io d  1 9 4 9 -1 9 6 2 , th ere is n o th in g  in th e  
statute granting th e  S tate  S u p er in ten d en t th e  p o w e r  o r  resp on si­
bility to  “ supervise s c h o o l  site s e le c t io n ” , o r  in  th e  “ site p lan n in g



2 6

fo r  n e w  s c h o o l  c o n s t r u c t io n ” , as ch a rged  in  th e  C o u rt  o f  Appeals 
d e c is io n . T h is  is p a rticu la r ly  o b v io u s  in  ligh t o f  th e  fa c t  that these 
p ro v is io n s  w ere  e q u a lly  a p p lica b le  t o  p u b lic  an d  private school 
c o n s tru c t io n . A p p ro v a l w as so u g h t a fter  th e  fa ct . A s  a practical 
m atter, s c h o o l  sites w ere , an d  still are, a cq u ire d  b y  th e  lo c a l  school 
s c h o o l  d istr ict in  p u rsu a n ce  o f  th e  s ta tu to ry  p o w e r s  gran ted  to 
them . 4̂7 ̂ P rop osed  b u ild in g  p lan s and  s p e c if ica t io n s  are then  pre­
pared  b y  an a rch ite ct  h ired  b y  th e  lo c a l s c h o o l  d is tr ic t , t o  be re­
v iew ed  b y  th e  S tate  S u p e r in te n d e n t f o r  th e ir  a d e q u a cy  as a func­
t io n in g  s c h o o l  b u ild in g . F o r  th e  p e r io d  1 9 4 9 -1 9 6 2 , one such 
fa c to r  w h ich  th e  S tate  S u p e r in te n d e n t w as sp e c if ica lly  requ ired  to 
take in to  co n s id e ra tio n  w as th e  “ a d e q u a cy  and  lo c a t io n  o f  the 
s ite .”  B ut, w as th at a d e q u a cy  and  lo c a t io n  t o  b e  v ie w e d  in  relation 
to  th e  th en  ex is t in g  racia l d e m o g ra p h ic  pattern s  su rrou n d in g  the 
site, o r  w as that a d e q u a cy  an d  lo c a t io n  to  b e  v ie w e d  in  relation  to 
sa fe ty  an d  h ea lth  a sp ects  o f  th e  school building, i f  it w ere  to  be 
lo c a te d  o n  th e  p r o p o s e d  s ite?  W h en  lo o k in g  at th e  amended 
statute as a w h o le , an d  th e  s p e c if ic  lan gu age in  q u e s t io n , the for­
m er in te rp re ta tio n  s im p ly  stre tch es  o n e ’s legal im a g in a tio n  to  the 
break in g  p o in t . ®48 ^

P la in tiffs  m a y  argue th at th e  state e d u ca t io n a l authorities 
sh ou ld  b e  d e e m e d  t o  h ave an o v e rr id in g  c o n s t itu t io n a l responsi­
b ility  to  see th at a n y  s c h o o l  c o n s tr u c t io n  m a x im ize s  integration 
w ith in  th e  State. T h a t, h o w e v e r , is a q u e s t io n  149] to ta lly  im­
m aterial to  th e  p recise  h o ld in g  o f  th e  D is tr ic t  C o u rt  and th e  Court 
o f  A p p e a ls : th at b y  statute th e  S tate  o f  M ich iga n  w as ob ligated  to 
supervise and  c o n t r o l  s c h o o l  site p la n n in g  and  s e le c t io n  in  light of 
m a x im iz in g  in teg ra tion . T h e  sta tu te  in q u e s tio n  d o e s  n ot so 
p ro v id e , and in  that re sp e ct , th e  lo w e r  co u r ts  w e re  c le a r ly  in error.

[ 4 7 ]  M ich . C o m p .  L a w s  A n n o t a t e d ,  § § 3 4 0 .7 1 1  e t  s e q . a n d  3 4 0 .2 6  , 340.77, 
3 4 0 .1 3 3 ,  3 4 0 .1 6 5 ,  3 4 0 .1 9 2  &  3 4 0 .3 5 2 .

^4 8  ̂ It is s u b m it t e d  th a t  th e  1 9 6 2  a m e n d m e n t  a c t u a l ly  m a k e s  clear the in­
t e n t  o f  th e  f o r m e r  p r o v is io n ,  in  th a t  it  d o e s  n o t  p r e v e n t  t h e  S ta te  Superin­
t e n d e n t  f r o m  ta k in g  a d e q u a c y  a n d  l o c a t io n  o f  s ite  i n t o  c o n s id e r a t io n  in the 
a p p r o v a l  o f  p la n s  a n d  s p e c i f i c a t io n s ,  b u t  o n l y  d e le t e d  t h e  item ization  o f  the 
fa c t o r s  a n d  n o w  a l lo w s  all fa c t o r s  r e la t in g  t o  h e a lth  a n d  s a fe ty  t o  b e  taken 
in t o  c o n s id e r a t io n .

[4 9  ] q Uest io n  0 f  th e  s t a t e ’ s a f f i r m a t iv e  d u t y  t o  f o s t e r  in te g ra t io n  is dis­
cu s s e d  infra, at p g . 5 1 .



27

4. T h e  fo u r th  co n s t itu t io n a l v io la tio n  fo u n d  to  have been  
com m itted  b y  th e  “ State o f  M ich iga n ”  relates to  the fa ilure o f  th e  
State to  a llo ca te  t o  th e  D e tro it  S c h o o l  D istrict, fu n d s  fo r  p u p il 
tra n sp orta to tion , even  th o u g h  . . su ch  fu n d s w ere  m a d e  general­
ly available f o r  stu d en ts w h o  lived  ov e r  a m ile  and a h a lf  fr o m  
their assigned s c h o o ls  in  rural M ich iga n ”  (1 5 1 a ) . I50 )

O f  th e  v io la t io n s  fo u n d  to  have b e e n  c o m m itte d , th is is cer­
tainly th e  m o s t  cu r io u s  o f  th em  all. P e tit io n e r  is particu larly  
curious a b o u t  th e  a lleged  den ia l o f  c o n s titu t io n a l rights, b ecau se  
during th e  so -ca lle d  “ cr it ica l y e a rs ” , G rosse  P o in te  S c h o o ls  was 
also d en ied  any a llo c a t io n  o f  fu n d s  fo r  p u p il tra n sp orta tion . I51 ! 
Since th e  s tu d en t b o d y  o f  G rosse  P o in te  S c h o o ls  is p re d o m in a n tly  
White, it appears as th o u g h  th is fo rm u la  fo r  tra n sp o rta tio n  aid a f­
fected  b o th  B la ck  an d  W h ite  stu den ts alike.

N e ith er  P e tit io n e r  n o r  th e  D e tro it  S c h o o l  D istrict w ere  pro­
hibited fr o m  tra n sp o rtin g  stu d en ts  -- th e  q u e stio n  is s im p ly  o n e  o f  
reim bursem ent t o  th e  lo c a l s c h o o l  d istricts  o f  fu n d s e x p e n d e d  b y  
them  in th e  ev en t th e  lo c a l b o a r d  o f  e d u ca t io n  d eterm in es  that 
tran sportation  o f  certa in  o f  its stu den ts w o u ld  b e  a p p rop ria te .

T h e  S tate  L egislature , in  d e c id in g  w h e th e r  o r  n o t  to  g ive lo ca l 
sch ool d istricts  fin a n cia l assistance in  th e  tra n sp orta tion  o f  stu­
dents, has m a d e  a c la ss ifica tio n  that is based  u p o n  th e  rural vs.

A lt h o u g h  t h e  C o u r t  o f  A p p e a ls  d id  n o t  in c lu d e  it  as o n e  o f  th e  c o n s t i ­
tu t io n a l v io la t io n s ,  t h e  D is t r ic t  C o u r t  a ls o  f o u n d  th a t  “  . . . o t h e r  f in a n c ia l  
lim ita t io n s , s u c h  as t h o s e  o n  b o n d in g  a n d  th e  w o r k in g  o f  th e  S ta te  a id  f o r m ­
ula w h e r e b y  s u b u r b a n  d is tr ic ts  w e r e  a b le  t o  m a k e  fa r  la rger  p e r  p u p i l  e x p e n d i ­
tures d e s p ite  less  t a x  e f f o r t ,  h a v e  c re a te d  a n d  p e r p e t u a t e d  s y s t e m a t ic  e d u c a ­
t ion a l in e q u a lit ie s .”  T h is  s ta te m e n t  is n o t  o n l y  fa c t u a l ly  in c o r r e c t ,  th e  
c o n s t itu t io n a l q u e s t io n s  ra ise d  b y  s u ch  s ta te m e n t  h a v e  s in ce  b e e n  d is p o s e d  o f
by San A n ton io  In d ep en d en t S ch oo l D istrict v  R odriguez,______ U .S _______ , 3 6
L .E d .2 d  1 6  ( 1 9 7 3 ) .  S e e  a ls o , G overnor  v  State Treasurer, 3 8 9  M ic h  1 ( 1 9 7 2 ) ,  
vacated and cause dismissed,______ M ic h _______( D e c .  7 ,  1 9 7 3 ) .

U n d e r  t h e  p r o v is io n s  o f  M ich . C o m p .  L a w s  A n n o t a t e d ,  s 3 8 8 .6 2 1 ,  
P e tit io n e r , as w i t h  t h e  D e t r o i t  S c h o o l  D is t r ic t , has b e e n  r e im b u r s e d  b y  th e  
State f o r  c o s t s  r e la te d  t o  t h e  t r a n s p o r t a t io n  o f  m e n t a l ly  a n d  p h y s ic a l ly  h a n d i­
cap ped  c h i ld r e n . T h is  is t o  b e  d is t in g u is h e d  f r o m  S ta te  r e im b u r s e m e n t  f o r  
general t r a n s p o r ta t io n  p u r p o s e s .  S e e  A f f id a v i t  o f  G r o s s e  P o in t e  S c h o o ls ,  ( la  
2 5 4 ).



28

u rban  s c h o o l  d is tr ict . t5 2 l T h is  d is t in c t io n  is fa r  fr o m  b e in g  in­
h eren tly  su sp ect in  an d  o f  itse lf, an d  its re la tion sh ip  t o  classifica­
t io n  o n  a c c o u n t  o f  race o r  d is cr im in a to ry  m o t iv e  o r  in ten t is 
s im p ly  n o n -e x is te n t , [53]

A ls o  p u z z lin g  is th e  causal re la tio n sh ip  b e tw e e n  th is so-called 
d iscr im in a tory  sta tu te  and  segrega tion  in  D e tro it . O n  th e  one 
h a n d , th e  D e tro it  B oa rd  o f  E d u ca t io n  w as it s e lf  fo u n d  g u ilty  o f  
c o m m itt in g  segregative acts b y  b u s in g  B la ck  ch ild re n  past White 
s ch o o ls  t o  B lack  s c h o o ls , and  y e t  th e  S ta te ’ s fa ilu re  t o  reim burse 
D e tro it  fo r  h avin g  d o n e  so  is su p p o se d  t o  have h ad  a segregative 
resu lt. T h e  il lo g ic  o f  th e  argu m en t is p a ten t.

5. T h e  f i fth  and  fin a l co n s t itu t io n a l v io la t io n  fo u n d  to  have 
b een  c o m m itte d  b y  th e  D e fe n d a n ts  M illik en , et al, w as th e  “ tacit 
o r  ex p ress”  a p p rov a l b y  th e  S ta te  B o a rd  o f  E d u c a t io n  o f  the De­
tro it  S c h o o l  D is tr ic t ’ s tra n sp o rta tio n  o f  B lack  ch ild re n  fro m  the 
C a r v e r  S c h o o l  D istr ict t o  th e  N o rth e rn  H igh  S c h o o l  in De­
tro it . t5 4 l

T h e  T e s t im o n y  [55] o f  D e tr o it  S c h o o l  D is tr ic t ’ s fo rm e r  Su­
p er in ten d en t, Dr. N o rm a n  D ra ch ler , c o n ce rn in g  th e  C arver School

[ 5 2 ]  S u c h  a  d is t in c t io n  w a s  s p e c i f i c a l l y  u p h e ld  in  Sparrow  v  Gill, 304 
F .S u p p . 86  ( 3  J u d g e  C o u r t ,  M d . 1 9 6 9 ) .  I t  is a ls o  s u b m it t e d  th a t  San Antonio 
v  Rodriguez, supra, is  p la in ly  d is p o s it iv e  o f  th is  is s u e  in  as m u c h  as it boils 
d o w n  t o  a q u e s t io n  o f  s c h o o l  d is tr ic t  f in a n c in g  - s ta te  a id  r e im b u r s e m e n t  of 
fu n d s  e x p e n s e d  f o r  t r a n s p o r ta t io n .

[ 5 3 ]  j j j g  r e la t io n s h ip  b e t w e e n  th e  M ich ig a n  s ta te  a id  f o r  tra n sp orta tion  
s ta tu te  a n d  ra c ia l  d is c r im in a t io n  w a s  r e v ie w e d  in  Higgins v  Bd. o f  Edue. o f  the 
City o f  Grand Rapids, C iv . N o .  6 3 8 6  (W .D . M ic h . ,  J u ly  1 8 , 1 9 7 3 ) ,  where the 
D is tr ic t  J u d g e  h e ld  th a t  t h e  s ta tu te  “ . . . is in  n o  p a r t  r e la te d  t o  racia l dif­
f e r e n c e . ”  S lip  o p i n i o n ,  at 3 .

[ 5 4 ] T h e  C o u r t  o f  A p p e a ls  o p in io n  s ta te s  th a t  t h e  s t u d e n t s  c a m e  f r o m  “ the 
C a rv er  S c h o o l ,  lo c a t e d  in  F e r n d a le  s c h o o l  d is t r ic t ” . ( 1 5 2 a )  T h e  r e c o r d  (see 
n o t e  5 6  b e l o w ) ,  as w e l l  as t h e  C o u r t  o f  A p p e a ls  o p in io n  it s e l f  ( 1 3 7 - 1 38a) 
c o r r e c t ly  in d ic a t e s , h o w e v e r ,  th a t  C a rv e r  w a s  i t s e l f  a s e p a ra te  s c h o o l  district, 
l o c a t e d  in  R o y a l  O a k  T o w n s h ip ,  M ich ig a n .

[5 5  ] D r . D r a c h le r ’ s t e s t im o n y  o n  th is  s u b je c t  is  in  t h e  f o r m  o f  a deposition.



29

District is v irtu a lly  th e  o n ly  te s t im o n y  f5 6  ̂ in th e  r e c o r d  c o n c e r n ­
ing the C arver S c h o o l  D istrict. A  p o r t io n  o f  D r. D ra ch le r ’ s testi­
m ony is re p r in te d  in th e  C o u rt o f  A p p e a ls  o p in io n  (1 3 7 -1 3 8 a ) . 
This te s t im o n y  can  b e  b r ie f ly  su m m arized  as saying that in  “  ‘ 5 7 , 
‘ 58 ”  th e  p re d o m in a n tly  B la ck  C arver S c h o o l  D istr ict , w h ich  d id  
not have a h igh  s c h o o l , arranged to  have its h igh  s c h o o l  stu den ts 
attend s c h o o l  in  D e tro it , and  th at th e y  w ere  tra n sp orted  past the 
p redom in an tly  W h ite  M u m fo rd  H igh  S c h o o l  t o  th e  p re d o m in a n tly  
Black N orth ern  H igh  S c h o o l . T h e  C o u rt  o f  A p p e a ls  o m itte d  th e  
rem aining p o r t io n  o f  D r. D ra ch ler ’ s te s t im o n y  co n ce rn in g  C arver 
and becau se  o f  its p a rticu la r re levan ce , th e  rem ain in g  te s t im o n y  is 
fully rep rin ted :

“ A t  N o rth e rn  H igh  S c h o o l  where we had space s o m e  b la ck  
students w ere  b ro u g h t  in  u n d e r  a lease fr o m  the C arver S c h o o l 
District. T h a t w as b e fo r e  C arver b e ca m e  a part o f  O ak  Park.

Q. O r  R o y a l O a k  T o w n sh ip ?

^ 6 1  T h e re  w a s  s o m e  t e s t im o n y  b y  D r . R o b e r t  G r e e n , w h ic h  a p p e a rs  a t  8 
Tr. 8 8 5 , 9 3 9 ,  9 4 0 ,  a n d  9 9 3 - 9 9 7 .  T h e  o n l y  p o r t i o n  o f  th is  t ra n s c r ip t  in c lu d e d  
in th e  A p p e n d ix  a p p e a r s  at (H a l  0 9 - 1 1 1 ) .  T h e  o n l y  s ta te m e n t  t h e r e o f  w h ic h  
p rov id es a n y  s u b s ta n t iv e  in f o r m a t io n  o n  t h e  e d u c a t io n  o f  C a rv er  H ig h  S c h o o l  
ch ild ren  re a d s  as f o l l o w s :

“ A . T h e  b u s s in g  w a s  d u r in g  t h e  p e r i o d  ’ 4 9  t o  ’ 5 2 , 1 k n o w  f o r  su re  b e ­
cau se  I w a s  in  h ig h  s c h o o l  at t h e  t im e .”

F in a lly , t h e  on ly  r e m a in in g  r e fe r e n c e  t o  C a rv e r  is a s ta te m e n t  b y  o n e  o f  P la in ­
t i f f ’ s c o u n s e l ,  w h ic h  a p p e a rs  at ( I la  1 3 1 )  as f o l l o w s :

“ M R . C A L D W E L L : Y o u r  H o n o r ,  w it h  r e fe r e n c e  t o  s o m e th in g  
that c a m e  u p  t h e  o t h e r  d a y  I w o u ld  l ik e  t o  re a d  o n e  s e n te n c e  f r o m  
P la in t i f f ’ s E x h ib it  7 8 - A  w h ic h  is  t h e  S e p t e m b e r  1 9 5 9  b o u n d a r y  g u id e  
b o o k .  I a m  r e a d in g  f r o m  th e  c e n t e r  d is t r ic t  b o o k ,  th e  N o r th w e s te r n  
fe e d e r  p a t te r n  w h ic h  is d e s c r ib e d  o n  p a g e s  2 5  a n d  2 6 .  I w i l l  tu r n  b a c k  
t o  th e  N o r th e r n  p a t te r n  f e e d e r  m a p s  o n  p a g e  2 3  a n d  2 4 .  T h e r e  is a 
[ 1 2 5 9 ]  f o o t n o t e  f o r  N o r th e r n  S e n io r  H ig h  S c h o o l  th a t  N o r th e r n  w il l  
c o n t in u e  t o  s erv e  th e  9 B , t h e  1 2 A  p u p ils  f r o m  th e  C a rv e r  S c h o o l  D is ­
t r ic t , F e rn d a le . T h a t  is in  t h e  1 9 5 9 -6 0  b o u n d a r y  g u id e  b o o k . ”

In so fa r  as P e t it io n e r  h a s b e e n  a b le  t o  d e te r m in e , t h e  r e fe r e n c e s  c i t e d  a n d  
q u o te d  h e re in , t o g e t h e r  w i t h  t h e  p o r t i o n  o f  D r . D r a c h le r ’ s t e s t im o n y  q u o t e d  
in the C o u r t  o f  A p p e a ls  d e c i s i o n ,  c o n s t i t u t e s  t h e  en tire  r e c o r d  o n  th e  s u b je c t  
o f  the C arver S c h o o l  D is t r ic t .



30

A . O r R o y a l O ak  T o w n s h ip , I57 J th a t ’ s righ t. Because 
th ey  w e n t b y  M u m fo rd  d o w n  W y o m in g  and th ere w ere  some 
w h o  th o u g h t  that w e  w ere  bu ssin g  D e tr o it  b la ck  students 
fr o m  th e  M u m fo r d  area all th e  w a y  t o  N o rth e rn . T o  my 
k n o w le d g e  th at w as n o t  true. T h e  c o n tr a c t  f o r  C arver, i f  I am 
n o t  m ista k en , h ad  b e e n  started  w h e n  it  w as n o t  necessarily 
w ith  B ro w n e ll ’ s in v o lv e m e n t  b u t  w h en  h e  b e c a m e  aw are o f  it 
he asked  th at it b e  d is co n t in u e d .

