Findings of Fact and Conclusions of Law in Support of Ruling on Desegregation Area and Development of Plan
Public Court Documents
May 5, 1972

33 pages
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Case Files, Milliken Hardbacks. Findings of Fact and Conclusions of Law in Support of Ruling on Desegregation Area and Development of Plan, 1972. 5f86ebed-52e9-ef11-a730-7c1e5247dfc0. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/8b74a77e-220d-4744-b375-aa2531445e65/findings-of-fact-and-conclusions-of-law-in-support-of-ruling-on-desegregation-area-and-development-of-plan. Accessed April 19, 2025.
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION RONALD BRADLEY, et al., Plaintiffs - V 8 - WILLIAM G. MILLIKEN, et al., Defendants -and- DETROIT FEDERATION OF TEACHERS, LOCAL NO. 231, AMERICAN FEDERATION OF TEACHERS, AFL-CIO, Defendant- In tervenor -and- DENISE MAGDOWSKI, et al., Defendant- In tervenor ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 35257 Findings of Fact and Conclusions of Law In Support of Ruling On Desegregation Area And Development of Plan On the basis of the entire record in this action, including particularly the evidence heard by the Court from March 28 through April 14, 1972, the Court now makes the following Supplementary Findings of Fact and Conclusions of Law. Introduction 1. On September 27, 1971, this Court issued its Ruling on Issue of Segregation. On October 4, 1971, this Court issued from the bench guidelines to bind the parties in the submission of plans to remedy the constitutional violation found, i.e., school segregation; and in particular this Court noted that the primary objective before us was to develop and implement a plan which attempts to "achieve the greatest possible degree of actual desegre gation, taking into account the practicalities of the situation." On November 5, 1971, this Court reiterated these requirements by written order that the Detroit Board of Education submit a plan for the desegregation of its schools within 60 days" and "that the State defendants submit a metropolitan plan of desegregation within 120 days." In response to these orders hearings were held, and thereafter rulings issued, on Detroit-only plans (see Findings of Fact and Conclusions of Law on Detroit-only Plans of Desegregation, March 28, 1972) and on the propriety of considering remedies which extended beyond the corporate geographic limits of the City of Detroit. (Ruling on Propriety of Considering a Metropolitan Remedy to Accomplish Desegregation of the Public Schools of the City of Detroit, March 24, 1972.) Between March 28, 1972, and April 14, 1972, hearings were held on metropolitan proposals for desegregation of the Detroit public schools. 2. From the initial ruling on September 27, 1971, to this day, the basis of the proceedings has been and remains the violation*. . de.jure schoo segregation. Since Brown v. Board of Education the Supreme Court has consistently held that the remedy for such illegal segregation is desegre gation. The racial history of this country is writ large by constitutional adjudication from Dred Scott v. Sanford to Plessy v. Ferguson to Brown. The message in grown was simple: the Fourteenth Amendment was to be applied full force in public schooling. The Court held that "state-imposed" school segregation immeasurably taints the education received by ail children in the public schools; perpetuates racial discrimination and a history of public action attaching a badge of inferiority to the black race in a public forum which importantly shapes the minds and hearts of succeeding generations of our young people; and amounts to an invidious racial classification. Since Brown the Supreme Court has consistently, and with increasing force, held that the remedy upon finding dejure segregation is prompt and maximum actual desegregation of the public schools by all reasonable, feasible, and practicable means available. This Court finds that there is nothing in the law, wisdom, or facts, and the particular circumstances and arguments, presented in this case which suggest anything except the affirmance of these principles in both fact and law. - 2 - 3. The task before this Court, therefore, is now, and since September 27, 1971, has always been, how to desegregate the Detroit public schools. The issue, despite efforts of the intervenors to suggest a new rationale for a return to the discredited "separate but equal" policy,^ is not whether to desegregate. That question should be, and has been, foreclosed by the prior and settled commands of the Supreme Court and the Sixth Circuit. 4. In the most recent set of hearings, several issues were addressed generally, including appropriate methods of pupil reassignment to desegre gate schools; quality and capacity of school facilities; transportation needs incident to school desegregation; the effects of new school construc tion, and judicially established controls thereon, on any plan of desegrega tion; the reassignment of faculty and restructuring of facilities incident to pupil reassignment to accomplish school desegregation; appropriate and necessary interim and final administrative and financial arrangements; appropriate community, parental, staff, and pupil involvement in the desegre gation process; and attention to individual, cultural, and ethnic values, ^In the main such proof entirely misses the point: the violation here found has to do with school segregation caused in substantial part by force of public authority and action; yet the intervening defendants' questions and offer of proof speak mainly to educational theory and recent and sometimes contradictory research about narrowly measured educational effects, mostly on achievement test scores, of quite limited beginings of racial, or socio-economic integration of various types and as compared with the effects of dollar or other resource inputs and continued segregation. This Court does not understand, however, that such research, from the Coleman report to its many reanalyses, formed the primary bases for the Brown decision or any of its progeny. See, e.g., Brunson v. Bd, of Trustees, 429 F.2d 820, 826 (4th Cir. 1970) (J. Sobeloff, concurring) In a context similar to newly intervening defendants' objections to desegregation, the Supreme Court in Swann specifically held that such factors constitute an impermissible limit upon the duty to desegregate. 