Brief of Appellant (Detroit Board of Education v. Bradley)
Public Court Documents
August 14, 1972

122 pages
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Case Files, Milliken Hardbacks. Brief of Appellant (Detroit Board of Education v. Bradley), 1972. b215ce68-53e9-ef11-a730-7c1e5247dfc0. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/8129e363-7d48-452f-9f27-6ca3207d2e12/brief-of-appellant-detroit-board-of-education-v-bradley. Accessed May 16, 2025.
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No. 72-8002 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT BOARD OF EDUCATION OF THE SCHOOL DISTRICT OF THE CITY OF DETROIT, a school district of the first class, Appellant, vs. RONALD BRADLEY, ET AL, Appellees. On Appeal from the United States District Court For the Eastern District of Michigan Southern Division BRIEF OF APPELLANT BOARD OF EDUCATION OF THE SCPIOOL DISTRIC OF THE CITY OF DETROIT, A SCHOOL DISTRICT OF THE _________FIRST CLASS AND OTHER DEFENDANTS RILEY AND ROUMELL George T. Roumell, Jr. Louis D. Beer Jane Keller Souris Russ E. Boltz C. Nicholas Revelos, Of Counsel 720 Ford Building Detroit, Michigan 48226 Attorneys for Appellants and certain other named Defendants TABLE OF CONTENTS PAGE Table of Authorities...... ......•...... Statement of Issues Presented for Review Statement of the Case and Relevant Facts...... 6 Argument....................................... 20 I. ' THOUGH THE DISTRICT COURT USES THE LABEL DE JURE SEGREGATION, THE COURT IN ACTUALITY REDEFINED THE TERM SO AS TO CHANGE ITS MEANING BY ELIMINATING THE REQUIREMENT OF INTENT TO SEGREGATE.. 22 II. THE DISTRICT COURT HAS FURTHER DEPARTED FROM PRESENT LAW IN DESCRIBING THE DETROIT SCHOOL SYSTEM AS DE JURE SEGRE GATED, OR DUAL: ABSENT A FINDING THAT THE ACTS OF THE DETROIT SCHOOL AUTHORI TIES ARE THE PROXIMATE CAUSE OF THE CONDITION OF SEGREGATION...... ......... 33 III. THE MICHIGAN CONSTITUTION, THE SUPREME COURT OF MICHIGAN, THE GOVERNOR OF MICHIGAN> THE ATTORNEY GENERAL OF MICHI GAN, MICHIGAN SUPERINTENDENT OF PUBLIC INSTRUCTION AND THE MICHIGAN STATE BOARD OF EDUCATION, HAVE ALL RECOGNIZED THE CARDINAL PRINCIPLE OF MICHIGAN SCHOOL LAW, NAMELY, THAT THE MICHIGAN PUBLIC SCHOOL SYSTEM IS SOLELY A STATE FUNCTION WITH THE LOCAL SCHOOL DISTRICTS BEING MERELY INSTRUMENTALITIES OF THE STATE CREATED FOR ADMINISTRATIVE CONVENIENCE.. 41 IV. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN ORDERING THE METROPOLITAN REMEDY FOR THE DESEGREGATION OF THE DETROIT SCHOOLS BECAUSE OF THE STATE'S SOLE RESPONSIBILITY FOR EDUCATION IN MICHIGAN, THE STEP-BY-STEP PROCESS LEAD ING TO METRO?OLITANIZATION DEVELOPED BY THE COURTS, AND GENERAL PRINCIPLES OF EQUITY FIRST ANNOUNCED BY THE SUPREME COURT IN BROWN II, EACH OF WHICH SUPPORTS SUCH A REMEDY................. 55 i I PAGE V. AS A FACTUAL MATTER, THE DISTRICT COURT WAS CORRECT IN ORDERING A METROPOLITAN REMEDY BECAUSE FAILURE TO DO OTHERWISE WOULD CONTINUE UNCONSITUTIONAL RACIAL ISOLATION IN THE DETROIT SCHOOLS AND CAUSE FURTHER DETROIT SCHOOL SEGREGA TION, PARTICULARLY IN A SITUATION WHERE ■ NUMEROUS OTHER GOVERNMENTAL SERVICES HAVE BEEN DEVELOPED ON A METROPOLITAN SCOPE AND THE COMMUNITY IS METROPOLITAN IN CHARACTER............................ VI. THE SUPREME COURT HAS ESTABLISHED THAT NEITHER THE ELEVENTH AMENDMENT, NOR THE ORDERING OF THE EXPENDITURE OF STATE OR LOCAL FUNDS, NOR EXISTING TEACHERS' CON TRACTS CAN PREVENT A FEDERAL COURT FROM ORDERING STATE AND LOCAL OFFICIALS TO INSTITUTE A PLAN OF DESEGREGATION...... VII. IF SECTION 803 OF THE EDUCATION AMEND MENTS OF 1972 IS CONSTITUTIONAL AND SPECIFICALLY APPLICABLE, IT APPLIES EQUALLY TO AN INTRA-CITY REMEDY AND A METROPOLITAN REMEDY..................... Relief Requested............................... Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F Appendix G Article Detroit Free Press, August 2, 1965................ Article Detroit Free Press, October 7, 1968 ............... Article Detroit News.......... House Bill 5840 ............... Article Detroit Free Press, November 11, 19 6 0 ............. School District Revenue Sources Article Grosse Polnte News, August 10 , 1972............... . 96 . . 97 . 99 . .10° . 10 9 . .no 113 n TABLE OF AUTHORITIES -Page Argersenger v. Hamlin, 92 S. Ct. 2006 (1972) 88 Attorney General v. Detroit Board of Education, 154 Mich. 584, 118 N.W. 606 (1908) 42 Attorney General v. Lowrey, 131 Mich. 639, 92 N.W. 289 (1902) 42 Baker v. Carr, 369 U.S. 186 (1962) 81 Bell v. School City of Gary, Indiana, 324 F.2d 209 (7th Cir. 1963) 26 Bradley v. Milliken, 338 F. Supp. 582 (E.D. Mich. 1971) 62 Bradley v. Milliken, 433 F.2d 897 (6th Cir. 1970) 7 Bradley v. Milliken, 438 F.2d 946 (6th Cir. 1971) 8, 15 Bradley v. School Board of City of Richmond, 338 F. Supp. ___ (E.D. Va. 1972) 62 Bradley v. School Board of City of Richmond, Civil No. 72 - 1058 (4th Cir. June 5, 1972) 63,64,65 Brown v. Board of Education of Topeka, 347 U.S. 483 (2954) 30,33,74 Brown v. Board of Education of Topeka, Kansas, 349 U.S. 294 (1955) 17,67,75,83 Burleson v. County Board of Election Commission ers of Jefferson County, 308 F. Supp. 352 (E.D.Ark. 1970) 59 Burleson v. County Board of Election Commission ers of Jefferson County, 432 F.2d 1356 59 (8th Cir. 1270) Calhoun v. Cook, 332 F. Supp. 804 (M.D. Ga. 1971) 62 Calhoun v. Cook, 451 F.2d 583 (5th Cir. 1971) 62 Cisneros v. Corpus Christi Independent School District, 330 F. Supp. 1377 (1971) iii 87 Cisneros v. Corpus Christi Independent School District, ____ F. 2d ____ (5th Cir., No. 71 - 28 36 39 2397, August 2, 1972) • ' ' Page Child Welfare v. Kennedy School Dist., 220 Mich. 290, 189 N.W. 1002 (1922) Clark v. Board of Education of Little Rock School Dist., 426 F.2d 1035 (8th Cir. 1970) Cooper v. Aaron, 358 U.S. 1, (1958) Davis v. Board of School Commissioners of Mobile County, 402 U.S. 33, (1971) Davis v. School District of the City of Pontiac, Inc.,,.443 F.2d 573 (6th Cir. 1971) Davis v. School District of the City of Pontiac, Inc., 309 F. Supp. 734 (E.D. Mich. 1970) Deal v. Cincinnati Board of Education, 369 F.2d 55 (6th Cir. 1966) Deal v. Cincinnati Board of Education, 419 F.2d 1387 (6th Cir. 1969) Downs v. Board of Education, 336 F.2d 988 (10 Cir. 1964) ■ Evans v. Ennis, 281 F.2d 385 (3rd Cir. 1960) Exparte Young, 209 U.S. 123 (1908) Gideon v. Wainwright, 372 U.S. 335 (1963) Gilliam v. School Board, 345 F.2d 325 (4th Cir. 19 C 5) 43 78 57,83,84 58,63,70,75, 76,79,82 23,31,37,39 23,31 33 26,39 27 86 84,85 88 2 7 Gomilion v. Lightfoot, 364 U.S. 339 (1960) Graham v. Folsom, 200 U.S. 248 (1906) Green v. County SchooJ Board of Nev; Kent County, 391 U.S. 430 (1968) Griffin v. School Board of Prince Edv.’ard County, 3 7 7 U.S. 218 (3 964 ) 58.81 84 29.63.70.81 84,89 IV f Page p* St> Helena Parish School Board,197 F. Supp. 649 (E.D. La. 1961) v: St- He-lena Parish School Board, 28 7 1 • 2d 176 -(5th Cir. 1961) Haney v. County Board of Education of Sevier ■ County, 410 F.2d 920 (8th Cir. 1969) Godse11' 165 P. Supp. 87 (E.D. Mich. J?Rkin? v* U n s h i p of Morse School District 98 N.J. 483, 279 A.2d 619 (1971) Kelley y. Metropolitan County Board of Educa tion of Nashville and Davidson County, Term., ---- **2d ____ (No. 71 1778-79, 6th CirMay 30, 1972) r* ' KFY2d QqriS<̂ ??K D '̂strict No. 1, Denver, 445 f .2a 990 (10th Cir. 1971) L!?2d'7«” s t £ ° £ £ T m ) of Muoation' 448 Lm n (5toB« r t ° » 7 " iSh SCh001 EOard' 446 F -2d Loi’isiana v. United States, 380 U.S. 145, 85 s. Ct. 81/, 13 L ed 2d 709 (1965) L (N?D.VOhioaIs64f “ UCati0n' 259 P - S W - 740 255 M i c h - ??aJd °f Educati°» of Men,phis,333 F .2a 661 (6th Cir. 1964) No. K8 8- 71 (^D?°Mich?11972)EdUCatl0n/ ClVl1 °cl!».v».y?am o f Education' 250 F-S“PP- J000 Osborn v. Bank of United : tales, 9 Wheat 7 38 59 59 59 27 61,67 76,77,80,87 27,31,33 58 76,78 79 27 43 25 45 27 8 4 v Reynolds v. Sims, 377 U.S.533 (1964) Senghas v. L'Anse Creuse Public Schools, 368 Mich.557, 118 N.W. 2d 975 (1968) Sims v. Georgia, 389 U.S. 404 (1967) Spencer v. Kugler, 326 F.SuDp. 1235 (D.N.J. (1971) State v. Alabama, 304 F. 2d 583 (5th Cir. 1962) Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971) Turner v. Warren County Board of Education, 313 F.Supp. 380 (E.D. N.C. 1970) Page 58,88 43 25 65,66,67 25 61,63,64,68,70 75,76,77,79,81,87 59 United States v. Board of School Commissioners of City of Indianapolis, 332 F. Supp. 655 (S.D; Ind. 1971) United States v. Scotland Neck City Board of Education, U.S. ,33 L Ed 75,92 S. Ct. (1972) United States v. State of Texas, 447 F .2d 441 (5th Cir. 1971) Wayne Circuit Judges v. Wayne County, 386 Mich. 1 (1971) Webb v. Board of Education, 223 F. Supp. 466 (N.D. 111. 1963) 62 36,59,65,75 60 88 27 (1972) 4 3, 4! Mich. 620, 171 N. T.7ill* 2d 545 (1969) ■.fright v. Council of the City of Emporia, 28,36,59,65,75U.S. , 33 I, Ed 2d 51, 92 s. Ct. -- FEDERAI, STATUTES AND RULES Education Amendments of 1972, P.L. 92-318 (92d Congress Second Session), §803. 90-94 vx Page MICHIGAN CONSTITUTION Const 1835, Art., 10, §3 41 Const 1850, Art. 13, §1, 4 41 Const 1908, Art.■ 11/ §2, 9 •41,42,43 Const 1963, Art. 8, 5 2 , 3: 42, 53,65 Const 1963 Art. 9, §3 50 MICHIGAN STATUTES MCLA 209.101, MSA 7.631 50 MCLA 211. 34, MSA 7.52 50 50 MCLA 211.148, MSA 7.206 51 MCLA 257.811 (c) MSA 9.2511(c) 51 MCLA 340.252(c) MSA 15.3252(c) 51 MCLA 340.361, MSA 15.3361 52 MCLA 340.402, MSA 15.3402 52 MCLA 340.431, MSA 15.3431 52 MCLA 340.447, MSA 15.3447 52 MCLA 340.567(a) , MSA 15.3567(1) 51 MCI,A 340.570, MSA 15.3570 MCLA 340.573, MSA 15.3573 52 vi i Page MCLA 340.575 MSA 15.3575 49,51,53 MCLA 340.587(a) MSA 15.3587(1) . 52 MCLA 340.612 MSA 15.3612 51 MCLA 340.616 MSA 15.3616 51,52 MCLA 340.688 MSA 15.3688 51 MCLA 340.732(g) MSA 15.3732(g) 51 MCLA 340.775 MSA 15.3775 52 MCLA 340.781 MSA 15.3781 51 MCLA 340.782 MSA 15.3782 51 MCLA 340.789 MSA 15.3789 51 MCLA 340.887(1), MSA 15.3887(1) 51 MCLA 388.201 MSA 15.1916 48 MCLA 388.371 MSA 15.1951 51 MCLA 388.611 MSA 15.1919(51) 50 MCLA 388.681 MSA 15.2299(1) 47 MCLA 388.691 MSA 15.2299(51) 47 MCLA 388.851 MSA 15.1961 52 MCLA 388.1010 (a) MSA 15.1023(10)(C) 51 MCLA 423.201 MSA 17.445(1) 88 MICHIGAN ATTORNEY GENERAL OPINIONS • No. 880, 1949-1950 Report (January 24, 1949) of the /attorney General 104 50 No. 1837, (Nov. 8, No. 2333, (October ^52~!954 Report of the Attorney General 1955 Report of the Attorney General 56] 20, 1955) ' 440 52 50 viii Pace No. 4097, 1961-1962 Report of the Attorney General 553 (October 8, 1962) No. 4705, 1969-1970 Report of the Attorney General, 156 (July 7, 1970) No. 4714, 1969-1970 Report of the Attorney General 201 (December 1, 1970) OTHER AUTHORITIES Northwest Ordinance of 1787 2 Constitutional Convention Official Record, 1961, p3396 Annual Report, Committee on School District Reorganization 1968 Journal of Senate 422 (March 1, 1968) Bulletin No. 1005, Michigan State Department of Education (1970) Bulletin 1012, Michigan State Department of Education (1971) Annual Report, Committee on School District Reorganization 1968 Journal of the Senate (March 1, 1968) Michigan State Board of Education Bulletin No. 1005 1968 Journal of the House of Representatives,1965 41 4 4 47 45 51 47,57 45 49 IX No. 72-8002 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT BOARD OF EDUCATION OF THE SCHOOL DISTRICT OF THE CITY OF DETROIT, a-school district of the first class, Appellant, vs. RONALD BRADLEY, et al, Appellees. / BRIEF OF APPELLANT BOARD OF EDUCATION OF THE SCHOOL DISTRICT OF THE CITY OF DETROIT, A SCHOOL DISTRICT OF THE FIRST CLASS AND OTHER DEFENDANTS_____________ * I. STATEMENT OF ISSUES PRESENTED FOR REVIEW I. Though the District Court used the label "de jure" segregation, has said Court, in actuality, redefined the term so as to change the meaning by eliminating the requirement of the intent to segregate? The Court below answered "No". The Defendant-Appellants Board of Education of the School District of The City of Detroit, and other Defendants, contend the answer is "Yes". -1- II. III. Has the District Court furthar departed from precedent in finding de jure segregation in the Detroit school system absent a finding that acts of the school autho- 'rities are the proximate cause of the condition of segregation? The Court below answered "No". The Defendant-Appellants Board of Education of the School District of the City of Detroit, and other Defendants, contend the answer is "Yes". Based on the Michigan Constitution, decisions of the Michigan Supreme Court, statements by the Governor of Michigan, opinions of the Attorney General of Michigan, and actions of both the Michigan Superintendent of Public Instruction and the Michigan State Board of Education, is it a cardinal principle of Michigan school lav/ that the Michigan public school system is solely a State function v/ith the local school districts being merely instrumentalities of the State created for administrative convenience? The Court below answered "Yes". If there must be a remedy, the Defendant- Appellants Board of Education of the School District of the City of Detroit, and other Defendants, agree. -2- Did the District Court abuse its discretion in ordering a metropolitan remedy for the desegre gation of the Detroit schools because of the -State's sole responsibility for education in Michigan, the step-by-step process leading to metropolitanization developed by the courts, and general principles of equity first announced by the Supreme Court in Brown II, each of which supports such a remedy? The Court below answered "Yes". If there must be a remedy, the Defendant- Appellants Board of Education of the School District of the City of Detroit, and other Defendants, agree.o ^ Was the District Court, as a factual matter, correct in ordering a metropolitan remedy, because failure to do otherwise would continue unconsti tutional racial isolation in the Detroit schools and cause further Detroit school segregation, particularly in a situation where numerous other governmental services have been developed on a metropolitan scope and the community is metropolitan in character? The Court below answered "Yes". If there must be a remedy, the Defendant- Appellants Board of Education of the -3- School District of the City of Detroit, and other Defendants, agree. VI. VII. Has the Supreme Court established that neither the Eleventh Amendment nor the ordering of the expenditure of State or local funds nor existing teachers' contracts can prevent a federal court from ordering State and local officials to institute a plan of desegregation? The Court below answered "Yes". If there must be a remedy, the Defendant- Appellants Board of Education of the School District of the City of Detroit, and other Defendants, agree. If Section 803 of the education amendment of 1972 is Constitutional and specifically applicable, does it apply equally to an intra-city remedy and a metropolitan remedy? The Court below did not answer this question. The Defendant-Appellants Board of Education of the School District of the City of Detroit, and other Defendants, contend the answer is "Yes". STATEMENT OF THE CASE AND RELEVANT FACTS A. PROCEDURE BELOW: Plaintiffs commenced this liti- ' gation by filing a Complaint on August 18, 1970, against the Board of Education of the City of Detroit, its members and the then-Superintendent of Schools, as well as the Governor, Attorney General, State Board of Education and State Superin tendent of Public Instruction of the State of Michigan. Plaintiffs challenged tile Constitutionality of Act 48 of the Public Acts of 1970 of the State of Michigan as it affected certain plans of the Detroit Board of Education, and also alleged that the Detroit Public School System was and is segregated on the basis of race as a result of the official policies and actions of the Board of Education. After making said allegations, the Plaintiffs in two and one-half pages of pleadings asked for certain relief,including preliminary injunctions requiring the Board of Education to implement a plan of desegregation known as the "April 7, 1970" plan restraining implementation of the aforementioned Act No. 48 of the Michigan Public Acts of 1970; restraining the Board of Education from all further school construction and requesting permanent decrees concerning the above; and enjoining the Board of Education from building schools, approving policies, curriculum and programs "which are designed to or have the effect of maintaining, perpetuating -6- and supporting racial segregation in the Detroit School System"; and ordering Defendant School Board to institute a plan of desegregation. This case was initially tried on Plaintiffs' motion for preliminary injunction to restrain the enforcement of the aforementioned Act 48 in order to permit the so-called April 7, 1970 plan to be implemented. The District Court ruled that the Plaintiffs were not entitled to a preliminary injunction, did not rule on the Constitutionality of Act 48, and granted a motion dismissing the cause as to all of the State Defendants. B. PRE-TRIAL APPEALS: This Court in Bradley v. Milliken, 433 F.2d 897,989 (6th Cir.1970), held that the District Court did not abuse its dis:retion in denying the motion for prelimi nary injunction, but reversed the trial court in part, holding that portions of Act 48 were unconstitutional and that the State Defendants should remain in the suit. Subsequently, the Plaintiffs sought to have the District Court direct the Defendant, Detroit Board, to implement the "April 7th" plan prior to trial. The Court did not order implementation of the "April 7th" plan, but, instead, adopted a plan submitted by the Board of Education. Plaintiffs again appealed to this Court, and again, the Court held that the District Court had not abused its discretion t -7- in refusing to adopt the April 7, 1970 plan. This Court .furthermore remanded with instructions to proceed immediately to a trial on the merits of Plaintiffs-' allegations about the Detroit School System. Bradley v. Milliken, 438 F .2d 946 (6th Cir.1971). C. RULING OF SEPTEMBER 27, 1972: The trial on the issue of segregation began April 6, 1971, and was concluded on July 22, 1971, after consuming 41 trial days. On September 27, 1971, the District Court issued a "Ruling on Issue of Segregation," (App. Ial94). In that Ruling at page 3} the District Court noted that at the close of Plaintiffs' case it had ruled that a prima facie case of segre gation had been presented. Further, from page 4 to page 22,1 2 the District Court made findings of fact, which are summarized as follows: First, the District Court analyzed the population patterns, both of the community at large and the student popu lation in Detroit schools, and found that not only was Detroit becoming predominantly Black, and growing more so, but so were its schools. Projecting present population patterns into the future, the District Court noted at page 5 that by 1980-1981 the Detroit schools will be 80.7% Black, and by 1992 will be virtually 100% Black if present trends continue. 1 App. Ia]96. 2 App. Ial9 6-211. -8- C V 1 Secondly, the Court found that out of 319 schools in the Detroit School System, 30 had no White pupils (9.4%) and 11 had no -Black pupils (3.4%). Ruling,at pspes 7-81 The Court also found that certain schools, not identified as to race, had certain conditions indicating a lower socio-economic status than the city-wide average. Ruling, at page 8.2 Following this, the Court stated: "The City of Detroit is a community generally divided by racial lines. Residential segre gation within the city and throughout the larger metropolitan area is substantial, per vasive and of long standing." Ruling, at page 8. (Emphasis added) ..... * * * "While the racially unrestricted choice of Black persons and economic factors may have played some part in the development of this pattern of residential segregation, it is, in the main, the result of past and present practices and customs of racial discrimination, both public and private, which have and do restrict the housing opportunities of Black • people." Ruling, at page 9.4 In particular, the District Court attributed this dis- cx'imination, at the public level, in the first place to the United States Government, not a party here: "For many years FHA and VA openly advised and advocated the maintenance of "harmonious neighborhoods," i_.e., racially and economically harmonious." Ruling, at page 9? Other than a general state ment that "the actions or the failure to act by the responsible I~7^pT- Ial99T 2 App. Ial99-200. 3 App. Ia200. 4 App. Ia200. 5 App. Ia200-201 -9- school authorities, both city and State, were linked to these other governmental units," Ruling, at page 9,̂ the manner in which the' Board of Education was responsible for such acts of the FHA and VA was not established. See, Ruling, at pages 29-10. Concerning the acts of the State Defendants, the District Court in its Ruling on Segregation noted that the State Board of Education and the Michigan Civil Rights Commission had issued a Joint Policy Statement on the Quality of Education Opportunity in 1966. Included in this joint policy statement was a finding that local school boards should consider racial imbalance in the construction of schools so as to maximize integration. The State Board of Education, in its School Plan ning Handbook, had also similarly warned of the problems of segregated schools. Notwithstanding such policies of the State, the District Court found: "The State Defendants have similarly failed to take any action to effectuate these policies." Ruling at Page 13. ^ The District Court also found that the State had acted to maintain the racial imbalance resulting in monoracial schools in the City of Detroit: The District Court noted that the State had refused to provide authorization for funds for transportation for the integration of the Detroit schools, v/hile providing similar transportation funds regardless of 1 2 3 1 App. Ia201. 2 App. Ia200-201. 3 App* Ia204. -10- the intended use for other school district through out the State. In addition, the District Court found other financial discrimination, such as bonding limitations and the Micnigan state school aid formula, as direct causes of the monoracial character of Detroit schools. See generally, Ruling,at page 14.1 Similarly, the District Court noted that the State of Michigan has at times acted to re organize the school district of the City of Detroit, and moreover. "The State acted through Act 48 to impede, delay and minimize racial integration in Detroit schools. The first sentence of Sec. 12 of the Act was di rectly related to the April 7, 1970 desegregation plan. The remainder of the section sought to prescribe for each school in the eight districts criterion [sic] of "free choice" (open enrollment) and "neighborhood schools" ("nearest school priority acceptance"), which had as their purpose and effect the maintenance of segregation." Ruling at page 15. 