The rationale for not doing it at Mumford which was 
the nearest school was simply that Mumford was much more 
crowded, from what I understand, than was Northern and 
that is the reason they were being bussed there. But neverthe­
less, that was discontinued and that problem was resolved.” 
( V A  186  em ph asis  a d d e d )

T h e re fo re , th e  o th e r  h a lf  o f  th e  te s t im o n y  o n  th e  C arver School 
D istrict, n o t  q u o te d  b y  th e  C o u rt  o f  A p p e a ls , reveals th e  reason 
w h y  ch ild ren  fr o m  C arver, w h o  w ere  a c ce p te d  in  D e tro it  on a 
tu it io n  basis, w ere  tra n sp o rte d  t o  N o rth e rn  H igh  S c h o o l  instead of 
t o  M u m fo rd  H igh  S c h o o l .  T h ere  w as n o  r o o m  fo r  th e  students in 
M u m fo rd . T h is  is th e  only re fe re n ce  in  th e  r e co rd  to  an y  reason 
fo r  th e  assignm ent o f  th e  C arver stu d en ts  to  N o rth e rn , and the 
o n ly  in fe re n ce  th at can  b e  d ra w n  fr o m  it , is th at th ere  w as neither 
d iscr im in a to ry  m o t iv e  n o r  in te n t u n d e r ly in g  th e  d e c is io n . T o  Peti­
t io n e r ’ s k n o w le d g e , D r. D ra ch le r ’ s te s t im o n y , p lu s  that contained 
in  f o o t n o t e  5 6 , c o n stitu te s  th e  entire r e c o r d  o n  th e  su b je c t  o f  the 
C arver S c h o o l  D istr ict. In  su m , it reveals o n ly  that D etro it  ac­
ce p te d  th e  ch ild ren  fr o m  C arver, an d  it w as th e  d e c is io n  o f  the 
D e tro it  B oa rd  o f  E d u ca t io n  as to  w h ich  s c h o o l  th e y  w ere  assigned. 
A n y  rep resen ta tion  b y  P la in tiffs  as to  D e fe n d a n ts  M illiken , et al

l ^ 7 1 A l t h o u g h  n o t  p a r t  o f  t h e  r e c o r d ,  P e t i t io n e r  b e l ie v e s  th a t  s o m e  clarifica­
t i o n  o f  th e  g e o g r a p h ic a l  l o c a t io n  o f  t h e  C a rv e r  S c h o o l  D is t r ic t  m a y  be of 
s o m e  a ss is ta n ce , a n d  th is  s t a t e m e n t  is  m a d e  u p o n  in f o r m a t io n  a n d  b e l ie f .  The 
C a rv er  S c h o o l  D is tr ic t  w a s  l o c a t e d  in  R o y a l  O a k  T o w n s h ip ,  w h ic h  Tow nship 
w as s u r r o u n d e d  b y  th e  C ity  o f  B e r k le y  o n  th e  N o r t h ,  t h e  C i t y  o f  F ern d a le  on 
th e  E a st , th e  C ity  o f  D e t r o it  o n  t h e  S o u t h ,  a n d  th e  c i ty  o f  O a k  Park on the 
W est. T h e  N o r t h e r ly  p o r t i o n  o f  R o y a l  O a k  T o w n s h ip  w a s  in  th e  Berkley 
S c h o o l  D is t r ic t  a n d  th e  E a s te r ly  p o r t i o n  o f  th e  T o w n s h ip  w a s  in  th e  Ferndale 
S c h o o l  D is t r ic t .  T h e  r e m a in in g , o r  W e s te r ly , p o r t i o n  o f  t h e  T o w n s h ip  form ed 
th e  se p a ra te  C a rver  S c h o o l  D is t r ic t .



31

k n ow led g e  o f  th is fa ct , o r  t o  any d iscr im in a tory  m o t iv e  o r  in ten t 
on a n y b o d y ’s p art, is p u re ly  sp ecu la tive .

T h e  r e c o r d  d o e s  in d ica te , h o w e v e r , that the C arver S c h o o l 
D istrict w as su b se q u e n tly  a tta ch ed  to , and b e ca m e  a part o f  the 
Oak Park S c h o o l  D istr ict in 1 9 6 0  (1 3 8 a ) . A t  th e  tim e o f  a ttach ­
m ent, O a k  Park h ad  a v irtu a lly  all-W hite stu d en t p o p u la t io n , and it 
is n o w  a p p ro x im a te ly  10%  B lack . (I  a 2 7 6 ) . T h u s, th e  o n ly  a ct io n  
w hich  t o o k  p la ce  w ith  re sp e ct t o  Carver, b y  S tate  level e d u ca tion a l 
authorities, w as in  fa c t  t o  re m e d y  an y  w ron gs that m igh t have 
occu rred  at th e  lo c a l lev e l; and that re m e d y  t o o k  p la ce  o v e r  13 
years ago.

In su m m a ry , a n y  causal re la tion sh ip  b e tw e e n  a ctio n s  o f  the 
D etroit B oa rd  in  assigning C arver stu den ts t o  N orth ern , and  pre­
sent d e m o g ra p h ic  p a ttern s in th e  tr i-c o u n ty  m e tro p o lita n  area, is, 
as a m atter o f  c o m m o n  sense, de minimus, and  any causal c o n n e c ­
tion that m ay  b e  sp ecu la ted  u p o n  b y  P la in tiffs  is in fa ct n o n ­
existent in so fa r  as th e  r e co rd  is c o n ce rn e d . In  a d d itio n , th e  state­
m ent b y  th e  C o u rt  o f  A p p e a ls  that th e  assignm ent o f  C arver stu ­
dents to  D e tro it  w as w ith  th e  ta c it o r  express a p prova l o f  th e  S tate 
Board o f  E d u ca t io n  is u tte r ly  u n su p p o rte d  b y  the re co rd . It 
sim ply d o e s  n o t  e x is t ; e ith er in  th e  fo r m  o f  te s t im o n y  o r  even  as a 
part o f  th e  D istrict C o u r t ’ s fin d in gs . A  fin d in g  that th e  State 
Board o f  E d u ca t io n  h ad  an y  k n o w le d g e  w h a tsoever  as to  w h ich  
sch ool in th e  C ity  o f  D e tro it  th e  C arver stu den ts w ere assigned t o ,  
or the racia l m a k eu p  o f  that s c h o o l , is based  o n  pure sp ecu la tion .

- D -
Summary as to the Alleged Violations

D ue to  P e tit io n e r ’ s a b so lu te  b e lie f , based  o n  a th o ro u g h  re­
view o f  th e  r e c o r d  in  th is cause, that th e  C o u rt o f  A p p e a l ’ s c o n c lu ­
sions regard in g  th e  a c t io n s  o f  th e  S tate  D e fen d a n ts  are so  c o m -



32

p le te ly  w ith o u t  fo u n d a t io n  as t o  b e  s h o ck in g , f5 8 l P e tit io n e r  has 
fo u n d  it n ecessa ry  t o  d iscu ss th e  sam e in  co n s id e ra b le  deta il. It is 
h o p e d , h o w e v e r , th a t th is C o u r t  w ill r e c o g n iz e  th at P e tit io n e r  has 
a tte m p te d  t o  d o  th is  w ith o u t  e x a g g e ra tio n , su p p o s it io n , specu la ­
t io n  o r  a ssu m p tion .

T h e  f in d in g  th at a c t io n s  o f  th e  D e tr o it  S c h o o l  D istr ict  are 
“ a c t io n s  o f  an A g e n c y  o f  th e  S tate  o f  M ich ig a n ,”  w ith o u t  m ore, 
ca n n o t b e  q u a rre led  w ith ; b u t  it is in  n o  w a y  leg a lly  o r  factually  
su p p ortiv e  o f  a n y  o th e r  fin d in g s , o r  th e  c o n c lu s io n s  d raw n  there­
fro m .

T h e  fin d in g s  w ith  re sp e ct  t o  d iscr im in a tio n  in  tran sportation  
fu n d s  an d  State B o a rd  c o n t r o l  o v e r  s c h o o l  c o n s tr u c t io n  are grossly 
illo g ica l and u n fo u n d e d  legal in te rp re ta tio n s  o f  state  statutes; 
w h ich  in te rp re ta tio n s  are s im p ly  n o t  s u p p o rta b le  u p o n  an exam in­
a tio n  o f  th e  sta tutes th em selves.

T h e  f in d in g  w ith  re sp e ct  t o  th e  C arver S c h o o l  D istr ict, at 
least in so fa r  as it c o n c e r n s  a c t io n  o r  in a c t io n  b y  th e  D efendants 
B rad ley , et al, is b a sed  o n  a r e c o r d  that is v irtu a lly  n o n -e x is te n t.

F in a lly , th e  fin d in g  w ith  re sp e ct  t o  P u b lic  A c t  4 8 , th e  u n con ­
s titu tio n a lity  o f  w h ich  is th e  only f in d in g  w h ic h  in  a n y  w a y  is at 
least arguably  a c o r r e c t  legal c o n c lu s io n , is a lso  su b je c t  t o  th e  same 
in firm ity  that th e  fo u r  o th e r  fin d in g s  are s u b je c t  t o ,  even  assuming 
arguendo th e y  have any in itia l m e r it  w h a tso e v e r , v iz : discrim ina­
t o r y  in ten t o r  p u rp o se , an d  p resen t causal c o n n e c t io n  w ith  the 
racia lly  segregated  c o n d it io n  fo u n d  t o  ex is t . It  is r e sp e ctfu lly  sub­
m itte d  th at a m o s t  th o r o u g h  e x a m in a tio n  o f  th e  r e c o r d  w ill dis­
c lo se  n o th in g  t o  su p p o rt  e ith er  in te n t o r  n ex u s , un less p u re  specu-

[ 5 8 ]  j ^ e  m a g n itu d e  o f  t h e  ca se  is  s o  g r e a t , n o t  o n l y  in  t e r m s  o f  th e  legal 
issu es  in v o lv e d ,  b u t  in  t e r m s  o f  th e  n u m b e r  o f  s tu d e n ts  a n d  s c o p e  o f  a rem e­
d ia l  o r d e r ,  th a t  a n  a d e q u a t e  r e c o r d  w i t h  r e s p e c t  t o  t h o s e  fa c t s  th a t  w ou ld  
a f f e c t  t h e  p r o p r ie t y  o f  a m e t r o p o l i t a n  p la n , s h o u ld  b e  e s s e n t ia l . B a se d  on the 
r e c o r d  th a t  it h a d  b e f o r e  i t ,  it  is  in c o n c e iv a b le  th a t  t h e  C o u r t  o f  A ppeals 
c o u l d  m a k e  t h e  s ta te m e n ts  th a t  th e  “ S ta te  o f  M ic h ig a n ”  w a s  g u ilt y  o f  dis­
c r im in a to r y  p r a c t ic e s  th a t  a re  “ . . . s ig n if ic a n t , p e rv a s iv e  a n d  c a u s a lly  related 
t o  t h e  su b s ta n t ia l  a m o u n t  o f  s e g r e g a t io n  f o u n d  in  t h e  D e t r o i t  s c h o o l  system  
b y  t h e  D is tr ic t  J u d g e .”  ( 1 5 7 a ) ,  a n d  th a t  “ . . . t h e  S ta te  h a s  b e e n  g u ilty  o f 
d is c r im in a t io n  w h ic h  h a d  t h e  e f f e c t  o f  c r e a t in g  a n d  m a in ta in in g  ra c ia l  segrega­
t io n  a lo n g  s c h o o l  d is tr ic t  l in e s .”  ( 1 7 2 a )  A l t h o u g h  th e s e  a re  o b v io u s  exaggera­
t io n s ,  P e t i t io n e r ’s s u g g e s t io n  o f  e x t r e m e  su rp r ise  is n o t .



33

lation is d e e m e d  to  co n s t itu te  a s u ffic ie n t  basis fo r  m ak in g  fin d ­
ings w h ich  m ig h t b e  d e term in a tive  o f  th e  issues o f  the m a gn itu d e  
and im p o rta n ce  as th o se  u n d e r  co n s id e ra tio n . t5 9 i

In his R u lin g  o n  M e tro p o lita n  Plan (4 8 a ) , the D istrict Judge 
made the fo l lo w in g  s ta tem en t:

“ A s  C h ie f  J u stice  B urger said in  Swann, ‘ in  seek in g  t o  d e fin e  
the s c o p e  o f  rem ed ia l p o w e r  o f  co u rts  in  an area as sensitive 
as w e  deal w ith  h e re , w o rd s  are p o o r  in stru m en ts t o  c o n v e y  
the sense o f  b a s ic  fa irness in h eren t in  e q u ity . ’ S u bstan ce , n o t  
sem an tics , m u st g o v e r n .”  (5 0 a )

P etitioner agrees th at su b sta n ce  is th e  gov ern in g  co n s id e ra tio n , and 
indeed, su bstan ce , n o t  sem an tics , m u st d e te rm in e  th e  s c o p e  o f  the 
desegregation  p lan  f o r  D e tro it . T h is  brin gs us fu ll c irc le , h ow e v e r , 
to the p o in t  m a d e  b y  P e tit io n e r  in  th e  in tr o d u c t io n  to  this se ctio n  
-  that this m u st b e  v ie w e d  as a v io la t io n  case rath er than  a re m e d y  
case; fo r  v iew in g  it as a re m e d y  case co n ce n tra te s  o n  th e  rh etorica l 
aspects o f  w h e th e r  a m e tr o p o lita n  p lan  c o u ld  c o n c e iv a b ly  b e  ap­
propriate u n d e r  an y  c ir cu m s ta n ce , ra th er than  co n ce n tra tin g  o n  
the su bstan ce o f  th e  v io la t io n  in  this case to  d e term in e  i f  th e  p r o ­
posed re m e d y  is a p p ro p r ia te . A n d  th e  su bstan ce  o f  th e  v io la tio n s  
reflected  in th is r e c o r d  estab lish es n o th in g  ju s t ify in g  a rem ed ia l 
plan o f  m e tro p o lita n  s co p e .

A n o th e r  asp ect o f  th is case w h ich  ap p a ren tly  requ ires a c o n ­
scious e f fo r t  in o rd e r  t o  sort th e  su b sta n ce  o u t  o f  th e  C o u rt  o f  
Appeals O p in io n , in v o lv es  its a p p a ren t d e c la ra tio n  o f  n ew  co n s t i­
tutional rights. F r o m  an analysis o f  th e  p r o p o s e d  rem ed ia l O rder, 
and the “ p r o b le m ”  th at it w as a ttem p tin g  t o  c o r re c t , o n e  c o n ­
cludes that e ith er  th ere  has b e e n  a rh e to r ica l a ttem p t to  c o v e r  an 
intentional d e v ia tio n  fr o m  th e  co m m a n d s  o f  Swann and Keyes, o r  
else there u n derlies  th e  lo w e r  c o u r t ’ s o rd e r  th e  su bstan tive , a lbeit 
tacit, fin d in g  that th ere  is in d e e d  a n e w ly  d ecla red  v io la t io n  — 
“ racial id e n t ifia b ility ” . P e tit io n e r  assum es that th e  la tter m u st b e

A s d is cu s s e d  b e l o w ,  it  is , in  a n y  e v e n t , P e t i t io n e r ’ s p o s i t io n  th a t  sh o rt  
o f  th e  c o m m is s io n  o f  s e g r e g a t iv e  a c ts  b y  s c h o o l  o f f i c ia l s  o f  o u t ly in g  s c h o o l  
d istricts, ca u s in g  se g r e g a te d  c o n d i t i o n s  in  D e t r o i t  v is-a -v is  its  o u t ly in g  a rea , 
and sh ort o f  t h e  e s ta b lis h m e n t  o f  s c h o o l  d is tr ic t  b o u n d a r y  lin e s  b y  th e  S ta te  
in o rd e r  t o  c re a te  o r  m a in ta in  se g re g a te d  s c h o o l s ,  a m u lt i-d is t r ic t  d e s e g re g a ­
tion  r e m e d y  is le g a lly  im p e r m is s ib le .



34

th e  co r r e c t  in te rp re ta tio n  o f  th e  lo w e r  c o u r ts ’ a c t io n s , and the 
q u e stio n  o f  racia l id e n tifia b ility  as a v io la t io n  o f  F ourteenth  
A m e n d m e n t  rights w ill b e  n e x t  d iscu ssed  in , Part III b e lo w .

Ill
THE REMEDY

- A -
The Scope of the Plan

W hat is th e  s c o p e  o f  th e  r e m e d y  m a n d a ted  b y  th e  lower 
c o u r t ’ s h o ld in g s?  It is gen era lly  d e scr ib e d  b y  th e  C o u rt o f  Appeals 
in th e  fo l lo w in g  passage fr o m  th e  C o u r t ’ s o p in io n :

“  . . . an y  D e tro it  o n ly  d eseg reg a tion  p lan  w ill lead  directly 
to  a single segregated  D e tr o it  s c h o o l  d istr ict overw h elm in gly  
b la ck  in all o f  its s c h o o ls , su rro u n d e d  b y  a ring o f  suburbs 
and su bu rban  s c h o o l  d istr icts  o v e rw h e lm in g ly  w h ite  in com ­
p o s it io n  in a S tate  in w h ich  th e  racia l c o m p o s it io n  is 87 per 
cen t w h ite  an d  13 p er  ce n t  b la ck . f6° ]

* * *

A t th e  o u tse t  it is o b v io u s  fr o m  w h at w e  have said per­
ta in in g  t o  th e  in a d e q u a cy  o f  an y  D e tro it  o n ly  desegregation 
p lan  that th is c o u r t  fee ls  th at so m e  p lan  o f  d esegregation  be­
y o n d  th e  b o u n d a r ie s  o f  th e  D e tro it  S c h o o l  D istr ict  is both 
w ith in  th e  e q u ity  p o w e rs  o f  th e  D istr ict  C o u rt  and  essential 
t o  a s o lu t io n  o f  th is p r o b le m .”  (1 7 2 - 1 7 3 a ).

In a sm u ch  as th e  C o u rt  o f  A p p e a ls  a ff irm e d  th e  findings of 
th e  D istrict C o u rt as t o  th e  reason s fo r  th e  in s u ff ic ie n c y  o f  a De­
tro it -o n ly  p lan  (th a t th e  en tire  D e tro it  S c h o o l  D is tr ic t  w ou ld  re­
m ain  id e n tifia b ly  B lack  an d  w o u ld  b e  p e rce iv e d  as B la ck ) (54-55a) 
it is q u ite  ap p aren t, in ligh t o f  th e  a b o v e  q u o te d  lan gu age, that the 60

[ 6 0 ]  A s  p o in t e d  o u t  in  b o t h  th e  d is s e n t in g  o p in io n s  o f  J u d g e  W e ic k  (195a) 
a n d  J u d g e  K e n t  ( 2 2 4 a ) ,  th e  o r ig in a l  D e c e m b e r  8 , 1 9 7 2  o p in io n  o f  th e  three 
J u d g e  P a n e l, w h ic h  o p in io n  w a s  a d o p t e d  w it h  o n ly  m in o r  ch a n g e s  b y  the 
S ix th  C ir cu it  m a jo r i t y ,  in banc, c o n t a in e d  an  a d d i t io n a l  s e n te n c e  at this 
p o in t ,  w h ic h  s ta te d :

“ B ig  c i ty  s c h o o l  s y s te m s  f o r  b la c k s  s u r r o u n d e d  b y  s u b u rb a n  school 
s y s te m s  f o r  w h ite s  c a n n o t  r e p r e s e n t  e q u a l  p r o t e c t i o n  u n d e r  t h e  la w .”



35

“ p r o b le m ”  re fe rre d  to  is th e  racia l p e r ce p t io n  o r  id e n tifia b ility  o f  
the D e tro it  S c h o o l  D istr ict w ith  resp ect t o  th e  racia l c o m p o s it io n  
o f  the en tire  m e tro p o lita n  area su rrou n d in g  D e tro it . T h e  o n ly  v ia ­
ble “ so lu t io n  o f  this p r o b le m ”  (in  the o p in io n  o f  the lo w e r  
cou rts), is to  have s c h o o ls  w h ich  re fle c t  th e  racial m a k e-u p  o f  the 
p op u la tion  co n ta in e d  in that a p p rop ria te  geog ra p h ica l area cu t o u t 
o f  that p o r t io n  o f  th e  S tate  o f  M ich igan  su rrou n d in g  D e tro it , 
lim ited o n ly  b y  co n s id e ra tio n s  o f  tim e  and d ista n ce  in the trans­
porta tion  o f  stu den ts.

A lth o u g h  the D istr ict C o u r t ’ s R u lin g  on  D esegregation  A rea  
(97a ) w as v a ca ted  in part b y  th e  C o u rt o f  A p p e a ls , it rem ains 
fully illustrative o f  th e  m a g n itu d e  o f  th e  p lan  w h ich  th e  D istrict 
Court co n s id e re d  n ecessary  in  o rd e r  to  so lve  th e  “ p r o b le m ” . In 
that R u lin g , th e  D istr ict C ou rt sta ted :

“ W ith in  th e  lim ita tio n s  o f  rea son a b le  travel tim e  and 
d istan ce  fa c to rs , p u p il reassign m en ts shall b e  e f fe c te d  w ith in  
the clu sters d e scr ib e d  in  [P la in tiffs  p ro p o s e d  52  s c h o o l  d is­
trict d eseg reg a tion  p lan s] so  as to  ach ieve  the greatest degree 
o f  a ctu a l d esegrega tion  to the end that, upon implementation, 
no school, grade or classroom by (sic) substantially dispro­
portionate to the overall pupil racial composition. ” (em ph asis 
a d d ed , 1 0 1 -1 0 2 a ).

Thus, the D istrict C o u rt  h e ld  th at the 52  d istricts  in c lu d e d  in the 
D esegregation  A re a  w o u ld  p ro v id e  e n o u g h  W hite stu den ts, w h en  
com bin ed  w ith  th e  stu d en ts  resid ing  in th e  C ity  o f  D e tro it , t o  cre ­
ate a m in im u m  racia l m ix  w ith in  ea ch  class in ea ch  s c h o o l rou g h ly  
p rop ortion a te  t o  th e  racia l m ak e  u p  o f  th e  p o p u la t io n  o f  th e  tri­
county area, and  th e re fo re  n o t  racia lly  id en tifia b le . T h e  to ta l n u m ­
ber o f  stu den ts in v o lv e d  in th e  D istrict C o u r t ’ s 52  d istrict desegre­
g a t io n  a r e a ,  based  o n  th e  1 9 7 1 -7 2  p o p u la t io n  figures, was

 ̂ A l th o u g h  s u b s ta n t ia lly  v a c a t e d , th e  C o u r t  o f  A p p e a ls  c o n t in u e d  in  
ex isten ce  th e  D e s e g r e g a t io n  P a n e l e s ta b lis h e d  in  s u c h  O r d e r . ( 1 7 8 a ) .  In  a d d i­
t io n , it is q u ite  a p p a r e n t  th a t  th is  a c t io n  w as ta k e n  o n l y  t o  c o r r e c t  w h a t  th e  
m a jor ity  o f  th e  C o u r ts  o f  A p p e a ls  p e r c e iv e d  t o  b e  a t e c h n ic a l  d e fe c t  in  th e  
p ro ce e d in g s  b e lo w  w it h  r e s p e c t  t o  t h o s e  18 s c h o o l  d is tr ic ts  in c lu d e d  in  th e  
D istrict C o u r t ’ s D e s e g r e g a t io n  O r d e r  w h ic h  h a d  n o t  s o u g h t  in t e r v e n t io n .