402 U.S. at ______ FN.8. Citation to such research, either in support or rejection of school desegregation, misses the primary point: insofar as pupil assignments are concerned, the system of public schooling in every state must be operated in a racially non-dis criminatory, unified fashion; until that objective is met, the very system of public schooling constitutes an invidious racial classification. The adoption of an education theory having the effect of maintaining a pattern of dejure segregation is therefore clearly impermissible. (Whether such theories, research, or evidence on educational quality or inequality form the basis for requiring judicial intervention and relief in the absence of a finding of dejure segregation is a question this Court need not face. ) In any event, the Court of Appeals for the Sixth Circuit held, on June 19, 1970, that greater, not less, desegregation is the proper manner to alleviate the problem of disparity in achievement. Monroe v. Board of Commissioners, Jackson, Tenn.,427 F.2d. 1005, 1008(C.A. 6.1970) - 3 - respect, dignity and identity. /See, generally, Hearings re Metropolitan Plans, 1 Tr. 1 - 1 1 Tr. l603; M.2, M.8, M.10, P.C.2 (Desegregation Plansj/ But the primary question addressed by these hearings, in the absence of submission of a complete desegregation plan by the state, remains the determin ation of the area necessary and practicable effectively to eliminate ’’root and branch" the effects of state-imposed and supported segregation and to desegregate the Detroit public schools. /P.M.3-5> 6, 10-12; M.ll, 12, 14; M.5; and see also, e.g., 4 Tr. 587(colloquy), 7 Tr. 990-993(colloquyj/ Supplementary Findings of Fact A. The Desegregation Area 5. The State Board of Education filed six (6) "plans" (M.3-M.8) without recommendation or preference ^M-9; 1 Tr. 9-12(colloquy); Porter Deposition, 3/23/72, p. 83/; intervening defendants Magdowski, et al., filed a proposal for metropolitan desegregation which included most of the tri county area ^1-2; 1 Tr. 13-2 Tr. 23l/; the defendant Detroit Board of Edu cation filed a proposal for metropolitan desegregation which included the entire tri-county area M.ll, M.12, M.14; 3 Tr. 398-6 Tr. 850; 9 Tr. 1323-14247. At the hearing plaintiffs presented a modification /P.M. 12; 8 Tr. 1145-9 Tr. 1322; 9 Tr. 1424-1450; 10 Tr. 1460-14627 of the three proposals /p.M.4(State Proposal) and M.5; P.M.5(CCBE Proposal) and M.2; P.M.6(Detroit Board Proposal) and M.10-M-147 which actually described areas within which pupil desegregation was to be accomplished. 6.1 In the consideration of metropolitan plans of desegregation of the , Detroit public schools, the State defendants stand as the primary defendants. They bear the initial burden of coming forward with a proposal that promises to work. In the context of this case, they represent the "school authorities" 3to whom equity Courts traditionally have shown deference in these matters. Yet in its submission without recommendation of six (6) "plans" the State Board of Education has failed to meet, or even attempt to meet, that burden 2In the context of this hearing, the defendant Detroit Board of Education is not in a position to act as the usual "school authority" primarily responsible for suggesting an appropriate desegregation area simply because its authority does not extend beyond the geographic limits of the City of Detroit. The compe tence, knowledge of local conditions, and expertise of those schoolmen who helped prepare the Detroit Board's proposal, however, may be utilized and given appropriate weight. 3in Oliver v. Kalamazoo Board of Education, #K88-71, Judge Fox pointed out the primary responsibility of the state: ''The State of Michigan is represented by two entities, but the entity is an agent of the State . . . /T/he Constitu tion says something about your ^the State's7 responsibility. The Court went on to order the State to take an active role. Pre-trial order and transcript, May 1, 1972. - 4 - and none of the other State defendants has filled the void. ^/Compare 1 Tr. 12(colloquy); 2 Tr. 320(colloquy); see also 1 Tr. 8-12 (colloquy );M-9/ 6.2 The State Board refused to make any recommendation to the Court about the appropriate area for desegregation. (M.9) la State Defendant Porter’s words, the State Board "didn’t make a decision, period." (Porter Deposition, 3/23/72, p.83) Defendants Milliken and Kelly merely filed objections to all six (6) plans. 6.3 Three of the State "plans" merely proposed concepts alternative to maximum actual desegregation ^One-way busing-M.4; Magnet-M.6; 2 Tr, 237*239 (Pierce); and Neighborhood based or part-time desegregation-M.jfJ. The Racial Proportion Plan described a statistical method of determining the number of transfers involved in achieving a particular racial ratio in each school once an area of desegregation had been chosen. £ . 3; 2 Tr. 234(Pierce_)7 The Equal Educational Opportunity and Quality Integration Plan was admitted to be a non-plan [2 Tr. 240-242(Pierce_}7 and- described criteria for education which, in whole or part, might, or might not, be applicable to any school system. (M.8) 6.4 Only one State "plan," the Metropolitan District Reorganization Plan (M.5, Exhibit B), attempted to describe an area within which desegrega tion should occur, called the "initial operating zone" (sometimes referred to hereafter as the "State Proposal"). ^1.5, P» l6> 2 Tr. 249-250(PierceJ^ That "plan," however, was primarily concerned with discussing a new governance structure for the desegregation area. Pupil reassignment was mentioned only in passing /M.5, p. 17; 2 Tr. 2 6 o ( P i e r c a n d no foundation was laid by State defendants for the particular area of desegregation described, /cf. 2 Tr. 320(colloquy)/ Further, it suffered from the default of the state defendants by their stubborn insistence that under their selfserving, and therefore selflimiting, view of their powers they were free to ignore the clear order of this Court and abdicate their responsibility vested in them by both the Michigan and Federal Constitution for supervision of public education and equal protection for all citizens. The fact that this might proceed from the tactics and advice of counsel in no way minimizes the default. (See Ruling on Issue of Segregation) From the very limited evidence in the record in support of the area in that state proposal, the primary foundation appears to be the particular racial ratio attained in that plan, approximately 65$ black, 35$ white, with the provision that the area could be expanded if "•shite flight" ensued. /porter deposition 3/23/72, pp. 70-71; M.5, PP. H-12, 16; 2 Tr. 248-249 (PierceJ7 In the absence of any other persuasive foundation, such area is not based on any definable or legally sustainable criteria for either inclusion or exclusion of particular areas; and the concept of an "initial operating zone" raises serious practical questions, which should be avoided if a more permanent solution is now possible. In short, the area described by the "initial operating zone" does not appear to be based primarily on relevant factors, like eliminating racially identifiable schools; accomplish ing maximum actual desegregation of the Detroit public schools; or avoiding, where possible, maintaining a pattern of schools substantially disproportionate to the relevant school community’s racial composition by force of deliberate action by public authority. Nor, on the evidence in this record, is the "initial operating zone" based on any practical limitation of reasonable times and distances for transportation of pupils. (Porter Deposition, 3/23/72, pp. 70, 76-77) These factors seem to have played little part in the creation of the "initial operating zone" and are re flected less in its result. (Compare, e.g., P.M.4 with P.M.8 and M.l6). 