Plaintiffs' Response to Defendant Detroit Board's Report on the Magnet School Program

    UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al., )

Plaintiffs )
)

vs. )
)

WILLIAM G. MILLIKEN, et al., )
)

Defendants )
)

DETROIT FEDERATION OF TEACHERS, )
LOCAL #231, AMERICAN FEDERATION )
OF TEACHERS, AFL-CIO, )

)
Defendant- )
Intervenor )

)
and )

)
DENISE MAGDOWSKI, et al., )

)
Defendants- )
Intervenor )

CIVIL ACTION NO: 
35257

PLAINTIFFS' RESPONSE TO DEFENDANT 
DETROIT BOARD'S REPORT ON THE MAGNET SCHOOL PROGRAM

Introduction

In response to this Court's Order of November 6, 1970, the defendant 

Detroit Board (hereafter Board) submitted two plans, in addition to the 

previously state-rescinded plan, of April 7, 1970, of partial high school 

desegregation. Priority was given to the so-called Magnet School Plan, 

which this Court, acceding to the wishes of the Board, approved as an interim 

measure pending trial on the merits. At that trial the Court determined that 

the Detroit School System was indeed an unconstitutional, segregated system. 

"Ruling on Issue of Segregation," September 27, 1971 (E.D.Mich. C.A.No. 35257)



2

passim. And on October 4, 1971, the Court ordered the Board to submit a 

plan for the desegregation of the Detroit School System within 60 days.

In such circumstances the need for any response to the Board's self- 

styled "Progress Report" on the Magnet School Program borders on the unneces­

sary; like the Court, plaintiffs are primarily concerned with the effectiveness 

of any plans of desegregation which the Board, and later, state authorities, 

will submit. However, in the interest of making plaintiffs' position clear, 

and perhaps assisting the Court and parties to focus on the much more important 

deliberations which will begin to proceed over the next several months to con- 

sider effective cures for a segregated school system, we make the following 

response.

I. The Magne't School Program is Ineffective as a Plan of Desegregation.
• >

The Board's "Progress Report" at page 16 candidly admits its failure
el­

even to ameliorate school segregation, let alone eradicate all vestiges of
c '  ' ■ -‘V  ■segregation as is now required by law:
* * •/,Kl
j The- impact of student movement, both at the high school and 

^ middle 'school level, on the racial balance of individual
'Schools throughout the city has generally been less than 2%.

Stated simply, whatever the adequacy of the Magnet School Program in light of

the Board's interim duty last November, it is totally inadequate to meet the
r-y -Ck .

Board's present obligation. As stated by the Court in its oral order of
' ■ -S

October 4, 1971, the object now is to "achieve the greatest possible degree 

of actual desegregation, taking into account the practicalities of the situa­

tion." Proceedings Held in Bradley v. Milliken, October 4, 1971, Tr. p. 6, 

quoting from.Davis v. Bd. of School Commissioners of Mobile County, 91 S.Ct.



3

1279, 1292 (1971). (And we note that it has not been suggested, nor could it 

be on the record in this case, that the "practicalities of the situation 

limit the Board’s options to the Magnet Plan.) The measure of any desegre­

gation plan is its effectiveness, Davis at 1292, whether it works, Green v.

New Kent County, 391 U.S. 430, 439 (1968). Accord, Swann v. Charlotte- 

Mecklenberg Bd. of Educ., 91 S.Ct. 1267, 1274-1275 (1971); Davis v. School 

Dist. City of Pontiac, (6th Cir. May 28, 1971); Johnson v. San Francisco 

Unified School Dist., (N.D.Cal. April 28, 1971). See Bradley v. Milliken, * *

438 F.2d 945^947 FN 1 (6th Cir. 1971). Under these controlling legal standards, 

the Magnet School Program totally fails.

II. The Magnet High School Program is Inadequate as a Concept for a Plan of 
Desegregation.

The Magnet High School Program is premised on freedom of choice or trans­

fer’; its thesis is that particular schools can be made so educationally excep-*
tOonal tfyat white and. black parents will opt to send their children to school 

together. Nonsuch concept is acceptable unless it works in fact to eliminate
■jf ^

^a11 vestiges of state-imposed segregation; in Detroit, the concept of free 

choice or transfer, as it has consistently in the past in Detroit and throughout 

the country, operates "simply to burden children and their parents with a 

responsibility... placed squarely on the School Board." Green, 391 U.S. at 441- 

442. Having ingrained segregation by its policies and practices over the years,

3 the Board may '-rtot now s.hift the burden of undoing the pattern to those who are
(\

its victims. Thus the Supreme Court in Swann (91 S.Ct. at 1281) approved 

majority to minority transfers (with transportation costs and space guaranteed), 

but only as the final component of an otherwise comprehensive, effective plan.



