Attorney Notes on Allen Park Petition for Rehearing En Banc

    ALLEN PARK, ET AL., PETITION FOR REHEARING EN BANC

At p. 4-5, Allen Park Argument:

"there is no evidence or finding that the racial composition 
of the Detroit public school system vis-a-vis other school 
districts throughout the Detroit Metropolitan area is causally 
connected with the acts found to constitute dejure segregation.

Plaintiff's Response:

xhis argument is factually false (see response to Grosse Pointe 
Arguments).

At p. 5, Allen Park Argument:

"it is clear that no school district, including Detroit, was 
established for the purpose of fostering racial segregation."

Plaintiff's Response:

The purpose for which any school district was created is 
irrelevant to this case because it is not a gerrymander 
case. However, there is ample evidence (and law) to support 
the metro remedy under the Fourth theory of relief set forth 
in response to Grosse Pointe Arguments„[The validation and 
reimposition of the Detroit school district lines by act 48 
and their continued maintenance as a barrier to desegregation 
(especially in the face of the other underlying violations 
and practicalities of the situation) is an independent violation 
requiring remedy^

At pp. 5-6, Allen Park Argument:

"With or without the acts of commission and omission by the 
Detroit Board of Education and the State of Michigan which this 
Court found to constitute dejure segregation, the student 
population within the perimeters of the City of Detroit school 
system would be the same as it is today."

Plaintiffs' Response:

xhis is the rankest speculation and the record supports the 
contrary conclusion. The danger, however, in this as well as



the next argument is that suburban intervenors should have the 
opportunity to prove the factual argument that the school 
racial composition is wholly "due to residential patterns."

4. At p. 6, Allen Park Argument:

"This Court, in disregard of the facts, has in reality declared 
that a big city school system which is predominantly black due 
to residential patterns, surrounded by suburban school districts 
which are predominantly white, due to residential patterns, 
constitutes a denial of equal protection of the law."

Plaintiff's Response:
This statement is true only insofar as it disregards the 
facts. The District Court held that the Detroit school system 
became predominantly black in part due to state "school" 
action and refusal to act of pervasive extentj'1/state ''school" 
action and inaction without the City and along school 
district lines contributed to making Detroit a predominantly 
black school system and the suburbs a predominantly white 
set of schools; and that any plan limited to the City of 
Detroit, given these practicalities of the situation, would 
merely identify all schools in Detroit, and the Detroit 
School System, as "black" by official action, i.e., another 
dejure act, a court ordered resegregation plan.

5. At p. 7, Allen Park Argument:
Proof that state action caused the racial imbalance between scU 
is a requisite for relief.

Plaintiffs' Response:

A. For all the reasons stated in response to other arguments, 
we have shown that causal connection.

B. If illegal state action includes the conjunction of state- 
imposed residential segregation built upon by pupil 
assignment practices which cause school segregation, then

. this causal connection is fully supported by the record. 
(McCree likes this notion).

C. The "causal connection," however, need only be by "validation

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or augmentation" of the residential segregation. (In any 
event, however, the illegal acts are attributed only to 
state defendants and Detroit defendants).

At pp. 7-8, Allen Park Argument:

There is no proof that school construction outside Detroit 
contributed to school segregation, unless it is constitutionally 
impermissible for a school district to construct schools 
within its own geographical limits to accomodate the residents 
therein ̂ (citing Deal).

Plaintiffs' Responses:

A. The factual premise is false because the record fully 
supports the finding that school construction outside 
Detroit contributed to school segregation. (See Response 
B to Grosse Pointe Argument "1". Once again, however, 
our danger is that even if we argue that such proof goes 
only to the state defendants' violation, suburban districts

“Pas.V \ ~ V a . u ,

\should have an opportunity to rebut or show otherwise
they are bound by it. One issue for us to consider, 

then, is whether we are confident that we can win on theories 
that don't include state violations in the suburbs. See 
Argument 7 below).

At pp. 9-10, Allen Park Argument:

"This Court, like the District Court, has concluded that 
(i) the Detroit school system is operated as a dejure segregated 
system; (ii) the State of Michigan through acts of commission 
and omission has countenanced or abetted the situation found 
extant in Detroit; (iii) all school districts are instrumentalities 
of the State; (iv) therefore the District Court may use all 
school districts in the Detroit Metropolitan area to effect a 
change in the racial complexion of the Detroit school system."'
This violates principles of Deal and Swann about the scope 
of the remedy fitting nature of the violation.