2 1 2 1 App. Ia204. 2 App. Ia205. -11- In summary, the District Court found that the Board did the following: (1) Operating schools in a city with established residential segregation, caused by federal agencies in part, and which action was joined in by unspecified "acts" or "failures to act"; (2) Creation of optional attendance zones - while noting, that specifically the Board . in 1959 hired Merle Ilenrickson to eliminate, and had, in fact, with minor exceptions, eliminated optional attendance zones, prior to the filing of the Complaint; (3) In one or two isolated instances, bussed Black students past White schools to Black schools, and "only" once bussed White students to Black schools; (4) In one instance, built a school and estab lished its attendance zone which may have contained Black students; and (5) Participated in construction of racially identifiable schools. These acts caused the District Judge to state: "The natural and actual effect of these acts and failures to act has been the creation and perpetuation of school segregation." Ruling, at page 12.̂ - It must be recognized that Detroit has not had a dual 1 App. la203. • • system of public education since 1869. These findings of very isolated instances were made in the background of the nation's fifth largest system having over 319 school buildings, 299,500 students and 12,229 faculty members, plus administrative and other school employees. It is a large governmental unit which is most difficult to manage. Yet, after close scrutiny, only isolated acts were found, many of which were found to have been corrected or were already in the process of being corrected. ' Recognizing the sheer magnitude of the Detroit school system, the District Court was obviously concerned in making its findings of d£ jure discrimination, for, in spite of such findings, the Court was moved to state: "It would be unfair for us not to recognize the many fine steps the Board has taken to . advance the cause of quality education for all in terms of racial integration and human relations. The most obvious of these is in the field of^faculty integration." Ruling, at page 15. 1 . The Court continued, Ruling, pages 15-20? to find that the Detroit schools had an exemplary record of faculty integration. While in 1961 the Detroit system had a faculty ratio of 78.1% White to 21.6% Black, by October, 1971 that ratio had changed to 56.4% White to 42.9% Black. As of October, 1970, only six schools in the entire system had no Black faculty members; over 124 had 50% or more Black faculty members. As of October, 1971, out of 319 schools, only four do not have Black faculty members and now 149 have more than 50% Black faculty members. 1 2 1 App. Ia 2 0 5. 2 App. Ia205 - Ia209. -13- t 1 i■i 1 ! i The Court then concluded: "The Detroit School Board has, in many other instances and in many other respects, under taken to lessen the impact of the forces of segregation and attempted to advance the cause of integration...." Ruling, at page 20.-*- Continuing, the Court noted at least seven such instances, calling them "pioneering," Ruling, at page 21: ^ (1) The Board denied use of its facilities to groups practicing racial discrimination; (2) Refusal by the Board to allow its facilities to be used for discriminatory apprentice training programs; (3) Significant placement efforts on behalf of Black students in the building crafts and industry; (4) The Board successfully brought about a sub stantial increase in the percentage of Black students in apprenticeship programs; (5) It was the first State agency in Michigan to effectuate a policy of requiring contractors with which it dealt to take effective steps to insure equal employment opportunities in their work forces; (6) It was a pioneer in the use of multi-ethnic instructional material significantly influ encing publishers thereby. (7) The Detroit Board "has opposed State legislation which would have the effect of segregating the district." Ruling, at pages 20-21J (Emphasis added). 1 App. Ia209. 2 App. Ia209-210. 3 App. Ia209. -14- In concluding its Findings of Fact, the District Court ruled: "The principal causes [of segregation] undeniably have been population movement and housing patterns, but State and local governmental actions, including school board actions, have placed a substantial - role in promoting segregation." Rulincr, at page 22.1 ----- ^ However, in the very next sentence on page 22, the Court revealed its true finding and thinking; namely, that this is a "no-fault" situation, at least on the part of the. Detroit Board of Education, when the Court said: "It is, the Court believes, unfortunate that we cannot deal with public school segregation on a no-fault basis, for if racial segregation in our public schools is an evil, then it should make no difference whether we classify it de jure or de facto." D. THE PRE-TRIAL CONFERENCE AND APPE/iL FROM OCTOBER 4, 1972 ORDER: Following this Ruling, a pre-trial conference on the issue of a remedy was held, with the Court setting a time table for the presentation of proposed implementation plans. At that time, the Court indicated that its findings of fact and conclusions of law on the issue of segregation were final. Subsequently, the Board of Education appealed to this Court from what it thought was a final decision of the District Court. This Court disagreed. 438 F.2d 945 (6th Cir. 1971). 1 2 1 App. Ia 210. 2 App. Ia 210. E. DISTRICT COURT RULINGS ON REMEDIES: On March 24, 1972, the District Court ruled that it must, of necessity, fashion a remedy metropolitan in scope. In so doing, the Court felt the necessity of choosing "the alternative or alternatives which promise realistically to work now and hereafter to pro duce the maximum actual desegregation." Ruling on Propriety of Considering a .Metropolitan Remedy, March 24, 1972, at pages Essential in the District Court's decision were two questions, presented by the State Defendants and the interven ing suburban school districts, respectively. Upon challenge by the State Defendants that the delegation of power from the State to the school districts vests the school districts "with sovereign powers which may not be disturbed by either the State or the Court." Ruling (March 24, 1972), at pages 2-3.2 The Court responded by saying: The State cannot evade its Constitutional responsi bilities by a delegation of powers to local units of government. The State Defendants position is in error in two other respects: 1: The local school districts are not fully autonomous bodies, for to the extent it has seen fit, the State retains control and supervision; and 2: It assumes that any metropo litan plan, if one is adopted, would, of necessity, require the dismantling of school districts included in the plan." Ruling (March 24, 1972), at page 3.3 The suburban school districts charge that, absent findings 1 2 3 App. Ia 4 41. App. Ia 4 41. App. Ia441. -16- of de jure segregation by them, they may not be included in any remedy. While noting a lack of Supreme Court direction in this regard, the Court rejected the argument by noting Brown v. Board of Education, 349 U.S. 294 at 301 (1955) (Brown II): "The courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of deter mining admission to the public schools on a non-racial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems." Ruling, (March 24, 1972) at page 4.1 The Court concluded by noting that an intra-city plan proved inadequate, that it would be required to consider a metropolitan remedy for desegregation. Subsequently, on March 28, 1972, the District Court rejected all Detroit-only plans presented to it, since it was found that no plan could prevent the massive re-segregation of the Detroit schools. Speaking of Plaintiffs' Plan (which the Court found "would accomplish more desegregation than now obtains" or would result from other plans),the Court found, inter alia: "(1) The plan would make Detroit schools completely racially identifiable as Black, with some schools 75% to 90% Black; and 1 App. Ia 44 2. -17- (2) It would change a bi-racial school system to one. perceived absolutely as Black, thereby increasing "White flight" to the suburbs and correlatively, the Black student population." See,Findings of Fact and Conclusions of Lav; On Detroit-Only Plans of Desegregation (March 28, 1972), at pages 2-4! With these findings, the Detroit-only plan would soon result in a virtually all-Black Detroit school system surrounded by White suburbs. The Court rejected intra-city plans, in toto, saying: "[R]elief of segregation in the public schools of the City of Detroit cannot be accomplished within the corporate geographical limits of the City." Findings of Fact and Conclusions of Lav/ On Detroit-Only Plans of Desegregation (March 28, 1972), at page 5. Drawing upon these two rulings on the scope of the remedy for the segregation it perceived, the District Court established the perimeters of a metropolitan remedy on June 14, 1972, in its "Ruling on Desegregation Area and Order for Devel opment of Plan of Desegregation." In that Ruling and Order, the District Court established a panel to design plans of inte gration for Detroit and 53 metropolitan school districts, subject to its appioval, within certain established guidelines. F. DISTRICT COURT'S CERTIFICATION OF APPEALABLE ORDERS: On July 20, 1972, the District Court certified that certain orders, those above included, involve controlling questions of law as contemplated by 28 U.S.C. §1292 (b), and that they 1 2 1 App. Ia457-458. 2 App. Ia459. -18- were final within the meaning of Rule 54(b), F.R.C.P. On the same date, this Court granted the motion for leave to appeal of the State Defendants, and further ordered that the cause be ad vanced on the docket for hearing on August 24, 1972. The Court also granted the motion for stay pending appeal of the District Court's Order for Acquisition of Transportation, and stayed all other proceedings in the District Court other than planning pro ceedings . On July 20, 1972, the Defendants Detroit Board of Education and others filed their notice of appeal as to orders made final pursuant to F.R.C.P.54(b). -19- A R G U M E N T SUMMARY OF ARGUMENT ' The District Court redefined the legal meaning of the term "de jure segregation". The Court made no findings of intent on the part of the Detroit School Board to segregate.nor did it make a finding that there was a causal connection between any of the acts which the Detroit School Board undertook and the existence of segregation in the City of Detroit. The only possible way for this Court of Appeals to find a basis for a Constitutional violation is to change the existing established body of school desegregation lav.7. For these reasons, there should be no remedy as there has not been a Constitutional violation. Thus, this Court should reverse the decision of the District Court that de jure segregation was present, as a matter of law, and order that the Complaint filed herein be dismissed. . If this Court should find that there is a basis for a Constitutional remedy, the only remedy is the remedy chosen by the District Court: to-wit; a metropolitan remedy, and this Court should affirm the District Court's decisions thereon. This follows because of the pervasive control of the State over education in Michigan; the fact that local school districts, including the Detroit district, are mere instrumentalities of the State and that their actions are those of the State: the fact that the relevant -20- community is clearly the metropolitan Detroit community; the fact that a number of courts have step-by-step laid the legal foundation for the ordering of a metropolitan remedy; and the fact that equity beginning with Brown II, as reaffirmed in Swann, clearly gives a federal district court the right to fashion a metropolitan remedy. There are no Constitutional prohibitions against doing so. Furthermore, the United States Supreme Court has in the past approved federal court orders requring State and local expenditures to protect Constitutional rights. In regard to remedy if Section 803 of the Education Amendment of 1972 is Constitutional and specifically applicable, it applies equally to an intra-city remedy and a metropolitan remedy. . 21 T11OUGII TIIE DISTRICT COURT USED THE I ABEL DE JURE SEGREGATION, THE COURT IN ACTUALITY REDEFINED THE TERM SO AS TO CHANGE ITS MEANING BY ELIMINATING THE REQUIREMENT OF INTENT TO SEGREGATE. The District Court found certain actions and inactions of the Detroit school authorities, such as the creation and alteration of attendance zones, feeder school patterns and grade structures, had as their "natural, probable and actual" consequence the segregation of certain Detroit schools at certain points in time. In one instance, the creation and maintenance of optional attendance zones, the Court found segregation was the "natural, probable, foreseeable and actual" consequence. In the main these findings were made without a finding that such* » actions had as their purpose or intent the segregation of Black students from Whites. True, the District Court did so. find as to the construction of one elementary school after 41 days of trial court scrutiny of a vast system involving 319 schools, 289,000 students, and over 12,000 faculty members. 338 F.Supp. at 488. When the Court shifts from specific instances to dis cussing the school system generally, it does not in setting forth the principles requisite to a system-wide finding enumerate among them any intent to operate a segregated system. It views the finding of some one purposeful act at some time to be without any general finding of purpose. sufficient, \ Nor cioes the District Court, although invited to do so by the Plaintiffs (Plaintiffs' Proposed Finding of Fact, P. 20) infer a general intent to segregate from a pattern of specific actions as did the District Court in Davis v. School District of £l^-Qf_Pontiac, Inc., 309 F.Supp. 734 (E.D. Mich. 1970) aff'd. 443 F* 2d 573 (6th Cir. 1971), cert, denied, 405 U.S. 223 (1971). After reviewing the school district's attendance boundary line decisions and school location decisions, the Court noted: "Although, as the District Court stated, each decision considered alone night not compel the conclusion that the Board of Education intended to foster segregation, taken together, they support the conclu sion that a purposeful pattern of racial discrimination has existed in the Pontiac school system for at least 15 years." 443 F.2d at 576. The Court variously noted that the Pontiac Board had "inten tionally utilized" its powers, "did a great deal to create the pat terns presently existing" and "played a major role in the develop- raent and growth of a segregated situation". 309 F.Supo. at 741-742. No such findings were made by the District Court here against the Detroit Board. The requisite finding that the Detroit Board of Education acted with the general purpose or policy of operating a segregated school system is simply not there. Not only is there no language m the District Court’s opinion making a finding based on such an inference, but the Court specifically rejects the kind of pattern which led tne Court to find in Davis (Pontiac) a purposeful attempt to segregate the system, instead finding "many fine steps" taken 1 . -23- by Ihe Detroit Board in terms of racial integration. 338 F.Supp. at 589. Particular refe^fcce was made by the Court^^o the stellar job that the Detroit Board has done in integrating faculty including since 1960 increasing the black representation among its teachers from 23.3% to 42.1% and among its administrators from 4.5% to 37.8%; having the highest percentage of black teachers among northern scnool systems in the country; decreasing the number of schools with out black teachers from 41 to 4 and increasing the number of schools having more than 50% black faculty to 124 out of 319. App. la 205-209 These are but a few C l the many examples that the Court found as to positive faculty integration policies on the part of the Detroit Board If the Detroit Board had any general intent or policy to segregate its school system then such policies toward faculty integration would surely be inconsistent with such purpose. This explains why the Dis trict. Court could not find the necessary action under the classic definition or de jure segregation, i.e., intent on the part of the Detroit Board to segregate. In addition the Court discussed many other advances made by the Detroit Board: The Detroit Scnool Board has, in many other instances and in many other respects, under taken to lessen the impact of the forces of segregation and attempted to advance the cause of integration. Perhaps the most obvious one was the adoption of the April 7 Plan. Among other t.nings, it has denied the use of its faci lities to groups which practice racial discrimina tion; it does not permit the use of its facilities for Discriminatory apprentice training programs; it has opposed state legislation which would have the effect of segregating the district; it has wormed to place black students in craft positions in industry and the building trades; it has brought about a substantial increase in the percentage of black students in manufacturing and construction trade apprentice-ship classes; it became the first public agency in Micnigan to adopt and implement a policy requiring affirmative act"of contractors with which .i v deals to insure equal employment opportu nities in their work forces; it has been a leader -24- I :^^pi once ring the use of mu^^L-ethnic instruc tional material, and in so doing has had an impact on publishers specializing in producing school texts and instructional materials; and'1 it has taken other noteworthy pioneering steps to advance relations between the white and black races." 338 F.Supp. at 591-592. The Detroit Eoard questions the implicit determination by the Court that absent findings the Detroit Board acted with purpose or intent to operate a racially segregated school system, and absent findings that such action caused the segregation of the system, the Court may properly undertake to apply comprehensive remedies previ ously applied to the eradication "root and branch" of de jure segre gated school systems. The District Court's Conclusions of Law 2 and 4 make clear its rejection of the current doctrine of de_ jure segregation, 338 F.Supp. at 592 (App. Ia211 Vol. Ia). The Court found it necessary to cite cases other than school desegregation cases, i.e., Sims v. Georgia 389 U.S. 404 (13G7) , and State v. Alabama, 304 F.2d 583 (5th Cir. 1962) to read out the requirement of motive or intent which is neces sary for a finding of d_e jure school segregation.- For School Board conduct to be actionable 1/ Tne District Court, in its Conclusions of Law 5, 338 F.Supp. 592-593, ruled that the Detroit Board's practice of s’ tendance zones on a north-south rather than an east-vs neld to conform to racial residential dividing lines, of lav;, an act of de jure seqreg; Education of Memohls ,“333 F.2d 6( tne District Court is clearly in error. That formulatiiu a remeo.v Lav; 5 , 338 F.Supp. a-U :ice of shaping schoo1 at- n east-wes t orientation , ;g lines , is as a matter ! Northcross v. Board of 19 6 4). On this poini-rcase held only that i -L ‘ *system r Previously C..G v.. L3 _ — o , cue x . m y ex scnooi oouncaries Pr̂ SGrYe a maximum amount of segregation is impermissible. 333 F.5 at 663-664. Clearly, the school boundaries in the City of Detroit had been originally established in a north-south orientation, because of the arterial system of streets of the City of Detroit and the bus transportation routes in existence, for which there is credible record evidence. Henri ckson de jure, Tr. p.2931). Aop. IUa285. It is eaual- !y apparent that they were not drawn, "where the Board is under com pulsion to desegregate the schools." 333 F.2d at 664. For the Dis trict Court to hold the Detroit Board's decision to draw at some remot: time in the past its lines in such manner to be per se de jure segre gation is clearly excessive. ' " — L -25- on a system-wide basis, there must be a finding of intent or purpose to segregate the system: "[T]he crucial fact to be found is whether the racial imbalance was intentionally caused by gerrymandering or by other alleged discrim inatory practices on the part of the Board." Deal v. C.incinnat.i Board of Education, 369 F*2d 55, 64 (6th Cir. 1966), cert. denied, 389 U.S. 847 (1967); on remand, 419 F.2d T387 (6th Cir. 3969), cert, denied, 402 U.S. 962 (1971) . By writing out intent, the District Court has redefined de jure segregated school systems. Counsel is unaware of any previous finding that a de jure segregated system can exist absent a finding of intent or purpose to segregate the system. The cases are legion in which courts, including this Circuit, have noted the existence of racial imbalance absent an intent to segregate and found no de jure segre gation, and, therefore, no cause of action; Bell v. School City of Gary, Indiana, 324 F.2d 209 (7th Cir. 1963), cert. denied, 377 U.S. 924 (1964) (no Constitutional duty to change innocently arrived at school attendance districts merely because shifts in population had increased or decreased the percentage of Black or White pupils); Downs v. Board of Edu^tion, 336 F.2d 988 (10th Cir. 1964 ), cert, denied, 380 U.S. 914 (1965) (no requirement to abandon or destroy the neighborhood school system even though it results in racial imbalance where it was maintained with no intention or pur pose to maintain or perpetuate segregation); Deal v. Cincinnati 52fl£d_of^^uc_^ion, supra, (no Constitutional duty to bus children out of their neighborhoods or transfer classes to alleviate racial imbalance caused not by the school board but by the racial character of the neighborhoods in which the schools were located); Keyes v. School District No. 1, Denver, 445 F .2d 990 (10th Cir. 1971), cert, granted, 404 U.S. 1036 (1972) (showing of racial animus required to support findings of de jure segregation in local schools). See also Gillian v. School Board, 345 F.2d 325 (4th Cir. 1965); Olson v. Board of Education (F.D. N.Y. 19 6 6); appeal dismiss ed, Lynch v. Board of Education. 229 F : 1964); Webb v. Board of Education. : 111. 