Brief for Petitioners

    IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1973.

No. 73-434
WILLIAM G. MILLIKEN, et al.,

Petitioners,
v.

RONALD G. BRADLEY, et al.

O n Writ Of Certiorari T o T he U nited S tates Court Of 
A ppeals F or T he S ixth C ircuit.

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





1

TABLE OF CONTENTS

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 T ria l...................................... 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 ...............................................................  38
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



Ill

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 area.........................................  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

Page

IV. CONCLUSION 89



IV

TABLE OF CITATIONS

CASES I2SL

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 (1 9 6 9 )........  20, 21,47, 51, 53,

55, 57, 62, 68
Allen v. Mississippi Commission o f Law Enforcement, 424 

F2d 285 (CA 5, 1970)......................................7 ...............  39
Attorney General, ex rel Kies v. Lowrey, 131 Mich 639; 92 

NW 289 (1902), a ff’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 o f City o f Detroit v. Lacroix, 239 Mich 
46; 214 NW 239 (1927) ....................................................  34

Bradley v. Milliken, 338 F Supp 582 (ED Mich 1971)...........  1
Bradley v. Milliken, 345 F Supp 914 (ED Mich 1 9 7 2 )...........  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) .............................................................2,14
Bradley v. Milliken, 484 F 2d 21 5 (1 973)...............................  1
Bradley v. School Board o f Richmond, Virginia, 462 F2d 

1058 (CA 4, 1972), a ff’d by equally divided Court in
___US___; 94 S Ct 31; 38 L Ed 2d 132 (1973) . . . .22, 23, 61

78,80,81,82



V
Page

Brown v. Board o f Education, 347 US 483; 74 S Ct 686; 98 
LEd 873 (1954) .............................................................  25, 89

Cleaver v Board o f Education o f 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 (1 9 7 2 )........................  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 Tenn, 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 (ED Tenn, 1972) ......................................................... 62
Goss v Board o f 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 LEd 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 o f 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 S Ct 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 o f Education o f the School District o f the 

City o f Flint, 6 Mich App 364; 149 NW 2d 239 (1967) . . 82



VI

Munro v Elk Rapids Schools, 383 Mich 661; 178 NW 2d 450 
(1970), on reh 385 Mich 618, 189 NW 2d 224 (1971) . .  81

North cross v Board o f Education o f Memphis, 420 F2d 546 
(CA 6, 1969), af fd  in part and remanded in 397 US 232;
90 SCt 891; 25 L Ed 2d 246 (1 9 7 0 ).............................. 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, 14 Mich App 109; 165 NW 2d 
464 ,(1968)......................................................  80,81

Pierce v Society o f Sisters, 268 US 510; 45 S Ct 571; 69 L Ed 
1070 (1925)............................................................................ 88

Plessy v Ferguson, 163 US 537; 16 S Ct 1138; 41 L Ed 256 
(1896) ..................................................................................  82

Ran]el 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, 361 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 o f Education, 444 F2d 6 

(CA4, 1971) ........................................................................ 35
Sparrow v Gill, 304 F Supp 86 (MD NC 1969).......................  31
Spencer v Kugler, 326 F Supp 1235 (D NJ, 1971), af fd  on 

appeal, 404 US1027; 92 S Ct 707;30 L Ed 2d 723 (1972). 20,
23, 36, 58, 65, 66

Page



Vll
Page

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 S Ct 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 o f Education o f Detroit,

18 Mich 399 (1869)..............................................................5,82

Tinker v Des Moines Independent School District, 393 US 
503; 89 SCt 733; 21 L Ed 2d 731 (1 9 6 9 ).........................  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, 316 US 52; 84 S Ct 603; 11 L Ed 2d 

512(1964) ...................T..................................................40,66
Yahr v Resor, 431 F2d 690 (CA 4, 1970) cert den 401 US 

982; 91 S Ct 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 1254(1)...................................................................  2

FRCiv. P 1 9 .............................................................................. 64
FR Civ. P 41(b).........................................................................   13