6.5 At the hearings, moreover, the State defendants did not purport to present evidence in support, or even in opposition, to the State Proposal. /Cf. 1 Tr. 9-12(colloquy); 2 Tr. 320(colloquy]/ The State, despite prodding by the Court, presented only one witness, who merely explained what appeared on the face of the various State "Plans" submitted. /Cf. 1 Tr. 12(colloquy); 2 Tr. 320(colloquy); See 2 Tr. 233-261(PierceJ/ Ike state's cross examina tion of witnesses was of no assistance to the Court in ascertaining any pre ference, legal or educational. Put bluntly, State defendants in this hearing deliberately chose not to assist the Court in choosing an appropriate area for effective desegregation of the Detroit public schools. Their resistance and abdication of responsibility throughout has been consistent with the other failures to meet their obligations noted in the Court's earlier rulings. Indeed, some of the submissions spoke as clearly in opposition to desegregation as did the legislature^ advised by the same counsel in committee, in Sec. 12 of Act 48 ruled unconstitutional by the 6th Circuit. 6.6 In such circumstances little weight nor deference can be given to the unsupported submission of the State Board of Education. In light of the available alternatives and the facts produced at the hearing bearing on the issue, the Court finds that State defendants offered no basis for ruling that the "initial operating zone" is the appropriate area within which to desegregate effectively the Detroit public schools. IT " — 6 - 7. Similarly, the newly intervening, defendant school districts did not attempt at the hearing to assist the Court in determining which area was appropriate to accomplish effective desegregation. They were given the opportunity, by express written order and several admonitions during the course of the hearings, to assist the Court in the task at hand but chose in their best judgment instead, in the main, to suggest their view that separate schools were preferable. The failure of the group of 40 districts to even comment that the Court should exclude certain districts under any number of available rationales may in part be explained by the awkward position chosen by them and their counsel of having single representation for districts on different sides of the various suggested perimeters. /See, e.g., Ruling and Order on Petitions for Intervention, S7b; 4 Tr. 585-587(colloquy); 7 Tr. 977-979, 990-994(colloquyJ7 8. The plans of intervening defendants Magdowski, et al., and the defendant Detroit Board of Education are similar. With slight variations they include the entire tri-county, metropolitan Detroit area, with that area divided into several regions or clusters to make the planning for accomplishing desegregation more manageable. (M.2; M.10, 11, 12, & 14) Although both have as their main objective desegregation ^.10; M.2, 2 Tr. 200(MorsheadJ7, their larger area arises primarily from a heavy emphasis on such factors as white flight and an appropriate socio-economic balance in each cluster and school.^ (M.2; M.10) “The Detroit Board plan places heavier reliance on white flight and socio-economic factors /M.10, pp. 2, 5, 14, 15, 25J t while the Magdowski proposal in addition places an emphasis on maintaining a mini mum percentage black in each school. /M.2 pp. 8-9; 1 Tr. 37(MorsheadJ/ These considerations in no way determine the Court's choice of a desegrega tion area necessary to meet constitutional requirements. In fairness, how ever, it also should be noted that the desegregation area, which'/Gourt deems to best meet constitutional requirements, also happens, in the main, to meet the other concerns expressed in these two proposals. (That the Board's interest in socio-economic integration is largely met by racial desegregation is not surprising. There is uncontroverted evidence in the record, and the Court so finds, that there is a high correlation between blacks and persons of a low socio-economic status, the result, in the main, of the cumulative effects of past ?,nd present racial discrimination including discrimination in education. [§ Tr. 1328(Rankin); 37 Tr. Hearings re Issue of Segregation 4148-4154, 4160, 4173> 4174, 4 Tr. Hearings re Intra-City Plans 450(Guthrie_)7) At some point hereafter, of course, school authorities with responsibility for implementation and operation of the racially-unified, non-dlscriminatory school system contemplated, or parts thereof, may and should include in its plan other educational goals and needs whether or not they are required by the law or any Court. Swann v. Charlotte-Mecklenburg, 402 U.S. at IC,. 9. The authors of the Detroit Board and Magdowski plans readily admit that the regions or clusters for pupil reassignment which involve Mr. Clemens and Pontiac are not directly related to desegregation of the Detroit public schools and may be disregarded without any substantial adverse effect on accomplishing our objective. jj> Tr. 439-440, 471-472(Rankin); 1 Tr. 30 (Morshead); 6 Tr. 930 (Flynnjj No other party has expressed any disagree ment with that view. And the Court finds that these two regions or clusters, for purposes of pupil reassignment, need not be included at this time in the desegregation area. 10. With the elimination of these two clusters there are, then, three basic proposals to be considered for the desegregation area: the State Proposal (P.M.4); the Detroit Board Proposal (P.M.6; M.12), and the proposal of defendant-intervenors Magdowski, et al., (P.M.5) (hereafter CCBE Proposal). In addition, as noted, plaintiffs filed a modification of these three pro posals (P.M.10-11) (hereafter Plaintiffs' Proposal). 