1963); Henry v. Godsell, 165 F 1958). -27- Counsel is aware of the decision by the Fifth Circuit in Cisneros v. Corpus Christi Independent School District on August 2, 1972 (No. 71-2397) in which that Circuit did find actionable segregation without requiring a finding cf intent. But that decision under took not to find de_ jure segregation, but specifically to abolish the distinction between do facto and de jure, segregation, citi.ng the instant case under review here as authority for so doing." In Cisneros, the Court stated: "Thus, we discard the anodyne dichotomy of classical d_e facto and de j ure segregation ... We therefore hold that the racial and ethnic segregation that exists in the Corpus Christi school system is unconstitutional -- not de facto , not de j ure, but unconstitutional." Slip Op. at 10, 13. Counsel is further aware of the recent Supreme Court decisions in Wright v, Counci3. _of City of _Enpo r i a, U . 40 USLW 4817 (June 20, 1972), holding that a city could not create a new school district separate from that of the surrounding county where its effect would impede the process of court-ordered dismantling of a dual system. In such a situation, school board action need not be judged in terms of its "dominant" purpose, but rather as to the effect of the action, as earlier cases found intent was established by the trial court. The Fifth Circuit cited this holding in Cisneros, supra, in support of its decision to abolish the de facto - de jure distinction in the determina tion of the existence of violation of Constitutional rights. Perhaps the better view is that, in the context of an undisputed dual system the Supreme Court has done nothing more them explain once again that segregation once found must be terminated "root and branch." Green v. County School of Hew Kent Countv, 391 U.S. 430 (1968). In either event, it is indeed certain that no such finding as to effect alone has to this date supported a finding on de_ jure grounds of an initial violation of Constitutional rights by a school board. It would be disingenuous for the Detroit Board to argue that as the District Court here present did not find intent -29- e or purpose to operate a segregated system that the Court thereby did not find fault with the Board. The Court makes clear that while it believes that it would be far better to operate on a "no-fault" basis, it nevertheless is operating on a basis of fault finding. The District Court has not undertaken to abolish the concept of de jure/de facto segregation, as in Cisneros; rather it has redefined it by creating the novel concept of culpable, though non-intentional, segregation defined by the foreseeability or probability of a segregatory result. This notion of, for lack of a better term "negligent segregation" based on the foreseecibility or probability of segregatory conse quences of action not found to be taken with any evil purpose strains the rationale of the concept, of de jure segregation beyond the breaking point. It leaves 'no cognizable difference between de facto and de jure segregated schools. If there is a difference between the two, it is surely not in the general educational- effect of the condition of segregation. The de_ facto segregated school is just as racially identifiable as the de jure segregated school, and whatever educational consequences flow from that condition will flow as freely in the one case as in the other. What difference there is, then, must be in the cause of the segregation rather than in the effect. Brown I says that: "[T]he policy of separating the races is usually interpreted as denoting the inferiority of the Negro group. A sense of inferiority affects the motivation of the child to learn." 347 U.S. at 494. If there is a distinction between de jure and de facto segre gation, the basis of that distinction is therefore in the intentional policy of separation, a policy which stigmatizes the Black young ster, unconstitutionally impeding his ability to learn. It is the intentional policy, the known and perceived official man date that the Blacks must be kept from Whites which creates the special stigma of the de jure segregated school. Absent that purposeful policy, what difference is there on the effective ability of a Black child to learn if his consignment to an all Black school is due to "benign" influences, whatever they may be, or due to the failure of a well-meaning school board to foresee the consequences of acts which are found pcst hoc to be foreseeable? Purposeful intent is ultimately the touchstone of the concept of de jure segregation, for absent it, any differences in the effect of Black child of attending an all—Blac;. school, and therefore, any variant effect on his Constitutional rignts disappears. Similarly, purposeful intent to operate a system on a segregated basis is the touchstone of a finding of a de ]ure segregated system. Keyes v. School District Wo. 1, Denver, 445 F .2d 990 (10th Cir. 1971), cert. granted, 404 U.S. 1036 (1972). Davis v. School District of the City of P(ontmaCj_Inc_._, 309 F.Supp. 734 (E.D. Mich. 1970), aff1d ., 443 F.2d 573 (6th Cir. 1971), cert, denied, 405 U.S. 223 (1971), stands for the -31 proposition that such intent may be inferred by the consistent pattern of action of a Board of Education; the implication that such action as unwritten but nonetheless purposeful policy not being lost on the Black community and the children attending Black schools; and the message of implied inferiority not being diminished by its being delivered indirectly. There is no other reason for the District Court at the end of its findings of fact on September 27, 1971, to state: . "It is, the Court believes, unfortunate that we cannot deal with school segregation on a no-fault basis, for if racial segrega tion in the public schools is an evil then it should make no difference whether we classify it de jure or de facto." 338 F.Supp. 582,592. The Court's own recognition that it was veering from the classi cal definition of de_ jure segregation and eliminating the need to find intent. The law in this Circuit is that there must be intent The Detroit Board suggests that as there must be an intent, the District Court should be reversed or this Court should say that "no-fault" is the rule so all will understand. Cf., Deal v. Cincinnati Board of Education, supra. II THE DISTRICT COURT HAS FURTHER DEPARTED FROM PRESENT LAW IN DESCRIBING THE DETROIT SCHOOL SYSTEM AS DE JURE SEGREGATED, OR DUAL, ABSENT A FINDING THAT THE ACTS OF THE DETROIT SCHOOL AUTHORITIES ARE THE PROXIMATE CAUSE OF THE CONDITION OF SEGREGATION. It follows naturally that just as a finding of de jure segre gation requires a finding of purpose or intent on the part of a school authority to operate such a system it also requires a finding that such action was the proximate cause of the segrega tion. See Deal v, Cincinnati Board of Education, 369 F.2d 55 (6th Cir. 1966) cert, denied 389 U.S. 847 (1967) where this Court said at 64: "However, the crucial fact to be found is whether the racial imbalance was intentionally caused by gerrymandering or by other alleged discriminatory prac tices on the part of the Board." . (Emphasis supplied). This common-sense requirement has more recently been recog nized in Keyes v. School District No. 1, Denver, 445 F.2d 990 (10th Cir. 1971), cert, granted, 404 U.S. 1036 (1972) where the entire de_ jure test was restated by the Court at 1006. The special stigma of de jure segregation comes not only from the placement of the Black child in a racially identifiable school, but from the knowledge that the cause of his being there is the result of an official policy which tells the child that he is inferior. Brown v. Board of Education, 347 U.S. 483 (1954) . Absent that causation, that special stigma is also absent, and what remains is but a racially identifiable school, to which the appellation de jure would signal no difference, insofar as the Constitutional rights of the child are concerned, than the term de facto.' The District Court recognized the need for a finding of causation when it set forth what it felt were the "principles essential to a finding of de jure segregation", presumably meaning by this, a de jure segregated system and not an individual act of 3ure segregation. 338 F.Supp. at 592. However, the Court did not feel any need to find that such causation was proximate. The Court, in the "principles essential to a finding", states only that the action must have "aggravated segregation , and then states separately without any apparent nexus that there must exist a "current condition of segregation". The Court notes further that "causation in the case before us is both several and comparative". The closest the Court comes to ever specifically forming the causal nexus of the acts of the Detroit Board is in its statement: "The principal causes undeniably have been population movements and housing patterns, but State and local governmental actions, including school board actions, have played a substantial role in promoting segregation." 388 F.Supp. at 592. Previously, the Court noted a "link" between the acts of the Detroi Board and other governmental units. -34- • • In determining what part of the "substantial" but not principal role the Detroit Board played in causing the current condition or what link it had to other units of government, the only recourse is to the record. That record reveals rather limited contracts between the Board and the City Planning Commis sion, various model neighborhood agencies, the Urban Renewal Division and Department of Parks and Recreation of tne City of Detroit none of which involved the slightest segregatory purpose or effect. (Henrickson, de jurc, Tr.3515-18) (App.IVa 113-11G) . As to the role of the acts of the Detroit Board found to be wrongful in causing the current condition of segregation Plaintiffs proferred to the Court their finding of fact which contained only the opinion testimony of several experts to the effect that all-Black and all-White schools tended to reinforce a feeling of separateness on the part of both races, which, in turn, manifested itself to some ^indefinable degree in the choice of residence in uniracial neighborhoods on the part of both races. The mind boggles at the meaning of this assumed, unmeasured phenomenon against the standard of proximate cause. First, the findings of the District Court as to specific acts of discrimina tion relate to a relatively small proportion of the total school district: the construction of one specified elementary school, out of a total school construction program involv ing a multitude of schools; busing; and the maintenance of sixseveral instances of Black-to-Black optional zones, which were in the process of seriatim elimina tion, representing but a small fraction of the total of twenty- one high school constellations in the City of Detroit. There is not an iota of evidence which shows or which even attempts to show that any person living in the City of Detroit made housing decisions any differently, because of the "acts or failures to act" of the Detroit Board. Even the case supposedly which "discards the anodyne dichotomy of classical de facto and de_ jure segrega tion", Cisneros, ___ F.2d ___ (5th Cir. 1972). Slip Opinion at 10, plainly states: "We need only find a real and significant relationship, in terms of cause and effect, between state action and the denial of edu cational opportunity occasioned by the racial and ethnic separation of public school students." Slip Opinion at 12. (Emphasis supplied). . See also Texas Educational Agency, ___F . 2d ___ (5th Cir. 1972). Sli Opinion at 27-28, 30-32, 44. Bradley v. Mi]liken, the instant case, is cited as authority. And indeed, the most recent United States Supreme Court cases concerning school desegregation, Wright v. Council of City of Emporia, ____U.S. ____, 40 USLW 4806 (June 20, 1972), and United States v. Scotland Neck City Board of Education, ____ U.S. ___ 40 USLW 4817 (June 20, 1972), reaffirmed the "cause-effect" rule of discrimination, prohibiting acts which would have caused further segregation through the "carving out" of new school districts which were less biracial than the original districts from which they proposed to secede. -36- " rL r F L T̂” fc.~ r Indeed, the record evidence cited to show causation does not relate directly to the acts of the Detroit Board in question, it relates merely to the existence of racially identifiable schools. There is no basis for belief that a child in one of the many schools in the city that was all Black but which was not affected by one of the acts of the Detroit Board found wrongful by the District Court would be any less impressed by the racially separate nature of his condition than one that was. This being the case, the causation which the District Court has found is nothing more than an assertion that racial separation tends to be self-perpetuating. This is a far cry from the finding of this Court sanctioned in Davis v. School District of the City of Pontiac, 443 F.2d 583 (6th Cir.197.1) cert. denied ,405 U .S. 233 (1971), namety, that the Board took certain purposeful action, and as a direct result of those actions, the schools of the city were racially imbalanced. The most vivid indicator of the lack of any causal nexus between the actions of the Detroit Board and the current condi tion of segregation is the finding the Court's "Ruling on Detroit- Only Plans", that even had it granted all the relief requested by Plaintiffs, the implementation of a pupil assignment plan within the jurisdiction of the School District of the City of Detroit would nonetheless retain racially identifiable schools. App. I a 459, Vol. I B. If the District Court, with its broad equitable jurisdiction, is unable to overcome residential housing patterns within the City of Detroit to eliminate the condition of racial identifiability in its schools, then the same condition -37- of segregation would exist even if the Detroit Board had acted exactly as the District Court would have had it act. How then can the Detroit Board be found to have proximately caused that condition, which even the District Court found itself powerless to remedy? The finding is really then not that the Detroit Board should have succeeded in eliminating racial identification in its schools, but that it should have done a better job of failings If failure to alleviate the conditions is inevitable even for the Court itself, as the Court has effectively found, then the parti cular quality of the Board's failure can hardly be said to have caused that condition. Absent that causation, Detroit cannot be held to a de jure segregated dual system. It is unfortunate that this case has taken on an almost criminal context. Suburban defendants especially seem obsessed with the concept of guilt, operating on the principle that the provision to small children of their Constitutional rights is, of all things, a punishment to be visited upon the sinful and withheld from the righteous, regardless of the effect that appli cation may have on the rights of those children. The Detroit Board submits that this notion of guilt and punishment is danger ously irrelevant. The idea that a Court's duty to provide children their Constitutional rights is a punishment is a gross insult, both to the Constitution and to all the school children of metropolitan Detroit, both Black and White. What we are about is not a game of cops and robbers designed to punish a "bad" school district -38- for having committed some wrongful act regardless of its effect, while finding "not guilty" the "good" school district. The requirement of a finding of intent or purpose for d<3 jure segre gation is not grounded in a concept of mens rea, but rather in the notion that intentional conduct has a unique effect upon the Constitutional rights of the child. The requirement of proximate cause comes not from a need to fix blame, but frora a recognition that causation may vary the effect on Constituticnal rights of the complained of condition. Thus, many Courts, indeed, all but perhaps the Fifth Circuit, in Cisneros v. Corpus Christi Independent School District,__F .2d__ (5th Cir.,No. 71-2397, August 2, 1972), have adopted the distinc tion between de facto and intentional de jure segregation as a criterion for so deciding Constitutional rights without assessing guilt. The trial court followed neither the Fifth Circuit nor the majority rule, finding that it was some wrongful act which gave rise to remedy but without regard to its purpose or its lack of direct effect on the complained of condition. Such elasticizing of de jure concept serves only to enervate it. If this Court wishes to reverse Deal v. Cincinnati Board of Education, 369 F.2d 55 (6th Cir. 1966) cert, denied/ 369 U.S. 847 (1967) and Davis v. School District of the City of Pontiac, 4 4 3 F.2d 5 7 3 ,cert. denied , 925 U.S. 233 (1971) and find that absent a finding of intent to run a dual system and absent a showing that school board action caused the segregation, rather than segregated housing patterns, a remedy is appropriate for serious racial imbalance then this -39- Court should follow the lead of the Fifth Circuit and do so forthrightly, without stretching the current concepts of the law into meaninglessness. If a system with acute racial imbalance neither intended nor caused by the local board is in the eyes of this Court Constitutionally acceptable, then it should reverse. Clarity of the law, ana devotion to the Constitutional rights of the school children of the Unted States allows no third result. -40- THE MICHIGAN CONSTITUTION, THE SUPREME COURT OF MICHIGAN, THE GOVERNOR OF MICHIGAN, THE ATTORNEY GENERAL Or MICHIGAN, MICHIGAN 'SUPERINTENDENT OF PUBLIC INSTRUCTION AND THE MICHIGAN STATE BOARD OF EDUCATION, HAVE ALL RECOGNIZED THE CARDINAL PRINCIPLE OF MICHIGi SCHOOL LAW, N/iMELY ?H AT THE MICHIGi PUBLIC SCHOOL SYSTEM IS SOLELY A STATE FUNCTION WITH THE LOCAL SCHOOL DISTRICTS BEING MERELY INSTRUMENTALITIES OF THE STATE CREATED FOR ADMINISTRATIVE CONVENIENCE. The Northwest Ordinance of 1787 governing the Territory of Michigan provided: "Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." With this genesis, Michigan's four Constitutions have clearly established that the public school system in this State is solely a State function. The Constitution of 1835 in Article X, Section 3, provided, in part: "The legislature shall provide for a system of common schools..." The Constitution of 1850, Article XIII, Section 4, provided, in part: "The legislature shall... provide for and establish a system of primary schools..." Section 1 of the same Article provided, "...the Superintendent of Public Instruction shall have general supervision of public instruction..." The Constitution of 1908 in Article XI, Section 2, pro vided that the Superintendent of Public Instruction "shall have 41- Articlgeneral supervision of public instruction in the State." XI, Section 9, provided, in part as follows: "The legislature shall continue a system of primary schools, whereby every school district in the State shall provide for the education of pupils without charge for tuition..." The Constitution of 1963, the present Constitution of the State of Michigan, in Article VIII, Section 2, provides, in part as follows: The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law." In interpreting the above educational provisions of the Constitution of 1850, the Michigan Supreme Court clearly stated, The school district is a State agency. Moreover, it is of legislative creation..." Attorney General v. Lowrey, 131 Mich. 639 , 644, 92 N.V,T. 289 , 290 (1902). Again, interpreting the Constitution of 1850, the Supreme Court of Michigan in Attorney Genereil v. Detroit Board of Education , 15 4 Mi ch. 584, 590, 118 N.W. 606, 609 (1908), adopted lower court language which read: "Education in Michigan belongs to the State. It is no part of the local self-government inherent in the township or municipality, except so far as the legislature may choose to make it such. The Constitution has turned the whole subject over to the legislature..." The Supreme Court of Michigan interpreted Article XI, Section 9, of the Constitution of 1908 to mean: "The legislature has entire control over the schools of the State subject only to the pro visions above referred to. The division of the territory of the State into districts, the conduct of the school, the qualifica tions of teachers, the subjects to be taught therein are all v/ithin its control." Child Welfare v. Kennedy School Dist., 220 Mich. 290 , 296, 189 N.W*. 1002 , 1004 (1922). This principle that education is a State responsibility has become so ingrained in Michigan lav;, it is now clear that a local school district can exercise only the power given it by the State. See, e.g., Senghas v. L'Anse Creuse Public Schools, 368 Mich. 557, 118 N.W.2d 975 (1968); McLaughlin v. Board of Education, 255 Mich. 667, 239 N.W. 374 (1931). This concept has further been expanded in relationship to the Michigan Constitution of 1963. In a per curiam opinion, the Michigan Supreme Court interpreted Article VIII, Section 3, "Leadership and general supervision over all public education... is vested in a State board of education", to mean: "It is the responsibility of the State board of education to supervise the system of free public schools set up by the legislature..." Welling v. Livonia Board of Education, 382 Mich. 620, 624, TTTN . W. 2d~5T5~T3"4 6 (196 9) . The concurring opinion spelled out the change from the Constitution of 1908 to the Constitution of 1963 as it described the transfer of authority over the school system from the -43- I legislature to the State Board of Education: "By the Constitution of 1963...the framers proposed and the people adopted a new policy for administration of the system. Now the State board of education... is armed and charged exclusively with the power and responsibility of administering the public school system which the legislature has set up and now maintains pursuant to Section 2 of the Eighth Article. By Section 3 of the * same Article, the board has been directed - not by the legislature but by the people - to lead and superintend the system and be come , exclusively, the administrative policy maker thereof..." 382 Mich, at 625, 171 N.W. 2d at 546-547. The concurring opinion referred to the official comments of the Constitutional Convention, noting the following language. "'The enlarged State board provides a policy making body on a State level.' (emphasis added) 2 Constitutional Convention Official Record, 1961, p 3396." 