Michigan Constitution of 1908:
art 11, § 2 ...........................................................................  4, 9



Vlll

Michigan Constitution of 1963:
art 4, § 33 ..................................................................... 4, 40, 42
art 5, § 1 9 ........................................ ................................. 4, 40
art 5, § 2 9 ............................................................................  46
art 5, § 31 ............................................................................ 4
art 8, § 2 ...........................................................4, 80, 81, 82, 84
art 8, § 3 ..................................................................... 4, 6, 9, 36
art 9, § 6 ....................................................................... 4, 30, 87
art 9, § 11 ........................................................................... 4, 30
art 9, § 1 7 ............................................................................4, 42
art 11, § 2 .................................. ......................................4, 35

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 ,1 1 ,3 8 ,3 9 ,4 0 ,6 9
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 D epartm ent of 
Education, 1970, Appendix B ........................................ 31





1

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1973.

No. 73-434.
WILLIAM G. MILLIKEN, et a l,

vs.
RONALD G. BRADLEY, et al.

Petitioners,

O n Writ of C ertiorari to the U nited S tates C ourt of 
A ppeals for the S ixth C ircuit

BRIEF FOR PETITIONERS

OPINIONS AND ORDERS BELOW
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. I11

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).
f11 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 of 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 1 1, 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 of 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).

JURISDICTION
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).

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 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, 11 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.

QUESTIONS PRESENTED

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

II.
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?

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?

STATEMENT OF THE CASE
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 xh  of the 
public school children in the State. £2 *̂ The circumstances and pro­
ceedings by which this has come to pass are set forth hereafter. £3]

The separation of the races in the public schools of Michigan 
has been prohibited by Michigan law since at least 1869. £41

[21 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 of Desegregation Plan (97a) 
and the Court of 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 of the public school children in the State.

Petitioners Milliken, Kelley, State Board of 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 (1869).



6

I.

The Complaint

Plaintiffs commenced this class action by filing a complaint 
on August 18, 1970. (2a-16a). 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 of the Court of Appeals suggested and authorized 
the amended complaint. (178a). Plaintiffs made no effort to amend their 
complaint prior to the Court of 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 of 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, 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

1 842 Laws of Michigan, No. 70, § §1 and 5. (55aa).

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 of Education and the 
Superintendent of 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, 
“ [leadership 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 of 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. (R350-351).

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, having a

Michigan Statistical Abstract, 1972 (9th ed.). This area is approximately 
the size of the state of Delaware (2,057 square miles), more than half again 
the size of the state of Rhode Island (1,2 14 square miles) and almost 30 times 
the size of the District of Columbia (67 square miles). Statistical Abstract of 
United States, 1972 (93rd ed.).



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).

P lain tiffs, 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 of Wayne, Oakland and Macomb outside of 
the City of Detroit. (IIa69). 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

^  From time to time during the course of the trial attempts were made by 
the plaintiffs and by the defendant-intervenor, Denise Magdowski, et al, to 
broaden the scope of the trial to affect, as to possible remedy, school districts 
not parties in this cause, located outside of the boundaries of the Detroit 
school system. From the remarks of the District Court, it is clear that he also 
understood what is patent in the pleadings, that the issue was whether the 
Detroit School District was a segregated system qua the Detroit public 
schools and not with respect to any other school district within the State of 
Michigan. Illustrative comments by the District Court follow:

“Well, I don’t know whether fortunately or unfortunately this lawsuit 
is limited to the City of Detroit and the school system, so that we’re 
only concerned with the city itself and we are not talking about the 
metropolitan area.” (Ua41).
“I hope, Mr. Flannery, that is not a threat because I am having enough 
to do with my limited jurisdiction in this case, and I am not one for 
expanding it.” (Ila44).