11, Each of these proposals starts from the same two premises: (l) the tri-county area constitutes the relevant school community v?hich can serve as an initial benchmark in beginning the evaluation of how to effectively(a; eliminate the racial segregation of Detroit schools;|but in some instances reasonable time and distance limitations for pupil transportation, and in other instances the actual area required to eliminate the pattern of racially identifiable schools, limit the actual area within which pupil reassignment should occur. In terms of proof, putting aside arguments of impotence by the State Board, (it is interesting that the State Board is deemed to have such power and control that the May 3 Detroit papers indicate the passage by the Michigan Senate of a constitutional, amendment to strip the Board of power) there was absolutely no contradictory evidence on these two criteria. /See, e.g., M.10-12; M.2; M.5, p.6; P.M.10-12, 8 Tr. 1168-1174, ll8l, H 65-II66(Foster)/ The entire tri-county area includes areas, pupils, and schools in 86 school districts; it includes approximately one million students, of whom approximately 20$ are black. (M.5, Exhibit B; M.14) Based on the 4evidence concerning school and non-school factors, and reasonable time and distance limitations for pupil transportation, the Court finds that ■^See Findings 40-42 infra. both premises are accurate.^ 13. The State Proposal includes the areas, pupils and school in 36 school districts; approximately 550,000 students are included of whom 36$ are black. (M.5) The Detroit Board Proposal (excluding clusters 8 and 12 ) includes the areas, pupils, and schools in 69 school districts; approxi mately 2 50,000 students are included, of wham 25# are minority.^ (M.14) The CCBE Proposal includes the areas, pupils, and schools in some 62 school districts; approximately 777,000 students are included of wham 197,000 (25.4#) are black. (M.2) Plaintiffs’ Proposal includes the areas, pupils, and schools in 54 school districts; approximately 780,000 students are included, of whom 197,000 (25.3#) are black (P.M.12). 14. The State Proposal approaches what may be considered a substantial, disproportion in the context of this case. It is to be remembered that within any desegregation area, the racial composition of desegregated schools will vary from the area’s racial mix. (See, e.g., P.C.3; M.17) Given the variations in school plant, demographic and geographic factors, limiting the desegregation area to the State Proposal would result in some schools being substantially disproportionate in their racial, composition to the tri-county area, and other schools racially identifiable, all without any justification in law or fact. This finding is supported by the lack of any apparent justification for the desegregation area described by the State Proposal except a desire to achieve an arbitrary racial ratio. (See Finding 6.4 supra.) 15.1 Transportation of children by school bus is a common practice throughout the nation, in the state of Michigan, and in the tri-county area. (See, e.g. Wagner Deposition, 3/22/1972 and exhibits thereto; M.4) Within appropriate time limits it is a considerably safer, more reliable, healthful and efficient means of getting children to school than either car pools or walking, and this is especially true for younger children. (See, e.g., 5The interplay of these two factors summarizes two other guideposts or starting points: maximum feasible desegregation and eliminating racially identifiable schools. Factors such as time and distance 1imitationsjtogether with the rough definitions of substantial disproportion with the relevant school community’s pupil racial composition, in turn largely determine the meaning of "eliminating racially identifiable schools" and what constitutes "maximum feasible desegregation," in the particular circumstances here present ana in the context of a prior finding of segregation. ^The Detroit Board Proposal contemplates desegregation on a "minority"- white basis. The proof in this cause, however, has been aimed at the segregation of black children and white children; similarly the remedy has been so defined, argued, and in the main presented by parties. The Court finds, therefore, that the area, and further planning, should, in the main, be confined to a black- white breakdown. - 9 - Wagner Deposition, 3/22/1972 pp. 33“3^; Tr. re Hearings Intra-City Plans 140, 156-157(Kuthy); Tr. re Intra City Plans 408-409(Smith); See also Findings one hour, and up to one and one half hours, one-way on the bus ride to school each day. /See, e.g., Exhibit 5, Wagner Deposition, 3/22/1972; "First Report," State Defendants' Survey of Tri-County Transportation/ Consistent with its interest in the health, welfare and safety of children and in avoiding impingement on the educational process, state educational authorities routinely fund such transportation for school children. /See, e.g., Exhibit 6, Wagner Deposition, 3/22/1972 and Hain, "The Law of Desegre gation," 18 Mich. School Bd. J. 18 (Dec. 17, 1 9 7 1 Such transportation of school children is a long-standing, sound practice in elementary and secon dary education in this state and throughout the country /E.g., Tr. re Intra City Plans 333-334(Foster); Tr. re Intra City Plans 140, 156-157(KuthyJ/ And the Court finds such transportation times,used by the state and recommended here, are reasonable in the circumstance here presented and will not endanger the health or safety of the child nor impinge on the educational process. For school authorities or private citizens to now object to such transportation practices raises the inference not of hostility to pupil transportation but rather racially motivated hostility to the desegregated school at the end of the ride. 15.3 The Plaintiffs Proposal made reference to P.M.8, based on the TALUS regional transportation and travel times study. Although there was dispute over the meaning of the study, such studies are deemed sufficiently reliable that major governmental agencies customarily rely on their projection for a variety of planning functions Jj Tr. 1086(SmithJ/. When used by the plaintiffs, P.M.8, in conjunction with the Detroit Board's survey of maximum school to school travel times (M.l6), served as a rough guide line within which the plaintiffs' modification of other proposals attempted to stay in an effort to ‘̂ Compared to private modes of transportation, school bus travel is exceptionally safe: in 1968, the National Safety Council found school buses 4 times safer than ordinary buses, and 40 times safer than private cars. Inequality in Education, Vol. 11, p. 19, March, 1972; "Facts About School Buses,n School Management (Magazine), Apri], 1971, p. H. 15.2 In Michigan and the tri-county area, pupils often spend upwards of V to provide maximum desegregation without any more transportation time than is required to desegregate. This court finds that the utilization of these two factors, and the lower travel time estimates which should result, is a reasonable basis for the modification in the circumstances of this case. The Court's duty and objective is not to maximize transportation but to maximize desegregation and within that standard it will always be reasonable to minimize transportation. To that end the Court has accepted the more conservative perimeter for the desegregation area suggested as a modifica tion by plaintiffs because it provides no less effective desegregation. 