36

7 7 9 , 0 0 0 ;  2 7 6 , 0 0 0  in  D e tro it  an d  5 0 3 ,0 0 0  in  th e  o u tly in g  
d istricts. l 62l

— B —

The Predicates for Relief: Intent and Nexus
T h e  s c o p e  o f  th e  D istr ict  C o u r t ’ s r e m e d y , th e re fo re , is the 

reassign m en t, tra n sfer  and tra n sp o rta tio n  o f  h u n d red s  o f  th ou ­
sands o f  s tu d en ts  a cross  s c h o o l  d is tr ict  b o u n d a r ie s , s o  th at in  the 
D e tro it  M e tro p o lita n  A re a , every class in  every s c h o o l  w ill have a 
racial b a la n ce  o f  a p p ro x im a te ly  2 5 %  B la ck  and  7 5 %  W h ite  stu­
dents. B ut, i f  th is is th e  s c o p e  o f  th e  r e m e d y , h o w  d o e s  it relate to 
the co n s titu t io n a l v io la t io n s  that have b e e n  fo u n d  t o  have o c ­
cu rred ?  T h e  s im p le  an sw er is th at it  d o e s  n o t , an d  is th e re fo re  in 
v io la t io n  o f  th e  m an d ates  o f  Swann, w h ich  states in part:

“ H ow e v e r , a s c h o o l  d ese g re g a tio n  case d o e s  n o t  d i f fe r  funda­
m e n ta lly  fr o m  o th e r  cases in v o lv in g  th e  fram in g  o f  equitable 
rem ed ies  t o  repa ir  th e  d en ia l o f  a c o n s t itu t io n a l right. The 
task is to  c o r r e c t , b y  a b a la n c in g  o f  th e  in d iv id u a l an d  co llec ­
tive  in terests, th e  c o n d it io n  th at o f fe n d s  th e  C o n s t itu tio n .

In seek in g  t o  d e fin e  even  in b r o a d  and gen eral terms 
h o w  far th is rem ed ia l p o w e r  e x te n d s  it is im p o rta n t to  re­
m e m b e r  that ju d ic ia l p o w e r s  m a y  b e  e x e rc ise d  o n ly  o n  the 
basis o f  a co n s t itu t io n a l v io la t io n . R e m e d ia l ju d ic ia l autho­
r ity  d o e s  n o t  p u t  ju d g e s  a u to m a t ica lly  in  th e  sh oes  o f  school 
a u th orities  w h o se  p o w e rs  are p len a ry . J u d ic ia l a u th o r ity  en­
ters o n ly  w h en  lo c a l  a u th o r ity  de fau lts .

S c h o o l  a u th o r itie s  are tra d it io n a lly  ch a rged  w ith  broad 
p o w e r  t o  fo rm u la te  an d  im p le m e n t  e d u ca t io n a l p o l ic y  and

[ 6 2 ]  p la in t i f fs  w il l  b e  h e a rd  t o  s a y  th a t  b e c a u s e  t h e  J u n e  1 4 , 1 9 7 3  o rd e rs  o f  
th e  D is tr ic t  C o u r t  h a v e  b e e n  v a c a t e d ,  n o  “ D e s e g r e g a t io n  A r e a ”  is  presently  
d e f in e d  a n d  t h e  area  a n d  n u m b e r  o f  s t u d e n t s  in v o lv e d  is t h e r e fo r e  u n k n o w n . 
P e t it io n e r  s u b m it s ,  h o w e v e r ,  th a t  b e c a u s e  th e  e f f e c t  o f  t h e  d e c is io n s  b e lo w  is 
t o  r e q u ir e  th e  c r o s s -d is tr ic t  t ra n s fe r  t o  p u p ils  t o  th e  e n d  t h a t  a fte r  s u ch  trans­
fe r  n o  s c h o o l  in  D e t r o i t  w il l  b e  p r e d o m in a n t ly  b la c k ,  o r  p e r c e iv e d  as black 
w h e n  v ie w e d  a g a in st  o t h e r  s c h o o l s  in  t h e  m e t r o p o l i t a n  a re a , any  p la n  w h ich  is 
d e v is e d  b y  th e  D is t r ic t  C o u r t  t o  im p le m e n t  t h is  t ra n s fe r  w i l l ,  o f  necessity , 
r e q u ir e  th e  r e a s s ig n m e n t  o f  h u n d r e d s  o f  th o u s a n d s  o f  s tu d e n ts .



37

m ight w ell c o n c lu d e , fo r  e x a m p le , that in o rd e r  t o  prepare 
stu den ts t o  live  in  a p lu ra listic  s o c ie ty  ea ch  s c h o o l sh ou ld  
have a p re scr ib e d  ra tio  o f  N e g ro  t o  w h ite  stu den ts re fle ct in g  
th e  p r o p o r t io n  fo r  th e  d istrict as a w h o le . T o  d o  th is as an 
e d u ca tio n a l p o l i c y  is w ith in  th e  b ro a d  d iscre t io n a ry  p o w e rs  
o f  s c h o o l  a u th o r itie s ; absen t a fin d in g  o f  a c o n s titu t io n a l v io ­
la t io n , h o w e v e r , that w o u ld  n o t  b e  w ith in  the a u th o r ity  o f  a 
fed era l c o u r t . A s  w ith  an y  e q u ity  case, th e  nature o f  the 
v io la t io n  d e term in es  th e  s co p e  o f  the r e m e d y .”  l63]

In b r ie f , th ere  m u st b e  a causal c o n n e c t io n  b e tw e e n  an in ten ­
tional v io la t io n  and  th e  c o n d it io n  that th e  re m e d y  is in ten d ed  to  
m od ify . T h is  e lem en ta ry  p re ce p t  w as last stated  and  re a ffirm e d  b y  
this C ourt in  Keyes, supra. A lth o u g h  th e  C o u r t ’ s d e c is io n  in Keyes 
turned o n  th e  q u e s tio n  o f  w h ich  p a rty  has th e  b u rd en  o f  p rov in g  a 
causal c o n n e c t io n  w ith  re sp e ct t o  a segregated  c o n d it io n  fo u n d  to  
exist in o n e  part o f  a single s c h o o l  d is tr ic t , w h ere  th e  d istr ict was 
u n q u estion a b ly  g u ilty  o f  having  in te n tio n a lly  cau sed  a segregated 
con d ition  in a n o th e r  part o f  th e  sam e d istr ict, th e  Swann lim ita ­
tions on  th e  s c o p e  o f  th e  rem ed ia l o rd e r  w ere  clearly  sta ted . N o  de 
jure segregated  c o n d it io n  w ill b e  fo u n d  t o  ex is t , and n o  rem ed ia l 
order m ay  issue t o  c o r r e c t  th e  c o n d it io n , i f  “ . . . a lesser d egree  o f  
segregated s c h o o lin g  in th e  . . . area w o u ld  n o t  have resu lted  even 
if the B oard  had  n o t  a cted  as it d id .”  164] F u rth er, i f  fo r  any rea­
son a prim a fa c ie  case m a y  b e  fo u n d  to  ex is t  w ith  resp ect t o  a 
single s c h o o l  d is tr ict , it can  b e  re b u tte d  “ . . . b y  sh ow in g  that its 
past segregative acts d id  n o t  crea te  o r  co n tr ib u te  to  th e  cu rren t 
segregated c o n d it io n  o f  th e  . . . s c h o o ls .”  t6 5 J

E ven assum ing arguendo th at th e  D e tro it  B oard  o f  E d u ca tio n  
and the S tate D e fe n d a n ts  had c o m m itte d  every  act the lo w e r  
courts charged  th em  w ith , and  even  i f  th e  acts had  th e  resu lting 
e ffects stated  o r  im p lie d  b y  th e  lo w e r  co u rts  w ith  resp ect t o  the 
schools in D e tro it , it still rem ains u n q u e st io n a b le  that had such  
alleged acts n ever o c c u r r e d , th e  d e m o g ra p h ic  p a ttern s in the

Swann, supra, a t 1 5 -1 6 .

K eyes, supra, 3 7  L .E d .2 d  at 5 6 4 .  

^6 5 ] Id  at 5 6 5 .



38

M e tro p o lita n  area and th e  racia l c o m p o s it io n  o f  th e  ou tly ing  
s ch o o ls  w o u ld  b e  u n ch a n g e d . P e tit io n e r  again re fers  t o  th e  argu­
m en t m a d e  b y  co u n s e l fo r  th e  D e tro it  S c h o o l  D istr ict  in its brief 
t o  th e  C o u rt o f  A p p e a ls :

“ T h ere  is n o t  an io ta  o f  e v id e n ce  w h ich  sh o w s  o r  w h ich  even 
a ttem p ts  t o  s h o w  th at a n y  p e rso n  liv ing in  th e  C ity  o f  D etroit 
m a d e  h o u s in g  d e c is io n s  a n y  d if fe r e n t ly  b e ca u se  o f  th e  ‘ acts 
o r  fa ilu re to  a c t ’ o f  th e  D e tro it  B o a r d .”  [661

It o n ly  stands t o  rea son  that i f  a c t io n s  o f  th e  D e tro it  B oard  o f 
E d u ca tio n  h ad  n o  e f f e c t  o n  th e  d e m o g ra p h ic  p a ttern s  within De­
tro it , an y  e f fe c t  o u ts id e  o f  D e tro it  w o u ld  b e  even  less lik e ly . When 
this fa c t  is c o m b in e d  w ith  th e  c o n c lu s io n s  th at are c o m p e lle d  by  a 
rev iew  o f  th e  lim ite d  r e c o r d  w ith  re sp e ct  t o  a lleged  acts o f  D efen­
dants M illik en , et al, a n y  c la im  th at th e  D istr ict  C o u r t ’ s proposed 
re m e d y  w as co m m e n su ra te  w ith  th e  v io la tio n s , and  in te n d e d  only 
to  c o rre c t  a c o n d it io n  caused b y  s c h o o l  a u th orities , is truly 
fa la ciou s . t6” ! T h e  fa ct  is that school officials have n o t  caused  the 
c o n ce n tra t io n  o f  B lack s in c it ies , and  have n o t  cau sed  th em  to  be 
su rrou n d ed  b y  W h ites liv ing in  o u t ly in g  m e tr o p o lita n  areas. Com­
m o n  sense an d  s o c io lo g ic a l a u th o r ity  t6 8 ! c o n fir m s  th is proposi­
t io n , and  th ere is a b so lu te ly  n o th in g  in  th e  r e c o r d  o f  th is cause to 
in d ica te  a n yth in g  to  th e  co n tra ry . A s  stated  b y  th e  F o u r th  Circuit 
in re ferring  to  th e  la ck  o f  p recise  k n o w le d g e  as to  reason s fo r  con­
cen tra tion s  o f  B lack s, I6 9 !

“ W h atever th e  basic  cau ses, it has n o t  b e e n  s c h o o l assign­
m en ts , an d  s c h o o l  assign m en ts ca n n o t reverse th e  tre n d .”

[6 6 5  S e e  p a g e  1 6 , supra.
16 7  ] Qne 0f piaintiffs’ w itn e s s e s  in  t h e  D is t r ic t  C o u r t  w as D r . K a r l Taeuber, 
It is in te r e s t in g  t o  n o t e  D r . T a e u b e r ’ s c o n c lu s i o n  th a t  th e  u n iv e rsa l character­
is t ic  o f  A m e r ic a n  c it ie s  is r e s id e n t ia l  s e g r e g a t io n . T a e u b e r ,  Residential Segre­
gation, S c ie n t i f i c  A m e r ic a n , A u g u s t ,  1 9 6 5 .  D r . T a e u b e r  h a s  a ls o  fo u n d  that 
r e s id e n tia l s e g r e g a t io n  e x is ts  “ . . . r e g a rd le s s  o f  th e  c h a r a c te r  o f  lo c a l laws 
a n d  p o l ic ie s  a n d  re g a rd le ss  o f  o t h e r  f o r m s  o f  d is c r im in a t io n .” 'T a e u b e r , 
N egroes in Cities.
[68] Id

[ 6 9 1 Bradley  v S ch ool Board o f  the City o f  R ichm ond, 4 6 2  F .2 d  1058 , at
1 0 6 6  (4 th  C ir ., 1 9 7 2 ) ,  a f f d  b y  an e q u a l ly  d iv id e d  C o u r t ,______ U .S _____ 36
I .I d .2 d  77 1  ( 1 9 7 3 ) .



39

IV
THE PROPOSED DECLARATION OF 

NEW CONSTITUTIONAL RIGHTS
-A-

The Racial Identifiability Theory
F ro m  th e  p re ce d in g  d iscu ss ion , it is c lear that P la in tiffs ’ re­

quest f o r  r e lie f  ca n n o t b e  p re d ica te d  u p o n  th e  C o n st itu tio n a l v io ­
lations fo u n d  b y  th e  lo w e r  C o u rts  to  have b e e n  co m m itte d  — irre­
spective o f  th e  a c cu ra cy  o f  su ch  fin d in gs. T h e  o n ly  lo g ica l c o n c lu ­
sion o n e  can  rea ch , th e re fo re , is that th e  P la in tiffs  m u st b e  ta c itly  
requesting th is C o u rt  t o  d e cla re  a n ew  co n s titu t io n a l right l7° l  — 
freed om  fr o m  a tten d in g  a “ racia lly  id e n t ifia b le ”  t7 1 1 — s c h o o l  as 
well as th e  co r re s p o n d in g  a ffirm a tiv e  co n s titu t io n a l o b lig a tio n  o f  
the State t7 2 l t o  reassign all stu d en ts  w ith in  th e  S tate in o rd e r  to  
elim inate an y  s c h o o ls  that m a y  b e  p e rce iv e d  b y  th e  co m m u n ity  as 
being B lack . I7 3 ] T h ere  is, h o w e v e r , n o th in g  in the m ere  racial * 404

7̂I31 T o  d a t e , P la in t i f fs  h a v e  n o t  o p e n ly  s o u g h t  s u ch  a d e c la r a t io n , h o w e v e r  
the im p l ic a t io n  f o r  s u ch  a d e c la r a t io n  is n o t  in c o n s is te n t  w it h  th e ir  e m p h a s is  
on  th e  “ R e m e d y ”  n a tu re  o f  th e s e  p r o c e e d in g s .

T h e  c o n c e p t  “ ra c ia l i d e n t i f ia b i l i t y ”  o r  “ p e r c e p t io n  as b la c k ”  is v a r i­
ously  r e fe r re d  t o  in  S pencer  v . K ugler  3 2 6  F .S u p p . 1 2 3 5  (D .N .J . 1 9 7 1 ) A f f ’d,
40 4  U .S . 1 0 2 7 ,  3 0  L .E d .2 d  7 2 3  ( 1 9 7 2 ) ,  as “ ra c ia l im b a la n c e ” , in  Bradley  v. 
Richmond, supra, as “ v ia b le  ra c ia l  m i x ” , a n d  in  Brunson  v . Board o f  Tr. o f  
School D istrict N o. 1 o f  Clarendon Co., S.C. 4 2 9  F . 2 d  8 2 0  (4 t h  C ir. 1 9 7 0 )  as 
the “ P e tt ig re w  t h e o r y ”  ( c o n c u r r in g  o p in io n  o f  J u d g e  S o b e l o f f ) .

7̂ 2 1 T h e se  n e w  r ig h ts  a n d  o b l ig a t io n s  w o u ld  m e a n , o f  c o u r s e , th a t  a B la ck  
child  w o u ld  never  b e  p e r m it t e d  t o  a t te n d  a p u b l i c  s c h o o l  th a t  is p r e ­
d o m in a te ly  B la c k , ir r e s p e c t iv e  o f  p e r s o n a l  p r e fe r e n c e s .

In h is  d is s e n t in g  o p in io n ,  J u d g e  K e n t  a ssessed  th e  p r o p o s e d  ch a n g e  in 
c o n s t itu tio n a l s ta n d a r d , im p l ic i t  in  th e  m a jo r i t y  o p in io n ,  as f o l l o w s :

“ T h r o u g h  th e  m a jo r i t y ’ s o p in io n  ru n s  t h e  th re a d  w h ic h  h o ld s  it t o ­
gether. T hat th re a d  is th e  u n w ill in g n e s s  a p p a re n t  in th e  m in d s  o f  th e  m a jo r ity  
to  sa n ctio n  a b la c k  s c h o o l  d is tr ic t  w ith in  a c i t y  w h ic h  it c o n c lu d e s  w il l  b e  
su rrou n d ed  b y  w h ite  s u b u r b s . W h ile  th e  m a jo r it y  d o e s  n o t  n o w  s ta te  that 
such a d e m o g r a p h ic  p a t te r n  is in h e r e n t ly  u n c o n s t i t u t io n a l ,  n e v e r th e le s s , I am  
persuaded that t h o s e  w h o  s u b s c r ib e  t o  th e  m a jo r i t y  o p in io n  are  c o n v in c e d ,  as 
stated in  th e  s lip  o p in io n  o f  th e  o r ig in a l p a n e l ,  ‘ b ig  c ity  s c h o o l  s y s te m s  f o r  
blacks s u r r o u n d e d  b y  s u b u r b a n  s c h o o l  s y s te m s  f o r  w h ite s  c a n n o t  re p re se n t  
equal p r o t e c t io n  o f  th e  la w . ’ W h ile  th at s ta te m e n t  has b e e n  r e m o v e d  f r o m  th e  
op in ion  o f  th e  m a jo r i t y ,  y e t  th e  p re m ise  u p o n  w h ic h  th e  s ta te m e n t  w as o b v i ­
ously ba sed  m u st n e c e s s a r ily  f o r m  th e  fo u n d a t io n  f o r  th e  c o n c lu s io n s  r e a ch e d  
m the m a jo r ity  o p in io n .  It may be that such will b ecom e the law, but such a 
conclusion should not receive our approval on a record  such as exists in this 
case.'' (2 2 4 a ;  e m p h a s is  a d d e d )



40

c o m p o s it io n  o f  th e  s c h o o ls  w h ic h , w ith o u t  m o r e , w ill su p p ort a 
fin d in g  o f  a den ia l o f  eq u a l p r o te c t io n  o f  th e  law s, guaranteed 
u n d e r  th e  F o u r te e n th  A m e n d m e n t . t7 4 l A n d  th is C o u rt  so  h eld  in 
Swann:

“ O u r o b je c t iv e  in  dea lin g  w ith  th e  issues p resen ted  b y  these 
cases is to  see th at s c h o o l  a u th o r itie s  e x c lu d e  n o  p u p il o f  a 
racia l m in o r ity  fr o m  a n y  s c h o o l ,  d ir e c t ly  o r  in d ire c t ly , o n  ac­
c o u n t  o f  ra ce ; it d o e s  n o t  and  ca n n o t e m b ra ce  all the p ro b ­
lem s o f  racia l p re ju d ice , even  w h e n  th o se  p r o b le m s  co n tr i­
b u t e  t o  d is p r o p o r t io n a t e  racia l co n ce n tra t io n s  in  som e 
s c h o o ls .”

* *  *

“ I f  w e  w ere  t o  read  th e  h o ld in g  o f  th e  D istr ict C o u rt  t o  re­
q u ire , as a m a tter  o f  su bstan tive  c o n s t itu t io n a l r igh t, an y  par­
ticu la r  degree  o f  racia l b a la n ce  o r  m ix in g , that ap p roach  
w o u ld  b e  d isa p p ro v e d  an d  w e  w o u ld  b e  o b lig e d  t o  reverse. 
T h e  c o n s t itu t io n a l c o m m a n d  t o  d esegregate  s c h o o ls  d o e s  not 
m ean  that e v ery  s c h o o l  in e v ery  c o m m u n ity  m u st a lw ays re­
f l e c t  th e  racia l c o m p o s it io n  o f  th e  s c h o o l  system  as a 
w h o le .”  I7 6 1

T h e co n c lu s io n s  re a ch e d  fr o m  an an alysis o f  th e  r e c o r d  and the 
h o ld in g s  b e lo w , bear rep ea tin g . P la in tiffs  are co m p la in in g  a b o u t a 
p re p o n d e ra n ce  o f  B lack s  in th e  D e tro it  P u b lic  S c h o o ls , but there is 
absolutely nothing to indicate that actions o f State or local school 
officials caused that condition. C o n s e q u e n tly , P la in tiffs  m u st be 
ask ing th e  C o u rt t o  “ . . . req u ire , as a m a tte r  o f  su bstan tive  con sti­
tu tio n a l righ t, [a ] p a rticu la r d egree  o f  racia l b a la n ce  o r  m ix-

[ 7 4 ]  T h e  f o l l o w i n g  o b s e r v a t io n  o f  M r. C h ie f  J u s t ic e  B u rg e r  in  Wright v 
Council o f  City o f  Em poria, 4 0 7  U .S . 4 5 1 ,  a t 4 7 7 ,  3 3  L .E d .2 d  5 1  at 70 
(d is s e n t in g  o p i n i o n )  is p a r t ic u la r ly  a p p r o p o s :

“ A  lo c a l  s c h o o l  b o a r d  p la n  th a t  w il l  e l im in a t e  d u a l s c h o o l s ,  s t o p  dis­
c r im in a t io n ,  a n d  im p r o v e  th e  q u a l i ty  o f  e d u c a t io n  o u g h t  n o t  b e  cast aside 
b e c a u s e  a ju d g e  ca n  e v o lv e  s o m e  o t h e r  p la n  th a t  a c c o m p l is h e s  t h e  sa m e  result, 
o r  w h a t  h e  c o n s id e r s  a p r e fe r a b le  r e s u lt , w it h  a t w o  p e r c e n t ,  f o u r  p e r c e n t , or 
s ix  p e r c e n t  d i f f e r e n c e  in  r a c ia l  c o m p o s i t i o n .  S u c h  an  a p p r o a c h  g iv es  c o n t r o l ­
l in g  w e ig h t  t o  s o c i o l o g i c a l  t h e o r ie s ,  n o t  c o n s t i t u t io n a l  d o c t r in e . ”
17 5 1 Swann v  C harlotte-M ecklenberg Bd. o f  E duc., 4 0 2  U .S . 1 ( 1 9 7 1 )  at 23. 

l 7 6 l Id. at 2 4 .