382 Mich, at 625, 171 N.W.2d at 547. Nor is a judicial finding that the State of Michigan is totally responsible for education in Michigan confined to the State courts. A federal district court, other than the instant court, made such a finding. Thus, the Honorable Noel Fox, United States District Judge for the Western District of Michigan, specifically ordered the State of Michigan to take an active role in the desegregation case in Kalamazoo, Michigan and in doing so said, "The State of Michigan is represented by two entities, but the entity is an agent of the Stcite ... the Constitution says -44- i something about your (the State's) responsibility." Oliver v. Kalamazoo Board of Education, Civil No. K88-71 (W.D. Mich. 1972) , f ,Pre-trial- order and transcript.I - Attorney General Frank J. Kelley, on July 7, 1970, in ai letter to the Acting Superintendent of Public Instruction made this cogent observation: . "It is clear that the State Board of Education, pursuant to Article VIII, Section 3, has Consti tutionally conferred rule-making power. Welling, supra. In addition, the legislature has conferred rule-making power on the State Board of Education." Op. Atty. Gen. No. 4705, 1969-1970 Report of the Attorney General 156, 157. Following the holding of Welling v. Livonia Board of Education, supra, that there was no minimum length of day re quired under the 180-day school attendance rule absent a State Board of Education regulation, the Michigan State Board of . [ Education, acting under its Constitutional mandate without legislative authority, established an administrative rule re quiring local school boards to provide a minimum number of hours per school year. See, School Districts Child Account for Distribution of State Aid, Bulletin No. 1005, Michigan State Department of [ Education (1970). Defendant Governor William G. Milliken has recognized his position vis-a-vis public education, as the State's Chief Executive. As one of four governors in an amic-i brief filed in the Supreme Court of the United States, No. 71-1332, San Antonio L ~45~ 6 Independent School District v. Rodriquez, the Governor said, at Page II: "As Governors and Chief their respective States, for upholding and carryi the Constitutions and la States, including the pr the establishment of pub districts and commanding States to attend school, for financial decisions operations, including th and financing of the pub executive officers of Amici are responsible ng out the commands of v:s of their various '.'visions thereof requiring lie schools and school the children of their Amici are responsible affecting all State ose pertaining to support lie schools..." The Governors' amici brief, speaking of the State of Texas, could as well be describing the State of Michigan, when it used these words: "It is also undisputed that the local school districts and their boundaries, and hence the aggregate value of the property they contain, are entirely the creation of and their mainten ance is the responsibility of the State of Texas. Furthermore, the detailed regulation of public education financing in Texas *** is a State, not a local responsibility. Indeed, the school districts have the power to raise funds for education only as a result of delegation by the State of its own power to tax for the general welfare." (Page 8 of brief) Thus, four of the present State Defendants - the Attorney General, the Superintendent of Public Instruction, the State Board of Education and the Governor - have admitted directly or by their actions that the State is supreme in matters of education. Examples of the pervasiveness of State control over public education in Michigan are legion: -46- 1. Public Act 289 of 1964 (MSA §15.2299 (1) ct seq., MCLA §388.681 et scq.) required Michigan school districts to operate K-12 systems. When Public Act 289 became effective, 1,438 public school districts existed in Michigan. By the be ginning of 1968, this figure had been reduced to 738, meaning that 700 school districts in Michigan have disappeared since 1964 through reorganization. Annual Report, Committee on School District Reorganization, 1968 Journal of the Senate 422-423 (March 1, 1968). 2. Pursuant to Act 289 of 1964 , supra, the State Board of Education ordered the merger of the Brownstown No. 10, Hand, Maple Grove and Carson school districts, all in Wayne County. The action is best explained by the fact that Brownstown was, at that time, the wealthiest school district in the State, indeed, with a property valuation of $340,000 backing each child, perhaps the wealthiest district in the nation, while the other three districts were extremely poor. Detroit Free Press, Aug. 2, 1965. (See Brief, Appendix A). 3. When the Sumpter School District was on the verge of bankruptcy in 1968, the State Board of Education, acting under Public Act 239 of 1967 (MSA §15.2299(51) et seq., MCLA §388.691 et seq.), merged the district with four adjoining districts, including the Airport School District. Significantly, though Sumpter was in Wayne County, Airport was in Monroe County, showing that county lines are not inviolate in Michigan. Be cause of resentment against the forced merger, residents of the Airport district refused to approve a bond issue. The voters' reaction was explained as follows: - "What's the use, if the State can tell you what to do like they did this time, why shouldn't the State foot the bill?" Detroit Free Press, October 7, 19i8. (See Brief, Appendix B) . 4. The Nankin Mills School District in Wayne County was beset with financial problems and had no high school. Again, pursuant to Act 239, the State Board of Education in 1969 ordered this school district to merge with the Livonia, Garden City and Wayne Community schools. The Detroit News, May 15, 1969. (See Brief, Appendix C). 5. When the Inkster School District in Wayne County was on the verge of financial bankruptcy, the Michigan legislature passed Public Act 32 of 1968 (MSA §15.1916 et sea., MCLA §388.201 et seq.) enabling the district to borrow $705,000 but on the con dition that if the district could not balance its budget, the State Board of Education could reorganize, merge or annex the district. The legislative history of Act 32 indicates at least two legislators voted against the bill in the House of Representatives because of the excessive control given to the State Board of Education: -48- ( "I voted No on House Bill No. 3332 because in setting up the machinery to bail out distressed districts, it takes from the local communities the control over their own educational system by providing for excessive arbitrary reorgani zation powers in the hands of the Board of Education "... . "This bill certainly sets up the State Board ' of Education to be a dictator of all school districts that run into financial problems." . 1968 Journal of the House of Representatives 1965. 6. The current legislature has passed H.B. 5840 provi ding financial relief for insolvent school districts, including, as in the Inkster legislation, procedures for reorganization of the districts. (See Brief, Appendix D). 7. Too small and too poor to operate a high school, the all-Black Carver School District in suburban Oakland County reached a crisis in 1960 when surrounding White districts re fused to accept Carver pupils on a tuition basis. The Governor and Superintendent of Public Instruction engineered the v.’here- withal to merge the Carver district with Oak Pari. Detroit Free Press, Nov. 11, 1960. (See Brief, Appendix E). 8. The State Board of Education and Superintendent of Public Instruction may withhold State aid for failure to operate the minimum school year. MSA §15.3575, MCLA §340.575. In 1970, funds were withheld from the.City of Grand Rapids School District. 17 Michigan School Board Journal 3 (March, 1970). For Attorney General Opinions holding that State aid may be withheld by the -49- State Board of Education from school districts for hiring un certified teachers, defaulting on State loans and for other reasons, see Op. Atty. Gen. No. 880, 1949-1950 Report of the Attorney General 104 (January 24, 1949, Roth); No. 2333, 1955 Report of the Attorney General 561 (October 20, 1955, Kavanaugh); No. 4097, 1961-1962 Report of the Attorney General 553 (October 8, 1962, Kelley). 9. The State of Michigan contributes, on the average, 34% of the operating budgets of the 54 school districts included in the Metropolitan Plan of Integration. In eleven of the 54 districts, the State's contribution exceeds 50% and in eight more, it exceeds 40%. (See State Aid Chart, Brief, Appendix F)• State aid is appropriated from the General Fund, revenue raised through state-wide taxation, and is distributed annually to the local school districts under a formula devised by the legislature. See, e.g., Public Act 134 (1971), MSA %15.1919 (51) , MCLA §388.611. Though the local, school districts obtain funds from the assessment of local property, the ultimate authority in insuring equalized property valuations throughout the State is the State Tax Commission. MSA §7.631, et seq., MCLA §209.101, et seq.; MSA §7.206, MCLA §211.148; MSA §7.52, MCLA §211.34. The State's duty to equalize is required by the Michigan Constitution, Article IX, Section 3. This "State equalized valuation yields. Districts Michigan " serves as the basis for calculating local revenue See, Ranking of Michigan Public High School - School by Selected Financial Data, 1970, Bulletin 1012, State Department of Education (1971). 10. Perusal of the Michigan School Code reaffirms the ultimate control of the State over public education. Local school districts must observe all State laws relating to schools, Av ri/ y \ i v *hold school a minimum number of days per year, ^ 3/ _ _ _ _ _ _ _ _ ------- ----- . employ only certified teachers, teach civics, health and physical 1/education and drivers' education, excuse students to attend vreligious instruction classes, observe State reauirements 6/ when teaching sex education, make annual financial and other 7/ reports to the Superintendent of Public Instruction, adopt only textbooks which are listed with the Superintendent of £/Public Instruction and must follow’ all rules and regulations of the State Department of Education. 1/ MSA §15. 3252(c) , MCLA §340.252(c). 2/ MSA §15. 3575, MCLA §340.575. 3/ MSA §§15 .1023 (10) (a) / 15.3570, MCLA §§388. 1010 (a) , 340.570 1/ MSA §§15 .1951, 15. 3361 , MCLA §§388.3 71 , 34,0.361; MSA §§15. 3781-15. 3782, MICLA §§340.781-340.782 / MSA §9 .2511 (c) , MCLA §257 . 811 (c) 5/ MSA §15. 3732(g) , M.CL A §340.732(g). 6/ MSA §15. 3789, KICLA §340.789. 7/ MSA §15. 3612, KICLA §34 0.612; MSA §§1 5. 361C 15.36 88 , MCLA §§34 0.616, 340. 688 • 8/ MSA §15. 3887 (1) , MCLA §340.887 (1) . -51- Local school districts, unless they have the approval of the State Board of Education or the Superintendent of Public Instruction cannot consolidate v/ith another school 9/ 10/ district, annex territory, divide or attach parts of other 11/ 12/ districts, borrow monies in anticipation of State aid, construct, reconstruct or remodel school buildings or additions 13/ to them, establish a program for the prevention and treat- ii/ment of behavior problems of children, employ a superinten dent without a bachelor's degree from a college acceptable 15/to the State Board of Education, establish facilities and programs for the day care of the physically handicapped or 1_6./initiate programs for the mentally handicapped. 11. The Detroit Board of Education, of its own knowledge, is fully aware of State control with regard to its financial crisis. Having received the State's permission to borrow money in 1971-72, permission for further borrowing was denied for 9/ MSA §15.3402, MCLA §340.402. 10/ MSA §15.3431, MCLA §340.431. 11/ MSA §15.3447, MCLA §340.447. 12/ MSA §15.3567(1), MCLA §340.567(a). 13/ MSA §15.1961, MCLA §388.851, Op. Atty. Gen. No. 1837, 1952-1954 Report of the Attorney General 440 (Nov. 8 1954) . 14/ MSA §15.3618, MCLA §340.616. 15/ MSA §15.3573, MCLA §340.573. 16/ MSA §15.3587(1), MCLA §340.587(a); MSA §15.3775, MCLA §340.775. -52- C 1972-73. The Detroit Eoard then determined it did not have sufficient revenues to operate for 180 days as required by law. Faced with the prospect of either violating the 180- day requirement (MSA §15.3575, MCLA §340.575; Op. A.tty. Gen. No. 4714 [Dec. 1, 1970]) or violating the prohibition against operating with a deficit budget (MSA §15.3197, MCLA'§340.197), inquiry was made of the State agencies, including the Super- intendet of Public Instruction'and a representative of the Governor's office for an answer to the dilemma. The State informed the Detroit Board that the filing of a balance budget Was preferred. The situation has been resolved by the District Court in this case, ordering the Detroit Board to maintain a 180-day school year. Any suggestion that the Detroit Board of Education, an entity so sharply restricted in its powers, is in some way sovereign and apart from the State is obviously unsupportable. 12. Any doubt as to the pervasiveness of State control over education in Michigan has been resolved by the intro duction of Senate Joint Resolution "Z" in the legislature this year. Already passed by the Senate, the purpose of SJR "Z" is to amend Article VIII, Section 3, of the Michigan Constitution to divest the State Board of Education of its leadership and supervision over education in this State. Perhaps the resolution is called "Z" after the famous movie -53- of the same name because it indicates at least some legislators feel that the State Board of Education is dictatorial over public education in Michigan. We suggest that this is the fact. Based upon the Constitutional history, decisions of the Michigan Supreme Court, a finding by another Federal District Court in Michigan, opinions of the Attorney General of the State of Michigan, actions of the Superintendent of Public Instruction and the State Board of Education, itself, and numerous State statutes and actions taken pursuant thereto, there is no question that local school districts are mere agents or instrumentalities of the State. Action of a local district is action of the State. ̂ 1 1 If there be any doubt as to the pervasiveness of State control over Michigan Education, we call the Court's attention to an article in the August 10, 19 72 issue of the Grosse Pointe Nev.’s, page 1, (See Brief, App. G) where Attorney General Frank Kelley, a Defendant herein, as Chairman of the Municipal Finance Commission had given permission to the Grosse Pointe School to borrow money for operation purposes. Incidentally, the other two members of the Municipal Finance Commission are also Defendants herein. State Superintendent of Public Instruction, John W. Porter and State Treasurer, Allison Green. If the State di.d not control Education in Michigan, then why did the Grosse Pointe Schools have to get State permission to borrow funds? We have brought this information to the Court's attention via a foot note because of its recent origin. - 54- IV. ■ THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN- ORDERING THE IMETROPOLITAN REMEDY FOR THE OFDESEGREGATION OF THE DETROIT SCHOOLS BECAUSE THE STATE'S SOLE RESPONSIBILITY FOR EDUCATION IN MICHIGAN, THE STIDP-BY-STEP PROCESS LEADING TO METROPOLITAN!ZATION DEVELOPED BY THE COURTS, AND GENEEAL P RINCIPLIIS OF EQUITY FIRST ANNOUNCED BY THE SUPREME COURT IN BROWN II, EACH OF WHICH SUP- POHTS SUCH A REMEDY." . '.......... It is the position of the Defendant Detroit Board that the orders of the District Court may not be affirmed based on a traditional de jure segregation finding against the Detroit Board. Reduced to its essence, the finding does not exist and has not been made. There then remain two bases on which the Court can grant metropolitan relief if it believes it is necessary to do so. First, this Court may affirm the findings of the District Court with regard to traditional dc j ure segregation as those findings were made to both State and city Defendants. Action of the City, which is an agent of the State, is action of the State and action of the State is exactly that. In either event, it is clear that the desegregation of Detroit schools cannot be accomplished within the city limits of Detroit which are co terminous with the Detroit school district. The State, having the sole responsibility for education in Michigan, has the power and authority to involve the metropolitan Detroit community in desegregating the Detroit school system. Secondly, were the Court to adopt the Ci sneros doctrine, “55- discuss*,] above, there certainly would be no reason to limit the op* tat ion of relief to the City of Detroit in the face of the clc'viv findings of the District Court that such relief could not be effective. As the Cisneros doctrine does away with the distinct;on between de jure and de facto segregation, the ob jection interposed by suburban Defendants that they have not themselves been found to have committed acts of de jure segregation loses whatever alleged vitality it might have had. However, if for whatever reason this Court should uphold the Detroit Court's findings as the basis for a remedy, then this Court has no choice but to affirm the District Court's ruling as to the necessity of a metropolitan remedy. This proposition follows because of the following cogent and legally unassailable arguments. . I This Court on July 24, 1972, specifically ordered a briefing of the legal status of local school districts vis-a-vis the State of Michigan. The result is astoundingly clear: education in Michigan is solely a fun-' cion of the State. Local school di' 1 riots are. mere creatures of the State acting as agents or instrumentalities of the State under pervasive State control. If State action has violated the Plaintiff's Constitutional right es the District Court has found, then the State must provide the remedy. in doing so, the State cannot hide behind the school -56 boundaries of the 54 school districts or State instrumentalities included in the Metropolitan Desegregation Plan to avoid a remedy on the absurd theory that 53 of these districts did not partici pate in violating Plaintiffs' Constitutional rights. But for the administrative convenience of the State, these metropol itan area districts would not exist. As a proof of this fact, . since 1964, the State has eliminated 700 school districts because they were no longer administratively convenient. See Annual Report, Committee on School District Reorganization, 1968 Journal of the Senate 422-423 (March 1, 1968). Furthermore, as the Supreme Court said in Cooper v. Aaron, 358 U.S. 1 , 16-17 (1958) , local school officials are agents of the State for Fourteenth Amendment purposes. In summary, the unconstitutional actions of the State affect all its instrumentalities; if the State must supply a remedy, then its instrumentalities in the metropolitan area must all be affected. If the Court should find that only the Detroit Board violated the Plaintiffs' Constitutional rights and the State was allegedly blameless, the same result must necessarily follow. The Detroit Board is an instrumentality of the State. In Detroit, the State acts through the Detroit Board. If a remedy must be afforded, it must be that of the State. When the District Court, having heard over 58 days of testimony, including five days on a Detroit-only remedy, ruled -57- in favor of a metropolitan remedy, it was simply responding to the Supreme Court directive to "make every effort to achieve the greatest possible degree of actual desegregation". Davis_^, Board of School Commissioners of Mobile County, 402 U.S. 33, 37 (1971). In doing so, the District Court merely followed the obvious stepping-stones to school metropolitanization now , emerging in the law. As this Defendant Detroit Board noted in its response to a request for emergency stay, no party to this date has quarreled with the fundamental remedial finding of the District Court, namely that relief for the condition of Sv,g regation in the City of Detroit is impossible. The legal path to the metropolitanization of school districts was first cleared by the United States Supreme Court in the so-called voting rights cases. These decisions established that Constitutional requirements supercede the importance of main taining State created legislative districts. hgYB£---as.-Hr.— 377 U.S. 533 (1964); Gomillion v. lA^MSoot, 364 U.S. 33y vxy6u). The concept of ignoring political division lines for purposes of guaranteeing Constitutional rights has been extended to school districts. Where a city attempted to remove its schools from a county system when the latter was ordered to establish a unitary school system, the Fifth Circuit refused to permit the secession because it would have had a substantial ad verse effect on desegregation. ^e_y^la^ii_Cou)Lt_y_Board_of -58- Education, 448 F.2d 746 (5th Cir. 1971). The Court observed: "[Sjchool district lines within a State are matters of political convenience." 448 F.2d at 752. A District Court refused to permit the creation of two school districts where one could operate as easily as two, and the action was obviously designed to foster racial segregation. Turner v. Warren County Board of Education, 313 F. Supp. 380 (E.D. N.C. 1970). See also, Hall v. St. Helena Parish School Board, 197 F. Supp. 649, 658 (E.D. La. 1961) aff*d. 287 F.2d 376 (5th Cir. 196'’ ), aff1 d. per curiam, 368 U.S. 515 (1962); Burleson v. County Board of Election Commissi ■: ners of Jefferson County, 30 8 F. Supp. 352 (E.D. Ark. 1970) , af f1d. pgr curi am, 432 F.2d 1356 (8th Cir. 1970). The principle that school district lines may not be used for purposes of violating fundamental Constitutional rights has recently been recognized by the United States Supreme Court. School distiricts are not permitted to withdraw from county-wide systems where the effect of such a separation would impede the process of dismantling a segregated school system. Wright v. Council of City of Empori a, 40 USLW 4806 (June 20 , 1972) ; Uni ted States v. Scotland.Heck Citv Board of Education, 40 USLW 4817 (June 20, 1972). Refusal to permit the separation of school districts where such action would foster segregation has its counterpart in court-ordered merger of districts. In Haney v. County Board -59- theEducation of Sevier County, 410 F.2d 920 (8th Cir. 1969), Court ordered the merger of a White and a Black school district even though they had been maintained as separate units for 14 years. The Court declared: "[S]tate political subdivisions have long . ago lost their mastery over the more desired effects of protecting the equal rights of all citizens." 