15.4 Based on these criteria, the State Proposal is too narrowly drawn. (Compare P.M.4 with P.M.8 and M.l6) 15.5 Based on these criteria, parts of the Detroit Board Proposal are too sweeping (Compare P.M.6 with P.M.8 and M.l6) 15.6 Based on these criteria, the CCBE proposal and the Plaintiffs' 7Proposal, roughly approximate the area so described. (Compare P.M.8 and M.16 with P.M.5 and P.M.ll) 16. There is general agreement among the parties, and the Court so finds, that on the west the areas, schools, and pupils in the Huron O Van Buren, Northville, Plymouth, and Novi districts (l) are beyond the rough 40-minute travel time line (Compare P.M.8 and M.l6 with P.M.6 and P.M.2)- (2) are not necessary to effectively desegregate schools involved in the regions and clusters abutting those schools; and/, at this writing, are not otherwise necessary, insofar as pupil assignment is concerned, to provide an effective remedy now and hereafter /Cf. 10 Tr. 1523-1^5(Henrickson); see Findings 37-39 below./ 17. In the southwest the school districts of Woodhaven, Gibralter, Flat Rock, Grosse lie and Trenton are within the reasonable time and distance criteria set forth above (Compare P.M.2 with P.M.8). These virtually all-white districts are included in the Detroit Board Proposal but excluded from the Plaintiffs' modification 7 # To the Southwest, Plaintiffs' Proposal falls on the side of less time in transit than the 40-minute guideline because inclusion of more area is PQ'fc required to desegregate. (See Finding 17, infra.) Moreover, in the main, the areas, schools, and pupils in these districts not as fully members of the greater Detroit school community: many are less urban; they are the furthest in terms of time, distance, and contact from the Detroit area's economic and social activities; and many are more oriented, if anything, to urban areas other than Detroit, for example, the P^M 2rbMrii/YPSilanti area* ^ Tr* 8 9 3 - 8 9 7 9 Tr* 1338-1339(Nankin); - 11 - \ (P.H.6, P.M.ll; and P.M.ll, P.M.12) The areas, schools and pupils in such school districts are similarily not necessary to effectively desegregate. (Clusters 13, 14, and 15 in Plaintiffs* proposal are 20.5$, 24.4$, and 22.7$ black respectively, P.M.12) There is nothing in the record which suggests that these districts need be included in the desegregation area in order to disestablish the racial identifiability of the Detroit public schools. From the evidence, the primary reason for the Detroit School Board's interest in the inclusion of these school districts is not racial desegregation but to increase the average socio-economic balance of all the schools in the abutting regions and clusters 0 Tr. 1405-1408, 1422-1423(Rankin); 10 Tr. 1523-1525(Henrickson); Compare P.M.12 with M.l̂ j/. In terms of what this Court views as the primary obligation established by the Constitution — racial desegregation— the Court deems the proper approach is to be more conservative: the Court finds it appropriate to confine the desegregation area to its smallest effective limits. This Court weighs more heavily -the judicially recognized concern for limiting the time and distance of pupil transportation as much as possible, consistent with the constitutional requirement to eliminate racially identifiable schools, than a concern for expanding the desegregation area to raise somewhat the average socio economic balance of a relatively few clusters of schools.^ /Compare 9 Tr. 1412-1413 (Ranking 18.1 To the north and northeast, the only major disagreement among the Detroit Board Proposal and Plaintiffs* modification relates to the areas, schools, and pupils in the Utica School District. (Compare P.M.ll and P.M.12 with M.14 and P.M.6) This district is a virtually all-white, long, relatively • narrow area extending several miles in a north-south direction away from the City of Detroit. (P.M.12; P.M.2) Only the southern part of the district is within the rough, TALUS 40-minute travel time line. (Compare P.M.8 with P.M.2 and P.M.6. See also M.l6) 18.2 Once again, the Detroit Board argues that Utica should be included in order to raise the average socio-economic balance of the abutting clusters and schools. 0 tr. 1402-1404(Rankin); M.19, Cluster”27 In this instance, 9'The Court notes, however, that the range of average socio-economic status for the various regions or clusters in Plaintiffs' Proposal is similar to that in the Detroit Board Proposal: based on the Michigan Assessment the range in Plaintiffs' Proposal happens to be 44.7 to 53.7, while in the Detroit Board Proposal the range is 46.3 bo 53> and only three of the 15 clusters of schools in Plaintiffs' Proposal fall below 46.3. j/m .11 and M.19. See also 9 Tr. 1416-1423(Rankin}/ - 12 - however, the overall racial composition of the cluster, 27.0$ black, may tend toward disproportionate black relative to the tri-county starting point. (P.M.12, Cluster 3) 18,3 Mr. Henrickson, the planner for the Board, also suggested that Cluster 3 of Plaintiffs’ Proposal, because of its omission of Utica, might present some problems, which he admitted could be solved, in designing a plan of pupil reassignment for the desegregation of schools. (10 Tr* 1151-1152 and See Finding 21 below. ) 18.4 In light of these relevant, and competing, considerations the question presented by the Utica situation is close; however, at this writing, the Court determines that the areas, schools, and pupils in the Utica School District need not be included, and therefore, should not be included in the 10desegregation area. 19. The Court finds that the appropriate desegregation area is described by Plaintiffs' modification of the three primary proposals. Within that area the racial identifiability of schools may be disestablished by imple mentation of an appropriate pupil desegregation plan. The area as a whole is substantially proportionate to the tri-county starting point. Within the area it is practicable, feasible, and sound to effectively desegregate all schools without imposing any undue transportation burden on the children or on the state's system of public schooling. The time or distance children need be transported to desegregate schools in the area will impose no risk to the children's health and will not significantly impinge