41

ing. . . w h ich  has b e e n  c o n d e m n e d  in  Swann. P e tit ion er  agrees 
w ith th is C o u r t ’ s p r o p o s e d  d isp o s it io n  o f  su ch  a requ est -  it m u st 
be d isa p p ro v e d  and  th e  lo w e r  co u rts  reversed . t7 7 l

T h is  q u e s tio n  w as also co n s id e re d  in  con s id era b le  deta il in 
Spencer v. Kugler, supra. In that case, P la in tiffs  co m p la in e d  that 
the s ch o o ls  in N e w  Jersey  w ere  “ racia lly  im b a la n ce d ”  becau se  o f  
the e x is te n ce  o f  . . s c h o o l  d istrict b ou n d a r ies  th e re b y  ren derin g  
racial b a la n ce  m a th e m a tica lly  im p o ss ib le  in m a n y  districts. . .”  I7 8 ) 
The th ree -ju d ge  D istrict C o u rt  fram ed  th e  issue as fo l lo w s : I7 9 l

“ P la in tiffs ’ su bstan tive cla im  rests w h o l ly  o n  the assertion  
that th ere is an a ffirm a tiv e  co n stitu t io n a l d u ty  t o  ach ieve 
racia l b a la n ce  a m on g  th e  several d istricts o f  a state system  o f  
p u b lic  s ch o o ls . . . . ”

In d isp os in g  o f  th is issue, and  p la in t iffs ’ cla im  o f  den ia l o f  equal 
p ro te c t io n  o f  th e  law s, th e  C o u rt in Spencer s ta ted : t8° ]

“ In  n o n e  o f  th e  sch o o ls  o f  w h ich  th e  p la in tiffs  c o m p la in  is 
an y  b la ck  p u p il ‘ segregated ’ fr o m  any w h ite  pu p il. Indeed,

l 7 7  ̂ O t h e r  p a n e ls  o f  t h e  S ix th  C ir cu it  h a v e  r e c o g n iz e d  th e  p r in c ip le  w h ic h  
was ig n o r e d  b y  th e  m a jo r i t y  s it t in g  in  b a n c .  In  Deal v . Cincinnati Bd. o f  
Educ., 3 6 9  F .2 d  5 5  ( 6t h  C ir ., 1 9 6 6 ) ,  c e r t ,  d e n ie d  3 8 9  U .S . 8 4 7  ( 1 9 6 7 ) ,  th e  
C ou rt  h e ld  th a t  th e  C in c in n a t i  B o a r d  o f  E d u c a t io n  h a d  n o  c o n s t i tu t io n a l  d u ty  
t o  c o r r e c t  a ra c ia l  im b a la n c e  in  its s c h o o ls ,  w h e r e  s u ch  im b a la n c e  w a s  n o t  
c re a te d  b y  it .  T h e  m a jo r i t y  in  t h e  O p in io n  b e lo w  a t te m p ts  t o  d is t in g u ish  D e a l  
b y  s a y in g , q u it e  s im p ly ,  “ T h e r e  th e  D is tr ic t  C o u r t  m a d e  fin d in g s  o f  fa c t  th a t  
th ere  h a d  b e e n  n o  u n c o n s t i t u t io n a l  c o n d u c t  o n  th e  p a rt o f  th e  C in c in n a t i  
B oard  o f  E d u c a t io n .”  ( 1 8 9 a ) .  T h is  p o in t  h ig h lig h ts  th e  P e t i t io n e r ’ s s ta te m e n t  
at f o o t n o t e  [ 1 6 ] ,  th a t  th e  C o u r t  h a s “ le a p e d  f r o m  f in d in g  l im ite d  v io la t io n s  
to  fa s h io n in g  v ir t u a lly  u n l im it e d  r e l ie f . ”  U n le ss  th is  C o u r t  s a n c t io n s  a ru le  
that w ill  a l lo w  a f in d in g  o f  any  c o n s t i t u t io n a l  v io la t io n  t o  tr ig g e r  th e  im p o s i ­
t io n  o f  a r e m e d y  th a t  g o e s  b e y o n d  a n y  c o n c e iv a b le  s c o p e  o r  e f f e c t  o f  th e  
v io la t io n  i t s e l f ,  t h e  o p in io n  b e lo w  is in  ir r e c o n c ia b le  c o n f l i c t  w it h  D eal a n d  
th e  d e c is io n s  o f  th is  C o u r t  d is cu s s e d  a b o v e . S e e  a ls o , Davis v . S chool Dist. o f  
the City o f  Pontiac, 4 4 3  F .2 d  5 7 3  ( 6t h  C ir . 1 9 7 1 ) ,  w h e re in  th e  6th  C ircu it  
s ta ted , at p g . 5 7 5 ;  “ . . . a s c h o o l  d is tr ic t  h a s n o  a f f ir m a t iv e  o b l ig a t io n  t o  
a ch ieve  a b a la n c e  o f  t h e  r a c e s  in  th e  s c h o o ls  w h e n  th e  e x is t in g  im b a la n c e  is 
n ot a t t r ib u ta b le  t o  s c h o o l  p o l i c ie s  o r  p r a c t ic e s  a n d  is th e  re su lt  o f  h o u s in g  
pattern s a n d  o t h e r  f o r c e s  o v e r  w h ic h  th e  s c h o o l  a d m in is t ra t io n  h a d  n o  c o n ­
t ro l .”

f 7 8 ! Spencer  v  Kugler, supra, at 1 2 3 7 .

[7 9 ]  Id., at 1 2 3 8 .

[80J Id., at 1 2 3 9 .



42

complaint is made that the blacks who reside in the school 
district served predominate over the whites, th u s a ffo rd in g  an 
e x a m p le  o f  c o m p le te  d e se g re g a tio n  w h ich  w as th e  expressed 
o b je c t  o f  th e  c o u r t  in th e  Brown case.

* ❖  *

If, as p la in t iffs  c o n te n d , th e  p r o p o r t io n a te  b la ck  atten­
d a n ce  in th e ir  re sp e ctiv e  s c h o o ls  a d versely  a ffe c ts  th e  degree 
o f  e x c e lle n c e  o f  e d u ca t io n  w h ich  th e y  can  rece iv e  th ere  must 
b e  a p o in t  at w h ich  a n y  ex ce ss  o f  b la ck s  o v e r  w h ites  is likely 
t o  im pa ir  th e  q u a lity  o f  th e  e d u ca t io n  availab le in  that school 
f o r  th e  b la ck  pu p ils . N o w h e re  in th e  a p p e n d ix  filed  b y  the 
p la in tiffs  o r  in th e  fa cts  in v o lv e d  in  an y  o f  th e  ju d ic ia l prece­
den ts w h ich  th e y  c ite  are w e  in fo r m e d  o f  th e  s p e c if ic  racial 
p r o p o r t io n s  w h ich  are lik e ly  t o  assure m a x im u m  excellence 
o f  th e  e d u ca t io n a l advantages ava ilab le  fo r  th e  w h ites. As­
su m in g fu r th e r  that e f fo r ts  to  a ch ieve  th e  idea l interracial 
p r o p o r t io n  n ecessarily  in c lu d e  th e  a ltera tion  o f  th e  popula­
t io n  fa c to r  d e term in a tiv e  o f  th e  re d istr ictin g , th ere  can  be  no 
assurance that th e  p o p u la t io n  fa c t o r  w ill rem ain  static. I f  so, 
it w o u ld  b e  n ecessa ry  t o  su cce ss iv e ly  reassign p u p ils  to  an­
o th e r  d istrict as th e  rate  o f  b irth s  an d  g ra d u a tion s  alters the 
racia l p r o p o r t io n s  crea tin g  th e  d em a n d  f o r  e d u ca tio n a l facili­
ties as it ch an ges fr o m  term  t o  term . In sum, the difficulty 
complained o f does not amount to unconstitutional segrega­
tion.

* *  *

T h e  system  as p ro v id e d  b y  th e  va riou s  legislative enact­
m en ts is u n ita ry  in  n ature and  in ten t and an y  purported 
racia l im b a la n ce  w ith in  a lo ca l s c h o o l  d is tr ict  resu lts from  an 
im b a la n ce  in  th e  p o p u la t io n  o f  th at m u n ic ip a lity -s ch o o l dis­
tr ict . Racially balanced municipalities are beyond the pale of 
either judicial or legislative intervention.” (em ph a sis  added)

T h is ex erp t fr o m  Spencer is, w ith o u t  m o r e , fu lly  d isp os itiv e  o f  the 
real issue in  th is case.

F in a lly , P e tit io n e r  su b m its  that th is C o u r t ’ s decisions in



43

Wright v. Council o f the City o f Emporia t8 11 and United States v. 
Scotland Neck Board o f Education l8 2 ] im p lic it ly  h o ld  that a plan 
o f  d esegregation  lim ite d  to  a p re d o m in a n tly  B lack  s c h o o l  system  is 
not in su ffic ie n t  to  r e m e d y  co n s t itu t io n a l v io la tio n s  o f  its s tu d en ts ’ 
rights o f  equ a l p r o te c t io n . In  Wright, th e  d esegrega tion  p lan  to  b e  
im p lem en ted  w as w ith  resp ect t o  a s c h o o l system  having a racial 
m ake-up o f  3 4 %  W h ite  an d  6 6 %  B la ck  - a lm ost e x a c t ly  th e  sam e 
racial c o m p o s it io n  as th e  D e tro it  S c h o o l  S ystem . In Scotland 
Neck, th e  racia l c o m p o s it io n  o f  th e  s c h o o l system  w as 7 7 %  B lack , 
22%  W hite  an d  1 %  A m e r ica n  Ind ian .

T h e  o p in io n  o f  th e  C o u rt o f  A p p e a ls  has ch arged  that t o  re­
ject their t h e o r y —th at B la ck  s tu d en ts  m a y  n o t  b e  a llo w e d  to  p re ­
dom inate in  D e tr o it—is to  retu rn  to  th e  d o c tr in e  o f  Plessy v  Fer­
gusonJ 833 It is r e sp e c t fu lly  su b m itte d , h o w e v e r , that ju s t  th e  o p ­
posite is tru e, and  that th e  a d o p t io n  o f  th e  lo w e r  c o u r t ’ s racial 
iden tifiab ility  th e o ry  w o u ld  in fa ct  fa ll w ith in  th e  Brown I  i s s u e -  
assignment o f  B lack  D e tro it  ch ild ren  solely o n  th e  basis o f  ra ce — 
and w o u ld  co n s t itu te  a retreat fr o m  th e  p rin c ip les  o f  Brown I  and 
a breath o f  li fe  in to  Dred Scott. I8 4 ]

In a co n cu rr in g  o p in io n  in Brunson, I8 5  * *! Judge S o b e lo f f  p re­
sented an e x tre m e ly  co m p e llin g  d iscu ssion  o f  th is p recise  q u e stio n .

181] 4 0 7  U .S . 4 5 1 , 3 3  L .E d .2 d  51 ( 1 9 7 2 ) .
182] 4 0 7  u  §  4 g4 >  3 3  L  E d  2 d  7 5  ( 1 9 7 2 ) .

8̂ 8  ̂ 1 6 3  U .S . 5 3 7  ( 1 8 9 6 ) .  T h e  C o u r t  o f  A p p e a ls  s ta te d : “ T h e r e  e x is ts  h o w ­
ever, an e v e n  m o r e  c o m p e l l in g  b a s is  f o r  th e  D is t r ic t  C o u r t ’ s c r o s s in g  a r t if ic ia l  
b ou n d a ry  lin es  t o  c u re  th e  S ta te ’ s c o n s t i t u t io n a l  v io la t io n s .  T h e  in s ta n t  ca se
calls u p  h a u n tin g  m e m o r ie s  o f  t h e  n o w  lo n g  o v e r ru le d  a n d  d is c r e d it e d  ‘ se p a r ­
ate but e q u a l d o c t r in e ’ o f  Plessy  v  Ferguson, 1 6 3  U S  5 3 7  ( 1 8 9 6 ) .  I f  w e  h o ld  
that s c h o o l  d is tr ic t  b o u n d a r ie s  a re  a b s o lu t e  b a rr ie rs  t o  a D e t r o i t  s c h o o l  d e s e g ­
regation p la n , w e  w o u ld  b e  o p e n in g  a w a y  t o  n u l l i fy  Brown  v  Board o f  Educa­
tion w h ich  o v e r r u le d  Plessy, supra.”  ( 1 7 2 a ) .
84 ] Dred S co tt  v  Sanford, 6 0  U S  3 9 3  (1 8 5  6 ).

Brunson  v  Board o f  Trustees o f  S chool Dist. N o. 1 o f  Clarendon  
County, South Carolina, supra.



44

H is argu m en t c o u ld  b e  litt le  im p r o v e d  u p o n , and  deserves ex te n ­
sive q u o ta t io n :

“ T h e  lin ch -p in  o f  th e  d issen t is th e  n o t io n  th at, ideally , 
th e  g o a l o f  d eseg reg a tion  sh o u ld  b e  t o  a ch ieve  an ‘ op tim al 
m ix , ’ con s is t in g  o f  a w h ite  m a jo r ity . It suggests . . . th at de­
segregation  sh o u ld  n o t  g o  so  fa r as to  p u t  w h ites  in  m in o r ity  
s itu ation s.

* *  *

It w o u ld , I am  sure, a ston ish  th e  Brown c o u r t  t o  learn 
that 16 years la ter, in  a case stem m in g  d ire c t ly  fr o m  th at de­
c is io n , it w as ser iou s ly  b e in g  c o n te n d e d  that desegregation  
m igh t n o t  b e  re q u ire d  in s o fa r  as it th rea ten ed  t o  im p a ir  ma­
jo r i t y  w h ite  s itu ation s .

* *  *

Brown a r ticu la ted  th e  tru th  that Plessy c h o s e  t o  disre­
gard : th a t re le g a tio n  o f  b la ck s  t o  separate fa c ilit ie s  represents 
a d e c la ra t io n  b y  th e  state th at th e y  are in fe r io r  and  n o t  to  be 
a ssocia ted  w ith . B y  co n d e m n in g  th e  p ra c t ice  as ‘ inherently  
u n e q u a l,’ th e  C o u rt , at lo n g  last, e x p u n g e d  th e  con stitu tion a l 
p r in c ip le  o f  b la ck  in fe r io r ity  and w h ite  su p re m a cy  in tro­
d u ce d  b y  Dred Scott, an d  o rd e re d  th e  d ism an tlin g  o f  th e  ‘ im­
passib le  b a rrier ’ u p h e ld  b y  that case.

* * ❖

T h e  in v id io u s  n atu re  o f  th e  P ettig rew  thesis, advanced 
b y  th e  d issen t in  th e  p resen t case, th u s em erges. Its central

1861 J u d g e  S o b e l o f f ’ s o p in io n  has b e e n  q u o t e d ,  w i t h  a p p a r e n t  a p p ro v a l ,  in 
a n  a r t ic le  w r it t e n  b y  o n e  o f  P l a i n t i f f s  a t t o r n e y s ,  P a u l R . D im o n d .  S ch ool Seg­
regation in the N orth : There Is B u t O ne C onstituion, 7 H a rv a rd  C iv il R ig h t s -  
C iv il L ib e r t ie s  L a w  R e v ie w  1 ( 1 9 7 1 - 1 9 7 2 ) .  In  c it in g  J u d g e  S o b e l o f f ’ s d iscu s­
s io n , M r. D im o n d  a sserts  th a t  t h e  c la im  th a t  th e r e  m ig h t  b e  “ t o o  m any 
b la c k s ”  in  a s c h o o l  s y s t e m  is a “ p a te n t  r a c ia l  in s u lt ” . P e t i t io n e r  c o n c u r s  w ith  
th is  s ta te m e n t  b u t  fa i ls  t o  u n d e r s ta n d  h o w  th is  p o in t  a v o id s  b e in g  in co n s is ­
t e n t  w it h  P la in t i f fs ’ a s s e r t io n  th a t  th e r e  m u s t  n o t  b e  a p r e p o n d e r a n c e  o f  
b la c k s  in  t h e  D e t r o i t  S c h o o l  D is t r ic t .  S e e  a ls o , Isn cks, In equality : A  reassess­
m ent o f  the E f fe c t  o f  Fam ily and S chooling  in Am erica, 4 0 -4 1  ( 1 9 7 2 ) ,  w here 
h e  s ta te s  “ T h is  im p lie s  th a t  b la c k  p a r e n ts  c a n n o t  s e n d  th e ir  c h i ld r e n  t o  all­
b la c k  s c h o o l s ,  e v e n  i f  t h e y  w a n t  t o ,  b e c a u s e  a l l -b la c k  s c h o o l s  are  b y  d e fin it io n  
in fe r io r .  T h is  p o s i t io n  s t r ik e s  m e  as b o t h  r a c is t  a n d  p o l i t i c a l l y  u n w o rk a b le  
o v e r  t h e  lo n g  h a u l .”



45

p r o p o s it io n  is that th e  va lue o f  a s c h o o l  d e p e n d s  o n  th e  ch ar­
acter istics  o f  a m a jo r ity  o f  its stu den ts and  su p erior ity  is re­
la ted  t o  w h iten ess, in fe r io r ity  to  b lack n ess. A lth o u g h  the 
th e o r y  is c o u c h e d  in  term s o f  ‘ s o c io -e c o n o m ic  class’ and the 
n ecess ity  f o r  th e  c re a tio n  o f  a ‘m id d le -cla ss  m ilie u ’ , n everth e ­
less, at b o t t o m , it rests o n  th e  gen era liza tion  th at, e d u ca t io n ­
ally  speak in g , w h ite  p u p ils  are s o m e h o w  b e tte r  o r  m o re  desir­
ab le  th an  b la ck  pu p ils . T h is p rem ise  leads t o  the n e x t  p r o p o ­
s it io n , that a sso c ia tio n  w ith  w h ite  p u p ils  h elp s  th e  b la ck s  and 
so  lo n g  as w h ites  p re d o m in a te  d o e s  n o t  harm  th e  w h ite  
ch ild ren . B u t o n c e  th e  n u m b e r  o f  w h ites a p p roa ch es  m in o r ­
ity , th en  a sso c ia tio n  w ith  th e  in fe r io r  b la ck  ch ild ren  hurts the 
w h ites  an d , b eca u se  th ere  are n o t  en o u g h  o f  th e  su p erior  
w h ites t o  g o  a ro u n d , d o e s  n o t  a p p re c ia b ly  h e lp  th e  b lack s.

T h is  id ea , th en , is n o  m o re  th an  a resu rrection  o f  the 
a x io m  o f  b la ck  in fe r io r ity  as ju s t ifica t io n  fo r  separation  o f  
th e  races, an d  n o  less than  a retu rn  t o  th e  spirit o f  Dred 
Scott. T h e  in v en tors  an d  p r o p o n e n ts  o f  this th e o ry  grossly  
m isa p preh en d  th e  p h ilo s o p h ica l basis fo r  desegregation . It is 
n o t  fo u n d e d  u p o n  th e  c o n c e p t  that w h ite  ch ild ren  are a p re ­
c io u s  re so u rce  w h ich  sh ou ld  b e  fa ir ly  a p p o rt io n e d . It is n o t , 
as P ettig rew  suggests, b eca u se  b la ck  ch ild ren  w ill b e  im p roved  
b y  a sso c ia tio n  w ith  th eir b etters . C erta in ly  it is h o p e d  that 
u n d e r  in teg ra tion  m e m b e rs  o f  ea ch  race  w ill b e n e fit  fr o m  u n ­
fe t te re d  c o n ta c t  w ith  th e ir  peers. B ut s c h o o l  segregation  is 
fo r b id d e n  s im p ly  b eca u se  its p e rp e tu a tio n  is a living insu lt to  
th e  b la ck  ch ild ren  and  im m ea su ra b ly  taints th e  e d u ca tio n  
th ey  rece ive . T h is  is th e  p recise  lesson  o f  Brown. W ere a co u rt  
to  a d o p t  th e  P ettig rew  ra tion a le  it w o u ld  d o  e x p lic it ly  w hat 
c o m p u ls o r y  segregation  law s d id  im p lic it ly .”  i8 7 l

P etitioner su bm its  that th e  racial id e n tifia b ility  th e o ry , w h en  su b­
jected  to  th o r o u g h  analysis, is revea led  to  b e  n o th in g  m o re  than a 
theorem  o f  B la ck  in fe r io r ity  — n o t  se lf ev id en t, b u t  w ith  all o f  the 
invidiousness o f  Dred Scott an d  Plessy, w a itin g  t o  b e  p rov en . It is 
inapposite to  th e  teach in gs o f  Brown / ,  and  sh ou ld  n o t  b e  su b ­
scribed to  b y  th is c o u rt .

[8 7 ] 4 2 9  F 2 d ,  8 2 4  t o  8 2 6



46

-B-
Maintenance of Local School Districts as 

a Legitimate State Interest
In its O p in io n , th e  C o u rt  o f  A p p e a ls  sta ted : “ W e re je ct  the 

c o n te n t io n  th at s c h o o l  d istr ict lin es are sa crosa n ct. . . . ”  (1 7 4 a ). 
T h is is a s ta tem en t w ith  w h ich  P e tit io n e r  co n cu rs , an d  w h ich  was 
n ever a m ateria l issue. N o n e  o f  th e  P etit ion ers  have ev er  cla im ed 
th at s c h o o l  d istr ict lines w ere  in v io la te  o r  sa cro sa n ct, an d  th is Peti­
t io n e r  d o e s  n o t  n o w  so c la im . It w as a c lass ic straw  m an  p ro ffe re d  
b y  P la in tiffs  and  grasped  b y  th e  C o u r t  o f  A p p e a ls  as an e x cu se  for 
d isregard ing  s c h o o l  d is tr ic t  b ou n d a r ies .

