Milliken v Bradley Vol. 1 Brief Collection
Public Court Documents
September 6, 1973 - September 6, 1973
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Brief Collection, LDF Court Filings. Milliken v Bradley Vol. 1 Brief Collection, 1973. 921cfd5f-ca9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/524fcc0e-566b-456c-bcc4-ee597fb239ee/milliken-v-bradley-vol-1-brief-collection. Accessed November 23, 2025.
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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
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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.
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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.
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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
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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
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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,
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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.
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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.
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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
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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
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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.
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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.
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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
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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
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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
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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
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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
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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
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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
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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.
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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?
Nos. 72-1809- 14 B r a d le y , e t a l v. M il l ik e n , e i al. 37
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.
Nos. 72-1809 -1 4 B r a d le y , e t al. v. M il l ik e n , e t al. 39
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?
Nos. 72-1809- 14 B r a d le y , e t al. v. M il l ik e n , e t al. 41
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);
Nos. 72-1809 - 14 B r a d le y , e t al. v. M il l ik e n , e t al. 49
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
Nos. 72-1809 - 14 B r a d le y , e t at. v. M il l ik e n , e t al. 63
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.
Nos. 72-1809 - 14 B r a d le y , e t al. v. M il l ik e n , e i al. 65
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.
Nos. 72-1809 - 14 B r a d le y , e t al. v. M il l ik e n , e t al. 67
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
Nos. 72-1809 - 14 B r a d le y , e t al. v. M il l ik e n , e t a l 69
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
Nos. 72-1809 -14 B r a d le y , e t al. v. M il l ik e n , e t al. 71
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.
72 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14
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
Nos. 72-1809 -14 B r a d le y , e t al. v. M il l ik e n , e t al. 78
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
Nos. 72-1809 - 14 B r a d le y , e t al. v. M il l ik e n , e t al. 75
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
Nos. 72-1809 - 14 B r a d le y , e t al. v. M il l ik e n , e t al. 77
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-
Nos. 72-1809 -1 4 B r a d le y , e t al. v. M il l ik e n , e t al. 79
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.
80 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14
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-
Nos. 72-1809 -1 4 B r a d le y , e t al. v. M il l ik e n , e t al. 115
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-
116 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14
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-
Nos. 72-1809 -1 4 B r a d l e y , e t al. v. M il l ik e n , e t al. 117
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
Nos. 72-1809 -14 B r a d le y , e t al. v. M il l ik e n , e t al. 119
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.
Nos. 72-1809 -1 4 B r a d le y , e t al. v. M il l ik e n , e t al. 121
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.
Nos. 72-1809 - 14 B r a d le y , e t al. v. M il l ik e n , e t al. 123
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:
Nos. 72-1809 -1 4 B r a d le y , e t a l v. M il l ik e n , e t al. 125
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
Nos. 72-1809 -14 B r a d le y , e t al. v. M il l ik e n , e t al. 127
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
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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.
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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:
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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
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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.
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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.
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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.
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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 .
12aa
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;
13aa
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.
14aa
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.
15aa
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.
16aa
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.
36aa
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.
37aa
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.
57aa
(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 .
59aa
(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.