Plaintiffs' Responses:

A. There are other theories of violation and remedy (discussed 
elsewhere).



B. The "results of" segregatiorTjin a place with as many children 
as Detroit necessarily affects surrounding schools sufficiently 
to include those parts of suburbia necessary to provide 
Detroit school children "just schools, now and hereafter."
(For example, contrary to Allen Park's argument on p. 10,
the effect of the dejure segregation operation of the Detroit 
school system is that but for the acts complained of, 
children in Detroit would be attending schools (1) having 
a racial composition more nearly in accord with the 
racial makeup not of the Detroit School district, but 
rather of the Detroit metro area, and (2) not having their 
racial identity affixed (or validated) by state action .

C. The nature of violation wholly within the City of Detroit 
does authorize the scope of metro remedy unless school 
district lines are a barrier to equitable relief where 
school attendance zones are not; for "state action" is 
"state action" is "state action." The only limits to 
relief are (1) the jurisdiction of the Court over the 
parties and (2) any compelling state interests which can 
only be promoted if the disestablishment of "Black" 
schools is limited to the City of Detroit. (No one has 
shown that the existing patterns of school segregation or 
school governance are necessary to the promotion of any 
compelling state interest. Indeed, the only asserted 
justification for existing arrangements, on this record,

p r £ < :  r -  i f ' t

is their/existance.)
D. Where state level, as opposed to local level, action is 

implicated in the violation, the scope of the remedy may 
include all aspects of the state system of public education 
necessary to accomplish relief.

7. At p. 10, Allen Park Argument:
"There is no evidence that black children have been denied 
access to any suburban district school on any ground other 
than lack of residence within the school district, a requirement

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equally applicable to white children.”

Plaintiffs’ Responses:

A. Allen Park’s "access” notion is no longer the law of violation 
nor is it the law of remedy. (e.g., maximum actual 
desegregation possible taking into account the practicalities 
of the situation).

B. Even under theories of "effective exclusion," Allen Park's 
factual premise falls: there is ample evidence in the record
/the requirement of residence" [and the actual assignment 
of children to schools] operates [in lockstep1! to contain 
black children to separate and distinct areas and schools 
within Detroit and exclude black children from outlying 
areas within Detroit and most suburban areas and schools.
And all this in the face of school district lines which 
bear no relationship to other boundaries, are crossed for 
many educational services, and have been crossed in the 
past, to promote segregation. And all of the above has 
been so found by the District Court. ( Su. />/>• 52- 51).

9. At pp. 11-13, Allen Park Argument:
The only basis for the panel's and District Court's metro 
desegregation is that if Detroit operated on "open—access" 
notion, each school would be 65$ black, "with the prospect 
that future population changes would increase the Black to White 
ratio; such basis "erroneously assumes that desegregation 
means effecting a racial balance which is predominantly white 
irrespective of the residential patterns of the school district 
to be desegregated" in violation of Swann's prohibition of 
racial balance.

Plaintiffs' Responses:
A. A reading of Metro findings shows that District Court

obviously not interested in achieving any particular racial 
balance, but rather maximum actual desegregation and a 
system of just schools taking into account the practicalities 
of the situation.

■ B. Allen Park assumes the validity of the argument they seek 
to prove is valid, i.e., that desegregation is limited by

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school district lines.

C. Citation of racial statistics in Emporia and Scotland-Neck 
is a non-sequiter; for those districts were all surrounded 
by counties predominantly black', ̂ equity courts are limited 
in desegregation by time and distance (e.g., the South 
Dakota example contrasting with the Southern Black belt, 
but the law the same) and shouldn’t go any further than 
have to (i.e., limit area of pupil reassignment by con­
struction controls). .

D. The Fourteenth Amendment speaks to the state system of 
public education wherein all vestiges of the state 
containment of some 175,000 black children in state-imposed 
blacx: schools, and the assignment of hundreds of thousands 
of white children to white schools, is eliminated root
and branch. We believe that the District Court's Ruling 
and Findings on Metro hold promise of outlining a system 
which will substitute just schools now and hereafter.
If, in flushing out that outline, that promise proves 
false, or if the state defendants or suburban intervenors 
come in with a more effective alternative, then the 
District Court stands open to, and from his past record, will 
make appropriate modifications.

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