In an e f fo r t  t o  c lea rly  d e lin ea te  th e  essentia l d if fe re n ce s  that 
m a y  ex is t  b e tw e e n  P e tit io n e r  an d  P la in tiffs  w ith  re sp e ct  t o  the 
legal status o f  lo c a l  s c h o o l  d istricts , P e tit io n e r  su b m its , as correct, 
th e  fo l lo w in g  p r o p o s it io n s :

(1 )  L o c a l  s c h o o l  d istricts  in  M ich igan  are n o t  sovereign , 
b u t  are crea ted  b y  an d  are su b je c t  t o  th e  c o m p le te  p o w e r  and 
c o n tr o l  o f  th e  M ich igan  L eg isla tu re ; t8 8 l and

( 2 )  W h ere  essential t o  p ro v id e  a r e m e d y  fo r  a clearly 
co g n iz a b le  co n s t itu t io n a l v io la t io n , p o lit ic a l su b d iv is ion  lines 
may b e  s u b je c t  t o  m o d if ic a t io n  b y  th e  e x e rc ise  o f  th e  equita­
b le  p o w e rs  o f  th e  fed era l ju d ic ia r y . I8 9 ]

^8 8 1 A l t h o u g h  n o t  e s s e n t ia l  t o  th e  issu e s  h e r e in  p r e s e n t e d ,  P e t i t io n e r  notes 
th a t  as a re su lt  o f  t h e  M ich ig a n  C o n s t i t u t io n  o f  1 9 6 3  m a k in g  r e fe r e n c e  to 
s c h o o l  d is tr ic ts  in  f o u r  d i f f e r e n t  s e c t io n s  (A r t  8 , § 2 ;  A r t  9 ,  § 6 ; A r t  9 , § 1 1 ; 
A r t  9 ,  § 1 6 )  th e r e  is a s e r io u s  le g a l is su e  as t o  w h e th e r  o r  n o t  th e  M ich igan  
L e g is la tu re  w o u ld  h a v e  th e  p o w e r  t o  a b o l is h  s c h o o l  d is tr ic ts  a lt o g e th e r .

[ 8 9 ]  C le a r ly , G om illion  v .  L igh tfoo t,  3 6 4  U .S . 3 3 9 ,  5 L .E d .2 d  1 1 0  (1 9 6 0 )  
a n d  R eyn old s  v . Sims, 3 7 7  U .S . 5 3 3 ,  1 2  L .E d .2 d  5 0 6  ( 1 9 6 4 )  a re  d e te rm in a ­
t iv e  o f  th e  q u e s t io n  o f  t h e  u lt im a te  p ow er  o f  t h e  fe d e r a l  c o u r t  w it h  r e s p e c t  to 
s c h o o l  d is tr ic t  l in e s . T h is  p o w e r  w a s  in  e f f e c t  e x e r c is e d  in  Wright v . Emporia, 
supra, a n d  U .S . v . Scotland  N eck , supra. T h is  is in  n o  w a y ,  h o w e v e r ,  deter­
m in a t iv e  o f  th e  q u e s t io n  p o s e d  at th e  b e g in n in g  o f  th is  b r i e f —W h a t is  th e  v io la ­
t i o n  th a t  is  b e in g  r e m e d ie d ?  It is o n l y  w h e n  t h e  a n s w e r  t o  th a t  q u e s t io n  is 
d e t e r m in e d ,  th a t  th is  C o u r t  n e e d  d e c id e  th e  m a n n e r  in  w h ic h  it  w il l  exercise  
t h e  ra w  p o w e r  w h ic h  it  p o s s e s s e s . In  a n y  e v e n t ,  h o w e v e r ,  it is  c le a r  that in 
d e v is in g  a r e m e d ia l  o r d e r ,  w h e r e  it  is n o t  essential t o  d is re g a rd  p o litica l 
b o u n d a r ie s ,  th e  C o u r t  m u s t  ta k e  th e m  i n t o  a c c o u n t  a n d  r e s p e c t  th e ir  exis­
t e n c e ,  e s p e c ia l ly  w h e r e  t h e y  p r o m o t e  a le g it im a t e  S ta te  in te r e s t . T h is  was 
e x p l i c i t ly  r e c o g n iz e d  m o s t  r e c e n t ly  in  San A n ton io  v . R odriquez, supra.



47

These s ta tem en ts  are n o t  determ in ative  o f  th e  M e tro p o lita n  deseg­
regation  issues, h o w e v e r , b eca u se  even  th ou g h  s c h o o l d istricts  are 
n o t sa crosa n ct and  m ay  be  su b je ct to  m o d if ic a t io n , such  m o d if ic a ­
tion  m a y  b e  ju d ic ia lly  o rd e re d  o n ly  w h ere essential to  re m e d y  the 
in ten tion a l in fr in g e m e n t o f  a fu n d a m en ta l c o n stitu t io n a l right. 
That is s o , un less it  m a y  be  fo u n d  th at the S tate o f  M ich igan  has 
been u n d e r  an a ffirm a tiv e  co n stitu t io n a l d u ty  t o  m a x im ize  racial 
balance in  th e  s c h o o ls  w ith in  an y  given geograp h ica l area in the 
State. T h is  a ffirm a tiv e  d u ty  w o u ld  co n stitu te  the re co g n it io n  o f  
yet a n o th e r  n ew  co n s titu t io n a l right, in  c o n f l ic t  w ith  the m a in ­
tenance o f  the lo ca l s c h o o l  d istrict as an in tegral and leg itim ate 
co n co m ita n t  o f  the e d u ca tio n a l system  in M ich igan . C o n se q u e n tly , 
the s ig n ifica n ce  o f  th e  lo c a l s c h o o l  d istrict, and the la ck  o f  a f­
firm ative co n s titu t io n a l d u ty  t o  ch ange it , w ill be e x p lo r e d  in 
som e deta il.

T h e  C o u rt o f  A p p ea ls , in  d iscussing  th e  status o f  s c h o o l d is­
tricts u n d e r  M ich igan  law , has listed  several ex a m p les  o f  th e  ex er­
cise o f  c o n t r o l  b y  th e  S tate  o v e r  th e  lo ca l s c h o o l  d istrict, as ju s t ifi­
cation  f o r  th e ir  e x is te n ce  n o w  b e in g  ig n o re d  (1 6 5  to  17 1 a ). [90] 
In turn , P e tit io n e r  is able t o  p resen t an exten sive  list o f  d iscre ­
tionary  p o w e rs  and a u th orities  gran ted  to  lo c a l s c h o o l d istricts  b y

[ P a r t ic u la r ly  e m p h a s iz e d  is  th e  fa c t  th a t  s c h o o l  d is tr ic ts  h a v e  in  th e  p ast 
been  r e q u ir e d  t o  b e  r e o r g a n iz e d  o r  m e rg e d  w it h  o t h e r  s c h o o l  d is tr ic ts  f o r  re a ­
sons o f  a d m in is tra t iv e  e f f i c i e n c y ,  f in a n c ia l  n e c e s s it y , e t c .  T h e  c o u r t  s e e m s  t o  
m ake th e  u n s u b s ta n t ia te d  a s s e r t io n  th a t  b e c a u s e  th e  S ta te  h a d  th e  p o w e r  a n d  
e x ercised  it f o r  those  r e a s o n s , th e re  m u st  n o w  b e  s o m e  in v id io u s  a n d  d is c r im i­
n a to ry  p u r p o s e  b e h in d  th e  S ta te  fa ilin g  t o  ta k e  fu r th e r  a f f ir m a t iv e  a c t io n  t o  
reo rg a n ize  s c h o o l  d is tr ic ts  in  th e  S ta te  t o  a tta in  th e  d is tr ic t  c o u r t ’ s “ s o c ia l  
g o a l” .



48

the M ich igan  S c h o o l  C o d e  o f  1 9 5 5 .191 ] It is su b m itte d , h ow ever, 
that th ese  lists and  co u n te r -lis ts  d o  n o th in g  m o r e  than  c lo u d  the 
real s ig n ifica n ce  o f  lo c a l s c h o o l  d is tr icts , b y  la y in g  em ph asis  on 
th e o re tica l p o ss ib ilit ie s  in  th e  ev e n t o f  u ltim a te  u su rp a tion . A s  the 
D istr ict Ju dge s ta ted , h o w e v e r , “ su b sta n ce , n o t  sem a n tics , m ust 
c o n t r o l ” . A n d  th e  su bstan tive  status o f  lo c a l  s c h o o l  d istricts in 
M ich igan  is th at o f  a u to n o m o u s  p o lit ica l b o d ie s  co r p o r a te , op era t­
in g  th rou g h  B oa rds  o f  E d u ca t io n  p o p u la r ly  e le c te d  t9 2 ] b y  their
residen ts, w ith  th e  d a y  t o  d ay  a ffa irs  b e in g  d e te rm in e d  at the loca l 
level in  a c c o r d a n c e  w ith  th e  p len a ry  p o w e rs  gran ted  t o  th em .

“ T h e  p o l ic y  o f  th e  S ta te  has b e e n  to  reta in  c o n tr o l  o f  its 
s c h o o l  sy stem , to be administered throughout the State 
under State laws by local State agencies organized with 
plenary powers to carry out the delegated functions given it 
by the legislature.” Lansing Dist. v. State Bd. o f E due., 367 
M ich . 591 (1 9 6 2 ) ,  at 5 9 5  (em ph asis  a d d e d )

“ It is t o  b e  n o te d  th at s c h o o l  d istricts  p ossess su ch  p o w ­
er as th e  sta tutes e x p re ss ly  or by reasonably necessary impli­
cation grant to them.” Senghas v. L ’Anse Creuse P .S ., 368 
M ich . 5 5 7  ( 1 9 6 2 ) ,  at 5 6 0  (E m p h a sis  in o r ig in a l)

S c h o o l  d is tr ic ts  m a y  fu n c t io n  co o p e r a t iv e ly  w ith  tow nsh ips, 
co u n tie s  an d  c it ies  in th e  c o n d u c t  o f  e le c t io n s  and  th e  assessm ent 
and  c o l le c t io n  o f  ta x e s ; s c h o o l  d istricts  m a y  b e  su b je c t  t o  the

[ 9 1 ]  T o  a c q u ir e  r e a l a n d  p e r s o n a l  p r o p e r t y ,  M ic h .  C o m p .  L a w s  A n n o ta te d  
( M C L A )  § § 3 4 0 . 2 6 ;  3 4 0 .7 7 ;  3 4 0 .1 1 3 ;  3 4 0 .1 6 5 ;  3 4 0 .1 9 2 ;  3 4 0 .3 5 2 ;  t o  hire 
a n d  c o n t r a c t  w it h  p e r s o n n e l ,  M C L A  § 3 4 0 .5 6 9 ;  § 3 4 0 .5 7 4 ;  t o  le v y  ta x e s  fo r  
o p e r a t io n s ,  M C L A  § 3 4 0 . 5 6 3 ;  t o  b o r r o w  a g a in st  r e c e ip t s ,  M C L A  § 3 4 0 .5 6 7 ;  
t o  d e te r m in e  le n g t h  o f  s c h o o l  t e r m s , M C L A  § 3 4 0 . 5 7 5 ;  t o  c o n t r o l  th e  adm is­
s io n  o f  n o n -r e s id e n t  s t u d e n t s , M C L A  § 3 4 0 . 5 8 2 ;  t o  d e te r m in e  c o u r s e s  o f 
s t u d y ,  M C L A  § 3 4 0 . 5 8 3 ;  t o  p r o v id e  a k in d e r g a r te n  p r o g r a m , M C L A  
§ 3 4 0 . 5 8 4 ;  t o  e s ta b lis h  a n d  o p e r a te  v o c a t i o n a l  s c h o o l s ,  M C L A  § 3 4 0 .5 8 5 ;  to  
o f f e r  a d u lt  e d u c a t io n  p r o g r a m s , M C L A  § 3 4 0 . 5 8 6 ;  t o  e s ta b lis h  a tte n d a n ce  
area s , M C L A  § 3 4 0 . 5 8 9 ;  t o  a rra n g e  f o r  t r a n s p o r t a t io n  o f  n o n -r e s id e n t  stu­
d e n t s ,  M C L A  § 3 4 0 . 5 9 1 ;  t o  a c q u ir e  t r a n s p o r t a t io n  e q u ip m e n t ,  M C L A  
§ 3 4 0 .5 9 4 ;  t o  r e c e iv e  g ift s  a n d  b e q u e s t s ,  f o r  e d u c a t io n a l  p u r p o s e s ,  M C L A  
§ 3 4 0 .6 0 5 ;  t o  e m p lo y  a n  a t t o r n e y ,  M C L A  § 3 4 0 . 6 0 9 ;  t o  s u s p e n d  o r  expel 
s tu d e n ts , M C L A  § 3 4 0 . 6 1 3 ;  t o  m a k e  ru le s  a n d  r e g u la t io n s  f o r  o p e r a t io n  o f 
s c h o o ls ,  M C L A  § 3 4 0 .6 1 4 ;  t o  ca u s e  t o  b e  le v ie d  a u th o r iz e d  m illa g e , M C L A  
§ 3 4 0 . 6 4 3 a ;  t o  a c q u ir e  p r o p e r t y  b y  e m in e n t  d o m a in ,  M C L A  § 3 4 0 .7 1 1  et 
s e q . ;  t o  a p p r o v e  a n d  s e le c t  t e x t b o o k s ,  M C L A  § 3 4 0 .8 8 2 .

[ 9 2 ]  M i c h .  C o m p .  L a w s  A n n o t a t e d  § § 3 4 0 . 2 7 ,  3 4 0 .5 5 ,  3 4 0 .1 0 7 , 
3 4 0 .1 4 8 - 9 ,  3 4 0 .1 8 8 .



49

“ L eadersh ip  an d  gen eral su p erv is ion ”  t9 3 l o f  th e  S tate  B oa rd  o f  
E du ca tion , an d  s c h o o l  d is tr ic t ’ s p o w e rs  and resp on sib ilit ies  m a y  b e  
subject t o  u ltim a te  c o n tr o l  o f  th e  S tate L egislature. t9 4  ̂ B ut w h en  
one steps b a ck  t o  lo o k  at th e  overa ll functional status o f  s c h o o l 
districts, w h e th e r  in  M ich igan  o r  in  any o th e r  state w h ere  th e  lo ca l 
district has b e e n  sim ilarly  stru ctu red , is apparen t that in  their day- 
to-day  m a n a g em en t th e y  are o p e ra tio n a lly  a u to n o m o u s , exercisin g  
a m u ltitu d e  o f  d iscre t io n a ry  d e c is io n s  and b e in g  respon sive  t o  the 
needs and  desires o f  th e  lo ca l c o m m u n ity  and the ch ild ren  th ey  
have th e  re sp o n s ib ility  t o  e d u ca te . O n e  o n ly  has t o  a tten d  a p u b lic  
m eeting o f  a lo ca l B oard  o f  E d u ca tio n  and e x a m in e  th e  n orm al 
lengthy list o f  adm in istrative  m atters to  b e  a cted  u p o n , and to  
hear p u b lic  d e b a te  o v e r  a p articu larly  d e lica te  co m m u n ity  ed u ca ­
tional issue, t o  rea lize  that lo ca l s c h o o l d istricts are n o t  th e  illu ­
sory a rtifa ct p e rce iv e d  b y  th e  C o u rt  o f  A p p e a ls ; ex istin g  so le ly  fo r  
the p u rp o se  o f  fru stratin g  m e tro p o lita n  w id e  in tegra tion  o f  the 
public s ch o o ls . i9 5 l

[9 3 )  1 9 6 3  M ich . C o n s t . ,  A r t  8 , S e c . 3 :

“ L e a d e rs h ip  a n d  g e n e r a l s u p e r v is io n  o v e r  a ll p u b l i c  e d u c a t io n ,  in c lu d in g  
adult e d u c a t io n  a n d  in s t r u c t io n a l  p ro g r a m s  in  s ta te  in s t i t u t io n s ,  e x c e p t  as t o  
in s titu t io n s  o f  h ig h e r  e d u c a t io n  g ra n t in g  b a c c a la u r e a te  d e g r e e s , is v e s te d  in  a 
state b o a r d  o f  e d u c a t io n .  It  sh a ll se rv e  as th e  g e n e ra l p la n n in g  a n d  c o o r d i ­
nating b o d y  f o r  a ll  p u b l i c  e d u c a t io n ,  in c lu d in g  h ig h e r  e d u c a t i o n ,  a n d  sh all 
advise th e  le g is la tu re  as t o  th e  f in a n c ia l  r e q u ir e m e n ts  in  c o n n e c t i o n  t h e r e ­
w ith .”

P e t it io n e r  s u b m its  th a t  th e  s ta tu s  o f  s c h o o l  d is tr ic ts  in  M ich ig a n  is n o t  
a p p re c ia b ly  d i f fe r e n t  f r o m  th a t  o f  s c h o o l  d is tr ic ts  in  o t h e r  S ta te s , n o t w i t h ­
stand ing  v a r ia n ce s  in  l o c a l  la w s . I f  a n y th in g , l o c a l  s c h o o l  d is tr ic ts  in  M ich ig a n  
e n joy  a g re a te r  d e g r e e  o f  a u t o n o m y  th a n  in  o t h e r  S ta te s . S e e , e .g . ,  t h e  d e ­
scr ip tio n  o f  t h e  h is to r y  a n d  s ta tu s  o f  s c h o o l  d is tr ic ts  in  T e x a s , in  United 
States v State o f  Texas, 3 2 1  F .S u p p  1 0 4 3  (E D  T e x a s ,  1 9 7 0 ) ;  a n d  th e  f in a n c ia l  
d e p e n d e n ce  o f  s c h o o l  d is tr ic ts  in  V ir g in ia  u p o n  th e  lo c a l  m u n ic ip a l i ty ,  d e ­
scribed  in  Bradley  v  R ichm ond, 4 6 2  F 2 d  1 0 5 8  ( 1 9 7 2 ) .

P la in t if fs  m a y  b e  h e a rd  t o  sa y  th a t  th e  im p le m e n t a t io n  o f  a m e t r o p o l i ­
tan d e s e g re g a t io n  p la n  w il l  h a v e  n o  e f f e c t  o n  th e  v ia b i l i t y  o f  l o c a l  c o n t r o l .  
O ne has o n ly  t o  e x a m in e  th e  m o d i f i c a t io n s  t o  th e  a d m in is tra t iv e  s t ru c tu re  o f  
sch o o ls  r e c o m m e n d e d  b y  th e  d is tr ic t  c o u r t ’ s D e s e g r e g a t io n  P a n e l a n d  th e  
State S u p e r in t e n d e n t  as b e in g  n e c e s s a ry  in  o r d e r  t o  e f f e c t u a t e  im p le m e n t a ­
tion  o f  th e  p la n , t o  r e a liz e  th at th e  v ia b i l i t y  o f  th e  lo c a l  s c h o o l  d is tr ic t  w o u ld  
be d e s tr o y e d . S ee  th e  r e c o m m e n d a t io n s  o f  th e  S ta te  S u p e r in te n d e n t  at ( la  
2 6 7 ) an d  la  2 8 5 )  a n d  p a r t ic u la r ly  th e  r e c o m m e n d a t io n s  r e g a rd in g  th e  final 
p eriod  o f  d e s e g r e g a t io n , at ( la  2 7 8 ) .



50

T h e  s ig n ifica n ce  o f  th e  lo ca l s c h o o l  d is tr ict  w as re co g n iz e d  in 
San Antonio v  Rodriguez, supra. M r. Ju stice  P o w e ll, w ritin g  fo r a  
m a jo r ity  o f  th e  C o u r t , a c k n o w le d g e d  th e  re lev a n ce  o f  th e  local 
s c h o o l  d istr ict in T ex a s , as fo l lo w s :

“ In  an era th at has w itn essed  a co n s is te n t  tren d  tow ard 
ce n tra liza tio n  o f  th e  fu n c t io n s  o f  g o v e rn m e n t, lo c a l sharing 
o f  re sp o n s ib ility  f o r  p u b lic  e d u c a t io n  has survived . T h e  merit 
o f  lo c a l c o n t r o l  w as r e c o g n iz e d  last T erm  in b o t h  th e  m ajor­
ity  and d issen tin g  o p in io n s  in  W right v . C o u n c il  o f  th e  C ity  o f 
E m p o r ia , 4 0 7  U .S . 4 5 1 , 3 3  L  E d  2 d  5 1 , 9 2  S C t 2 1 9 6  (1972 ). 
M r. Ju stice  S tew art sta ted  th ere  th at ‘ [ d j i r e c t  c o n tr o l  over 
d e c is io n s  v ita lly  a ffe c t in g  th e  e d u c a t io n  o f  o n e ’s ch ild ren  is a 
n eed  that is s tro n g ly  fe lt  in o u r  s o c ie t y . ’ Id ., at 4 6 9 . The 
C h ie f  Ju stice , in  h is d issen t, agreed  th at ‘ [ l j o c a l  co n tro l is 
n o t  o n ly  vital t o  c o n t in u e d  p u b lic  su p p o rt  o f  th e  sch o o ls , but 
it is o f  ov err id in g  im p o r ta n ce  fr o m  an e d u ca t io n a l standpoint 
as w e l l . ’ Id ., at 4 7 8 , 3 3  L  E d 2 d  5 1 .”  t96]

*  *  *

“ . . . A lth o u g h  p o l ic y  d e c is io n -m a k in g  an d  su p erv is ion  in cer­
tain  areas are reserved  t o  th e  S ta te , th e  d a y -to -d a y  authority 
o v e r  th e  ‘ m a n a g em en t an d  c o n t r o l ’ o f  all p u b lic  elementary 
an d  s e co n d a ry  s c h o o ls  is sq u a re ly  p la ce d  o n  th e  lo ca l school 
b o a rd s .