410 F.2d at 924. The Court viewed merger of the two districts in Sevier County as the only possible means of effectively desegregating the schools. In Texas the annexation and consolidation of all Black school districts with nearby biracial units was ordered as a means of achieving meaningful desegregation. United States v. State of Texas, 447 F.2d 441 (5th Cir. 1971). With regard to changes in school district boundaries, the Court specifically directed: "Defendants shall not permit, make arrangements for, approve, acquiesce in, or give support of any kind to changes in school district boundary lines - whether by detachment, annexation, or consolidation of districts in whole or in part - which are designed to, or do in fact, create, maintain, reinforce, renew, or encourage a dual system based on race, color, or national origin." 447 F.2d at 443-444. In short, the State has an affirmative duty to enforce Fourteenth Amendment rights. The penultimate stepping-stone toward school metropoli- tanization, and perhaps also the first completed litigation -60- involving consolidation of a northern school system, is illustrated by Jenkins v. Tov/nship of Morris School District, 58 N .J. 483, 279 A.2d 619 (1971). Morristown contained most of the Blacks in the region, and the surrounding Morris Township was a White suburban area. The two areas operated separate elementary schools, but the Township had sent its students to the Morristown High School since 1865. The Township planned to withdraw its students from the high school and Plaintiffs sought to have the Commission er of Education take steps to prevent the withdrawal and to effectuate a merger of the Morris Township and Morristown school systems. The Commissioner dismissed the petition for lack of legal authority to take the requested action. The Supreme Court of New Jersey unanimously held that to avoid racial imbalance in the schools, which is unconstitutional under the New Jersey Constitution, the Commissioner had the authority not only to prevent the withdrawal of the Township from the City, but also to effect a merger of the two systems and to cross district lines to do so. The Supreme Court further paved the way toward metropolitanization in Swann v. Charlotte-Mecklenburg Board of EduCeltion, 402 U.S. 1 (1971) , where the neighborhood school concept was abandoned and busing was explicitly recognized as a permiss ible tool for desegregating schools. At least two Federal District Courts and one Circuit Court of Appeals have hinted that metropolitan desegregation plans may be a legal necessity to effectively desegregate schools in large cities. -61 In Calhoun v. Cook, 332 F.Supp. 804 (N.D. Ga. 1971) , vacated in part 451 F.2d 583 (5th Cir. 1971), the District Court recommended a "sweeping examination" v/ith regard to the question of consolidating the Atlanta City school system v/ith the Fulton County system as a means of producing long-range improvement in school desegregation. The Court noted that a metropolitan community vehicle might be the proper solution. • See, 332 F.Supp. at 809-810. Although the Fifth Circuit vacated part of the lower court decision, the Court of Appeals ordered consideration of the District Court's recommendation. 451 F.2d at 583. See also, United States v. Board of School Commissioners of City of Indianapolis, 332 F.Supp. 655, 679 (S.D. Ind. 1971). Obviously, the final stepping-stone to metropolitan!zation has been the District Court opinions in Bradley v. School Board. of City of Richmond, 338 F.Supp.____(E.D. Va. 1972) and the instant case of Bradley v. Hllliken, 338 F.Supp. 582 (E.D. Mich. 1971). In the Richmond case, the District Court char acterized the central issue as follows: "The Court concludes, in the context here ■ presented, that the duty to take whatever steps are necessary to achieve the great est possible degree of desegregation in formerly dual systems by the elimination of racially identifiable schools is not -62- ff L [ [ [ i f !, [ [ [ ! I [ [ [ l r circumscribed by school division boundaries created and maintained by the cooperative efforts of local and central State officials." 338 F.Supp. 79-80, citing Green v. County School Board of New Kent County , 3 81 U. S . 430; Davis v. Board of School Commissioners of Mobi 1 e Connty , 4 02 U.S. 33; Swann v. Charlotte-Meeklenburg Board of Education, 402 U.S. I. We invite this Court's attention to the close similarity of the Michigan case where Judge Roth concluded: "That a State's form of government may delegate the power of daily adminis tration of public schools to officials with less than State-wide jurisdiction does not dispel the obligation of those who have broader control to use the authority they have consistently with the Constitution. In such instances the Constitutional obligation toward the individual school children is a shared one." 338 F.Supp. at 593. We recognize that the District Court in Bradio Ri chraond was reversed by the Court of Appeals for the Circuit. However, the Fourth Circuit reversal of the case imposes no obstacle to a metropolitan remedy for First, the Fourth Circuit erred in its application of case. It is true that racial balance is not required y v. Fourth Richmond Detroit. the Swann to t -63- C effectuate a unitary school system. Nonetheless, Swann makes it clear that when past Constitutional violations have been found, racial ratios are likely to be useful starting points in shaping a remedy, 402 U.S. 1, 23-25 (1971). The District Court in Richmond did not employ the racial balance concept as a means of finding a violation of Fourteenth Amendment rights; it was instead concerned with developing a remedy to eliminate the previously determined violation. Although the majority correctly quoted Swann in stating that once the affirmative duty to desegregate has been accomplished, year-by-year adjust ments of the racial composition of student bodies it not required (Bradley v. Richmond, Civil No. 72-1058 [4th Cir. June 5, 1972] at 29) , in the case at bar, we are concerned with initiating a remedy. Therefore, racial ratios are valid starting points in formulating an appropriate remedy for Detroit. Secondly, the impact of the Fourth Circuit Richmond decision may be limited in light of major differences in Virginia and Michigan school law. According to the Fourth Circuit opinion: "The power to operate, maintain and supervise public schools in Virginia is, and has always been, within the exclusive jurisdiction of the local school boards and not within the jurisdiction of the State Board of Education. Indeed, the operation of public schools has been a matter of local option. Section 133 of the 1902 Constitution of Virginia provided that the supervision of the schools in each county or city shall be vested in a school board." Bradley v. Richmond, Civil No. 72-1058 (4th Cir., June 5, 1972) 2l. (Citations omitted). -64- t In contrast, the public school system is constitutionally compelled in Michigan, and as we have previously demonstrated, theme is pervasive State control over local school districts. Mich. Const., 1963, Article VIII, §§2,3. While the propriety of court-ordered metropolitanization may be questioned where a pattern of local independent control of schools prevails, where State control overwhelmingly predominates, a metropolitan remedy is most appropriate. Thirdly, the Fourth Circuit is not the best weathervane / in determining the course of school desegregation law. Judge Craven authored the majority opinions in Scotland Neck, Emporia and Bradley v. Richmond, with dissenting opinions by Judge Winter in each, two of which have been reversed by the Supreme Court of the United States of America, adopting, interestingly enough, the rationale of dissenting opinions of Judge Winter. We note that suburban Defendants have attempted to rely on the case of Spencer v, Kugler, 326 F. Supp. 1235 (D. N.J. 1971) , aff1d. , 40 USLW 3329 (Jan. 17 , 1972) , inserting their unique proposition that there can be a finding that racially identifiable schools violate constitutional rights, but that the remedy for that violation may and must be the continuation of racially identifiable schools. The suburban Defendants here confuse matters dealing with remedy and the determination that the right to such a remedy exits. Spencer v , Kugler - 65- simply held that a statute of the State of New Jersey making school district boundary lines co-terminous with the boundary lines of municipalities in the State was not unconstitutional. The case .did not involve an effective allegation that the act of enacting the statute was segregation by State action, rather it contemplated an assertion that the act involved a suspect classification based on race. On those assertions the lower Court found, and the Supreme Court affirmed, that the classifi cation was neutral and had a reasonable basis. Not only does the case have no implication to the appropriateness of school desegregation remedies, it did not even attempt to establish a right to a desegregation remedy! Furthermore, the facts here are entirely different. Spencer involved the entire State1, of New Jersey, devoid, obviously, or any allegation that the State comprised a single school community. Had the District Court here held that, for instance, cities like Alpena, Traverse City, Marquette, and Iron Mountain must have the same racial compo sition of their schools as the relevant metropolitan Detroit school community, Spencer might be applicable. However, to a finding limited to a school community, it is not. It should be further noted that the facts relied on in Spencer are entirely different. As already pointed out in detail above, Michigan school districts are agencies of the State, entirely separate from municipal government. Their bound ary lines, which arc subject to administrative change -6G- without vote of the people, bear no relationship whatsoever to any other municipal corporation lines, except by coincidence. Furthermore, we suggest quite strongly that if Spencer v. Kugler, supra, were tried in the State courts of New Jersey, the result could very well have been different for, as already pointed out, in 1971, the year that Kugler was first decided, the Supreme Court of New Jersey ‘held that racial imbalance is unconstitutional under the State's Constitution. Jenkins v. Township of Morris School District, 58 N.J. 483, 279 A. 2d. 619 (1971). * 11 We come back to the initial proposition. The State of Michigan controls all education in Michigan. The Detroit Board of Education is its instrumentality. If either or both have violated the Constitutional rights of the Plaintiffs, then the remedy can extend to the other 53 school districts in the rnetro- politcin Detroit area, because they too are mere instrumentalities of the State and it is the State which must act to remedy the si tuation. 11 As an alternative, we cannot ignore the equity teachings of Brown II, which are equally as important today as they were in 1955 when the Supreme Court said: "In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a non-discriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the Constitutional principles set forth in our May 17, 1954, decision. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these Constitutional principles cannot be allowed to yield simply because of disagreement with them." "(T]he courts may consider problems relating to administration, arising from the physical condition of the school plant, the school transportation systems, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a non-racial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems." 349 U.S. 294, 299-300. This posture was reiterated in Swann, which quoted the above language verbatim, 402 U.S. 1, 12-13 (1971). The Swann decision further emphasized: "Once a right and a violation have been shewn, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies." 402 U.S. at 15. There is absolutely no reason why the power of a court of equity -60- should not be extended to metropolitan school desegregation plans. Under principles of equity, the remedy must be eval uated by assessing its capacity to achieve the ultimate objective, the establishment of a unitary school system. In short, if Constitutional rights have been violated - a point which the Detroit Board of Education emphatically dis putes - then from a legal standpoint, there is no basis for preventing the District Court from ordering a metropolitan remedy either under the State control theory or the equitable theory. -G9- C V. AS A FACTUAL MATTER, THE DISTRICT COURT WAS CORRECT IN ORDERING A METROPOLITAN REMEDY BECAUSE FAILURE TO DO OTHERWISE WOULD CONTINUE UNCONSTITUTIONAL RACIAL TEE' DETROIT SCHOOLS AND CAUSE FURTHER DETROIT .AT I ON , ISOLATION IN SCHOOL NUMERO ON -A METROPOLITAN SEGR; NS OTHER. PARTICULARLY IN A SITUATION NHERI GOVERNMENTAL SERVICES HAVE BEEN DEVELOPED SCOPE AND THE COMMUNITY IS METROPOLITAN IN CHARACTER. If there has been a violation of Plaintiffs' Constitutional Rights, it is well established by the Supreme Court of the United States of America that the State is obliged to come forward with a plan for the achievement of a unitary school system that "promises realistically to work and promises realistically to work now." Green v. County School Board of New Kent County, 391 U.S. 430 (1968); Swann v. Charlotte-Meeklenburg Board of Education, 402 U.S. 1 (1971); Davis v. Board of School Comm? ssioners of Mobile County, 4 02 U.S. 73 (19 71). It is also well established that a desegregation plan must wipe out segregation "root and branch." Green v. County School Board of New Kent. County , supra, . With this admonition obviously in mind, on. March 24, 1972, the District Court had concluded: "...that it is proper for the Court to consider a metro politan plan directed toward the desegregation of the Detroit Public Schools as an alternate to the present . intra-city desegregation plan before it,and,in the event that the Court finds such intra-city plans inadequate to desegregate such schools,the Court is of the opinion that it is required to consider a metropolitan remedy for dese gregation. " Ruling on Proprietv of Con&idorinq a Metropo- 3. i t a n Rome d y_ _t o Acc omp 1 is h Dos e grog a iron of the Public Schools of City of Detroit, March 24 , 197 2 , page 4 . i On March 28, 1972, the District Court, after hearings on the Detroit-only plans, found that none of the three plans proposed 1 App. Ia442, Vo1. 3b. -70- • • "would result in the desegregation of the public schools of the Detroit School District." The Court also made this conclusion of lav; "The conclusion, under the evidence in this case, is inescapable that relief of segregation in -the public schools of the City of Detroit cannot be accomp]ished within the corporate geographical limits of the city. The State, however, cannot escape its Constitutional duty to desegregate the public schools of the City of Detroit by pleading local authority...." (Findings of Fact and Conclusions of Lav; on Detroit-Only PI ans of Dese g rogation'7~MaFch“ 2 8, 19 72, page 5 [App. Ia459, Vol." IB]). How correct the Court was 1 On June 14 , 1972, the District Court found that: "75. Some educational services are already provided to students on an interdistrict, county, intercountry, or metropolitan basis; and many support services are provided by the intermediate school districts and the State Department of Education. For various reasons many pupils already cross school district lines to attend school or receive education services. "76. In many respects - patterns of economic life, work, play, population, planning, trans portation, health services - the tri-county area constitutes a rough series of interrelated communities constituting, in the view of the Unitea States Census Bureau, a single standard metropolitan statistical area. "77. Local units of government in the metropo litan area have in many instances joined together for the purpose of providing better solutions to problems confronting them. In such instances, various units of government have either disre garded local boundaries or have concluded that the problems were such as to call for a metropo litan solution. In some cases, they have created overlay organizations. SEMCOG, recreational authorities, a metropolitan sewage system, SEMI and the Detroit Water System these metropolitan approaches are examples of . (App. la 517-518 fAr Vo1. IB). -71- The simple fact is that the only relevant community is much larger than the City of Detroit. Whether the index is subjective perceptions or objective indicia, the community that is centered in Detroit includes at least parts of Wayne, Oakland and Macomb Counties, which comprise the desegregation area. The objective data alone should be conclusive. The tri-county area has been labeled by the Bureau of the Census as a Standard Metro politan Statistical Area largely on the basis of the high degree of interaction among the populace of the three counties. The State of Michigan has recognized the interdependence of the citizens of the whole area in establishing the Metropolitan Detroit Water System, the Southeastern Michigan Transportation Authority (SEMTA) and the Huron-Clinton Metropolitan Valley Authority. The local governments have recognized their inter-dependence in creating . the Southeastern Michigan Council of Governments (SEMCOG). The various highway planners have recognized it in developing the network of interstate highways that lead into Detroit from all directions. The school authorities of the State have recognized it, at least in part, by creating Intermediate School Districts in each county. (Tr. 200-212, March 15, 1972). (App. Va89-97, Vol. V). Subjective perceptions coincide with the objective data, as one would expect with so gross a phenomenon. Local resi dents cross political lines casually in shopping, commuting to work, seeking recreation and seeking private or collegiate educations. Dr. Robert Green, an expert witness, gave perhaps uncontroverted testimony to that perception when he referred to the stream of -72- e f whites driving down the freeway from Southfield to Detroit in the morning rush and when he described how Detroit-educated whites have fled to Oak Park, Livonia and Bloomfield 'Hills. (Tr. 965-66 April 28, 1971) • Just as black children in a 90% black school still per ceive their school as identifiably black even though all children in the attendance zone go to the same school (Dr. Green, Tr. 1023-25 April 28, 1971), children in a 60% - 80% blfick Detroit school will continue to perceive their school as identifiably black even though it is no different than any other school in Detroit— precisely because they know there are suburbs full of white youngsters receiv ing educations in all-white schools. It would be a most unusual third grader of any race who could stand on Tireman Street, a boundary line between Dearborn and Detroit, and explain that a political boundary rather than a race was the reason the white children south of Tireman attended a white school and the black children north of Tireman attended a black school. Ilis perception of the metropolitan community is conditioned by the communication media to which he is exposed and his perception of the metropolitan community of which he is a. part . (Tr. 458-9 March 17, 1972) 3 There i.s no record evidence on which to base an assumption that the perception of the community felt by a black child in Detroit is limited to the irregular boundaries of the school district of the City of Detroit 1 App. Va219, Vo1. V. L -73- • • and further limited to the racial composition of the students in the school district. It is obvious, in a community that is so inter-related between city and suburbs, that the child would be wondering why his school does not reflect the total racial composition of the metropolitan community. The avoidance of racial isolation has been a part of the lav/ school desegregation for 18 years. Mr. Chief Justice Warren formulated this issue in Brown v. Board of Education of Topeka, (Brown I), 437 U.S. 483 (1954) when he said: "To separate them (blacks) from others of similar age and qualification solely because of their race generates a feeling of infer iority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." 347 U.S. at 494. There are over a million children of school age in the metropolitan Detroit area. There are 289,500 school children in the Detroit system, of which 188,000 are black . children. (See, Ex. PC-6, App. IXa285, Vol. IXA.). It v/ould be unconstitutional racial isolation to confine these children to the city limits of Detroit, when their education is the responsibility of the State, and the other 53 surrounding basically white school districts are mere administrative conveniences of the State of Michigan. We may add that in Brown II, 349 U.S. 294 (1955) , Chief Justice Warren speaking to the method of desegregation, stated: . "To that end, the Courts may consider problems related to administration, arising from the physical condition of the school plant,the school transportation system, personnel, re vision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a non-racial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. They will also consider the adequacy of any plans the Defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system." 349 U.S. at 300-301. Through the Supreme Court since Brown I and TI_ has re viewed the question of school desegregation numerous times, there is little question that, including the Scotland Keck and Emporia excursions, Swann v. Charlotte Mecklenburg Board of Education, 402 U.S.l (1971); Davis v. Board of School Commis sioners of Mobile County, 402 U.S. 33 (1971) are the Court's farthest advances toward desegregating the nation's schools, particularly as to three points: 1. be made "to segregation situation. must be of Davis (Mobile) clearly achieve the greatest , taking into account 402 U.S. at 37. In paramount importance. stated that every possible degree of the practicalities other words, deseg effort should actual dc- of the rogation ramount 2 . In order to achieve the maximum desegregation,the Courtin Swann abandoned the neighborhood school concept and put its stamp of approval on what was in effect a massive long distance transportation program in the metropolitan Charlotte- Mecklenburg area. 402 U.S. at 29-30. ■ 3‘ §warm is significant because it validates the use of race and student assignments when the goal is desegregation rather than segregation. 