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We have already noted the failure of the so-called magnet program to 

work as an overall matter to remedy a system of school segregations Some 

of the particular failures, however, may be instructive to the Court and the 

parties in considering plans of desegregation when they are submit0*3.
The Magnet High School Program's attempt to attract children to special­

ized curricula has failed. A net total of only 592 black students transferred 

from majority black to majority white schools.'*' "Progress Report" at 16.

Even this tiny effect was almost totally eradicated by the net 511 white
2students who transferred from majority black to majority white high schools. 

"Progress Report" at 16. Moreover, the concept operates to skew even further 

the opportunity to desegregate by equalizing plant use. "Progress Report" at 

25. Worse, any integration is "one-way": the concept operates to burden black 

families to chase after whites (who are permitted by the plan to flee) in 

order to secure constitutional rights which were denied them by the school 

authorities. The magnet concept, therefore, merely combines many of the 

unconstitutional actions of the past 15 years in one scheme: optional attend­

ance areas, never busing white students to black schools and never changing a 

feeder pattern or attendance area to place a predominantly white residential 

area into a black school despite the enormous and increasing amount of space 

available in black high schools, and busing white students away from black 

schools. See "Ruling on Issue of Segregation" at 10-12.

717 black students transferred from majority black to majority white schools; 
but 125 black students transferred from majority white to majority black schools. 
2 Only nine white students elected to transfer from majority white to majority 
black schools; 520 moved from majority black to majority white schools, 326 from 
schools 90% or more black.



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Perhaps it was for all these reasons that, when surveyed, only 21% of

the Board, 107o of the region staff, and 32% of the school staff even expected

that the Magnet High School would be successful for integration. "Progress

Report" at 41. Given that by far the largest percentage of those responding
3to the survey did not change their attitudes about the Magnet High School,

we question whether school authorities have been completely candid with the
3aCourt since the school reorganization on January 1, 1971. Even under the 

limited duty of implementing an interim measure, the Board was under some obli­

gation not tcT-waste the Court's, plaintiffs', and taxpayers' time and money^ 

by implementing a plan they knew would be ineffective, especially in light of 

more promising available alternatives.^ Given these circumstances, we submit 

that the Magnet High School Program had the purpose and effect of evading even

the modest desegregation of an April 7 type plan. In any event we think it
C.Y ■ '

manifest that any further serious mention of the Magnet High School concept as a
O(7 D 6pian of desegregation in this litigation is unwarranted.

■^See "Progress Report" at 21.
\3&in passing, 'we note that the references in the Board's "Progress Report" to 
preserving the existing scheme of decentralization (e.g. "Progress Report" at
3 and 25) are not relevant. Such state-imposed reorganization of the Detroit 
school system has already been declared as one of the many unconstitutional 
state actions maintaining the pattern of segregation therein. "Ruling on Segre­
gation" 'at 14.
4 See "Progress Report" at 23 for a summary of the substantial costs of the magnet 
programs, totaling almost 1.5 million dollars. This expenditure of funds merely 
replays the Board's previous failure in "Project One" to attract whites to three 
schools by -spending over one. million dollars per year. "Project One" was aban­
doned by.the Bmard two .years ago as a total failure. See Transcipt of November 18, 
1970 at 292-29/ .
 ̂"...the availability to the board of other more promising course of action may 
indicate a lack of good faith." Green, 391 U.S. at 439. Compare the effectiveness 
of the April 7 plan, as projected by school authorities. Plaintiffs' Exhibit 13. 
Compare also the effectiveness if the April 7 concept, like the Magnet School Plan, 
had been extended to all grades of 19 high schools, not to mention all grades of 
all regions comprising the middle schools, grades 5-8. Cf. also Plaintiffs' Exhib­
its 11 and 12.
 ̂There is some indication, however, that as late as October, 1971, the Board was 
seeking additional funding "to strengthen the power of the magnets." "Progress 
Report "at 4. See also Conclusion, infra- at 12-13.



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III. The Magnet Middle School is Inadequate as a Concept for a Plan of
Desegregation.

Much of what we have already said about the Magnet High School 

Program applies with equal force to the Magnet Middle School. Its premise 

is the same: schools can be made so educationally exceptional thajOwhite

and black parents will opt to send their children to school together.