It ca n n o t b e  ser iou s ly  d o u b te d  that in  T e x a s  ed u ca tion  re­
m ains largely  a lo c a l  fu n c t io n , an d  th at th e  preponderating 
b u lk  o f  all d e c is io n s  a ffe c t in g  th e  s c h o o ls  are m a d e  and exe­
cu te d  at th e  lo c a l leve l, gu aran teein g  th e  greatest participa­
t io n  b y  th o se  m o s t  d ire c t ly  c o n c e r n e d .”  I97]

T h e  S tate  o f  M ich igan , as m o s t  o th e r  states, has crea ted  a system 
o f  p u b lic  e d u ca t io n , gran tin g  th e  fro n t-lin e  re sp o n s ib ility  therefor 
to  th e  rep resen ta tives e le c te d  b y  th e  c o m m u n ity  w h o se  children 96

[ 9 6 ]  s an A n to n io  v . R odriguez, supra, 3 6  L .E d .2 d  at 5 2 .  

I9 7 ! Id ., at 5 4 ,  n . 1 0 8 .



51

are t o  b e  e d u ca te d . In  establish in g  th e  b a s ic  stru ctu re  fo r  such  a 
system , a p rim a ry  and  leg itim ate  in terest w as p r o m o te d  b y  the 
S t a t e - lo c a l  c o n tr o l  ov e r  p u b lic  e d u ca tio n . “ O n ly  w h ere  state a c ­
tion  im p in ges  o n  th e  e x e rc ise  o f  fu n d a m en ta l c o n stitu t io n a l rights 
or lib erties  m u st it b e  fo u n d  t o  have ch o se n  th e  least restrictive  
alternative. ” 198]

In d e e d , th e  S tate  o f  M ich igan  c o u ld  have, and  c o u ld  n o w , 
volu n tarily  e x e rc ise  its legislative d iscre t io n  b y  ch o o s in g  w h at th e  
p la in tiffs  w o u ld  v ie w  as a “ less restrictive  a ltern ative” : a ffirm a ­
tively req u ir in g  a rep resen ta tive  racia l m ix  in  all s ch o o ls , in stead  o f  
m aintaining lo c a l ly  estab lish ed  and  fu n c t io n in g  s c h o o l d istricts  fo r  
the e d u ca t io n  o f  stu d en ts  in  th e  lo c a l  c o m m u n ity . I " !  S h ort o f  
the n ecessity  o f  d ism an tlin g  o f  th e  p resen t e d u ca tio n a l adm inistra­
tive stru ctu re , b e ca u se  th e  stru ctu re  it s e lf  is w h at im p in ges  o n  th e  
exercise o f  fu n d a m e n ta l co n s t itu t io n a l rights, h o w e v e r , th e  S ta te ’s 
interest in  m a in ta in in g  th e m  o n  th e  sam e basis as th e y  w ere  or ig in ­
ally crea ted  has a ra tion a l re la tion sh ip  w ith  th e  leg itim ate  state 
purpose o f  lo ca l c o n tr o l , an d  is n o t  p ro h ib ite d  b y  the F o u rte e n th  
A m en dm en t. C o n se q u e n tly , unless it can  b e  establish ed  that b y  
creating a n d /o r  m a in ta in in g  a state w id e  system  o f  a u to n o m o u s  
and g eog ra p h ica lly  in d e p e n d e n t  s c h o o l  d istricts , M ich igan  has d e ­
prived o r  in te r fe re d  w ith  a fu n d a m en ta l co n s titu t io n a l right o f  
P laintiffs, it  m u st b e  c o n c lu d e d  th at the state w as u n d e r  n o  a f­
firmative d u ty  t o  se lect th e  “ least restrictive  a ltern ative .”

In th e ir  a p p ro a ch  t o  th e  q u e stio n  o f  th e  legal status o f  s c h o o l 
districts u n d e r  M ich igan  law , P la in tiffs  and  th e  C o u rt  o f  A p p e a ls  
appear to  p r o p o s e  that all S tates have a co n s titu t io n a l d u ty  t o  take 
affirm ative a c t io n , w h en ev er  p o ss ib le , t o  m a x im ize  in teg ra tion  in  
education ; and  b eca u se  s c h o o l  d istricts  are n o t  sovereign  en tities , 
the State had  th e  d u ty  to  o rd e r  ch an ges in  b o u n d a ry  lines o f  its 
school d istricts, so  as t o  e ffe c tu a te  th e  m a x im iza tio n  o f  in tegrated

[9g j
San A n ton io  v . R odriguez, supra, at 5 3 .

See q u o t a t io n  f r o m  Swann, p g s . 3 6 - 3 7 ,  supra.



52

schooling throughout the Stated100] Petitioner submits, how­
ever, that the affirmative duty under Green, l1011 to maximize in­
tegration of schools wherever possible, in the process of . . .“ the 
dismantling of well-entrenched dual systems. . .” in historically 
dual school system states, is to be distinguished from the prohibi­
tion against taking any intentionally discriminatory action that 
may cause a segregated condition in schools; which is the standard 
applicable to non-dual states. As stated by Mr. Justice Brennan in 
Keyes, supra, referring to the Briggs v Elliott, t102! interpretation 
of no “affirmative duty to integrate” :

“ But Green . . . rejected that interpretation insofar as Green 
expressly held that ‘School boards . . . operating state- 
compelled dual systems were nevertheless clearly charged [by 
Brown II] with the affirmative duty . . .  to convert to a uni­
tary system. . . (emphasis added,____ U.S. at____ , 37
L.Ed.2d at 559, n. 11)

As further stated in the text of Keyes that followed, “This is not a 
case, however, where a statutory dual system has ever

[100] jn their opening brief to the Court o f Appeals, Plaintiffs argued, in 
referring to the maintenance of school district boundary lines, at page 105, 
“ To us, the power o f the Courts to require changes in schemes whose uncon­
stitutional effects were inevitable and foreseeable, and which have no non- 
discriminatory rationale, is self-evident.”  In addition, the Court of Appeals 
stated, (174a), “ If school boundary lines cannot be changed for an unconsti­
tutional purpose, it follows logically that existing boundary lines cannot be 
frozen for an unconstitutional purpose.”

[101] Green v County School Board o f  New Kent County, 391 U.S. 430, 
20 L.Ed.2d 716 (1968).

[ i ° 2 ] 1 3 2  F.Supp 776 (1955).



53

existed, t103! The question of affirmative duty is further ad­
dressed in Swann at pg. 15:

“The objective today remains to eliminate from the public 
schools all vestiges of state-imposed segregation *** That was 
the basis for the holding in Green that school authorities are 
‘clearly charged with the affirmative duty’. . . . ”

But there never has been state-imposed segregation in the State of 
Michigan, by constitution, statute or general policy, and the entire 
history of the State of Michigan on this score does not speak 
otherwise. While the duty to take affirmative steps to maxi­
mize integration within a school district may, under Keyes, exist 
where officials of a single school system have committed such sig­
nificant and pervasive discriminatory acts as to constitute it a dual 
system, the State of Michigan has never been dual, thereby negat­
ing any affirmative duty with respect to the State.

Further instructive on this point is the following admonition 
in Swann:

 ̂  ̂ Petitioner believes that Mr. Justice Powell would concur with the re­
sult herein suggested, even under the view that the distinction between de 
jure and de facto segregation should be abolished. See Keyes, supra, dissent­
ing opinion-------- U.S-------- , 37 L.Ed.2d at 568, where Mr. Justice Powell
states, at pg. 584: “ The neighborhood school does provide greater ease of 
parental and student access and convenience, as well as greater economy of 
public administration. These are obvious and distinct advantages, but the 
legitimacy o f the neighborhood concept rests on more basic grounds. (26) 
Neighborhood school systems, neutrally administered, reflect the deeply felt 
desire of citizens for a sense of community in their public education. Public 
schools have been a traditional source of strength to our Nation, and that 
strength may derive in part from the identification of many schools with the 
personal features o f the surrounding neighborhood. Community support, 
interest and dedication to public schools may well run higher with a neighbor­
hood attendance pattern: distance may encourage disinterest. Many citizens 
sense today a decline in the intimacy of our institutions -  home, church, and 
school -  which has caused a concomitant decline in the unity and communal 
spirit of our prople. I pass no judgment on this viewpoint, but I do believe 
that this Court should be wary o f compelling in the name of constitutional 
law what may seem to many a dissolution in the traditional, more personal 
fabric of their public schools.

do not imply that the neighborhood concept must be embodied in 
every school system. But where a school board has chosen it, federal 
judges should accord it respect in framing remedial decrees.”

See footnotes 21 & 23, supra.



54

“ At some point, these school authorities and others like them 
should have achieved full compliance with this Court’s deci­
sion in Brown I. The systems would then be ‘unitary’ in the 
sense required by our decisions in Green and Alexander.

It does not follow that the communities served by such 
systems will remain demographically stable, for in a growing, 
mobile society, few will do so. Neither school authorities nor 
district courts are constitutionally required to make year-by­
year adjustments of the racial composition of student bodies 
once the affirmative duty to desegregate has been accom­
plished and racial discrimination through official action is 
eliminated from the system. This does not mean that federal 
courts are without power to deal with future problems; but 
in the absence of a showing that either the school authorities 
or some other agency of the State has deliberately attempted 
to fix or alter demographic patterns to affect the racial com­
position of the schools, further intervention by a district 
court should not be necessary.” 402 US at 31; 28 L.Ed.2d at 
575.

Thus, once a formerly dual state or school district becomes “uni­
tary” , there is no longer a Green affirmative duty on the part of 
school officials. However the State of Michigan has always been 
unitary, and consequently, under Swann, the school authorities 
never were charged with the responsibility to “make year-by-year 
adjustments” to school district boundary lines in order to take 
into account population shifts. Although Michigan school district 
boundary lines have not necessarily been “ frozen” , I105' neither 
has there been an affirmative duty on the part of the State to 
modify them, and therefore, the decision as to how, when and if 
school districts will be modified lies within the exclusive province 
of the Legislature of the State of Michigan.

There being a legitimate state interest in maintaining the in­
tegrity of the local school district so that it will have the primary 
responsibility for the education of its resident students, and be­
cause the State of Michigan has no constitutional duty to  take af­
firmative action to adjust school district boundary lines so as to

f 105l See note [100], supra.



55

periodically respond to racial population shifts, local school dis­
tricts cannot simply be ignored in order to attain the District 
Court’s desired social goal.

Petitioner also submits that under Keyes, local school dis­
tricts in Michigan have yet another significance; that is, they may 
appropriately be viewed as separate, identifiable and unrelated to 
each other. One aspect of the holding in Keyes is that even within 
a single school district that has practiced deliberate racial segrega­
tion in a significant or substantial portion of its system so as to 
render it a dual system, there may be “natural boundaries” within 
the system so as to divide it into “separate, identifiable and 
unrelated units” . In such case, the Green affirmative duty will not 
apply with respect to the unrelated area, where no causal con­
nection between the discriminatory actions and the segregated 
condition in the unrelated area is established.

In discussing the question of whether several areas in Denver 
were indeed separate, identifiable and unrelated, the Court queried 
whether there was a high degree of interrelationship among the 
schools in a certain area. It appears that the logic behind such in­
quiry is fully applicable to the instant case.

It may be that there are geographical and natural boundaries 
in the Detroit metropolitan area so as to render Detroit and its 
outlying districts separate, identifiable and unrelated for that rea­
son, and only a trial on that issue would establish that fact. Peti­
tioner submits, however, that there is no necessity for building a 
further record in this case, for it is the autonomous nature of local 
school districts in Michigan that renders them separate, identifi­
able and unrelated.

Within any single school district, all of its schools are admin­
istered on a day-to-day basis by the same administrative staff, 
under operational policies established by the same Board of Edu­
cation. Children are routed from the various elementary and junior 
high schools to the high schools within the same system, and 
changes in those feeder patterns, for deliberately discriminatory 
purposes, will necessarily have a reciprocal effect on the other 
schools within the system-because they are interrelated. Changes 
in attendance zones will also have the same effect; the gerryman-



56

dering of an attendance zone necessarily causing a child to attend 
one school instead of another within the same system. To the ex­
tent it may be established that families have a tendency to select 
residences near schools to which their children are assigned, such 
discriminatory acts might then have the effect of encouraging 
Black or White families to select homes near one school or an­
other; [1°61 but always within the same school system. These re­
sults arise out of the commonality of jurisdiction with respect to 
the operation of such schools.

In the event school district boundary lines were gerryman­
dered for deliberately discriminatory reasons, or in the event Black 
and White students were exchanged across school district lines for 
the purpose of maintaining one race schools within the respective 
districts and, most importantly, save in exceptional situa­
tions, t109l there is no interrelationship of their respective student 
bodies. Changes in attendance zones, feeder patterns, and

Under Michigan law local school districts have the responsi­
bility to educate the students resident within their own bound­
aries, and no others. [108 ̂ There is no administrative or opera­
tional interrelationship between several geographically proximate 
districts and, most importantly, save in exceptional situa­
tions, t1091 there is no interrelationship of their respective student 
bodies. Changes in attendance zones, feeder patterns, and
[106] jf  one Qf thg potential effects o f discriminatory school assignments is 
to cause or maintain a concentration o f Blacks in certain areas, the phenome­
non has apparently not occurred within Detroit. This is indicated by the rapid 
outward growth o f blacks into previously all White neighborhoods during the 
“ critical years” . The Black population in Detroit increased from 16.2% in 
1950 to 43.9% in 1970. If anything, it would appear that discriminatory acts, 
if any, were totally ineffective in this regard and the Black population in De­
troit rapidly expanded to make it a city with a predominantly Black student 
body; not because o f discriminatory factors, but because of the lack of them.
[107] But oniy jf school assignments do, in fact, have the “ profound recip­
rocal effect on the racial composition o f residential neighborhoods” as ob­
served in Keyes, relying on Swann. With all due respect, however, Petitioner 
seriously questions the validity o f this statement as a matter o f actual fact, as 
opposed to sociological theory. Substantive authority that this phenomenon 
exists to any significant extent appears to be lacking.
[108] Jones v Grand Ledge Public Schools, 349 Mich 1 (1957).
[109] por example, pupil exchanges for the education o f physically and 
mentally handicapped children.



57

the location of a new school within one school district could not 
possibly have a reciprocal effect upon the residential patterns in 
another school district, due to the lack of interrelationship be­
tween them. I1101 The assignment of Black students in Detroit to 
a predominantly Black high school rather than to a predominantly 
White high school, could not conceivably have had the effect of 
deterring Black families from moving into another city outlying 
from Detroit, because so long as such students remained residents 
of Detroit, they could not have attended school in such outlying 
area in the first place. In summary, due to their autonomy of 
operations, one from the other, Petitioner submits that local 
school districts are in fact “ separate, identifiable and unrelated 
units” .

— C —

Summary as to New Constitutional Rights
Plaintiffs have sought to have the lower courts judicially sanc­

tion the social goal which they wish to attain — racial balance in 
all schools in the Detroit metropolitan area. In responding to the 
Plaintiffs request, however, the lower courts have failed to pro­
perly assess the constitutional violations which were alleged to 
have occurred, so as to determine if there was a judicially cogni­
zable factual predicate for the implementation of the proposed 
metropolitan relief. Because the above analysis indicates that such 
predicates do not in fact exist, it only follows that new constitu­
tional violations have been declared. Additional analysis reveals, 
however, that the racial identifiability theory is inapposite to 
Brown, and there is also no affirmative constitutional duty im­
posed on the State to modify the manner in which it has chosen to 
educate its children, through the locally controlled school district.

Thus, Plaintiff’s desired social and educational ends may not 
be judicially obtained through the guise of the enforcement of

Plaintiffs will undoubtedly argue that the interrelationship lies in the 
■act of ultimate State control over school districts. The answer is, however, 
that this is only theoretical control (as might be the case with actual adminis­
trative power of a single school board over geographically unrelated units 
within a single district), as opposed to functional control, which simply does 
not exist at the State level, in any significant manner, with respect to the 
operations of local districts.



58

constitutional rights, because no violation of such rights has oc­
curred which would authorize judicial interference of the scope 
requested. In such regard, Plaintiffs are cautioned to accept the 
following advice from Rodriguez, supra:

The ultimate wisdom as to these and related problems 
of education is not likely to be divined for all time even by 
the scholars who now so earnestly debate the issues. In such 
circumstances the judiciary is well advised to refrain from in­
terposing on the States inflexible constitutional restraints 
that could circumscribe or handicap the continued research 
and experimentation so vital to finding even partial solutions 
to educational problems and to keeping abreast of ever 
changing conditions.” 36 L. Ed. 2d at 49.

*  *  *

“ We hardly need add that this Court’s action today is 
not to be viewed as placing its judicial imprimatur on the 
status quo. * * * But the ultimate solutions must come 
from the lawmakers and from the democratic pressures of 
those who elect them.” 36 L. Ed. 2d at 57 & 58.

V

VIO LATIO N OF PETITIONER’S RIGHTS O F DUE PROCESS

In the Introduction to the Argument of this Brief, Petitioner 
noted the fact that the lower courts and Plaintiffs prefer to com­
mence the discussion of the issues in this case with the question of 
remedy rather than that of violation. The question of the infringe­
ment of Petitioner’s rights of due process is also subject to this 
same problem of basic initial perspective, t111! If the question is 
solely one of the nature of the multi-district remedy that is to be

[1 U ] a s stated in the dissenting opinion of Judge Kent:
“ The suggestion by the District Court that the suburban school districts 
were only involved in the remedy points up the trap into which both 
the District Court and the majority o f  this Court have fallen in failing 
to recognize the necessity for finding a violation before a remedy may 
be imposed. (238a emphasis added)



59

implemented in response to their “racial identifiability” thesis, the 
problem of Petitioner’s right to be heard on all matters, including 
violation questions, may be somewhat limited. Because no metro­
politan remedial order can permissibly be implemented without 
proof of some intentional violation having a causal effect within 
Petitioner’s school district, however, there is absolutely no way to 
avoid the fact that Petitioner is an essential and necessary party 
with respect to all issues in this cause — remedy and violation.

In order to adequately present to the Court the basis upon 
which Petitioner claims a denial of due process, further elabora­
tion of the proceedings in the District Court is necessary. During 
the course of the trial on the merits the District Judge first 
acknowledged the possibility of a metropolitan plan issue in this 
case, when he stated from the bench, on June 24, 1971: . . [A] s
I have said to several witnesses in this case: ‘How do you desegre­
gate a black city, or a black school system;’ ” (243a) On July 17, 
1971, a Detroit homeowners group, Magdowski, et al., (which had 
previously been permitted intervention, without conditions), filed 
a Motion to Join Additional Parties Defendant, (la 119), request­
ing the District Court to join the 84 school districts in Wayne, 
Oakland and Macomb Counties so that “ complete relief [can] be 
awarded the plaintiff” , because without such districts there would 
be an “unconstitutional burden on the intervening defendant, in 
that the resulting school district of the City of Detroit would be 
and will remain as established by the proofs already submitted an 
inferior school district.” (Ia 120).

This motion was never ruled upon by the Court, and was 
deemed by the Court to be withdrawn almost one year later. Thus, 
prior to completion of the trial on the merits, the District Court 
expressed the possibility that it might find it necessary to imple­
ment relief against Petitioner, and in addition, had before it a mo­
tion to add Petitioner as a party.

The District Court followed its September 27, 1971 Ruling 
on Segregation with an Order on October 4, 1971 requiring the 
Defendants Milliken, et al, to submit a “Metropolitan Plan of De­
segregation” , within 90 days. With the filing of such a Plan by the 
State Department of Education on January 4, 1972, Petitioner 
and other suburban school districts were suddenly confronted



60

with the dilemma of either being subjected to a judicial remedy 
without ever having had the opportunity to be heard, or of seeking 
intervention. Because it appeared that the District Court intended 
to implement relief against Petitioner without offering it a “day in 
court” , Petitioner sought intervention, which was granted on 
March 15, 1972. (Ia 204).

This grant of intervention proved to be illusory indeed, for 
the District Judge imposed extremely restrictive conditions on the 
participation of the intervenors (Ia 206-207), even though inter­
vention had been granted as a matter of right, pursuant to Fed. R. 
Civ. P. 24(a). Then, a rapid succession of events took place as 
follows.

On the day intervention was granted, the District Court ad­
vised the intervening school districts that they would be required 
to adhere to the March 22, 1972 date the Court had previously set 
for filing briefs on the legal propriety of a metropolitan plan of 
desegregation. Consequently, Petitioner and the other intervening 
school districts had exactly one week to prepare and present to 
the District Court their legal arguments with respect to such an 
important and complex issue, in the form of written briefs, and 
without the benefit of oral argument. On March 24, 1972, only 
two days following the due date for such briefs, the District Court 
issued its Ruling on Metropolitan Plan (48a). Seven separate briefs 
totalling 112 typewritten pages were simultaneously filed on 
March 22, t112l and yet the District Court wrote, typed, and dis­
tributed its Ruling within 36 hours after such briefs were filed.

On March 28, 1972, the District Court commenced taking 
testimony on a metropolitan plan, which was the first opportunity 
which the intervening school districts’ attorneys had to appear in 
the District Court to participate in the proceedings. Only two 
hours later the District Court distributed its Ruling on Detroit- 
Only Plans (53a); concluding that a metropolitan plan was not 
only proper, but necessary.

Thus, by the District Court’s control over the timing of 
events which occurred upon intervention, Petitioner was effec-

In addition, at this time the United States filed a 27 page memoran­
dum in connection with its Motion to Intervene.



61

tively foreclosed from any meaningful participation in the pro­
ceedings relative to the necessity or propriety of a metropolitan 
plan. Indeed, one can only conclude that the District Court had in 
fact determined prior to intervention that it would be necessary to 
desegregate the Detroit Public Schools by involving Petitioner’s 
children, and consequently the fundamental predicates for the im­
position of judicial sanction-claim, proof, finding of a wrong and 
causation-were either ignored by the District Court or inten­
tionally given minimal consideration.