402 U.S. at 22-25. Thus, in essence, there are at least four elements that must be_ present for a. plan to work. (1) Every school, or almost every school, should contain a mixture of the races that roughly approximates the make-up of the student community as a whole. Swann, supra; Davis (Mobile), ~2A— * Thc Plan should be educationally sound. — —- ~'‘no- i'l-• (2) plan snould avoid resegregation. Lemon Parish School Foard, 4 4 6 F. 2d 911 (5th Cir. 19 7].). ^ (4) The plan must be practical. Each of these elements of a woi.cable plan deserves to be examined more closely. Swann, suora Davis, (Mobile), supra. BacM.al Mix: Ke repeat that Swann validates the use of race in student assignments where the goal is desegregation rather than segregation. This Court has recognized this racial assignment concept to be a primary teaching of Swann for in Kelley v. Metropolitan County Board of Education of Nashville -76- decided and filed on May 30, 1972, the Court said at 22 (slip opinion) as follows: and Davidson County, Tennessee,____ F.2d "Perhaps the primary thing that the Swann case decided was that in devising plans to terminate such residual effects, it is appropriate for the school system and the District Judge to take note of the proportion of white and black students within the area and to seek as practical a plan as may be for ending white schools and black schools and substituting there for schools which are representative of the area in which the students live. We have noted that the District Judge in Swann employed a flexible 71% white to 29% black population ratio as a guide in seeking a practical plan. The Supreme Court specifically approved his doing so. See Swann v. Charlotte-Meck.1 enbur_gBoard of Education, supra at 16, 23-24. The District Judge in this case clearly recid and followed the Swann guideline. As to this issue, we-find' no error." The District Court found that as compared to the metro politan Detroit desegregation area that the ratio of whites to blacks was approximately 75% to 25% and therefore, on June 14, 1972, adopted a plan that would approximate this ratio, in the spirit of Swann as approved by this Court in Nashville. Educational soundness: No desegregation plan can "work" unless it is educationally sound. The educational soundness of an integration plan is to a large extent dependent upon how effectively it gives children an opportunity to have stable multi-racial experiences in groups composed substantially like the surrounding community. Such experiences, especially if begun as early as possible, give children of both major races accurate perceptions of their own abilities and those of the members of the opposite race. These informed self-perceptions in turn lead to more self-confidence and better scholastic performance. Multi-racial education is essential preparation for li e in a multi-racial society. For this reason, if no other schools should reflect the racial composition of the entire com munity v,7hich they serve. The testimony of witness, Dr. Green, is substantially in agreement with this view of what constitutes a sounds educa tional plan. (Tr. 863-69; 1049-51). See undisputed testimony also in agreement in record of other educators that a Metropol itan Plan is educationally sound. (City Tr. 245^ 469-470? 589)'? Resegregati on: No plan can "work" if it offers a ready avenue for rcsegregaticn. Even policies pursued by school board officials in good faith do not relieve them of their duty to fully eradicate the vestiges of segregation. Clark v. Board of Education of Little Rock School Dist., 426 F.2d 1035 (8th Cir 1970). It follows then that the courts should require school authorities to take steps to prevent resegregation by various means. Lemon v. Bossier Parish School. Board., 446 F.2d 911 (5th Cir. 1971). Similarly, in protecting Fourteenth and Fifteenth 1 2 3 1 App. Vail8, Vo1. V. 2 App. Va 2 2 6-227, Vol. V. 3 App. Va229 , Vol. V. -78- Amendment, rights, the Supreme Court has spoken of a "need to eradicate past evil effects and to prevent the continuation or repetition in the future of discriminatory practices..." Louisiana v. United States, 380 U.S. 145, 156 (1965). Were a less rigorous standard insisted upon by the courts, the Consti tutional obligation to eradicate segregation "root and branch" would be reduced to a pruning that would let the old evil grow back, more vigorous and more intractable than ever. See,Swann v, Charlotte-Meeklenburg Board of Education, 402 U.S. 1 (1971). Neither the Court nor the school authorities would be true to their duty were they to adopt a plan that foreseeably will create more, rather than less, segregation. This is also the view of the education experts who testified in the trial below (See, e.g., City Tr. 463-65).1 Practica 1 i 1ies . Swann and Davis (Mobile) obviously suggest that a plan must be practical. The transportcition plan envisioned by the District Court in its desegregation area is no more massive nor requires no rides longer in distance than are presently being undertaken by children in the metropolitan area. The clusters are so designed as to provide administrat' convenience. (See Findings of Fact and Conclusions_of Lav; in Support of Ruling on _Dosegrogation_Area and Development of Plan, June 14 , 3 972 , Rulings 41-44 [7\pp. Ia511̂ _] .) In other words, there is nothing in the plan to suggest that it is not practical. To illustrate, a substantial part of the educational program of 1 2 1 App. Va221-223, Vol. V. 2 Vol IB. -7 9- • • the State is not conducted on a local school district basis. With the exception of those districts of sufficiently large size to support such special programs themselves, educational pro grams for the physically handicapped, the emotionally disturbed, as well as substantial programs which are usually on a part time basis with regular school programs in vocational education, are conducted not by the local school districts, but by the inter mediate boards of education. Frequently, with the exception of vocational education which is usually operated at large central skills centers, these special education programs are operated on an inter-district basis. In point of fact, "cross-district busing" has been a common phenomenon for the special education student for a good many years. (Cf., Metro Tr. 441, 444 ) P- If then is any distinction between the propriety of the State of Michigan providing cross-district busing of normal children for the pur pose of terminating the violation of Constitutional rights, such distinction escapes the Detroit Board. The District Court has found the facts as to a remedy. Only recently on May 30, IS72, this Court in Ke 11 ey v . r-1 etropo- litan County Board of Education of Nashville and Davidson County, ____F.2d____, recognized that the trial court and not the appellate court is the remedy fact finder. In doing so, the Court noted that District Courts have "judicial discretion" in adopting desegregation plans and their discretion should not be disturbed. (Slip Op. at 25). 1 1 App. VI a 04 , 8 5-0 G, Vo1. VI. -80- Failure to adopt a metropolitan remedy, assuming a Constitutional violation, would mean that the black children of the City of Detroit would, in effect, have had their Con stitutional rights denied but without a remedy required by Swann. In other v/ords, we would have the anomaly that there was a Constitutional wrong but no remedy. Only in recent years has it been urged upon the Federal Court system that the Con stitutional violation as to voting rights could not be remedied. See, Baker v. Carr, 369 U.S. 186 (1962). The Court responded and now voting rights cases are an intricate part of our system of Constitutional protections with remedies. Sec/e.g. < Gomi111of̂ v. Lightfoot, 364 U.S. 339 (1960). We suggest that if there must be a remedy because of an alleged Constitutional violation, that remedy in this case must be the metropolitan remedy adopted by the District Court which considered the necessity of racial mix, education soundness, prevention of resegregation, the practical ities of the situation and which has attempted to root out the evils of segregation "root and branch" pursuant to the dictates of Green v. County School Board of New Kent County, 391 U.S. 430 (1968). Finally, the school authorities of the district have advised the District Court and there have been no Constitutional violations, been Constitutional violations, these school educational experts and who have assisted the Detroit school this Court that But if there have authorities, who are District Court in -81- applying the Davis doctrine, have advocated a Metropolitan Plan as the only method of achieving the greatest possible degree of actual desegregation in the community, to-wit, the metropolitan Detroit community. No more elegant statement of the legal and practical reasons for a metropolitan remedy in the Detroit metropolitan community has been made than the District Court's own statement from the bench on July 19, 1972: "I think it should be clearly understood, hov'ever, that in my disposition of the motions before me today this Court does not retreat from nor abandon... our conclusion that any plan for the desegregation of the public schools of the City of Detroit would not accomplish desegregation and that only a Metropolitan Plan of desegrega tion would accomplish the desegregation of those schools." "The Equal Protection clause of the Fourteenth Amendment to the Constitution of the United States, as I read it, is not geographically' limited. It is difficult for this Court to believe that any' higher judicial! authority' of the United States would or, for that matter Constitutionally could, engraft on that amendment any such geographical limitation. The vindication of the Plaintiffs' Constitutional right to equal education cannot be denied on the claim of alleged sovereign powers of local school districts." Tr. 1947-4 8 (App. VIIJa243, Vol. VIII). -82- ( VI A PLAN OF DESEGREGATION. State Defendants have suggested that the financing and implementation of a metropolitan remedy, or, for that matter, any remedy involving an expenditures of funds, is a matter beyond the power of the parties to this cause. The argument presented by the State Defendants is not novel, for it is one which has been made by the states as an attempt to frustrate remedial orders of federal courts in the area of school dese gregation in a series of cases which date back to Cooper v. Aaron, 358 U.S. 1 (1958), if not to Brown II, 349 U.S. 294 (1955) It lias consistently been laid to rest as quickly as it has been raised. The source of this argument is traceable to the . restrictions on judicial power vis-a-vis the states, as enunciated in the Eleventh Amendment and as related to the supremacy clause. It is countered by the universal holdings of the courts that it is the duty of State officers to support both the Constitution and the rights guaranteed against infringe ment by the States under the Fourteenth Amendment. America has, on occasion, recognized the immunity of States from suits involving direct actions against government funds or property for complainants' personal benefits, the Supreme Although the Supreme Court of the United States of -83- Court has not deemed the Eleventh Amendment a serious inpedi ment to judicial action whenever the protection of compelling Constitutional guarantees has been at issue. See, e.g. , Osborn v. Bank of United States, 9 Wheat 738 (1824, U.S.); Graham v. Folsom, 200 U.S. 248 (1906); Ex parte Young, 209 U.S. 123 (1908). In the area of school desegregation, the Court has followed this rule. In Cooper v . Aaron, 358 U.S. 1 (1958), which involved obstructionist tactics by the Governor and legislature of the State of Arkansas against implementation of desegregation orders of the federal courts, the Court stated: "In short, the Constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the B r o w n case can neither be nullified openly and directly.by State legislators or State execu tives or judicial officers, nor nullified indirectly by them through evasive schemes for segregation whether attempted 'ingeniously or ingenuously.'" 358 U.S. at 17. In Griffin v t.. School Board of Prince Edward County, 377 U.S. 218 (1964), involving the closing of public schools and the operation of a system of private schools by the county witn the acquiesence of the Commonwealth of Virginia, Mr. Justice Black, speaking for a unanimous Court, summarily dismissed the Eleventh Amendment argument raised. "It is contended that the case is an action against t h e State, is forbidden by the E l e v e n t h A m e n d m e n t , a n d t h e r e f o r e s h o u l d be d i s t a i s s c d . T i i e c o m p l a i n t , h o w e v e r , c n a r c e d that State and county officials were depriving Petitioners of rights guaranteed by the Fourteenth Amendment. It has been settled law since Ex parte Young, (citation omitted), that suits against State and county officials to enjoin them from in vading constitutional rights are not forbidden by the Eleventh Amendment." 377 U.S. at 228. The Court went on to state that the District Court could, in addition to its injunctive powers, force the various Defendants, that is, the Board of Supervisors, School Board, Treasurer, and Division Superintendent of Schools of Prince Edward County, and the State Board of Education and the State Superintendent of Education, all of whom were held to have duties which related "directly or indirectly to the financing, supervision, or operation of the schools", to undertake positive action to reopen the public schools in the county: "For the same reasons, the District Court may, if necessary to prevent further racial . discrimination, require the Supervisors to exercise the power that is theirs to levy taxes to raise funds adequate to reoocn, operate and maintain without. racial discrimin- nation _a_ pub 1 ic school systern in Prince Edward County..." (emphasis supplied) 377 U.S. at 233." Thus, it becomes readily apparent that the present Defendants, through the exercise of the inherent powers which they possess as officers and instrumentalities of the State, can effectuate and implement the remedy ordered by the District Court in this cause, without the necessity of joining as parties -85- defendant the legislators of the State of Michigan. In Evans v. Ennis, 281 F.2d 385 (3rd Cir. 1960) , which involved a "spurious" class action suit against the State Board of Education, the State Superintendent of Public Instruction, and three county boards of education to desegregate the public schools throughout the State of Delaware, the District Court, twitting contentions similar to those being advanced by State Defendants in this cause, stated: "Doubtless integration will cost the citizens of Delaware money which otherwise might not have to be spent. The education of the young always re quires, indeed, demands, sacrifice by the older and more mature and resolute members of the community. Education is a prime necessity of our modern world and of the State of Delaware. We cannot believe that the citizens of Delaware will prove unworthy of this sacred trust. " 2 81 F .2d at 389. ' The extent of that cost wa.s more clearly illustrated in the opinion rendered following a petition for rehearing: "This second element of the plan, if it is to be consummated, will necessitate the making of immediate estimates as to future school facilities. The making of such estimates is not a simple matter. Their creation will re quire the exercise of energy, skill, patience, and creative adaptability by the public school authorities, and, as we have indicated, funds to be appropriated by the Generctl Assent] v_of Delaware. The duty imposed on the State Board of "Education in this respect is as clear as is the responsibility confided to this court and to the court below to make certain that the mandate of the Supreme Court is carried out." 281 F.2d at 392. Accord, Kelley v._Metropolitan County Board of Education of Nashville and Davidson County, Tenn. ___ _ F.2d ___ (6th Cir. 19 72) Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971); Cisneros v. Corpus Christi Independent School District, 330 F. Supp. 3377 (1971). Furthermore, as the District Court correctly recognized in Swann v. Charlotte-Mecklenburg Board of Education, 318 F, Supp. 786 (W.D. N.C. 3970), the implementation of procedures necessary to assure any Constitutiona.3. rights of the individual may place, directly or indirectly, additional financial burdens upon the State, even though not a formal party to the proceed ings : However, if a Constitutional right has been denied, this court believes that it is the Constitutional right that should prevail against the cry of "un reasonableness. .. The unreasonableness of putting the State to some expense cannot be weighed against or prevail over the privilege against self incrimination, or the right of people to be secure in their homes. If, as this court and the Circuit Court have held, the rights of children arc being denied, the cost and inconvenience of restoring those rights is no reason under the Constitution for continuing to deny them." 318 F. Supp. at 801. For examples of the reaffirmation of other Constitutional rights, which may involve demands upon the State Treasury, see, e. g. , -87- e Argcrsingor v. Hamlin, 92 S.Ct. 2006 (1972) (furnishing counsel for all indigents charged with misdemeanors); Gideon v. Walnwright 372 U.S. 335 (1963) (furnishing counsel for all indigents charged with felonies); Reynolds v. Sims, 377 U.S. 533 (1964) (legislative reapportionment). Indeed, coordinate branches of State govern ment have been known to unilaterally impose financial obligations upon the State, through the exercise of their inherent powers, to ensure their continued and proper functioning. See e.g., Wayne Circuit Judges v. Wayne County, 386 Mich. 1 19 0 N 2 d 2 2 8' (1971), cert. denied, Feb. 22, 1972. These cases demonstrate that the State's fiscal power may not be used to defeat the judiciary's authority to enforce the legal rights of citizens. There has been some suggestion that existing collective bargaining agreements with teachers and other school board employees are a bar to a metropolitan plan. To begin with, no contract, union agreement or otherwise, or Board policy or practice may impede Fourteenth Amendment obligations. U.S. v, Greenwood Municipal Separate School District, 406 F.2d 1086, 109^ (5th Cir.), cert, denied, 395 U.S. 907 (1969); Berry v. Benton Harbor, ____F.Supp.___(W.D. Mich. 1971). Furthermore, the right of school board employees, including teachers, to bargain is a relatively new right in Michigan, having been established by Act No. 379 of Public Acts of 1965 (MSA §17.445(1)/ et seq. , MCLA §423.201 , c_t seq.) . In the seven years since the passage of Act 379, fact finders and the Michigan Employment Relations Commission have led the way in using originality and ingenuity in establishing school labor relations. There is no reason why, as a practical matter, that there cannot be a metropolitan desegregation plan with the availability of this wealth of public labor expertise in Michigan to reconcile any contract or collective bargaining rights that the school teachers or other employees may have with the right of the Plaintiffs to insist on their Fourteenth Amendment guarantees. 's r~y Of course, should it subsequently be determined that the present Defendants do not, in fact, have the inherent or specific powers to implement the remedy ordered by the District Court in this cause, the Court is not powerless to act to add such parties as may be found necessary to effectuate a complete and cidequate remedy stration of justice and to achieve " Griffin v. "an orderly and fair admini- School Board of Prince Edward County, 377 U.S. 218 (1964); F.R.C.P. 15(d); F.R.C.P. 19(b). As education in the State of Michigan is solely and totally a function of the State, the State Defendants have the power to implement the metropolitan remedy ordered by the District Court. IF SECTION 803 OF THE EDUCATION AMENDMENTS OF 19*72 IS~CON ST ITUI ORAL AND SPEC I PIC.hLLY APPLIC- TO AN ~INTRA--CITY REMEDY AND A METROPOLITAN REMEDY. This Court has ordered the parties to include in their briefs their responses to the following questions: _ "1. Does Section 803 of the Education Amendments of 1972, Pub. L. No. 92-318 apply to Metropolitan transportation orders which have been or may be entered by the District Court in this case? "2. If Section 803 does apply, is it constitutional?" The Detroit Board of Education takes no position on substantive merits of Section 803, because of its position in the case. It is the unwavering belief of the Detroit E the card of Education that the District Court erred in finding a Constitutional violation in Detroit. Court concurs with this position, tne and constitutionality of Section 803 In the event that this issue of the app.' ication becomes moot as to Detroit. Should this Court rule that the District Court was correct in its findings of a Constitutional violation, the position of the Detroit Board is tinguish as between metropolitan portation remedies. that Section 803 docs not dis- or intra-district pupil trans- Section 803 provides: "...