It operates to burden families with the Board's responsibility to end 

segregation. The only difference is that the Board does not admit in 

its "Progress Report" the absolute bankruptcy of the concept of the Magnet 

Middle School as a plan of desegregation, as it does with the Magent 

High School. Thus we fear that we may hear all too much about the concept 

in the future.

The most obvious defect in the concept of the Magnet Middle School 

is that its premise cannot be extended to all schools in a plan of system- 

wide desegregation. The Magnet Middle School operates in theory to 

attract blacks and whites to transfer from their schools of assignment 

only as long as the Magnet Middle School is exceptional, viewed as better 

than all other schools in the system. Thus, any "magnetic" effect persists, 

even in theory, only as long as there are some schools that are identi­

fiable as "better" than others. If all schools in the system raised their 

per pupil expenditures by the $305/pupil of the present 8 middle schools, 

or offered "better quality" education, no one would have any reason to 

transfer to the so-called magnet school: there simply would be no "attraction" 

among "equally powerful magnets." In a plan of system-wide desegregation 

any effort to make all schools so-called "magnets", therefore, is a self- 

defeating exercise, much like a dog chasing faster and faster after its



own tail but never getting anywhere.

In practice, the magnet middle school also falls short of the

constitutionally permissible majority-to-minority transfer system.

From the statistics as presented in the "Progress Report" at 10, and in

the tables attached as appendices, it is impossible to determine exactly

how many and what percentage of the transfers to middle schools were
7/

"maiority-to-minority." The exact number of white students who transferred 
J 7 of

to a middle school to escape "black" schools is unclear. But/the 909

white students who transferred out of their attendance area into a middle

school, 501 (dike 39 blacks) transferred from schools in which they were

in a "small minority to schools with a more equal racial balance.

"Progress Report" at 10-11. In addition to this particularly virulent

strain of "white flight," a table in the appendix shows an additional

404 whites who transferred outside their former attendance area assignment

into a middle school who may also be escaping what they perceive as
' q  8/

"black"'schools for a "mixed" middle school: probably, the number of
9/

whites making'-such "escape" totals 724. The end result for "sending
■J

rVschools. is hot clear, but the Board admits that at least 4 became more
'll ■ y

segregated. "Progress Report" at 17. In short, the effect of the magnet

middle school is minimal: in part it acts to desegregate both receiving
’ V „
pt.

7/See Part IV for a discussion of what types of statistics will be 
essential when j.t does become necessary to evaluate any plan of desegre­
gation submitted.

) 8/AppendJ.x B, Table, '."Magnet School Enrollments as of October 1, 1971.
9/That number is 'derived by subtracting the 735 whites who are now 

in a middle school with a larger percent of black students than their 
last school from the total of 1459 white students enrolled in any magnet 
program. "Progress Report" at 10. Only 844 black students transferred 
from a school more than 60% black to a middle school in the 40-60/o range. 
"Progress Report" at 10.



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and sending schools; in part it has no effect; in part it acts only as
>*

an escape hatch for whites seeking to avoid assignment to a "black" school
10/

in part it segregates "sending" schools even more. 1

In any event, the Middle School Program affects only a very few

children; its very concept and design mean that it can only "succee'd"

as long as it is an "exception" available to a very few children. The

conclusion of this discussion is simple. Where school authorities,

under an obligation to eliminate the effects of segregation, permit

(or encourage) transfers, they must do so in a way which operates to

desegregate the school system; the effect on both receiving and sending

schools must be examined: only a majority-to-minority transfer provision
11/

is permissible. Thus, the so-called magnet concept is no part of the 

answer to state and local authorities' present obligation to eliminate 

school segregation.

IV. Reports to the Court and the Parties in the Future Require Precise 
Data.

Despite the verbiage in the text and the tables contained in the 

appendices, one element necessary for evaluation of desegregation plans 

is lacking from the Board's "Progress Report": the racial composition

10/Compare the desegregating effect of extending even the limited 
April 7 type plan to grades 5 through 9: where "black" schools are so
paired with "white" schools by school authorities each and every school 
(and every child in every school) effected helps to eliminate segregation 
in the school system.

11/We note, of course, that such transfers are just one of the many 
tools which can be used to desegregate; the Board must consider all alter­
natives available and choose those which in combination will operate most 
effectively completely to eliminate school segregation now and hereafter. 
Swann; Mobile; Green; Pontiac; San Francisco. There is, of course, little 
need to consider any transfer provision if it is possible to desegregate 
all schools so that none are substantially disproportionate in their racial 
composition from the system-wide mix. Swann.