on the educational process. B. Clusters 20. The Detroit Board Proposal makes use of l6 regions or clusters (M.ll; M.14). These clusters range from 36,000 to 105,000 pupils and from 17.5$ to 29.7$ "minority." (M.ll; M.14) The clusters are arranged along major surface arteries and utilize the "skip," or noncontiguous zoning, 10Because of the closeness of the question, particularly as it relates to any problems which m y arise hereafter in establishing a pupil desegrega tion plan, the Court feels that some opportunity should be given to the expert team to suggest a modification of this tentative resolution. See also Finding 21 below. - 13 - technique to minimize the time and distance any child need spend in transit. /Compare P.M.2 and P.M.3; and see, e.g., 3 Tr. 424-425(Rankin)/ The use of these clusters basically subdivides the planning for pupil reassignment within the desegregation area into a series of smaller, manageable and basically independent plans. /E.g. 6 Tr. 808(Henrickson); 9 Tr. 1329-1330(Rankin)/ Thus, although as the new intervenors rather disingenuously suggest devising a desegregation plan for a system with some 800,000 pupils has never been attempted, the practical and manageable reality is that desegregation plans for systems with from 36,000 to 100,000 pupils has been done and such plans have been implemented. /E.g. 6 Tr. 808 (Henrickson); 9 Tr. 1297-1300(Foster}7 21.1 Plaintiffs' Proposal uses the same cluster technique and the same clusters, modified to fit the desegregation area. /Compare P.M.10 and 12 with M.11 and P.M. 3; See also 8 Tr. 1155-1167(Foster); 10 Tr. 1506-1507 (HenricksonJ7 The 15 clusters range from 27,000 to 93,000 pupils and from 20.5$ to 30.8$ black.(P.M.12) Only three relevant objections were raised, by Mr. Henrickson, to the clusters as modified. (10 Tr. 1507-1521) 21.2 First, Cluster 4 was challenged as "concealing" a "problem," namely effective desegregation of other schools resulting from the omission of Utica from Plaintiffs' modification. /l0 Tr. 1511-2,512 (Henrickson)/ On cross-examination Mr. Henrickson admitted that the "problem" of actual pupil desegregation for these other schools could be "solved," that all schools within Cluster 4 could be effectively desegregated, and that Cluster 4 was smaller than the Detroit Board Cluster 6. (10 Tr. 1516-1517) The objection was thus narrowed to the possibility that a suburban high school constellation feeder pattern might have to be split between two Detroit high school constellation feeder patterns in order to desegregate. /Io Tr. 1517(HenricksonJ/ Several of the Detroit Board’s clusters, however, also contain two Detroit high school feeder patterns (M.ll; M.14) 21.3 This objection, splitting an existing feeder pattern, was raised directly in reference to Cluster 12. (10 Tr. 1517-151®) In neither instance, however, did Mr. Henrickson suggest that the time or distance of ti’anspor- tation involved was too long or that it would present administrative diffi culty in devising a pupil assignment plan for either cluster. (10 Tr. 1518-1520) The objection relates solely to a matter of administrative convenience, namely the use of existing feeder patterns in preparing pupil assignments /5 Tr. 765-766(HenricksonJ/ For example, Mr. Henrickson previously admitted - 14 - that in drawing a pupil assignment plan, an alternative to use of existing feeder patterns would be to "wipe the slate clean/’ and disregard existing feeder patterns. (5 Tr. 766) In fact one of the State plans suggested use of census tracts as an alternative (M.5, p. 17).11 And more importantly, on numerous occasions in the past Mr. Henrickson himself has reassigned plrts of one feeder pattern to another school in order to relieve overcrowding and/or accomplish desegregation. (5 Tr. 765; 10 Tr. 1518) The objection to such practice, therefore, is admittedly insubstantial. 21.4 The third objection relates to the exchange of Detroit Northern for Detroit Murray in Clusters 6 and 15 requiring that the students trans ported, if they proceed on their entire journey by way of the expressway, encounter an interchange which tends to be rather slow-moving. (10 Tr. 1507-1510) Such transportation time and distance, however, is well within the rough criteria for reasonableness and is shorter than or comparable to the maximum trips required in the Detroit Board’s clusters. (10 Tr. 1518-1520) In other instances, Mr. Henrickson admitted that pupils in the Detroit pro posal might also have to travel through similar interchanges. (l0 Tr. 1514-1515) Moreover, the objection to this particular increase in travel time must be weighed against the apparent general decrease in time which would be required in Plaintiffs’ modified clusters as compared with the Detroit Board’s clusters. (10 Tr. 1518-1528; and compare P.M. 10 with P.M. 3 ) In any event the desegre gation team, based on its investigation of all aspects of pupil assignment, remains free to suggest a modification of these clusters in order to reduce the time and number of children requiring transportation. 21.5 With that caveat, the Court finds that Plaintiffs’ modification of the Detroit Board’s clusters provides a workable, practicable, and sound framework for the design of a plan to desegregate the Detroit public schools, C. Pupil Assignment and Transportation 22.1 Examples of various methods of pupil assignment to accomplish de segregation have been brought to the attention of the Court by the parties: pairing, grouping, and clustering of schools; various strip, skip, island * S i r - — q TJ t , COffimon practice in other cases is the use of "pupil locator" mans S Northcross y. School Board of City of Memphis _____F?2d_____ (6th Cir - 15 - and non-contiguous zoning; various lotteries based on combinations of present school assignment, geographic location, name, or birthday. /See e.g. E»C.2,3, 4, 5; M.12; M.17; P.M.10; 5 Tr. 463-467, 10 Tr. 15l8(Henrickson); M.5, P. 1l7 Judicious use of these techniques— coupled with reasonable staggering of school hours and maximizing use of existing transportation facilities— can lead to maximum actual desegregation with a minimum of additional transpor tation. /P.C.2, 3; 15 Tr. 763-767(Henrickson); 4 Tr. 445-457(Rankin); M.17; 2 Tr. Hearings re Intra-City Plans 123, 151-152, 159(Kuthy); Wagner Deposition, 3/22/72 pp. 24-24, et. seqJ 22.2 Quite apart from desegregation, under any circumstances, transporta tion for secondary pupils living more than l-l/2 miles, and elementary pupils living more than 1 mile from school, is often demanded by parents and should be provided. (P.C.2; cf. Wagner Deposition, 3/22/72, pp. 32-33, 90-91) Moreover, it is essential to the effectiveness of any desegregation plan that