However, as the trial progressed, the perception of the District Court changed 
in pursuit of a multi-district remedy. (R3537, 4003, 4004; 20a)



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] (Hla86-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 o f 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). 10

[10] jhg rationale for this position is found in A & N  Club v Great 
American Insurance Company, 404 F2d 100, 103-104 (CA 6, 1968). If a de­
fendant proceeds in the case after making a FR Civ P 41(b) motion, he waives 
his right to allege error on the motion’s disposition only in light of the evi­
dence introduced up to the point of the motion.



14

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 I 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).

* * *



16

Dr. Foster, in your opinion, your proposed plan to de­
segregate the Detroit School District is a sound educa­
tional plan, is that correct?
Yes.

H: * *

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 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, 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 faculty in 
the Detroit public schools (23a-33a), the Order required faculty 
and staff reassignment among the 53 districts. (102a-103a).

“ Q.

“A.

“ Q.

“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, la ter 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 
in to  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 
of 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



19

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 o f 
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 
lim ited 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 SCt, 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 o f New Kent County, 391 US 430; 88 S Ct 1689; 20 L 
Ed 2d 716 (1968). Alexander v Holmes County Board o f 
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 (DNJ, 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).



2 1

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



2 2

within a 66% black, 34% white school district in Wright 
v Council o f City o f Emporia, 407 US 451;92SC t 
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 o f Education o f 
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 o f 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 o f Education, 420 F2d 546 (CA 6, 
1969), affd in part and remanded in 397 US 232; 90 S 
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).



24

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, “ [iln 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 o f 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.” (15la-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
tutionally upon a foundation of sand in attempting to further 
their paramount goal of multi-school district racial balance.

A. Ruling (5) — transportation of 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 
be 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).



26

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.



29

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. (151 a-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 § 1 1 
for the constitutional outline of Michigan’s system of school finan­
ce. t 111 (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.

^  ^  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 of operating tax effort, thus 
making expenditures per pupil primarily a function of the willingness of the 
voters in each school district to tax themselves for school purposes. See Sec­
tion 21(1) of 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.

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 F 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
f 12 1 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 
27 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 
have failed to establish the other allegations in plaintiffs’ complaint, as amen­
ded. as to the Grand Rapids Board of Education or as to any other defend­
ants in the case.” Slip opinion, p 103. Thus, in Higgins, supra, plaintiffs’ 
claims of de jure conduct against the defendants Milliken, et al, not unlike 
those made herein, were found wholly lacking in merit.



32

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.

Moreover, in Keyes, supra, 93 SCt, 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.

14 3 ̂  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 ju re  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, 340.1 13, 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 
of the same statute laying out the condemnation procedure for



34

school districts generally. (32aa, 51aa). See also Board o f Educa­
tion o f the City o f Detroit v Lacroix, 239 Mich 46; 214 NW 239 
(1927). Cleaver v Board o f Education o f City o f Detroit, 263 Mich 
301; 248 NW 629 (1933). Blissfield Community Schools District v 
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; 136NW 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 5 la). 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 o f 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, 1 15, 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, 
IVa260).

D. Ruling (2) — the effect of 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-116a, 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,



39

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 o f 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, 1141 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.

[14] The c ourt of Appeals, at 433 F2d 897, 904 , supra, states that the de­
fendants defended Section 12 on the merits in such Court. That is simply not 
accurate. While the brief of defendants Milliken, et al, did discuss the con­
stitutional question with reference to the first sentence of Section 12, it did 
so only within the limited context of assessing the probabilities of plaintiffs’ 
success on the merits, upon remand and hearing, as a factor in evaluating the 
single question of abuse of discretion by the trial judge. As to the second 
sentence of Section 12, the brief of defendants Milliken, et al, did not address 
itself at all to the constitutional question, since it was not operative until 
January 1, 1971, but did inform the Court of Appeals that it was their posi­
tion that such sentence was directory, not mandatory, when read in light of 
other unrepealed statutory sections relating to the discretionary authority of 
boards of education to establish attendance areas. Hiers v Detroit Superin­
tendent o f  Schools, supra, 376 Mich, at 235.