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of student enrollment for the total system, for each grade level in the

total system, for each school, and for each classroom. (Such racial

composition figures only appear in the "Progress Report" for the magnet

schools and a few other schools.) Without such information, neither the

parties nor the Court will be able to evaluate the effectiveness of

desegregation plans when they are submitted. We commend to the Court

and the parties the minimal reporting requirements contained in United

States v. Hinds County, 433 F.2d 611, 618-619 (5th Cir. 1970), as a starting.

point for further reports. This should not be a matter of discovery;
12/

we respectfully submit that it should be a matter of routine.

V. Any Asserted Conflict between "Quality Education" and Desegregation 
has no standing in this Litigation.

In one respect we have already discussed educational "quality."

We noted how the middle school, even in theory, will "succeed" in attracting 

transfers by blacks and whites only so long as it is viewed as an exceptional 

school. We respectfully suggest that this "success" is made at the expense 

of the rest of the school system. It diverts dollars, energy, and students 

from all the schools in the system in order to focus on a few; in fact it

' " 12/In this regard, we note that the race of students must be considered
in evaluating the effectiveness of any proposed remedy: "Just as the 
race of students must be considered in determining whether a constitutional 
violation has occurred so also must race be considered in formulating 
a remedy. To forbid, at this stage, all assignments made on the basis 
of race, would deprive school authorities of the one tool absolutely 
essential to fullfillment of their constitutional obligation to eliminate 
/segregationT." North Carolina State Board of Education v. Swann, 91 S. Ct. 
"1284, 1286 (1971). "Any other approach would freeze the status quo that 
is the very target of all desegregation processes." McDaniel v. Baresi,
91 S. Ct. at 1289 (1971).



"succeeds" only to the extent that' it operates as the "top track" in 

the Detroit school system. Throughout this litigation, there has been 

an unresolved controversy over tracking. All parties, including the 

Board, agree that tracking serves no educational purpose and has no 

place in a-public school system. See, e.g. 37 Tr. 4151-4153; Drachler 

Deposition 6/28/71 pp. 159-160; 8 Tr. 889-894, 896-897, 909. Yet the 

Board with its so-called magnet concept attempts to construct an entire 

school system for the benefit of the few elite who enter the top track.

The Board attempts to desegregate by use of a method of school administration 

which it has admitted in other contexts is educationally bankrupt.

Perhaps, the Board accepts the premise that to attract whites to 

attend schools with blacks, schools must somehow be made substantially 

better. The implication is clear: by shifting its responsibility for

school desegregation onto the shoulders of parents, the Board can make 

the relative "quality" of schools (i.e., acceptability of schools to white 

transferees) an issue in the litigation. A possible indication of this 

asserted limitation on desegregation can be found in the Board's concluding 

statements in the "Progress Report" at 32:

Research shows that integration is most effective in 
improving school learning . . . when middle class students 
are in a predominant majority. 13/ Whether Detroit's magnet 
schools can succeed in places without a predominant middle 
class majority remains to be seen.

Plaintiffs share the concern over the quality of education all children 

receive in the Detroit public school system; but we submit that the

13/The omitted portion states that "research" also shows that 
integration is most effective when it begins early in life. We only note 
that the Board's "Progress Report" ironically speaks only to desegregation 
in grade levels five and above.



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obligation to give all children an education in a desegregated school

system does not depend on the asserted detriment of a particular integrated

educational experience. For example, hypothetically, even if the maximum

desegregation feasible required all schools in Detroit to be majority

black --the substance behind most other talk of the "predominant middle

class majority" -- any asserted educational harm resulting from such a

situation would be no defense to the Board's obligation to eradicate

segregation. As Judge Sobeloff, so eloquently noted,

/The/ centra/ proposition /of the predominant middle class 
majority thesis/ is that the value of a school depends on 
the characteristics of a majority of its students and 
superiority is related to whiteness, inferiority to blackness. 
Although the theory is couched in terms of "socio-economic 
class" and the necessity for the creation of a middle class 
milieu," nevertheless it rests at bottom on the generali­
zation that, educationally speaking, white pupils are some­
how better or more desireable than black pupils. . . .This idea, 
■ then, is no more than a resurrection of the axiom of black 
inferiority as a justification for separation of the races, 
and no less than a return to the spirit of Dred Scott.
The inventors and proponents of this theory grossly misapprehend 