trans portation be provided free to all students requiring it under that criteria. /E.g., P.C.2; Brewer v. Norfolk Board of Education____F.2d_____ (April, 1972) (4th Cir.J7 23.1 In the recent past more than 300,000 pupils in the tri-county area regularly rode to school on some type of bus (P.M.19); this figure excludes the countless children who arrive at school in car pools, which are many, many times more dangerous than riding on the school bus. (Wagner Deposition, 3/22/1972, p. 33) 23.2 Throughout the state approximately 35-4°$ of &H students arrive at school on a bus. (Wagner Deposition, 3/22/72, p. 20) In school districts eligible for state reimbursement of transportation costs in the three affected "counties, the percent of pupils transported in 1969-70 ranged from 42 to 52$. (M-4, pp. 31-34) 23.3 In comparison approximately 40$, or 310,000, of the 780,000 children within the desegregation area will require transportation in order to accomplish maximum actual desegregation. Tr. 452-454(Rankin); 5 Tr. 694, 697, 744-745(Henrickson); M.lj/ 23„4 Hence, any increase in the numbers of pupils to be transported upon implementation of a complete desegregation plan over the number presently transported, relative to the state and the tri-county area, should be minimal. Indeed, any increase may only reflect the greater numbers of pupils who - 16 - would be transported in any event but for the state practice, which affected the segregation found in this case, and which denies state reimbursement to students and districts wholly within city limits regardless of the distance o f the child from the school to which assigned. (Ruling on Issue of Segregation at 14.) The greatest change is the direction of the buses. 24. There is uncontradictdd evidence that the actual cost of trans portation for a two-way plan of desegregation should be no greater than" JO 50 to 60 dollars per pupil transported, J comparable to the present costs per pupil throughout the state. f~ Tr. Hearings re Intra City Plans, 346(Foster); ____ Tr. Hearings re Intra City Plans 417(Smith); Wagner Deposition, 3/22/1972, pp. 56-57 and Exhibit 1; M.4 p. 297 Increases in the total costs of pupil transportation upon the public fisc in the tri-county area, therefore, will result primarily from providing all children requiring transportation a free ride instead of imposing the costs of transportation for many on the families.in districts which are ineligible for state reim bursement and which fail to provide transportation. (Cf. Exhibit 1, Wagner Deposition, 3/22/72; M4, p. 29) 25. By multiple use of buses, careful routing, and economies of scale resulting from a comprehensive system of pupil transportation, it may be possible to achieve savings in per pupil costs. 5 .g., Wagner Deposition, 3/22/72, pp. 24-25 et seq.; 2 Tr. Hearing re Intra City Plans 123, 151-152, 159(Kuthy_)7 For example in 1969-1970 many school districts in the tri-county area which used the same bus for even two loads per day lowered their par pupil costs to §40 or less. (Exhibit 1, Wagner Deposition, 3/22/72) In a 12 12For years these city-contained school districts, which includes some suburban districts in the desegregation area, as well as the Detroit Public Schools, have demanded without success that this inequitable state practice be changed so that all districts could be reimbursed on the same basis for pupil transportation. (Wagner Deposition, 3/22/72, pp. 32-33> 90-91) 13ijhe figure almost twice that which appears in several of the State "plans" (e.g. M.4, Appendix C) was based on the assumption that busing would be "one-way" with black children being assigned to suburban schools. Mr. Wagner, the state official in charge of pupil transportation, provided the information on which that estimate was based and also informed his superiors that a two-way plan of desegregation and transportation would cost much less per pupil. The State defendants did not bring this important fact to the Court's attention in any of their submissions; it was uncovered and fully explored in the deposition of Mr. Wagner taken by plaintiffs. (Wagner Deposition, 3/22/72, pp. 56-60) - 17 - \ coordinated, urban pupil transportation system it may be possible to raise the bus use factor to three or more. (3 Hearings re Intra-City Plans 3^7• See also "First Report" State Survey and Evaluation) 26.1 3n the tri-county area in the recent past there were approximately 1,800 buses (and another 100 smaller vans) used for the transportation of pupils. (P.M. 19; See also M.4, p. 35) Assuming a rough average of 50 pupils per bus carrying three loads of students per day, this transportation fleet may prove sufficient to carry some 270,000 pupils. 26.2 Various public transit authorities now transport an additional 60,000 pupils on their regular public runs. (P.M.19) 26.3 The degree to which these plausible bus-use factors can be realized to their maximum^and whether these public transit facilities may be fully utilized in a plan of desegregation, must be answered upon careful investi gation by a team of experts. 26.4 There is no disagreement among the partieSj and the Court so finds, that additional transportation facilities, at least to the number of 350 buses, will have to be purchased to meet the increase in the number of students who should be provided transporation for either an interim or final plan of desegregation. 26.5 For all the reasons stated heretofore— including time, distance, and transportation factors— desegregation within the area described is physi cally easier and more practicable and feasible, than desegregation efforts limited to the corporate geographic limits of the City of Detroit, ^Compare Findings and Conclusions on Detroit-Only Plans of Desegregation p. 3, pp.3-6; and see, generally, 2 Tr. Hearings re Intra-City Plans 119, et seq.