[I]n the case of any order on the part of any United States district court which required the transfer or transportation of any student or students from any school attendance area prescribed by competent State or local authority for the purposes of achieving a balance among students with regard to face..." (Emphasis added) . Since the School District of the City of Detroit . is a "competent... local authority", then the school attendance areas within the school district are also within the mandate of the Section. The intentional use of the word "any" in Section 803 reinforces this concept; 11 any attendance area" clearly contemplates attendance areas within a school district. This interpretation of Section 803 is consistent with the interpretation given it during the debates in Congress over the passage of the Educational Amendments of 1972. In the debates in the House of Representatives, the Minority Leader, Representative Gerald Ford, (Michigan), stated: "If this amendment [Section 803] is approved -- if it is enacted into lav;, it simply means that no district court order forcing bussing; for the purpose of obtaining racial balance shall go into effect until the U.S. Supreme Court has made the final determination." Congressional Record, H10409 (November 4, 1971). Similarly, stating that the Section applies to intra city transfers or transportation, Representative Roman Pucinski (Illinois), noted: -91- "The amendment merely holds the status quo in_ a school district until a final judgment has been"made by the'u.S. Supreme Court." Congressional Record, H10410 (November 4,1972). (Emphasis added). A similar bill introduced into the Senate, S. 659, contained a provision prohibiting pupil transfers or transpor tation between local educational agencies, and was therefore applicable, if at all, only to the problem of cross district transfers. But as the Joint House-Senate Conference Committee noted, "An identical provision was contained in the Senate bill but is applicable only to court orders requiring transportation of students between local educational agencies or consolidation of two or more such agencies... The conference agreement contains language of the House amendment.. Congressional Record, H4C33 (May (Emphasis added). the precise T i 23 , 1972) . was to Significantly, the altered from being appli instead cover all pupil t enacted version of Section 303 cable only to metropolitan situations runsfer plains, intra-city plans in cluded. It was in this altered form that Section 803 was enacted. meaning Senator Claiborne Pell (Rhode of Congress as to Section 803, Island) indicated the in a non-legal sense;. I!1 - 92 - l "Here I would say that a literal reading of the language fof Section 803] by a non lawyer would indicate that if a local educational agency is under an appealable order to transport students to achieve racial balance, that local educational agency can receive a stay of that order..." Congressional Record, S8282 (May 23, 1972). To the same effect, Senator Walter Mondale (Minnesota), speaking in opposition to the Section, stated: • "But the intention of the principle sponsor seems clear enough. The provision is designed to postpone all orders, in all case s -- hoy;ever • simplcT^7- Involving either the transporation or transfer or children to achieve desegregation." Congressional Record, S8386 (May 23, 1972) (Em phasis added). Senator Mondale's interpretation was strengthened by a memorandum entitled, "The Constitutionality of the Nixon Administration's Proposed Student Transportation Moratorium Bill", prepared by the Washington Research Project Action Council, which Senator Mondale introduced into the Congressional Record at at S8387 - 8388: I t L "The moratorium bill... affects equally every school district in the country..." Finally, the sponsor of Section 803, Representative William Broomfield, (Michigan), clearly intended that this Section would apply equally as regards metropolitan and intra city pupil transportation: -93- f "My antibussing amendment... provides that the defendant .school district will have his [sic] day in court before he [sic] has to buy buses, uproot children from their neighborhood schools, and implement forced busing." Congressional Record, II5419 (June 8, 1972). It is clear that throughout the deliberations of Congress that it was completely understood by both the support ers and opposition to Section 803 that it would apply equally to any order of a District Court that would involve pupil transfer, or transportation, regardless of whether the re assignment was part of a metropolitan plan or an intra-city plan. As a result, it is the position of the Detroit Board of Education that Section 803, if constitutional and applicable, applies equally to any intra-city as well as any metropolitan remedies. The Detroit Board of Education has taken no position- on the actual constitutionality of Section 803, nor its specific application to the remedy of the District Court here. The Detroit Board believes that the question of Constitutionality and the specific application of Section 803 will be adequately briefed by the other parties involved in this litigation. -9 4- RELIEF REQUESTED For the reasons set forth above, Defendants-Appellants Detroit Board of Education, e_t al, pray that this Court dismiss the Complaint filed herein on the ground that there has been no violation of Plaintiffs' Constitutional rights. If this Court should find a violation of Plaintiffs' Constitutional rights, then Defendants-Appellants, Detroit Board of Education, et al, pray that the District Court's Metropolitan Remedial Order be affirmed. Respectfully submitted, RILEY AND ROUMELL L • \ /S'-h ukVi George TJ Rournel i r. • t/ t r Louis D. Beer Jane Keller Souris Russ E. Boltz C. Nicholas Revelos, of Counsel Attorneys for Appellants and certain other named Defendants 720 Ford Building Detroit, Michigan 48226 August 14, 1972 -95- ( APPENDIX A fC'lHi)°, 1L 1L »p m m B Y S T A X P U T N A M Frca Prc:s Writer e a r s m s i m r s - ' t o w n T o w n s h i p ^ S c h o o l D i s - 0 - ‘ n v e n . W a y n e C o u n t y ’ s r i c h & i i s c h o o l d i s t r i c t i s s c a r c e ] . T h r e e o f t h e c o u n t y ’ s p o o r e s t s c h o o l d i s t r i c t s w a n t t o t a T h e r i c h d i s t r i c t i s , P r e y I t d o e s n ’ t w a n t a n y t h i n g t o d o w i t h i t s p o o r n e i g h b o r s — C a r s o n , H a n d a n d M a p l e G r o v e S c h o o l D i s t r i c t s , a l l i n B r o w n s t o v r n T o v / n s h i p i n S o u t h e r n W a y n e C o u n t y . . ’a * * ; W O O D E C A Y E N I S a s c h o o l d i s t r i c t w h i c h h a s o n l y o n e b u i l d i n g — t h e B a t e s E l e r r . e s - ; t a r y S c h o o l . A n d B a t e s p r o v i d e s e d u c a t i o n o n l y u p t o t i t s ; s i x t h g r a d e . T h a t ’ s n o l o n g e r e n o u g h . • ‘ T o e S t a t e K - 1 2 l a w n a y s ' s c h o o l d i s t r i c t s r o u s t p r o v i d e ' e d u c a t i o n f ? c m k i n d e r g a r t e n . t o t h e 1 2 t h t i r a d e . " . ' S o Y / c o d r u v c n h a s t o g o . T h e q u e s t i o n i s : T o w h o m — o r , , r a t h e r , t o V j h i c h c f i t s n e i g h b o r s ? W A M C O T T E c h J j wcoDHAVEtUp 0 (/y ,e o ss2 T E O ilO J J j ' LE . J.• A s u p e r i n t e n d e n t f r o m o n e c f t h e m . . s r y . d : . . . . : ’ “ v / e * d s e l l c a r r i g h t a r m s t o g e t W c e d i i ’ i Y e n , a n d s o w o u l d a l e t o f e t h e r s . ” ■ T h e p o o r d i s t r i c t s , o f f e r i n g o n l y k i n d A g a r t e n . t o e i g h t h g r a c e t r a i n i n g , a l s o a r c s l a t e d f o r r e o r g a n i s a t i o n , b e c a u s e t h e S t a t e i s v o V h i n g t o c u t t i r e n u m b e r o f • - s c h o o l • d i s t r i c t s ’ f r o m a b o u t 1 , 2 1 0 t o S C O . P o o r - d i s t r i c t p e o p l e , f r o m r e s i d e n t s t o s u p e r i n t e n d e n t s , h o p e a s p e c i a l r e o r g a n i z a t i o n c o m m i t t e e w i l l r e c o m m e n d t h a t t h e t h r e e p o o r d i s t r i c t s m e r g e w i t h V / c o d i i a v c n t o f o r m o n e l a r g e d i s t r i c t .i » J T U B C O M M A t~ B i s d r a w i n g u p r e o r g a n i z a t i o n p l a n s f o r e i g h t E c h c o l d i s t r i c t s i n t h e C o u n t y ’ s <3 t h a t d o n ' t m e e t t h e K - 1 2 r e q u i r e m e n t . T h e c o m m i t t e e r e p o r t I s d u e D e c . 3 1 , I S C e . E d u c a t o r s u s a ‘ ' r i c h " a n d “ p o o r ” i n r e g a r d t o s c h o o l d i s t r i c t s t o d e s c r i b e a d i s t r i c t ’ s w e a l t h i n a c c e s s e d v a l u a t i o n o f t a x a b l e p r o p e r t y a n d b n U ; o n u m b e r o f p u p i l s t o b e e d u c a t e d . _ ’ ■ ’ . . . . . . . . . \ V o o d h a y c n h a s a s t a t e e q u a l i z e d v a l u a t i o n c f $ 1 7 , 1 3 3 , 2 1 0 , w i i i c h m e a n s t h a t i t c a n d r a ’. v o n t h e t a x e s f r o m $ 0 1 , C C 3 i n v a l u a t i o n t o e d u c a t e e a c h c f i t s 1 7 3 p u p i l s . . I t ’ s t h e r i c h e s t i n t h e c o u n t y b y f a r . . ■ | : I t ’ s g o i n g t o g e t r i c h e r . A s i t i s , . t h e S c c o n y . - l I d t j U r e f i n e r y . . f o o t s m o s t o f t i : e / e d u c a t i o n h i l l . B u t t h e F o r d / M o t o r C o . ' i s b u i l d i n g a h u g e p l a n t i n V . ' c o d h a v e n . ’ ’ • M o d e p e r i r . t e r . d e r . t , s a r d c o n s t r u c t i o n o f t h e n e w p l a n t w i l l m e a n V r ' c o a h u v e n w i l l b e a b l e t o d r a w o n t a x e s f r o m $ 3 2 0 , 0 3 0 t o e d u c a t e e a c h p u p i l . ’ „ A s t u d y s h o w e d t h a t i f Y / o o d h a v e n m e r g e d w i t h i t s t h r e e p o o r n e i g h b o r s , i t w o u l d m e a n t h e l a r g e d i s t r i c t w o u l d b e a b l e t o d r a w o n t h e taxe3 f r o m $ 1 7 , 5 2 0 v a l u a t i o n f o r e a c h o f i t s p u p i l s . ’ •i The Detroit Free Press, August 2, 1965 -96- « •APPENDIX B ,~r '■■■■: • 77 77 O 77 77 ' 7 / T 0 '• r? ° n ^ u r m m i e u t i e l / m m . M m m m g s m m u - r.Y v,u?.1aTi 'L an'?^ n X . • r n d i i i c ^ - f ro P.-c;-. Writs." ( C A B L E T O N , M i c h . - - E : H i G u n t h e r s e l d o m g e t s a n y t h i n " I t o c a t a t A i r p o r t C o m m u n i t y i H i ~ h S c h o o l , w h e r e h e i s a i s e n i o r . T h e h a l l s a r e s o c r o w d e d d u r i n g b r e a k s t h a t h e c a n n o t g e l n e a r t h e f o o d m a c h i n e s . X i n a - y e a r - o ’. d l / o u A n n S m i t h m e e t s h e r s c h o o l b u s a t 7 X 0 e a c h m o r n i n g . A f t e r a n h o u t - l o n g t r i p , s h e I s d e l i v e r e d t o t h e e l e m e n t a r y s c h o o l a m i l e f r o m h e r h o m e . | H e r r i d e t a k e s h e r p a s t t h e i s t i l l - c l o s e d s c h o o l , w h e r e n o : t e a c h e r s a r e o n d u t y t ' n a t ■ e a r l y , t h e f u l l l e n g t h o ' t h e b u s : r o u t e a r . d b a c k a g a i n . . T H E S E i n c o n v e n i e n c e s a r e | n o t u n u s u a l f o r t h e a l m o s t ; 3 , 0 0 0 s t u d e n t s L o t h i s M o n r o e C o u n t y f a r m i n g c o m m u n i t y . T h e ' h i g h s c h o o l a n d j u n i o r h i g h c l a s s e s a r e o n h a l f - d a y s e s s i o n s s o t h e y c a n u s e t h e s a m a ' b u i l d i n g . B u s r o u t e s a r c l o n g e r , c l a s s e s l a r g e r a n d m o r a l e l o w e r t h a n a t a n y t i m e i n m e m o r y . - W h o i s t o b l a m e ? - c;If the stale can id I you d m l toj . da like they did this time, v/hv shoukln’i the stale foot, the hill?" | T i l 3 p a r e n t s a r . d t h e A i r p o r t ' C o m m u n i t y S c h o o l D i s t r i c t m y th t> 5 " e. t o E e p o r f m e n t c l H a r z *ce: d e p a r t m e n t i n iT i i e d e p a r t m e n t i a d r r e c p o i n t s t h e f i n g e r a t t r a D r g t n - 1 a t t i r e T h e h a r d ; f e e i i r f r o m i ' : i e S t a t e B e a r c a t i o : , ’ s e r d r r t o d r : ! S u m p t e r S c h r c l D W a y , 3 C o u n t y a n d j b u i l d r . g s , s t u d e n t s a ~1 d e D i s t r i c t i s p l i t i t i d o p e - r a ' : t a m o n g f o u r a d j u i : ; — X n l i t t l e q u e s t i o n | t t S u m p t e r n e e d e d h e l p - j! S u m p t e r h a d n o h i g h s c h o o l . V i r t u a l l y e v e r y o n e i n v o l v e d i n t l i e e d u c a t i o n o f t h e d i s t r i c t ' s 1 . 0 0 0 s t u d e n t s a g r e e d 5 t h a t s o m e t h i n g d r a s t i c h a d t o b e d o n e . ' T l t e s t a t e b o a r d w a s g i v e n -, t h e a u t h o r i t y t o d i s s o l v e a d i r , - S t r i c t l i k e S u m p t e r u n d e r ( " e m e r g e n c y c o n d i t i o n s , " a c - I c o r d t r . g t o t h e t e r m s o f a 1 0 5 7 a w . . H o w e v e r , t h e f i n a l v e r s i o n o f h e a c t p a s s e d b y t h e L e g i s l a t u r e w a s p o t w i t a t t h e D e p a r t - r . e r . t c f E d u c a t i o n w a n t e d . T h e L e g i s l a t u r e m a d e t i t s a c t a p p l y o n l y t o s c h o o l d i s t r i c t s i n c o u n t i e s o f a m i l l i o n p o p u l a t i o n o r m o r e . . T l i i s m a k e s t h o l a w a p p l y o n l y t o W a y n e C o u n t y a n d e x c l u d e s a n y t r o u b l e d d i s t r i c t s o u t s t a t e . O n e j l e g i s l a t o r s a i d i b i s w a s t h e p i l y v . a y t o g e t t i i e l a w p n s s r j . . • A n o t h e r a m e n d m e n t p r o v i d e d t h a t r . o d i s t r i c t c o u l d g e t m o r e t h a n j.0 p e r c e n t o f t h o - t e r r i t o r v o f . . h e d i s s o l v e d s c h o o l s y s t e m . ( . T i n s h a s s i n c e b e e n c h a n g e d . ) • A i r p o r t h a d f o u r o : ; e - r o s c h o o l s . T h r e e - r e m a i n o p e n c a u s e o f l a c k o f s p a c e i n n e w e r s c h o o l s . A b o n d : s w a s p u t o n t h e b a l l o t . T h e n t h e S t a t e D e p a r t : ' o f E d u c a t i o n b e g a n p u b h e a r i n g s o n S u m p t e r . C a t o n s u s p e c t e d i t w a s g o i n g g e t p a r t o f t h a t s y s t e m . A T h e b o n d I s s u e w a s s o u n j r e j e c t e d . L a s t A u g u s t a j m i l l . o p e r a t i n g r e v e n u e p r e : I & 1 w a s t u r n e d d a w n , 2 - 1 . | T h e A i r p o r t b a n r d e r d - a r c u n d e r c o n s t r u e - ( S u r v e y t o f i n d c u t w h y . I T W O O F T H E o t h e r d i s t r i c t s i n v o l v e d — H u r o n a r . d V a n B u r e r . . b o t h i n W a y n e — a r e o v e r c r o w d e d b e c a u s e c f t h e S u m p t e r s t u d e n t s t h e y g o t . jBuildings __ t i o n s h o u l d h e l p t h i n g s c o m i c ! - I f o u n d s t r o n g v o t e r r c s e r . t r c r a f c i y . | t o t h e S u m p t e r m e r g e r . O n e d i s t r i c t , L i n c o l n , a c t u a l - I n r a a i n t o f ! : e a r g u i i i e n t • i y c a m e o u t b e t t e r t h a n b e f o r e , j a n y a d d i t i o n a l t a x w o u l d b e c a u s e i t r e c e i v e d a r . a l r r . e e * . | p r i m a r i l y f o r h a w s i n g S u r a , n e w j u n i o r h i g h s c h o o l t h a t r . c - ; s t u d e n t s ' w h i l e t h a i r p a r ! c o m m o d a t e s m o r e e t u d e n t u j w o u l d r . p i p a y a r y c f i t t a a n c a m e v . n t l i i t . j c a u s e t h e y w e r e n e t r e s i A D u t i t a p p e a r s t h a t t i n y A i r - j o f t h e A i r p o r t d i s t r i c t n t I p o r t w a s l e f t h o l d i n g t h e t a g . • t i m e o f t h e e l e c t i o n . 1 T V s d i s t r i c t ' s S l A - m l l l i c r ’ b u d g e t w i l l b e s t r e t c h e d t o t h e b r e a k i n g p o i n t t o p r o v i o a t h e M 3 S u m p t e r s t u d e n t s i t f o r ~ h s a y s t h e v o t e r s ; - v e r w i l l a n n r s v e £ :c i r . d e i t n c c e - v o l i t l e d d i s t r i c t t o b ? i n g d i s f r i c t - s . _ _ _ _ _ J • A u p o n h a d t o t a k e o n 2 3 3 S u m p t e r s t u b e ' n t s - - w h i c h i n f a n t i : n e e d e d m o r e t e a c h - e r s . rr.r•: e d e s k s , m o r e s u p - p l i e s a n d m o r e s p r i e r * . l t 5 ! 'C T i r r . t r , r c . ' : : - c J , i n a n e l e c t : : : : , t o a p p r o v e r.:o :c T n e p r o v i s i o n m s a r y f o r t i ' b o u n d e d b y ' c f l e a n f o u r o t h e r s . T h e K p r l l i D e a r b o r n H e i g h t s D i s t r i c t t r i e d t o s p l i t ! i t s e l f v . o i n 1 E 5 7 b u t f a i l e d b e - j c a u s e t h e r e - w e r e n o t e n o u g h , d i s t r i c t s c n i t s b o r d e r s . _ _ _ _ _ _ i n t h e b u m p i e r c a s e , t h e 3 0 p e r c e n t ' h a d t o a b s o r b . I i i j ; k : I . C U T I c r . c h c r s w e r e h i r e d a : n l o t r l a r . r . w J » v a ! a r y o f S 5 5 .C C D . X c - . T d e s k s r . r . d s u p p l i e s w e r c o r * t i c r e d . TS .j* t h e b i g p n a h i c m . I s s c a v e . T h e r e a r e n o f c u i l o : r . " 2 u n d e r e o n s i l r u c l i o n t o c'J. e r f u - t o r e r e l i e f . T h e p e o p l e i n C m l c t o n e r e c r p e c i a l l y p r o u d o f t t i c ! r s c h o o l b u d d i n g s . T i : e d i s t r i c t s t a r t t d ;i n c n p b m b ■ • i n ' l l a . i ! * p '> r t b a : r a c k s p . t t h e n u t o f W o r l d V . ‘ a r I I C-r.'Z r. r e w i n t o f i v e b u n ! d i n g n . c o n ? * . : u c f . ' d w i t h b o n d r . t o n c y . ' T h e b o n d e d d e b t h o . 3 b e a n V . l l j o f f . L o u i s S r . u i t h . a f o r : m . e v p r e s i d e n t o f t l e / • . i r p o r t B o a r d o f E d u c a t i o n . t o ’ :*: s o p a - c i r . 7 1. • r i d e i n s i - . o w i : r»£ %■ i ' i t o i ' . i t r m i ' d a g e L=st:e.. “ lh-ay f i ~ . V.'hrfs t h e u s e ? I t s C a n t c l i y o u w h a t t o c : t h e y d i d t h i s t i m e . ■ s h o u l d n ’ t t h e s t a t e f o o t b i l l ? " ■ B i l l G u n t h e r ’ s m o t h e r , r i c , a t y p i c a l p a r e n t , s : " O u r s c h o o l s w e r e p r e t t y a b e f o r e t i n s . N o w t h e y ' r e c c r o w d e d . W e d o n ' t b n w e S u m p t e r k i d s . . . i t w a s s t a t e t h a t d i d t h i s t o u s . " M e m b e r s o f t V A i r p s c h o o l b o a r d a r e b i t t e r . " a r e f a c e d w i t h a f i n a n c i a l e d u c a t i o n a l c r i s i s t r . e y c c r e a t e a n d c a n ' t c o p e v . . " W e w e r e a f i n a n c i a l l y s r - ' d i s t r i c t , " o n e t c h o o i t m e m b e r s a y s , " s o t h e . f i g u r e d w e w e r e a g o o d r f t V. c s f* k 1N. 5 .l o s o m o o i a p p a r e n t l y l a r g e l y t h r o u g h r e - f i c r . ' . t m v . l e v e r b r i n g f o r c e d t o t a k e c n S u T - p t e r s t u d e n t s . M o w f r a d i r t : l e t f a c e s a . f i n a n c i a l s i n r y f o r t h e r o a c h < l: - w r . i: t y f o r A i r p o r t : t , LI-A r . a d e i t r . e c c s - s t c . t c b o r . r d t o t o k t o m ' o o C o m : - a p e n n y o n t h e m . " 1 \ I f 5 7 t i i e d i s t r i c t w a s j u s t beginning t o plan for adchtion- e 1 b u i l d i n g s w h e n t h e S u m p t e r s i t u a t i o n c a m e t o a h e a d . t h r o u g h D c y e a r s t o o f d e b t ? " -97- APPENDIX ^ continued) T i l r ; A I f t P O U T d i s t r i c t s u - i p c r i r . t c n d e n t , J o s e p h S t e r l i n g , s e c s n o w a y o ' . i t . " W e ’ r e o n l y b e g i n n i n g t o a s - i c e s s t h e c o s t o f t h i s S u m p i e r t h i n g . ” h e s a y s , " n u t y o u c r . n s e e t h a t i t ' s g o i n g t o c r i p p k D u s e d u c a t i o n r i ' . l y t o r s o m e y e a r s t o C o m e . " . , W i t h t h e v o t e r s u n w i l l i n g t o a p p r o v e m o r e t a x e s t o r s t u d e n t s t h e y d i d n ' t w a n t , t h e b u d g e t a l r e a d y s p r e a d t u r n , a n d | b u i l d i n g s b u r s t i n g a t t h e ! s e a m s . A i r p o r t s c h o o l o f f i c i a l s s a y t h a t o n l y t h e s t a l e c a n r e s c u e t h e m f r o m t h i s c r i s i s . T h e s t a t e b o a r d ' s p l a n f o r d i s s o l v i n g S u m p t e r c a l l e d t o r t h r e e o f t h e f o u r d i s t r i c t s t o r e c e i v e a l u m p s u m t o p r o v i d e h o u s i n g f o r t h e n e w s t u d e n t s . T i l e f o u r t h . L i n c o l n , g o t t h e n e w j u n i o r h i g h . . : j T h e l e g i s l a t u r e n e v e r a p p r o - p r i . a l e d t h o m o n e y . A l l l i n g e r U o l i n e , D e p a r t m e n t o f K i l u e a - t i o n n i d o w h o w o r k e d o n t h o c a s e , r a n d o i s t o h o p o t h a t t h e n p p r o p r i n l i n n w i l l h e m a d e h n e x t y e a r . I I n a d d i t i o n . H o l m e h o p e s t o ' g e t s t a t e m o n e y t o p a y o f f \ w h a t r e m a i n s o f S u m p t e r ' s $ 1 3 0 , 0 0 0 o p e r a t i n g d e b t a f t e r b a c k t a x e s a r e c o l l e c t e d a n a t o p a y o f f t h e d e b t o n S u m p - . t e r ' s s c h o o l b u s e s . I T h e b u s e s w e r e d i v i d e d a m o n g t h e f o u r d i s t r i c t s b u t m o s t a r e t o o o l d t o b e u s e d w i t h o u t e x t e n s i v e r e p a i r s . U n l e s s t h e L e g i s l a t u r e c o m e s u p w i t h s o m e m o n e y f o r S u m p t e r ' s b i l l s , t h e f o u r d i s t r i c t s w i l l e a c h h a v e t o p a y a s h a r e .* * • (> K A I I L Y T H I S y e a r t h e l e g i s l a t u r e a m e n d e d t h e l a w t o a d - l o w t h e S t a t e H o a r d o f K a u r i - i t i o n t o b r e a k u p d i s t r i c t s s c - ' C ' t - r . i m g - t o i t s o w n f n , m . u n , e i t h e r u s i n g t r i o 3 d p . c t c e u . rule. T i n s m e a n s t ' a a t w h a t h a p - r - w . - d t o 'A irpo rt p r o b a b l y w o n ' t h a p p e n a g a i n . . B u t Airport's p r o b l e m s a r e t . u " d o ’. v t d b y t h e s e r e f i n e m e n t s . ■ - The Detroit Free Press, October 7, 1968 -98- C J f l S ' u T i i C l l t * By V/lLl-lAU CCNNELLAN Intjott XiV> tilt/ Vil’M t ] * '• LAriSf«>^r.-^:n^^P" JjyudtlL''Q <a n k [y _p. - i 11 s School^ District Kas occa ordered tits- - so'ygdlMyy the State Board of Education. ' ' The order, effective June 30. ends a ycnr-Icn.^ controversy • over the fnto of the western Wnyne County district, which Is $230,CCD in debt. | The district, of 3,230 students , — mono with the operating j deficit — will be absorb;:! by Sjtlie Livonia rut-d Wayne Coin- jtmunity districts. Edward Hines drive will he the dividing lino, with Livonia netting the students and build ings north cf Hir.es and V/r.yno everything couth. ALL CAPITAL DECTS ~ those incurcd for building purposes — wii! remain with tire present Nankin Mil's vot ers, and thcy'VAd pkc on the regular tax burdens of t'o.oir new districts, under tire Etato hoard Cskcd the Lcnisln-v. ture to appropriate enough-;: money to eliminate the etc:iCit .. end provida Livonia a n.d . V/ayr.c with any new-facilities'** which might he needed to a > ~ cominodate /Cep) Nankin ettW" J ‘“ “ ... " state board ru!ing. Livonia v;l[h 3."i_CB0 students already, i .-yi.J in!' c-rit CO p or cent of i y \ ‘ :l n'kin slutient?, along v.Dy .he Perririvillo, Nankin k ' ' \nd Henry Fore elementary SCltool build: r The Nan! tin M:ills Boa rd o! Education offices will also C3 to Livonia. V/ayno will get the remain ing students r.ud the Tonquish and "Robert J. McKee elemen tary schools. Nankin M i l l s Junior High School also goes to Wayne. Nankin does not have a high school program. All other assets, such as School buses and other equip- i meat, will be divided on a Ct- ! <0 ratio. ; The operating deficit will be , split similarly, although t h e j dents. A menses’ -.ry.’roviding Ecdi--t tional fund/ *•• J sed the lieu;::.:, problems suctr-’as that of Kan* • Lin Mills can be avoided. The state board also ashed. tho Legislature to revise. lEe1-* -state aid formula, so future * yesterday cure! is being consul-- , cred b y ’the Senate today. ■... J THE NANKIN PROBLEM ; came to a head last summer" wh.cn the school board asked” tiie State Board of Education - to declare an emergency in the cis trict and rc organize it'," The hoard was given :tlilS power by a IS 57 act cf liter Legisla tu re. , At th:at time, the school ths- trict v.