40

The only defendant arguably involved with Section 1 2 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 o f the City o f 
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 “ [rjegions 
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 3,00(J 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



41

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, 8,1 74 
students enrolled in this voluntary integration program for the fall 
of 1971. (Ia 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 897, 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 (I) — Detroit Board o f Education an agency of 
the State of 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 Ha 44, Ha 70, 33a and the slip opinion of the 
original appellate panel issued December 8, 1972 which, unlike the



42

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 Weickin 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.” 
(215a). 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-Ilia 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 o f 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 
this 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. t15J

II.

THE RULING OF THE COURT OF APPEALS THAT A 
DETROIT-ONLY DESEGREGATION PLAN COULD NOT 
RE 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 MATTER 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 s y s t e m (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 o f New Kent

It is the position of the defendants Milliken, et al, as it has been 
throughout this litigation, that evidence of alleged racial discrimination in 
housing by anyone other than the named defendants is irrelevant and inad­
missible in a school desegregation case. (II a 9-10) Swann v Charlotte- 
Mecklenburg Board o f  Education, supra, 402 US, at 22-23 (1971). Further, 
while the trial court opinions contain sweeping generalizations about racial 
discrimination in housing, they contain no concrete references to any alleged 
acts of racial discrimination in housing by any of the defendants Milliken, et 
al. (See, for example, 23a-24a). The reason is that there is nothing in the 
record to support any specific findings of racial discrimination in housing as 
to these defendants. Further, under Michigan law, persons allegedly discrimin­
ated against in private housing may seek relief from the state Civil Rights 
Commission and the state courts. See Mich Const 1963, art 5, §29, Beech 
Grove Investment Company v Civil Rights Commission, 380 Mich 405; 157 
NW 2d 213 (1968). 1968 PA 112, MCLA 564.101 et seq.; MSA 26.1300 
(101) et seq. (2aa, 3aa).



47

County, supra, 391 US, at 436; Alexander v Holmes County Board 
o f Education, supra, 396 US, at 20; and Swann v Charlotte- 
Mecklen burg 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. D efendants 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

the many other factors relating to school construction decisions.

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



50

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 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.

“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 flight of 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



52

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 Jhave 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-



53

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-164a).

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. (19 la-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 o f 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 I  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 o f 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 11, 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 I 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.

* * *



56

“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 
accom plished 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.



57

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



59

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 o f City o f 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 o f 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.



61

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 , affirm ed 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 o f 
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 o f Education, City o f 
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
nine times the size of the District of Columbia.

7fr/#ry

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
T I - S C H O O L  D IS TR IC T RE M E D Y  IS CON ST ITU­
TIONALLY PERMISSIBLE HEREIN IS MANIFESTLY ER­
RONEOUS.

A. S c o p e  o f  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, 101 a-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).



64

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 o f school district boundaries for purposes o f  de 
jure segregation o f 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



65

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 1 240, 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



66

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 Gomillion v 
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, 316 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.



67

C. This massive multi-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 
principles 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 multi-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 III 
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



69

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 ol 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. The 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.”



72

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 o f 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 o f 
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.” (101a-102a).

PX P.M. 12 (Val 11-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 
Hamtramck 
Highland Park 
Inkster

50.8% black pupils 
28.7% black pupils 
85.1% black pupils 
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
Total

Black
Percent
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

60,635
7,042

13,611
73.6
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. 1161

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 attempt by the appellate majority 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

[16] Although the trial court, based on 30 specific findings, found no de 
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). Thus, 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 of educa­
tion with whom they have no contractual relationship. See section 569 of the 
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.



79

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-l89a). 
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 o f 
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 limits 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 o f 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, 
supra, 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 
385 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 o f Education 
o f 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 o f Education o f the City o f 
Grand Rapids, Michigan, supra, against the plaintiffs on the issue 
of pupil segregation also attests to this fact. Mason v Board o f  
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 o f 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 of the school districts to be affected outside 
Detroit have heretofore always exercised such local control.

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-177a). 
(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 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 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-5 laa). 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.” l 17̂  (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

[I7 ] The 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. 
The 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



8 8

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 
imposed 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





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