Under Michigan law, Petitioner is a municipal body corpor­
ate, having the power to sue and be sued, and having an indispen­
sable right to be heard with respect to any proceedings involving 
issues affecting the education of its resident students.!113] This 
was acknowledged by the District Court in granting intervention 
of right under Fed. R. Civ. P. 24(a) and by the Court of Appeals in 
ordering joinder of the remaining districts under Fed. R. Civ. P. 
19. As such, Petitioner was and is entitled to fundamental rights of 
due process of law, including the opportunity to be heard in a 
meaningful way:

“A fundamental requirement of due process is ‘the 
opportunity to be heard.’ . . .  It is an opportunity which 
must be granted at a meaningful time and in a meaningful 
manner.” Armstrong v Manzo, 380 U.S. 545, 522 14 L. Ed.
2d 62(1965).

“We have frequently emphasized that the right to con­
front and cross-examine witnesses is a fundamental aspect of 
procedural due process.” Jenkins v McKeithen, 395 U.S. 411, 
428 23 L. Ed. 2d 404 (1969)!] 141

However, Petitioner never was given an opportunity to participate 
in the trial of the essential issues concerning the violations which 
form the predicate for Petitioner’s inclusion in a plan of metro-
[U3] Mich. Comp. Laws Annotated, §340.352.
11141 See also In Re Oliver, 33 U.S. 257 92 L. Ed. 682 (1948) and Railroad 

Commission o f  Calif, v. Pacific Gas & Electric, 302 U.S. 388 82 L. Ed. 319 
(1938).



62

politan relief. I115  ̂ The failure of the District Court to afford Pe­
titioner an opportunity to be heard, when these issues which so 
vitally affect it were being judicially determined, constitutes a 
blatant denial of fundamental due process of law guaranteed under 
the Fifth amendment.

The Court of Appeals did not address itself to the issue of 
Petitioner’s denial of due process by the District Court, but only 
to the question of the applicability of Fed. R. Civ. P. 19, so as to 
require the inclusion of all other potentially affected school dis­
tricts before the remedy is implemented. The Court of Appeals 
refused, however, to vacate the District Court’s order that there 
would ne a metropolitan style remedial order implemented, af­
fecting the outlying school districts, thus, the Court of Appeals 
actually compounded the due process problem by ordering 
additional outlying districts to be joined, as indispensable parties, 
and at the same time denying them the right to introduce any 
evidence on the basic issues of whether or not the violation was in 
fact of such a scope as to require the implementation of a plan 
substantially affecting the educational process of their children. 
The error committed by the lower courts with respect to both the 
intervenor school districts, and the newly joined districts, was 
separately expressed by all three dissenting judges, as follows:

“However, in its opinion the majority did provide for amend­
ment o f pleadings on remand, making new party defendants, 
for intervention, and for offering additional testimony. These 
provisions are wholly illusory with respect to the issues of 
segregation, the ‘Detroit-Only plan’ and the ‘Metropolitan 
plan’, as the opinion expressly excludes these items from 
reconsideration upon the remand. ” (Judge Weick, 206a, em­
phasis added).

* *  *

[115] p or an exampie 0f a case where such rights were properly safe­
guarded, see Higgins v Bd. o f  Educ. o f  City o f  Grand Rapids, supra, where the 
District Court ordered joinder as parties defendant 11 suburban school dis­
tricts prior to the trial on the merits of the de jure segregation claim. The 
District Judge stated: “ Thus all parties who might be affected by any judg­
ment o f the court were given the opportunity to defend on the issues of 
constitutional violations charged against them by the plaintiffs.”  Slip opinion, 
pg. 3. See also, Bradley v. School Board o f  the City o f  Richmond, 338 
F.Supp. 67 (E.D. Va. 1972).



63

The situation in this case is pointed up by the language found 
at 3B Moore’s Federal Practice %24.16[4], 2d Ed.

“It would be meaningless to give him an absolute right 
to intervene in order to protect his interest, if once in 
the proceeding he were barred from raising questions 
necessary to his own protection.” (Judge Kent, 237a, 
emphasis added).

* * *

To permit these additional parties to be heard only in the re­
stricted sense set forth in the majority opinion is to deny 
them basic rights guaranteed not only by Rule 19, Federal 
Rules o f Civil Procedure, but by the Constitution itself. ” 
(Judge Miller, 240a, emphasis added).

As indicated by his statement from the bench on June 24, 
1971, 11161 it was apparent to the District Judge at that time that 
he might find it necessary to include suburban districts in a 
desegregation order. A few weeks later, a Motion to join all 
outlying school districts was filed. At this stage of the proceedings 
it was still quite feasible for all outlying school districts to have 
had full and meaningful participation with respect to all principal 
issues ultimately ruled on by the Court.

Judge Kent expressed the problem as follows:

“The errors to which we have already alluded were brought 
about by the failure on the part of the District Court to re­
quire that all interested parties be brought into the case at 
the earliest appropriate moment. I116 1171 (230a, emphasis in 
original)
The presence of the State Defendants is no answer to the 

failure to join Petitioner and other school districts against whom 
relief might be granted. Petitioner is an independent municipal 
body corporate, and can be represented in this action by no other
[116] Quoted above, at pg. 59.

[117] jn addition to Petitioner and other intervening school districts, the 18 
non-intervening districts are similarly affected. As Judge Weick observed of 
the 18 districts, “ They have surely been deprived of their property rights, 
not only without due process of law, but without any process of law.” 
(207a).



64

party. This basic proposition was last affirmed in the case of 
Zenith Radio Corp. v. Hazeltine Research, 395 US 100, 23 L.Ed. 
2d 129 (1969), which involved the entry by the District Court of a 
judgment against a parent corporation, where the only defendant 
before the Court was a wholly owned subsidiary of the parent. 
There existed a commonality of officers, and the defendant sub­
sidiary had even entered into a stipulation that the parent and the 
subsidiary would be “ considered as one entity” for purposes of 
the trial. In holding that the parent corporation could not be 
represented by its subsidiary in the cause, however, this Court 
stated, at p. 110:

“ It is elementary that one is not bound by a judgment in 
personam resulting from litigation in which he is not desig­
nated as a party or to which he has not been made a party by 
service of process.”

Petitioner submits that the principle of Hazeltine is fully appli­
cable to the instant case, and the errors committed by the District 
Court in denying Petitioner due process of law are not mitigated 
by the presence of Defendants Milliken, et al. [1181 118

[118] As an indication o f the inability o f the State Defendants to represent 
the interest of Petitioner, at the same time that Petitioner was before the Dis­
trict Court in connection with the metropolitan remedy hearings, the Peti­
tioner was engaged in the trial o f a suit brought against Petitioner and two 
other school districts challenging the constitutionality o f Michigan’s system 
of financing public education. Governor v State Treasurer, supra.



65

CONCLUSION
For the foregoing reasons it is respectfully submitted that the 

judgments of the courts below should be reversed. 11191

Respectfully submitted,

DOUGLAS H. WEST 
3700 Penobscot Building 
Detroit, Michigan 48226 
962-6485
Counsel for Petitioner

THOMAS E. COULTER, and 
HILL, LEWIS, ADAMS, GOODRICH 

&TAIT
3700 Penobscot Building 
Detroit, Michigan 48226 
962-6485 
Of Counsel

December 28, 1973

U19] Should this Court determine that a remand of this cause is necessary, 
it should also be made aware of an additional problem which may be an ap­
propriate subject in an Order o f Remand. In their Brief to the Court of Ap­
peals, Petitioner school districts asserted that the District Court was without 
jurisdiction to order implementation o f a Metropolitan Plan of Desegregation 
for the reason that the granting o f such relief would necessarily constitute the 
enjoining, as a result o f the unconstitutionality thereof, o f the enforcement, 
operation or execution o f certain provisions of the Michigan Constitution and 
statutes of statewide application, in pursuance of which all independent Mich­
igan school districts are organized and operated. The Court of Appeals, how­
ever, chose to totally ignore this problem notwithstanding the provisions of 
28 U.S.C. §2281 et seq. requiring the convening o f a District Court of three 
judges.





laa

CONSTITUTIONAL PROVISIONS,
STATUTES AND RULES INVOLVED

CONSTITUTIONAL PROVISIONS

United States Constitution, Amendment V provides:

AMENDMENT V -  CAPITAL CRIMES; DOUBLE JEOP­
ARDY; SELF-INCRIMINATION; DUE PROCESS; JUST 
COMPENSATION FOR PROPERTY

No person shall be held to answer for a capital, or other­
wise infamous crime, unless on a presentment or indictment 
of a Grand Jury, except in cases arising in the land or naval 
forces, or in the Militia, when in actual service in time of War 
or public danger; nor shall any person be subject for the same 
offence to be twice put in jeopardy of life or limb; nor shall 
be compelled in any criminal case to be a witness against him­
self, nor be deprived of life, liberty, or property, without due 
process of law; nor shall private property be taken for public 
use, without just compensation.

United States Constitution, Amendment XIV, Section 1, provides:

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 citizens of the United States; nor 
shall any State deprive any person of life, liberty, or proper­
ty, without due process of law; nor deny to any person with­
in its jurisdiction the equal protection of the laws.

Michigan Constitution of 1963, Art. 8, §2 provides in part:
Free public elementary and secondary schools; discrimina­
tion.

SEC. 2. The legislature shall maintain and support a system 
of free public elementary and secondary schools as defined 
by law. Every school district shall provide for the education 
of its pupils without discrimination as to religion, creed, race, 
color or national origin.



2aa

Michigan Constitution of 1963, Art. 8, §3 provides, in part:

State board of education; duties.

Sec. 3. Leadership and general supervision over all public 
education, including adult education and instructional pro­
grams in state institutions, except as to institutions of higher 
education granting baccalaureate degrees, is vested in a state 
board of education. It shall serve as the general planning and 
coordinating body for all public education, including higher 
education, and shall advise the legislature as to the financial 
requirements in connection therewith.

UNITED STATES STATUTES

Judicial Code, 28 U.S.C. § 1254(1) provides:

1254. Courts of appeals; certiorari; appeal, certified ques­
tions

Cases in the courts of appeals may be reviewed by the 
Supreme Court by the following methods;

(1) By writ of certiorari granted upon the petition of any 
party to any civil or criminal case, before or after rendition 
of judgment or decree;

Judicial Code, 28 U.S.C. § 1292(b) provides:

§1292. Interlocutory decisions

(b) When a district judge, in making in a civil action an 
order not otherwise appealable under this section, shall be of 
the opinion that such order involves a controlling question of 
law as to which there is substantial ground for difference of 
opinion and that an immediate appeal from the order may 
materially advance the ultimate terminationof the litigation, 
he shall so state in writing in such order. The Court of 
Appeals may thereupon, in its discretion, permit an appeal to 
be taken from such order, if application is made to it within 
ten days after the entry of the order: Provided, however, 
That application for an appeal hereunder shall not stay pro-



3aa

ceedings in the district court unless the district judge or the 
Court of Appeals or a judge thereof shall so order.

Judicial Code, 28 U.S.C. §2281 provides:

§2281. Injunction against enforcement of State statute; 
three-judge court required

An interlocutory or permanent injunction restraining the 
enforcement, operation or execution of any State statute by 
restraining the action of any officer of such State in the en­
forcement or execution of such statute or of an order made 
by an administrative board or commission acting under State 
statutes, shall not be granted by any district court or judge 
thereof upon the ground of the unconstitutionality of such 
statute unless the application therefor is heard and determin­
ed by a district court of three judges under section 2284 of 
this title.

MICHIGAN STATUTES

Act 34, Sec. 28, Mich. Pub. Acts of 1867 provides:

(2271) Sec. 28. All residents of any district shall have an 
equal right to attend any school therein: Provided, That this 
shall not prevent the grading of schools according to the in­
tellectual progress of the pupils, to be taught in separate 
places when deemed expedient.

Act 319, Part II, Ch. 2, Sec. 9, Mich. Pub. Acts of 1927, provides:

SEC. 9. All persons residents of any school district, and 
five years of age, shall have an equal right to attend any 
school therein; and no separate school or department shall be 
kept for any person or persons on account of race or color: 
Provided, That this shall not be construed to prevent the 
grading of schools according to the intellectual progress of 
the pupil, to be taught in separate places as may be deemed 
expedient.



4aa

Act 306, Mich. Pub. Acts of 1937, provides:

A N  A C T  to  p rom ote  the sa fe ty  and  w e lfa re  o f  the p e o p le  o f  the state of 
M ich igan  by  reg u la tin g  the co n stru ctio n  o f  certa in  p u b lic  b u ild in gs , and 
to  define the class o f  b u ild in gs  affected  b y  th is  a c t ;  to  p rescr ib e  th e  powers 
and duties o f  the fire m arsh a l w ith  resp ect th e re to ; to  p rescr ib e  penalties 
fo r  the v io la tion  o f  th is a c t ; an d  to  repea l a ll a cts  an d  p a rts  o f  acts , general, 
lo ca l and specia l, in con s is ten t w ith  or  c o n tra ry  to  the p ro v is io n s  o f  this 
act.

The People of the State of Michigan enact:
P u b lic  or  p r iva te  sch oo l b u ild in g s ; con stru ction  regu la tion s an d  require­

m ents.
S ection  1. N o sch ool b u ild in g , p u b lic  o r  p r iva te , o r  a d d itio n s  th ereto , shall 

h erea fter be erected  in  the sta te  o f  M ich iga n  ex cep t it  be in  co n fo rm ity  with 
the fo l lo w in g  p rov is ion s  o f  th is  a c t :

1. T h is a ct sh a ll a p p ly  to  s ch oo l b u ild in gs  h av in g  m ore  than  one story. 
I f  it  shall be design ed  fo r  class room s in  th e  basem ent, then th e  basement 
sh a ll be con sidered  as on e floor. S ch oo l gym n asiu m s, s ch oo l ca fe ter ia s , school 
a u d itor iu m s and sch oo l p laces o f  assem bly  sh a ll be sp e c ifica lly  in clu d ed  under 
th e  p rov is ion s  o f  th is  act.

2. A ll  p lan s and sp ecifica tion s , fo r  b u ild in g s  u n d er the scop e  o f  th is act, 
sh a ll be p repared  by, an d  the co n stru ctio n  su pervised  b y , an  arch itect or 
en gin eer wdio is reg istered  in  th e  sta te  o f  M ich igan .

3. A ll  w a lls, floors, p a rtit io n s  and  ro o fs  sh a ll be co n stru cte d  o f  fire-resist­
in g  m ateria ls  such  as stone, b r ick , tile , con cre te , gypsu m , steel o r  sim ilar fire- 
res is tin g  m ateria ls. A ll  steel m em bers sh a ll be p ro te c te d  b y  a t lea st three- 
fo u rth s  o f  an in ch  o f  fire -resistin g  m ateria l.

4. N o  wTood  la th  o r  wTood  fu rr in g  sh a ll be used. Howmver, these regula­
t io n s  shall n ot be con stru ed  as p ro h ib it in g  the use o f  w o o d  flooring on 
m ason ry  sub floors, o r  the use o f  w o o d  sleepers, w o o d  cab in ets , o r  w ood  trim.

5. E very  room  e n clos in g  a h eatin g  u n it sh a ll be en closed  b y  w a lls  o f fire- 
res is tin g  m ateria ls  an d  sh a ll be equ ipped  wdth a u tom a tica lly -c los in g  fire- 
d o o r s ; and sa id  h eatin g  u n it sh a ll n o t be lo ca te d  d ire c t ly  ben eath  a class­
r o o m : Provided further, T h at in an y  sch oo l w'here n a tu ra l gas o r  any other 
k in d  o f  gas shall be used fo r  h ea tin g  p u rp oses  sa id  gas sh a ll be chemically 
treated  b e fore  b e in g  used in  such a m an n er as to  g ive a  very  distinguishable 
o d o r  i f  a n y  leak shou ld  develop  in  the h ea tin g  system .

6. In  gym nasium s, fire -p roofin gs m ay be om itted  fro m  th e  trusses and 
p u rlin s  i f  th ey  are m ore  th an  sixteen  fee t off the m ain  flo o r  le v e l ; also, from 
the steel su p p orts  o f  the ru n n in g  tra ck . T he ru n n in g  tra ck  sh a ll be con­
stru cted  o f  w ood  n ot less than  twTo in ch es th ick . I t  sh a ll be the d u ty  of the 
a rch itect o r  en gin eer to  p ro v id e  adequ ate  ex its . In  a ll cases th ere shall be 
a t least tw o  sta irw ays an d  the d ista n ce  fr o m  the d o o r  o f  an y  class or as 
sem bly room  to  a  s ta irw a y  o r  ex it  sh a ll n o t exceed  on e h u n dred  feet.

A rch ite c t  or engineer, respon sib ilities.
Sec. 2. T he a rch ite ct o r  en g in eer p re p a r in g  the p la n s an d  specification 

o r  su perv isin g  the co n stru ctio n  o f  an y  such b u ild in g  sh a ll be responsibe 
fo r  con stru ctin g  the b u ild in g  o f  adequ ate stren gth  so  as to  res is t fire, an 
con stru ctin g  the b u ild in g  in  a w ork m an lik e  m anner.



5aa

Inspection  d u rin g  con stru ction  b y  state fire marshal, pow ers.
Sec. 3. T he state  fire m arshal shall inspect any such bu ild in g  to  determ ine 

Aether o r  n ot the con stru ction  thereof com plies w ith  the provisions o f  this 
let. E a ch  b u ild in g  shall be inspected  by the state fire m arshal at least tw ice  
luring con stru ction , one in spection  to  be m ade o f the fram e w ork  o f  the 
milding p r io r  to  p lasterin g  and one in spection  shall be m ade on the com ­
pletion o f  the b u ild in g . W ith  respect to  such inspections, the state fire 
Marshal sh a ll have the sam e pow ers as set fo rth  in a ct num ber one hundred 
w enty-eiglit o f  the p u b lic  acts o f  nineteen hundred fifteen, as am ended, be­
ing section s s ix  h undred  three to  s ix  hundred tw enty, inclusive, o f  the corn- 
pled la w s o f  n ineteen  hundred  tw enty-nine.
| V iolation  o f  act b y  arch itect or  engineer, penalty.

Sec. 4. T he licen se or reg istra tion  o f any arch itect or  engineer convicted  
if v io la tin g  any o f  the prov isions o f  this a ct shall be revoked. In  addition , 
any a rch itect o r  engineer v io la tin g  any o f the provisions o f  this a ct shall be 
kilty o f  a m isdem ean or and upon con v iction  shall be punished as provided  
|y the law s o f  th is state.

Severing clause.
' Sec. 5. S h ou ld  any p rov is ion  or  section  o f  this a ct be held to  be invalid  
or any reason , such h o ld in g  shall not be construed  as a ffecting the va lid ity  
)f any rem ain in g  p ortion  o f such section  or  o f  th is act, it  being the leg isla ­
te  in ten t th at th is a ct shall stand, n otw ith stan d in g  the in va lid ity  o f  any 
inch p ro v is io n  o r  section.
Exem ption.
Sec. 5a. T he p rov is ion s  o f  th is a ct shall n o t ap p ly  to  the con stru ction  or 

Aeration o f  an y  ru ra l sch ool bu ild in g  or  gym nasium  w here the to ta l cost 
Hereof does n o t exceed  five thousand dollars.
Repeal.
Sec. 6. A ll  acts and  p a rts  o f  acts, general, lo ca l and special, are hereby 

niperseded an d  repealed  in so fa r  as in con sistent w ith  the provisions o f  this
lot.
This a ct is o rd ered  to  take im m ediate effect.

|
Act 231, Mich. Pub. Acts of 1949, provides:

AN ACT to amend sections 1. ia. 2. 3 and Sa of Act No. 306 of the Public Acts of 1937,
• entitled as amended “An act to promote the safety, welfare and educational interests of 
tie people of the state of Michigan by regulating the construction, reconstruction and re­
modeling of certain public or private school buildings or additions thereto, by regulating 
He construction, reconstruction and remodeling of buildings leased or acquired for school 
Purposes, and to define the class of, buildings affected by this act; to prescribe the powers 
ltd duties of the superintendent of public instruction, the state fire marshal, architects, 
WRineers and school board members with respect thereto; to prescribe penalties for the 
'Violation of this act; and to repeal all acts and parts of acts, general, local and special, 
'inconsistent with or contrary to the provisions of this act, as amended and added by Act 
No. 14S of the Public Acts of 1941. being sections 388.851, 3S8.851a. 388.852. 388.853 and 

I®.855a. respectively, of the Compiled Laws of 1948.



6aa

The People of the State of Michigan enact:

Sections amended.
Section 1. Sections 1. la. 2. 3 and Sa of Act No. 306 of the Public Acts of 1937, as 

amended and added by Act No. 148 of the Public Acts of 1941, being sections 388.851, 
388.831a. 3S8.S52. 388.833 and 3S8.855a. respectively, of the Compiled Laws of 1948, are 
hereby amended to read as follows:

388.851 Public or private school buildings; construction requirements.

Sec. 1. No school building, public or private, or additions thereto, shall hereafter be 
erected, remodeled or reconstructed in the state of Michigan except it be in conformity 
with the following provisions:

(a) All plans and specifications for buildings shall be prepared by. and the construction 
supervised by. an architect or engineer who is registered in the state of Michigan. Before 
the construction, reconstruction or remodeling of any school building or addition thereto 
is commenced, the written approval of the plans and specifications by the superintendent of 
public instruction or his authorized agent shall be obtained. In the approval of plans and 
specifications the superintendent of public instruction or his authorized agent shall con­
sider in addition to the considerations otherwise mentioned in this act the following fac­
tors:

( I f  The adequacy and location of the site.
(2 ) The educational usefulness of the building.
(3) The provisions for health and safety.
The superintendent of public instruction shall publish an informative bulletin which shall 

set forth good school building planning procedures and interpret clearly the provisions of 
this act.