•as $263,USD in debt c.n its one rating budgeit, and 1 b e e n denied per mission top seek h:onds to bitlid a h,igh' school because cf debt pr cd> A -ct U.. J *' .IStata-‘'DPI partmc r. t c f Ldi icaticn re-, veal eel that the t;ix base cf.: the d.i:strict is in the Iov, percent in tho eta tc. N The current ta base ■ i.r SG.OL’O a student, brcausn ! C • than 2 percent of the tax I: is prov■ided by inrr.:stry. The 3S.S mills ($33.SO per- $1,CC0 assessed vain at ion).. Nankin. had for epe rat inn b’d’-n. c!s was tire highest in the si■«n f .-•» Tiic study by tr.c dep T̂u-* ment concluded tbat Kr.i»' • • rr had mr.dc every c! tort to :rp'V port it schools cut was v.:::ib: O’ becaus c of the torc strue;;..r% ■ r.r.d the present rt ate aid, fOi>. mule.. • M* The Detroit News ■99- f ? - * " — r > / / / d APPENDIX D F“ (f*)>—-rs .// N December 15 , 1971, Introduced by Reps. Cawthorne, B rad ley , Smart, Mctleely and Holbrook and r e fe r r e d to the Committee on Educat ion. O A b i l l to p rov ide fo r emergency f i n a n c i a l a s s i s t a n c e fo r i n s o lv e n t school d i s t r i c t s ; to p r e s c r ib e c e r t a i n powers and du t ie s o f the in termed iate board o f educa t ion in connec t ion therew i th ; to p rov ide 'a procedure f o r r e o rg a n i z a t i o n o f such school d i s t r i c t s ; to prov ide fo r cont inuance o f the s ta te committee on reo rgan iza t ion o f school d i s t r i c t s ; to p ro v i c e c e r t a i n powers and dut ies o f the s ta te board o f educa t ion in connect ion therew i th; to c rea te an emergency loan rev o lv in g fund; and to make an a pp rop r ia t io n . THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 1 Sec. 1. As used In t h i s act: 2 (a) "School d i s t r i c t " does not inc lude an in te rm ed ia te k 163 ’ 71 * -100- 6 I'tefeiM.-, _,jA .IsyK I ! i of wiiiofi In n t tr i l -n in l ' l t* (U lf»>> ,jay of Ii- m t h a n <-'f n<l v “ lor<-'m tn x t~* ----------Vj, .nlld the fiscal corvlit̂ s j>a r t to n t i im u l colli-ctionn on t a x levied l y th e d i .s t r ie t" . appendix D ~~ ("continued) ) H. $8f*0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 school d i s t r i c t . (b) " S ta t e board" ora re. the s ta te board o, edu ca t io n . - Sec. 2. The procedures prov ided by t h i s act may be used no tw i th s tand ing any o the r p r o v i s i o n o f law to the c o n t r a r y . S c c . 3 . The board o f educa t ion o f a school d i s t r i c t that incu rs a d e f i c i t and i s unable to meet i t s f i n a n c i a l o b l i g a t i o n ' s e l i g i b l e to app ly f o r an emergency loan from the s t a t e . Such a d i s t r i c t s h a l l be cons ide red an i n s o l v e n t d i s - t r i c t . Sec.<l. A s c h o o l d i s t r i c t to be eligible f o r an emergency ioan s h a l l c e r t i f y , based upon a c e r t i f i e d aud i t by the s t a t e t reasu ry department, that the school d i s t r i c t i s i n s o l v e n t . Q Scc. 5. The board o f educa t ion o f a school d i s t r i c t meet ing the c r i t e r i a set f o r t h in s e c t i o n k may app ly to the s t a t e board fo r an emergency loan to meet i t s f i n a n c i a l needs u. t the end o f the f i s c a l year in which a p p l i c a t i o n i s made. I f , a f t e r rev iew, the s ta te board o f educa t io n f i n d s tha t the d i s t r i c t meets the c r i t e r i a set f o r t h in s e c t i o n b , a recoc- mendation fo r an emergency loan s h a l l be submit ted to the governor f o r review and recommendation to the l e g i s l a t u r e . [ 21 S e c . 6. 7 6 c 2 2 g i b ! e to r e c e i v e [ « t h i s a c t s h a l l is r 2-1 F ■ l o a n , m a d e p a y a b 1 25 not t o r e t h a n 10 1. [ it 169 '71 - 1 0 1 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 APPENDIX D (continued) 3 H. 58^0 annum beginning with the first fiscal year after receipt Oi the .loan. The bonds shall be payable out of any funds of the school district including state appropriations available to the school district under any act. The amount due on the bonds with interest in any fiscal year shall be deducted in equal portions from the last 3 payments of state school aid due the school district in each fiscal year. The bonds shall also be the full faith and-credit obligations of the school district and all taxable property within the school . district shall be subject to the levy of ad valorem taxes to repay the principal and interest obtained under the bonds without limitation as to rate or amount. The board of educa tion shall submit its budget for review and approval to the state department of education. This budget shall be a balanced budget and shall include a minimum repayment of 10% of the original face amount of the loan received under this act, plus interest at the statutory rate. The district shall submit a monthly expenditure report to the state department of education. . Sec. 7. However, any school district not levying a mini mum of 20 mills for operating purposes in the calendar year for which it receives an emergency loan shall be reorganized by the state board of education following recommendation by the state committee on reorganization of school districts. h 163 '71 - 1 0 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 k APPENDIX D (continued) H. 58*iO Sec. 8. The slate deportment of educa t i on-*e£« scl-'K.-i— shall take any steps necessary to assure that the expenditures of a school district which receives an emergency loan under the provisions of this act shall not exceed revenues on an annual basis and that the school di s~ trict maintains a balanced budget. Sec. 9. If, upon application for an emergency loan, a board of education certifies that the school district will not be able to balance its budget, the district shall be reorganized by the state board of education following recommendation by the state committee on reorganization of school districts. Sec. 10. A school district receiving an emergency loan under the provisions of this act shall balance its budget in the fiscal year immediately following the fiscal year for which it receives an emergency loan o r , following recorm.endd- tion by the state committee on reorganization of school districts, shall be reorganized by the state board of education Sec. 11. A school district receiving an emergency loan under the provisions of this act, which defaults in repayment of the loan, shall be reorganized by the state board of educa tion following recommendation by the state committee or. reo.- ganizntion of school districts. Sec. 12: Prior to reorganization of a school district 11169 ‘71 -103- APPENDIX D (continued) 5 H. 58**0 under this act, the state committee on reorganization of school districts shall hold a hearing in the district to be reorganized. Notice of the time and place of the hearing shall be given the voters of all school districts involved in the proposed reorganization. The boards of education of the intermediate districts involved in the proposed reor ganization shall make recommendations to the state committee • _ regarding the proposed reorganization. Sec. 13. Within 20 days after receipt of a transcript of the hearing and recommendations of the boards of education of the intermediate districts, the state committee on re organization of school districts shall determine if conditions exist warranting reorganization of the district under this act. Upon a determination by the state committee that condi tions in a school district warrant reorganization, the state committee shall transmit its report with recommendations to the state board of education. Sec. ] k . The state board of education shall publish the report and recommendations of the state committee cn reorganize- tion of school districts and shall invite objections or comments to be filed with it within 20 days following publica tion of the report. The state board then shall consider the report of the stale committee, together with the comments and objections filed, and make a determination as to indorse- APPENDIX D (continued) H. 5 8 ^ 0 1 2 3 4 5 6 7 8 9 10 11 12 13 M 15 16 17 18 19 20 21 22 23 23 merit of the finding of the state committee. Se c. 1 5 . T h e s t a t e b o a r d , u p o n i n d o r s e m e n t of the f i n d i n g o f the s t a t e c o m m i t t e e o n r e o r g a n i z a t i o n o f s c h o o l d i s t r i c t s th at r e o r g a n i z a t i o n o f a s c h o o l d i s t r i c t is w a r r a n t e d , sh al l r e o r g a n i z e the d i s t r i c t w i t h 1 or m o r e d i s t r i c t s c o n t i g u o u s to it in s u c h a m a n n e r as w i l l p r o v i d e the m o s t e q u i t a b l e e d u c a t i o n a l o p p o r t u n i t y for all o f the s t u d e n t s of the r e o r g a n i z e d d i s t r i c t , a n d sh al l d e t e r m i n e t h e e f f e c t i v e d a t e of r e o r g a n i z a t i o n . A c t i o n b y the s t a t e b o a r d o f e d u c a t i o n shall be final. Sec. 16. If a s c h o o l d i s t r i c t a t t a c h e d u n d e r the p r o v i s o f this act at the t i m e of r e o r g a n i z a t i o n ha s a b o n d e d in d e b t e d n e s s i n c u r r e d a f t e r D e c e m b e r 8, 1932, its i d e n t i t y sh a l l no t b e lost a n d its t e r r i t o r y sh al l r e m a i n as a n a s s e s s ing u n i t for p u r p o s e s o f s u c h b o n d e d i n d e b t e d n e s s u n t i l the i n d e b t e d n e s s has b e e n r e t i r e d or the o u t s t a n d i n g b o n d s r e f u n d e d by the r e o r g a n i z e d d i s t r i c t . T h e b o a r d o f the r e o r g a n i z e d d i s t r i c t , o r the b o a r d s o f d i s t r i c t s r e c e i v i n g s c h o o l b u i l d i n g s w i t h a n e x i s t i n g b o n d e d d e b t sh al l c o n s t i t u t e the b o a r d of ' i trustees for the original district having a bonded indebtedness and the officers of the reorganized or successor district shall be the orficcrs for the original district. If any original bonds of the reorganized district have been refinanced in any way, the state board of education shall rake the final Jeter- ;i 169 '7! • 1 0.0 s -105- APPENDIX D (continued) 1 a 2 2a 3 1 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 H. 5 8 ^ 0 7 mination as to placement of the responsibility w ith the 1 or r>ore boards of education receiving the buildings as to their responsibility in acting as the board of trustees for the original district. The _ _ • board of each district assigned the responsibility as the - board of trustees for dny bonded indebtedness of the divided ' i district shall certify and order the levy of taxes for the bonded indebtedness in the name of the original district. , Sec. 17. Any time after 3 years following the reor ganization of a school district under this act, a district receiving a building having an existing bonded indebtedness and assuming the responsibilities set forth in section I d , may assume the obligation of the bonded indebtedness in curred after December 8, 1932, of the school building attached to its district under the provisions of this act, and pay the same from the proceeds of a debt retirement tax levy spread uniformly over the territory of the reorganized or successor district when the electors of the reorganized or successor district approve an increase in the limitation on taxes for that purpose and the school tax electors of the district have approved the assumption of such bonded indebted ness. Assumption of the bonded indebtedness of an original school district does not release the territory of the ori ginal district from the final responsibility of paying the obligation or rescind the increase in the limitation on 24 taxes pledged to the bond issue or available to it in tnc ill69 '71 -106- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ‘ 23 24 APPENDIX D (continued) H. 58*»0 8 original district., nor be construed as so doing. When the bonded indebtedness of an original district has been so assumed, the board of the reorganized or successor district shall certify and order the levy of taxes for the bonded indebtedness equivalent in terms of money to those required by the terms under which the indebtedness was originally in curred and carry out all provisions of the original bond contract. The election to assume the bonded indebtedness of an attached district may be held at any time after 3 years following the effective date of reorganization when a proposa! is placed before the school tax electors to increase the bonded indebtedness of the combined district. Sec. 18. The state committee on reorganization of school districts shall continue in existence for purposes of this act, notwithstanding any expiration date otherwise pro vided by law. ' Sec. 13. The school emergency loan revolving fund is created in the state treasury from which emergency loans shall be made to school districts as provided in this act. The fund shall consist of sums appropriated by the legislature plus repayments and interest on loans. The treasurer shall . r . oc.o,0arentier any amount in the fund in excess of $ £ t h 4 t o the general fund. Upon approval of an application for an emergency loan by concurrent resolution of the legislature '11 69 1 7 1 0 y £ -107- APPENDIX D (continued) # ...... ' .........• 9 H. 58AO . or, when the legislature is not in session by majority vote of the members of the special commission on appropriations created by Act No. 120 of the Public Acts of 1937, as amended, being sections 5.1 to 5-5 of the Compiled Laws of 19*18, the state treasurer shall issue his warrant on the fund for the amount of the loan. There is hereby appropriated from the general fund to the school emergency loan revolving fund ^ 3 oo/ cot. 00 the sum of -$-yS0-,-£Sfh-&6. Sec. 20. This act shall expire June 30, 1973. 4169 171 i. -108- APPENDIX E By S c h o o l B o a r d i BY UAL CODEX *> F r c o Press S t c f f W r i U r The Oakland County'j Board of E d u c a t i o n ! ! Thursday dissolved the; debt - ridden C a r v e rj School District in Royal; Oak Township and made ■ it par*, of the Oak Park ' School District. ; | U n d e r t h e o r d e r , e f f e c t i v e ' ( i m m e d i a t e l y , O a k P a r k w i l l j a b s o r b t h e O c o r r e . • W i t f h i n g t o r , ( O a ; v r r A O l e ~ •1: a f s e i ; 3 o f r = r 7 7 l e a S e t r . 'r . d , j i r r r c - u E P v a n d t h e C a r v e r D i s - ■ j t r i e l ' s S O O .O G O d e b t . •! I I ) r . A r t h u r T a r k H a n . p r o s l - ; d e n t < if t h e - O a l ; P a r k S c h o o l ■ H o a r d , s a i d t h e r e w i t l b e n o | I m m e d i a t e c h a n g e s I n t h e I C a r v e r c j i s t r i c . t u n t i l ■ t h e ! b o a r d m e e t s M o n d a y t o i n i v e n t o r v d a r v e r ' s a s s e t s a n d ! l l a b l L i t i c s ] . ■ : W h a t a p p e a r s t o b e t h e f i n a l - s o l u t i o n o f C a r v e r ' s l o n g h i s t o r y o f f i n a n c i a l w o e s w a s t r i g g e r e d l a s t A v g u s t t h e D e t r o i t B o a r d o f E d u c a t i o n . . * $ * . T H E D E T R O I T b o a r d i n f o r m e d t h e C a r v e r d i s t r i c t t h a t C a r v e r s t u d e n t s w o r . f d r . o l o n g e r h e p e r m i t t e d ' t o a t t e n d h i g h , s c h o o l i n D e t r o i t . : T h e C a r v e r d i s t r i c t h a d r . o h i g h s c h o o l * o f i t s o w n . S t u d e n t s f r o m t h e n i n t h t h r o u g h l i k e . ■ g r a d e s a t t e n d e d D e t r o i t ' s ' N m t h o r n H i g h S c h o o l o n a t u i t i o n b a s i s .• -r f V ' < t i • '■■••inn . p a y m e n t s t o D e t r o i t , a n d t h e ■ . b o a r d f i n a l l y r u l e d a g a i n s t * a c c e p t i n g a n y m o r e C a r v e r . , . s t u d e n t s b e c a u s e o f “ o v e r ; c r o w d i n g " i n t h o D e t r o i t i s c h o o l s . i ' T h e D e t r o i t h o a r d , h o w e v e r , i w i l l p e r m i t s t u d e n t s f r o m C a r - ; v e r - a l r e a d y e n r o l l e d i n N o r t h e r n | t o c o m p l e t e h i g h s c h o o l t h e r e . T h e a c t i o n l e f t C a r v e r w i t h r a b o i i t 4 0 n i n t h - g r a d e r s w i t h n o ■ s c h o o l t o a t t e n d . ■ ■ ; v » * ____ _________________________ I . . . I , - , n j C i . u o c u - . d e n t s ' i n t o . s c h o o l s e i t h e r i n j F c r n d a l e o r O a k P a r k w e r e r e b u f f e d b y t h e s e c o m m u n i t i e s . ! w h i c h a r e a d j a c e n t t o R o y a l 1 I O a k T o w n s h i p . ;j 1 h .o C a r v e r S c h o o l B o a r d r.e .t t h e s t a g e f o r T h u r s d a y ' s m o v e ■ | b y r e s i g n i n g o n m a s s e m i S e n t . ' 02. ̂, j A s p o i l : : ! e l e c t i o n t o r e p l a c e . . t h o h o a r d w a s c a l l e d f o r O c t . , i 2 d b u t n o t o n e v o t e r s h o w e d ■ j u p a t t h e p o l l s , s o t h e C o u n t y | w a s f o r c e d i n n e t . ! - F r e d B e c k m a n , p r e s i d e n t o f ; t h e f i v e - m e m b e r O a k l a n d . C o t i n ; t y B o a r d o f E d u c a t i o n , s a i d t h e ’ b i g g e s t f a c t o r i n t h e d e c i s i o n t o m a k e C a r v e r a p a r t o f t h e O a k P a r k d i s t r i c t w a s t h e g e o g r a p h i c a l l o c a t i o n o f O a k P a r k . •. » * « ' A D O P T I D O p e r s o n s a t t e n d e d , a m e e t i n g i n O a k F a r i d H i g h , S c h o o l T h u r s d a y n i g h t w h i c h w e . a i n t e n d e d t o a n s w e r s o m e j o f t h o q u e s t i o n s s u r r o u n d i n g j t h e a c t i o n b y t h e C o u n t y . M a n y o f t h e i r q u e s t i o n s w e n t ■ u n a n s w e r e d b e c a u s e s o m e o f j t h e p r o b l e m s i n v o l v e d i n t h e m e r g e r h a v e b e e n r e f e r r e d t o . t h e S t a t e A t t o r n e y G e n e r a l ' s * o f f i f e f o r a r u l i n g . ' O n o o f t h e m o s t c r u c i a l ! q u e s t i o n s i s w h e t h e r r c s l - ! d e n t s o f t h e C a r v e r d i s t r i c t 1 w i l l b e m a d e t o p a y s c h o o l I m d l c a g o v o t e d b y p e o p l e I n J t h e O a k - P a r k d i s t r i c t . ' D r . P a r k l l a n d s a i d t h o O a k ' P a r k S c h o o l B o a r d w o u l d u s e a l l . U a I ' m d l t M c . s t o a c h i e v e a n o r d e r l y t r a n s i t i o n t h a t w i l l " c a m t h e r e s p e c t o f n i l c i t i z e n s t h r o u g h o u t t h e s t a t e a n d n a t i o n . " C a r v e r n o w h a s 1 , 2 1 9 s t u - , ' ' • c r . l n , l . O . - . l o f w h o m a t t e n d • U g h s c h o o l I n D e t r o i t . T h e -10 r . i n t h - g r . i d c r n a r e n t - f- ’ c r h a g m a k e r h i t ! c l r s v c a i n C . v c a r S i im .-ii. The Detroit Free Press, November 11, 1960 -109- APPENDIX F SOURCES OF REVENUE OBTAINED BY 54 METRO AREA DISTRICTS OF TOTAL REVENUE • State Redistri- District. Total Operating Revenue Local Revenue State Aid bution Federal Funds of ESEA Federal Direct Aid Allen Park 900.68 62.53 36.07 1.38 -0- Berkley 903.62 58.41 40.08 1.44 0.05 Birmingham 1119.78 79.58 19.82 0.03 0.05 Bloomfield Hills 1203.23 79.77 19.84 0.27 0.11 Centerline 870.23 67.05 21.91 0.72 -0- Cherry Hill 738.03 37.49 60.01 2.48 -0- Clarencevilie 935.05 61.51 37.68 0.72 0.07 Clawson 766.90 43.79 55.47 0.73 -0- Crestwood (information not available) Dearborn 1340.55 90.96 7.95 1.09 -0- Dearborn Hts. 758.32 36.34 62.59 1.05 -0- Detroit 916.68 48.16 40.04 7.71 4.07 East Detroit 856.07 50.41 48.39 0.95 0.22 Ecorse 1010.64 83.01 13.20 3.67 0.11 Fairlane (information not available) Farmington 918.56 63.80 34.82 1.32 0.04 Ferndale 927.56 61.70 37.68 0.61 -0- Fitzgerald 1051.33 82.24 17.0 0.75 -0- - 1 1 0 - APPENDIX F l • (continued) District Total Operating Revenue Local Revenue State Aid State Redistri bution of Federal ESEA Funds Federal Direct Aid Fraser 825.79 52.24 46.82 0.92 -0- Garden City 775.42 33.94 64.65 1.29 0.11 Grosse Pointe 1195.05 87.21 12.66 0.13 -0- Hamtramck 1106.76 80.18 12.49 1.53 5.78 Harper Woods 887.65 86.48 12.54 0.97 -0- Hazel Park 987.98 42.48 44.93 3.04 0.41 Highland Park 1203.91 63.04 23.94 6.74 6.26 Inkster 880.62 24.89 59.77 13.69 1.64 Lakeshore 757.15 37.36 57.49 1.17 0.00 [less] Lakeview 885.79 46.74 50.79 2.33 0.12 Lamphere 1018.27 71.21 27.45 1.32 -0- Lincoln Park 729.70 53.35 44.61 2.02 -0- Livonia 912.55 65.05 34.53 0.42 -0- Madison Hts. 821.80 43.58 54.26 1.70 0.45 Melvindale 909.52 72.29 26.81 0.88 -0- N. Dearborn Hts.892.73 63.07 36.12 0.81 -0- Oak Park 1485.67 85.41 12.00 2.15 0.43 Redford Union 911.63 56.88 42.36 0.74 -0- River Rouge 1393.23 92.13 2.9 4.66 0.22 Rivervievv7 1067.03, 97.78 2.16 0.00 -0- Romulus 913.24 68.59 28.50 2.79 0.10 Roseville 820.56 44.73 53.36 1.84 0.05 Royal Oak 886.23 65.01 33.73 1.25 -0- - 1 1 1 - 0 " ' APPENDIX F District Tota!^ Operating Revenue Local Revenue State Aid State^^edistri- but^Sn of Federal ESEA Funds (continued) Federal Direct Aid South Lake 769.19 65.99 32.50 1.49 -0- South Redford 1007.63 82.72 17.27 -0- -0- Southfield 1039.35 79.56 19.66 0.60 0.18 Southgate 826.35 54.35 44.56 1.07 -0- Taylor 809.07 47.05 51.08 1.76 0.09 Troy 1002.15 77.19 21.10 1.70 -0- Van Dyke 1034.91 75.02 23.80 1.15 0.01 Warren 858.25 64.98 34.04 0.41 0.55 Warren Woods 753.37 40.85 58.19 0.94 -0- Wayne 919.65 54.77 43.65 1.08 0.48 WTest Bloomfield 901.92 64.55 34.29 1.06 0.07 Westwood 929.39 60.65 37.05 1.90 0.38 Wyandotte 855.73 67.42 29.73 0.31 2.53 Sources: Ranking of Michigan Public Hicrh School - School Districts hv Selected Financial Data, 1970, Bulletin 1012, Michi gan State ResultsDepartment of Education (1971); and Local District Michi'gan Educat ionai Assessment Program, Michi can S-f-a-f-c Department of Education (1971) , Defendants 1 Exhibit M13 . - 1 1 2 - APPENDIX G School Notes Attorney General Frank J . Kelley, chairman of the Mu nicipal Finance Commission, announced today that the Commission approved $5,- 720,000.Oil of Tax Anticipa tion -Notes-Operating-Current Fiscal Tear for The Grosse Poinlc Public School System, Wayne County. Attorney Genera! Kelley said, ''The proceeds will be ; used to operate the School; Disl: . t. These note s are to be c:Ted August 1, 1972, are, to h-e due April 1, 1873, and will entry a maximum in terest rate of C percent per annum." ; Other members of the Mu- nicipa! Finance Commission are A l l i s o n Green. State. Treaauier; and John W. Por ter, Superintendent of Public Instruction. I Grosse Pointe News, August 10, 1972 - 113-