;> the'philosophical basis for desegregation. It is not founded 
upon the concept that white children are a precious resource 
which should be fairly apportioned. It is not . . . because 

t̂. black children will be improved by association with their
.betters. Certainly it is hoped that under integration members 
of each race will benefit-from unfettered contact with their 
peers. But school segregation is forbidden simply because 
its perpetuation is a living insult to the black children 
and;, immeasurably taints the education they receive. This is 

v _ the precise lesson of Brown. Were_a court to adopt the 
- " /predominant middle class majority/ rationale it would do

explicitly, what compulsory segregation laws did implicitly. 
Brunson v. Board of Trustees of Sch. Dist. No. 1, Clarendon 
County, 426 F.2d 820, 826 (4th Cir. 1970). 14/

_14/Judge Sobeloff also noted that apart from its racial aspect, 
the middle class majority defense to desegregation would also be constitutionally 
impermissible. "From a constitutional standpoint, a program of apartheid 
according to .social class is as impermissible as avowed racial separation -- 
and as repugnant to the Equal Protection Clause. Our Constitution does 
not permit the insulation of whites from blacks, rich from poor, high 
class from low class."

nP



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Judge Sobeloff's view was affirmed' in Swann. Such asserted "educational

Court to constitute "an arbitrary limitation negating reasonable remedial 

steps." 91 S.Ct. at 1280 Fn. 8.

Now that this preliminary sparring over so-called "magnet" plans 

is finally at an end, plaintiffs like the Court, await the presentation 

by the Board, and thereafter State authorities, of plans which in good 

faith attempt to achieve full and complete desegregation of the public 

schools. It is time to turn our attention to plans of desegregation.

Yet plaintiffs have reason to believe, based on information in 

addition to the thrust of the Board's "Progress Report" and its admission 

that the Board has very recently attempted to secure additional money 

to implement the inadequate magnet concept, that the Board is rejecting 

consideration of desegregation plans proposed by its staff which place 

the burden of school desegregation where it belongs, on school authorities 

not the children and parents. Given the history of failure of free choice 

or transfer in this system, the consistent (and expensive) failure of all 

magnet plans in the system from 1966 to date, and the total inadequacy of 

so-called magnet conce-pts as plans for system-wide desegregation, we 

respectfully submit that any presentation to this Court by the Board, 

or thereafter state authorities, of a desegregation plan which is based 

on a magnet-type principle constitutes bad faith. On the basis of 

the present record and submissions by the parties pertaining to the 

"progress" of implementation of such interim measure, we therefore call

justifications" for limiting desegregation were declared by the Supreme

Conclus ion



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upon the Court to foreclose that unpleasant, wasteful, and time-consuming 

prospect. We move that the Court presently issue an order directing 

local, and state, school authorities to cease consideration of so-called 

magnet concepts. Only plans which realistically promise, pursuant to the 

orders of this Court and the decisions of the Supreme Court, to achieve 

the greatest possible degree of actual desegregation taking into account 

the practicalities of the situation should be presented by school 

authorities to the Court for consideration.

Respectfully submitted

E. WINTHER McCROOM
3425 Woodburn Avenue 
Cincinnati, Ohio 45207

WILLIAM E. CALDWELL
Ratner, Sugarmon, & Lucas 
525 Commerce Title Building 
Memphis, Tennessee 38103

LOUIS R. LUCAS

JACK GREENBERG 
JAMES M. NABRIT, III
NORMAN CHACHKIN

10 Columbus Circle
New York, New York 10019

NATHANIEL JONES
General Counsel, N.A.A.C.P
1790 Broadway
New York, New York 10019

J. HAROLD FLANNERY 
ROBERT PRESSMAN BRUCE MILLER and

LUCILLE WATTS, Attorneys for 
Legal Redress Committee 
N.A.A.C.P., Detroit Branch 
3426 Cadillac Towers 
Detroit, Michigan

PAUL R. DIMOND
Center for Law and Education 
38 Kirkland Street 
Cambridge, Mass. 02138



CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing Response has been 

served on counsel of record for the defendants, Mr. George E. Bushnell, Jr.,

2500 Detroit Band & Trust Building, Detroit, Michigan 48226; Mr. Eugene 

Krasicky, Assistant Attorney General, Seven Story Office Building, 525 West 

Ottawa Street, Lansing, Michigan 48913; Mr. Theodore Sachs, 1000 Farmer, 

Detroit, Michigan, and Mr. Alexander Ritchie, 2555 Guardian Building, Detroit, 

Michigan 48226, together with a copy to Mr. Charles J. Wolfe, Acting General 

Superintendent, Detroit Public Schools, 5057 Woodward Avenue, Detroit, Michigan, 

by United States Air Mail, postage prepaid, this 12th day of November, 1971.

Paul R. Dimond