(b) All walls, floors, partitions and roofs shall be constructed of fire-resisting materials 
such as stone, brick, tile, concrete, gypsum, steel or similar fire-resisting materials. All steel 
members shall be protected by at least of an inch of fire-resisting material.

(c) No wood lath or wood furring shall be used: Provided, however. That these regula­
tions shall not be construed as prohibiting the use of finished wood flooring, wood door 
and window frames, wood sash or wood furring and grounds, for the purpose of installing 
wood trim, panelling, acoustical units or similar facing materials on masonrv walls, struc­
tural steel or concrete ceiling members.

(d ) Every room enclosing a heating unit shall be enclosed by walls or fire-resisting 
materials and shall be equipped with automatically closing fire doors: and said heating unit 
shall not be located directly beneath any portion of a school building or addition thereto 
which is constructed or reconstructed after the effective date of this act: Provided. That 
this regulation shall not be construed to require the removal of an existing heating plant 
from beneath an existing building when an addition to such building is constructed unless 
the state superintendent of public instruction or his authorized agent, acting jointly with 
the state fire marshal, shall so require in the interests of public safety: Provided further, 
That in any school where natural gas or any other kind of gas shall be used for heating 
purposes said gas shall be chemically treated before being used in such a manner as to give 
a very distinguishable odor if any leak should develop in the heating system.

(e) In gymnasiums, fire-proofings may be omitted from the trusses and purlins if they 
are more than 16 feet off the main floor level. It shall be the duty of the architect or 
engineer to provide adequate exits from all parts of school buildings. In all cases there 
shall be at least 2 stairways and the distance from the door of any class or assembly room 
to a stairway or exit shall not exceed 100 feet.



7aa

!8.851a Definitions.
Sec. la. Words and phrases used in this act shall be defined as follows:
(a) “School buildings” shall include all buildings used for school purposes.
(b) “Remodeling” shall mean the alteration, construction or remodeling of partitions, 

illways, stairways and means of egress, the replacement, relocation or reconstruction of 
eating, ventilating and sanitary equipment.

(c) “Addition” shall mean added space which results in additional cubic contents to 
isting building.

(d) “Total cost” shall be interpreted to mean the monetary worth of the building when 
ady for occupancy, regardless of the source of funds, labor or material and shall include 
ie cost of general construction, plumbing, heating and ventilation, electrical work, all 
jed equipment, together with the cost of architects, engineers and building superintending 
(rvices.

(e) A building having a basement shall be considered to be a 2 story building for the 
irposes of this act.

18.852 Architect or engineer, responsibilities.
Sec. 2. The architect or engineer preparing the plans and specifications or supervising 

Se construction of any school building shall be responsible for constructing the building of 
lequate strength so as to resist fire, and constructing the building in a workmanlike man­
ia, according to the plans and specifications as approved.

18.853 Inspection during construction by state fire marshal; powers; duty of
architect to notify.
Sec. 3. The state fire marshal shall inspect any building to determine whether or not 

|e construction thereof complies with the provisions of this act. Each building shall be 
ispected by the state fire marshal at least twice during construction, 1 inspection to be 
tide of the frame work of the building prior to plastering and 1 inspection shall be made 
pa the completion of the building. The architect shall notify the state fire marshal when 
ie building is ready for inspection. With respect to such inspections, the state fire mar- 
si shall have the same powers as set forth in Act No. 207 of the Public Acts of 1941, 
samended. being sections 29.1 to 29.25, inclusive, of the Compiled Laws of 1948.

18.855a Application of act; exemptions.
I Sec. 5a. Except as hereinafter provided the provisions of this act shall not apply to 
(story school buildings or to 1-story additions thereto nor shall it apply, except as here­
after provided to the construction, reconstruction or remodeling of any school building 
fcre the total cost of such construction, reconstruction or remodeling is less than
jl5.000.00.

Subdivision (a) of section 1 of this act shall apply to the construction of all school 
Wildings and additions to school buildings regardless of the number of stories of such 

Gildings or additions where the total cost of such construction shall exceed $15,000.00.
; Subdivision (d) of section 1 shall apply to the construction of all school buildings and 
Editions thereto of 1 or more stories regardless of the cost of their construction.

The provisions of this act shall also apply to the reconstruction of a school building de- 
jlroyed or partially destroyed by fire, windstorm or other catastrophe if more than oO per 
pit of the entire building is so destroyed. The state fire marshal acting jointly with the 
perintendent of public instruction may require that the damaged portion and/or the 
Gaining portion of the building be remodeled or reconstructed in accordance with the pro­
visions of this act. This act shall also apply to the remodeling of existing school buildings

i other buildings to be used for school purposes.



8aa

No existing building or part of building regardless of the number of its stories or its cosl 
to the school district which has not had prior use as a school building shall be so used 
until such use shall have been approved by the superintendent of public instruction and 
the state fire marshal.

For all construction, reconstruction or remodeling of school buildings where the total 
cost is less than $15,000.00, it shall not be necessary that a registered architect or engineer 
be employed but the plans for such buildings shall be submitted to the superintendent o( 
public instruction or his authorized agent for criticism, suggestions and approval.

This act is ordered to take immediate effect.
Approved May 31, 1949.

Act 175, Mich. Pub. Acts of 1962, provides:
AN ACT to amend sections 1, 3 and 5a of Act No. 306 of the Public Acts of 1937, 

entitled as amended “An act to promote the safety, welfare and educational interests of 
the people of the state of Michigan by regulating the construction, reconstruction and 
remodeling of certain public or private school buildings or additions thereto, by regulating 
the construction, reconstruction and remodeling of buildings leased or acquired for school 
purposes, and to define the class of buildings affected by this act; to prescribe the powers 
and duties of the superintendent of public instruction, the state fire marshal, architects, 
engineers and school board members with respect thereto; to prescribe penalties for the 
violation of this act; and to repeal all acts and parts of acts, general, local and special, 
inconsistent with or contrary to the provisions of this act,” as amended by Act No. 231 
of the Public Acts of 1949, being sections 388.851, 388.853 and 388.855a of the Compiled 
Laws of 1948.

The People of the State of Michigan enact:

Sections amended.
Section 1. Sections 1, 3 and 5a of Act No. 306 of the Public Acts of 1937, as amended 

by Act No. 231 of the Public Acts of 1949, being sections 388.851, 388.853 and 388.855a 
of the Compiled Laws of 1948, are hereby amended to read as follows:

388.851 Public or private school buildings; construction requirements, waiver.

Sec. 1. No school building, public or private, or additions thereto, shall hereafter be 
erected, remodeled or reconstructed in the state of Michigan except it be in conformity 
with the following provisions:

(a) All plans and specifications for buildings shall be prepared by, and the construc­
tion supervised by, an architect or engineer who is registered in the state of Michigan. 
Before the construction, reconstruction or remodeling of any school building or addition 
thereto is commenced, the written approval of the plans and specifications by the super­
intendent of public instruction or his authorized agent shall be obtained. The superintendent 
of public instruction or his authorized agent shall not issue such approval until he has 
secured in writing the approval of the state fire marshal relative to factors concerning fire 
safety and of the health department having jurisdiciton relative to factors affecting water 
supply, sanitation and food handling.

The superintendent of public instruction shall publish an informative bulletin which 
shall set forth good school building planning procedures and interpret clearly the provisions 
of this act. The bulletin shall be prepared in cooperation with the state fire marshal and



9aa

'j e state health commissioner and, insofar as requirements for approval of plans are con- 
J med, shall be consistent with recognized good practice as evidenced by standards adopted

nationally recognized authorities in the fields of fire protection and health.
I (b) All walls, floors, partitions and roofs shall be constructed of fire-resisting mate- 
ils such as stone, brick, tile, concrete, gypsum, steel or similar fire-resisting material. 

I I steel members shall be protected by at least of an inch of fire-resisting material.
(c) No wood lath or wood furring shall be used: Provided, however, That these 

gulations shall not be construed as prohibiting the use of finished wood flooring, wood 
>or and window frames, wood sash or wood furring and grounds, for the purpose of 
stalling wood trim, panelling, acoustical units or similar facing materials on masonry 
ills, structural steel or concrete ceiling members.
(d) Every room enclosing a heating unit shall be enclosed by walls or fire-resisting 

Materials and shall be equipped with automatically closing fire doors; and said heating 
sit shall not be located directly beneath any portion of a school building or addition 
iereto which is constructed or reconstructed after the effective date of this act: Provided, 
jhat this regulation shall not be construed to require the removal of an existing heating 
tint from beneath an existing building when an addition to such building is constructed 
iless the state superintendent of public instruction or his authorized agent, acting jointly 
1th the state fire marshal, shall so require in the interests of public safety: Provided 
■tiler, That in any school where natural gas or any other kind of gas shall be used for 
luting purposes said gas shall be chemically treated before being used in such a manner
i to give a very distinguishable odor if any leak should develop in the heating system.

(e) In gymnasiums, fire-proofings may be omitted from the trusses and purlins if they 
it more than 16 feet off the main floor level. It shall be the duty of the architect or 
igineer to provide adequate exits from all parts of school buildings. In all cases there 
fall be at least 2 stairways and the distance from the door of any class or assembly room 
)a stairway or exit shall not exceed 100 feet.
' (f) Provisions in subsections (b) through (e) may be waived in writing by the state 
lie marshal.
18.853 Inspection by state fire marshal; notice by architect; municipal fire
prevention and safety measures.
Sec. 3. Except as hereinafter provided, the state fire marshal shall inspect any building 

!»determine whether or not the construction thereof complies with the provisions of this 
(tt. Each building shall be inspected by the state fire marshal at least twice during 
instruction, 1 inspection to be made of the frame work of the building prior to plastering 
fid 1 inspection shall be made on the completion of the building. The architect shall 
:otify the state fire marshal when the building is ready for inspection. With respect to 
iich inspections, the state fire marshal shall have the same powers as set forth in Act No. 

p  of the Public Acts of 1941, as amended, being sections 29.1 to 29.25, inclusive, of the 
compiled Laws of 1948.

(a) The state fire marshal shall not be required to inspect or make any determination 
'd fire safety in any existing school building insofar as operation, maintenance, remodeling, 
# repairs for fire safety is concerned if such school building is located in a municipality 
there both the school board of such a school and the governing body of the municipality 
I which such a school is located have certified to the state superintendent of public 
hstruction, in a manner prescribed by him, that the fire safety inspections and fire safety 
jtasures for the schools located in the municipality are provided for by a municipal code 
:,r ordinance that is administered and enforced by a full time fire prevention and safety 
Apartment, division, or bureau maintained by the municipality and are satisfactory to 
|h)th such school board and governing body. Either such school board or governing body 
%  rescind the certification.



lOaa

388.855a Application of act; exemptions.
Sec. 5a. Except as hereinafter provided the provisions of this act shall not apply to 

1-story school buildings or to 1-story additions thereto nor shall it apply, except as here­
inafter provided to the construction, reconstruction or remodeling of any school building 
where the total cost of such construction, reconstruction or remodeling is less than $15,000.00.

Subdivision (a) of section 1 of this act shall apply to the construction of all school 
buildings and additions to school buildings regardless of the number of stories of such 
buildings or additions where the total cost of such construction shall exceed $15,000.00.

Subdivision (d) of section 1 shall apply to the construction of all school buildings and 
additions thereto of 1 or more stories regardless of the cost of their construction.

The provisions of this act shall also apply to the reconstruction of a school building 
destroyed or partially destroyed by fire, windstorm or other catastrophe if more than 50 
per cent of the entire building is so destroyed. The state fire marshal acting jointly with 
the superintendent of public instruction may require that the damaged portion and/or the 
remaining portion of the building be remodeled or reconstructed in accordance with the 
provisions of this act. This act shall also apply to the remodeling of existing school 
buildings and other buildings to be used for school purposes.

No existing building or part of building regardless of the number of its stories or its 
cost to the school district which has not had prior use as a school building shall be so used 
until such use shall have been approved by the superintendent of public instruction and the 
state fire marshal.

For all construction, reconstruction or remodeling of school buildings where the total 
cost is less than $15,000.00, it shall not be necessary that a registered architect or engineer 
be employed but the plans for such buildings shall be submitted to the state fire marshal 
and to the superintendent of public instruction or his authorized agent for criticism, 
suggestions and approval.

This act is ordered to take immediate effect.

Act 244, Mich. Pub. Acts of 1969, provides:
AN ACT to require first class school districts to be divided into regional districts and 

to provide for local district school boards and to define their powers and duties and the 
powers and duties of the first class district board.

The People of the State of Michigan enact:

388.171 1 First class school district; division. [M .S .A . 15.2298(1)]
Sec. 1. Not later than January 30, 1970, the school board of each first class district 

shall divide its district into not less than 7 nor more than 11 regional school districts with 
not more than 50,000 nor less than 2 5,000 students in each district.

388.172 Same; board; regional members; present members, term.

Sec. 2. In addition to the present members of the first class board there shall be 
elected by the registered and qualified electors of each district to the first class board 1 
member from each of the districts for a term of 4 years. The members of the first class 
school district board provided in section 2 to be elected by regions shall be elected in the 
general election to be held in November, 1970 and every fourth year thereafter for a term 
commencing on January 1 next following their election. The candidates shall be nominated 
in primary elections in the manner provided by law for the present first class school district 
members.



1 laa

The term of office of the present first class school board members shall hereafter be
0 ears. The terms of office of present first class school board members which expire 

le 30, 1971 are extended to January 1, 1973. The term of office of present first class
g iool board members which expire June 30, 1973 are shortened to January 1, 1973. The 
)■ 1 large positions on the first class district school board which expire January 1, 1973 
>1 ill be filled at the general election to be held in November, 1972 for a term of 4 years, 
b i terms of office of present first class school district board members which expire on 

«e 30, 1975 are extended to January 1, 1977 and shall be filled at the general election 
d ibe held in November, 1976 for a term of 4 years.

g 1.173 Regional boards; size; qualifications; election; term.

1 Sec. 3. In each regional district there shall be elected 9 members to the regional board.
5 ) person shall be elected who is not a resident of the regional district from which he
: elected. The members shall be nominated and elected by the registered and qualified
1 ttors of each district as is provided by law for the nomination and election of first

jss school board members except that signatures required on nominating petitions shall 
i not less than 500 nor more than 1,000. The members shall be elected for terms of 4

Jrs. Except that of the members elected at the general election in 1970. the 5 members
‘ Jiving the highest number of votes shall be elected for a term of 4 years and the 4 

sibers receiving the next highest number of votes shall be elected for a term of 2 years.

1174 First class district board, powers.
Sec. 4. The first class school district board shall retain all the powers and duties now 
sessed by a first class school district except for those given to a regional school district 
}rd under the provisions of this act.

1175 Regional board, powers.
Sec. 5. Effective upon the commencement of its term of office, the regional school
jlrict board, subject to guidelines established by the first class district board, shall have 
! power to:
(1) Employ and discharge a superintendent for the regional school district from a list 
lists of candidates submitted by the district board.
(2) Employ and discharge, assign and promote all teachers and other employees of the 

lional school district, subject to review by the first class school district board, which may 
trrule, modify or affirm the action of the regional district board.
1(3) Determine the curriculum, use of educational facilities and establishment of educa- 
tal and testing programs in the regional school district.
(4) Determine the budget for the regional school district based upon the allocation of 

9ds received from the first class school district board.

18.176 Employee rights.
Sec. 6. The rights of retirement, tenure, seniority and of any other benefits of any 

'ployee transferred to a regional school district or between regional school districts from 
£ first class district shall not be abrogated, diminished or impaired.

,18.177 First class district board, functions.
Sec. 7. The first class school district board shall perform the following functions for 

£ regional school districts:
1 (1) Central purchasing.

(2) Payroll.



12aa

(3) Contract negotiations for all employees, subject to the provisions of Act No. 336̂  
of the Public Acts of 1947, as amended, being sections 423.201 to 423.216 of the Compiled 
Laws of 1948, and subject to any bargaining certification and to the provisions of any 
collective bargaining agreement pertaining to affected employees.

(4) Property management and maintenance.
(5) Bonding.
(6) Special education programs.
C7) Allocation of funds for capital outlay and operations to each regional school district.
(8) On or before November 1, 1970, establish guidelines for the implementation of the 

provisions of section S.

Act 48, Sec. 12, Mich. Pub. Act of 1970, provides:

3 88.182 Attendance provisions, implementation; condi­
tions. [M.S.A. 15.2298(12)]

Sec. 12. The implementation of any attendance provi­
sions for the 1970-71 school year determined by any first 
class school district board shall be delayed pending the date 
of commencement of functions by the first class school dis­
trict boards established under the provisions of this amenda­
tory act but such provision shall not impar the right of any 
such board to determine and implement prior to such date 
such changes in attendance provisions as are mandated by 
practical necessity. In reviewing, confirming, establishing or 
modifying attendance provisions the first class school district 
boards established under the provisions of this amendatory 
act shall have a policy of open enrollment and shall enable 
students to attend a school of preference but providing prior­
ity acceptance, insofar as practicable, in cases of insufficient 
school capacity, to those students residing nearest the school 
and those studnets desiring to attend the school for participa­
tion in vocationally oriented courses or other specialized cur­
riculum.

Michigan Compiled Laws Annotated, §340.1 et seq, being the 
Michigan School Code of 1955, provides, in pertinent part, as 
follows:

Michigan Compiled Laws Annotated, §340.352 provides:

340.352 Body corporate; powers, rights, liabilities; pre­
sumptions



13aa

SEC. 352. Every school district shall be a body corporate 
under the name provided in this act, and may sue and be sued 
in its name, may acquire and take property, both real and 
personal, for educational purposes within or without its 
corporate limits, by purchase, gifts, grant, devide or bequest, 
and hold an use the same for such purposes, and may sell and 
convey the same as the interests of such district may require, 
subject to the conditions of this act contained. As such body 
corporate, every school district shall be the successor of any 
school district previously existing within the same territorial 
limits and shall be vested with all rights of action, with the 
title of all property, real and personal, of the district of 
which it is the successor, and the indebtedness and obliga­
tions of the district superseded shall become and be the in­
debtedness and obligations of the succeeding district, except 
as otherwise provided in chapters 3, 4 and 5, part 2 of this 
act. Every school district shall in all cases be presumed to 
have been legally organized when it shall have exercised the 
franchises and privileges of a district for the term of 2 years; 
and such school district and its officers shall be entitled to all 
the rights, privileges and immunities, and be subject to all the 
duties and liabilities conferred upon school districts by law.

Because of the extensive list set forth therein, those portions of
the Michigan School Code of 1955, referred to in note 91 on pg.
48, are not reprinted herein.

FEDERAL RULES OF CIVIL PROCEDURE

Fed. R. Civ. P. 19 provides:

Rule 19. Joinder of Persons Needed for Just Adjudication.

(a) Persons to be Joined if Feasible. A person who is sub­
ject to service of process and whose joinder will not deprive 
the court of jurisdiction over the subject matter of the action 
shall be joined as a party in the action if (1) in his absence 
complete relief cannot be accorded among those already 
parties, or (2) he claims an interest relating to the subject of 
the action and is so situated that the disposition of the action 
in his absence may (i) as a practical matter impair or impede



14aa

his ability to protect that interest or (ii) leave any of the per­
sons already parties subject to a substantial risk of incurring 
double, multiple, or otherwise inconsistent obligations by 
reason of his claimed interest. If he has not been so joined, 
the court shall order that he be made a party. If he should 
join as a plaintiff but refuses to do so, he may be made a 
defendant, or, in a proper case, an involuntary plaintiff. If 
the joined party objects to venue and his joinder would 
render the venue of the action improper, he shall be dis­
missed from the action.

(b) Determination by Court Whenever Joinder not Feas­
ible. If a person as described in subdivision (a) (l)-(2) hereof 
cannot be made a party, the court shall determine whether in 
equity and good conscience the action should proceed among 
the parties before it, or should be dismissed, the absent per­
son being thus regarded as indispensable. The factors to be 
considered by the court include: first, to what extent a judg­
ment rendered in the person’s absence might be prejudicial to 
him or those already parties; second, the extent to which, by 
protective provisions in the judgment, by the shaping of re­
lief, or other measures, the prejudice can be lessened or 
avoided; third, whether a judgment rendered in the person’s 
absence will be adequate; fourth, whether the plaintiff will 
have an adequate remedy if the action is dismissed for non­
joinder.

(c) Pleading Reasons for Nonjoinder. A pleading asserting 
a claim for relief shall state the names, if known to the plead­
er, of any persons as described in subdivision (a)(l)-(2) here­
of who are not joined, and the reasons why they are not 
joined.

(d) Exception of Class Actions. This rule is subject to the 
provisions of Rule 23.

Fed. R. Civ. P. 24(a) provides:

(a) Intervention of Right. Upon timely application any­
one shall be permitted to intervene in an action: (1) when a 
statute of the United States confers an unconditional right to



15aa

intervene; or (2) when the applicant claims an interest relat­
ing to the property or transaction which is the subject to the 
action and he is so situated that the disposition of the action 
may as a practical matter impair or impede his ability to pro­
tect that interest, unless the applicant’s interest is adequately 
represented by existing parties.

Fed. R. Civ. P. 54(b) provides:

Rule 54. Judgments; Costs

(b) Judgment upon Multiple Claims or Involving Multiple 
Parties. When more than one claim for relief is presented in 
an action, whether as a claim, counter-claim, cross-claim, or 
third-party claim, or when multiple parties are involved, the 
court may direct the entry of a final judgment as to one or 
more but fewer than all of the claims or parties only upon an 
express determination that there is no just reason for delay 
and upon an express direction for the entry of judgment. In 
the absence of such determination and direction, any order 
or other form of decision, however designated, which adjudi­
cates fewer than all the claims or the rights and liabilities of 
fewer than all the parties shall not terminate the action as to 
any of the claims or parties, and the order or other form of 
decision is subject to revision at any time before the entry of 
judgment adjudicating all the claims and the rights and liabili­
ties of all the parties.