(Kuthy)7 27. The issue of transportation of kindergarten children, and their inclusion in part or in full in the desegregation plan, may require further study. There was general agreement among the experts who testified that kindergarten, but for "political" considerations, should be included, if practicable, in the desegregation plan. /See, e.g., 2 Tr. 210-211(Morshead); 6 Tr. 900-902(Flynn); 8 Tr. 1177(FosterJ/ Kindergarten, however, is generally a half-day program. Transportation of kindergarten children for upwards of 45 minutes, one-way, does not appear unreasonable, harmful, or unsafe in any way. In the absence of some compelling justification, which does not yet appear, kindergarten children should be included in the final plan of desegregation. - l8 - t 28. Every effort should be made to insure that transportation and reassignment of students to accomplish desegregation is "two-way" and falls as fairly as possible on both races, (e.g. P.C. 2; M.2; M.10; M.4 p.iii) Although the number of black and white children transported and reassigned at the outset will be roughly equal, it is inevitable that a larger proportion of black children will be transported for a greater proportion of their school years than white children, if transportation overall is to be minimized. /3 Tr. 454-455(Rankin)/ To mitigate this disproportion, every effort should be made at the outset to randomize the location of particular grade centers. /E.g., P.C.2; M.17; 3 Tr. 454(Rankin); 8 Tr. 1176-1177(FosterJ/ la the short term^ full utilization of vastly undercapacity inner-city schools may also help to mitigate the disproportion for some black children jZ Tr. 768-769(Henricksonjjj and in the long term, new school capacity, consistent with other constitutional commands and the overall needs of the desegregation area and the surrounding areas, should be added in Detroit,in relative proximity to concentrations of black student residence. jZ Tr. 770-771 (Henricksonj/ D. Restructuring of Facilities and Reassignment of Teachers 29. In the reassignment of pupils to accomplish desegregation, there is uncontroverted evidence, and the Court so finds, that facilities must be substantially reallocated and faculty substantially re-assigned by reason of the clustering, pairing and grouping of schools. /E.g., ____ Tr. re Intra City Plans 586-587(Rankin); 9 Tr. 1345-1348(Rankin); 5 Tr. 782(Henrickson] J 30* In order to make the pupil desegregation process fully effective there is uncontroverted evidence, and the Court so finds, that it is essential to integrate faculty and staff end to insure that black faculty and staff representation at every school is more than token. /~E.g., P.C.2; ____ Tr. re Intra-City Plans, 312, 353(Foster); _____Tr. re Intra-City Plans 495-496 (Guthrie); M.10, p. 33-34; M.4, p. 22; M.5, p. 20; M.2; 9 Tr. 1342-1343, 3 Tr. 470-471(Rankin); 5 Tr. 782(Henricksonj/ 31. In the desegregation area approximately 16$ of the faculty and 12$ of the principals and assistant principals are black. (P.M.l8) In this con text "token" means roughly less than 10$ black. /9 Tr. 1348-1350(Rankin)7 Moreover, where there is more than one building administrator in any school, a bi-racial administrative team is required wherever possible. (P.C.2) 32. There is uncontroverted testimony that every effort should he made to hire and promote, and to increase such on-going efforts as there may he to hire and promote, additional black faculty and staff. Because of the systematic and substantial under-employment of hlack administrators and teachers in the tri-county area, (P.M.l8) an affinnative program for black employment should he developed and implemented. /P.C.2; M.10; 9 Tr. 1351-1352(RankinJ/ 33. The rated capacity of classrooms in the Detroit public schools is 32; in some of the suburban districts the average rated capacity is as low as 24 or 25. /5 Tr. 770(HenricksonJ7 Utilization should be redetermined on a uni form basis. 35. In respect to faculty and staff, school facilities, and the utilization of existing school capacity, normal administrative practice in handling the substantial reallocation and reassignment incident to pupil desegregation should produce schools substantially alike. /See, e.g., 5 Tr. 782(HenricksonJ/ 36.1 In the circumstances of this case, the pairing, grouping and clustering of schools to accomplish desegregation with minimum transportation often requires use of grade arrangements such as k-4, k-5 or even k-6. (E.g., P.C.2; M.17) In so planning pupil reassignments, it is sometimes necessary, and often as administratively practicable, to include grades k-8 or even k-9 to achieve the maximum actual desegregation with the m-in-iimur; transportation/E.g., 8 Tr. 1176(Foster); 9 Tr. 1335-1338(Ranking; and each of Mr. Henrickson’s plans and examples of pupil desegregation are so constructed. (P.C.2; M.17; M.l8) And none of Mr. Henrickson*s plans or examples is limited to grades 4-6. (EC.2; M.17; M.l8) /Grade structures in most elementary schools in the desegregation area is a basic k-6; however, almost all other combinations are found. They differ within and among various districts. (P5.M. 13, 14jj 36.2 In the reassignments of pupils and teachers and the reallocation of equipment and facilities required to accomplish desegregation, the ele mentary grades and schools present relatively few administrative difficulties, while the high school grades and facilities present the greater difficulties , particularly with respect to scheduling and curriculum. (Detroit Board Witnesses) - 20 - 3^.3 For these reasons, if it develops that interim choices must be made because of the impossibility of immediate desegregation of all grades, schools, and clusters in the desegregation area, the weight of the evidence is, and the Court so finds, that desegregation should begin first at the earliest grades for entire elementary school groupings throughout as many clusters as possible. /Cf., 6 Tr. 909(Flynn); 9 Tr. 1391-1392(Rankin)/ E. School Construction 37. Relative to suburban districts the Detroit public schools, as a whole, are considerably over-capacity. 0 Tr. 770(llenrickson); See also Finding 33 supra7 To alleviate this overcrowding, equalize rated capacity and minimize and equalize transportation burdens borne by black pupils in the City, needed new school capacity, consistent with other requirements of a desegregation plan, should be added on a priority basis in the City of Detroit. 0 Tr. 770-771(HenricksonJ/ 38. Relevant to the Court's choice of a desegregation area more limited than the Detroit Board Proposal is the testimony, elicited on cross-examination from two of the primary authors of that proposal, related to the effects of controlling new school construction. 0 Tr. 1023-1024 (Flynn); 5 Tr. 768(Henricksonj/ The broader area in the Detroit proposal was chosen without any real consideration of the impact of controlling school construction in an area larger than the desegregation area. 0 Tr. 1023(Flynnj7 Upon reflection, both Dr. Flynn and Mr. Eenrickson admitted that closely scrutinizing and limiting the addition of capacity to areas . outside the desegregation area might lead them to re-evaluate the need, in the context of maintaining now and hereafter a unitary system, to include an area as sweeping as recommended by the Detroit Board proposal. 0 Tr. 1023(Flynn); 5 Tr. 769-770(Henrickson)7 39.2 In our Ruling on Issue of Segregation, pp. 8-10, this Court found that the "residential segregation throughout the larger metropolitan area is substantial, pervasive and of long standing" and that "governmental actions and inaction at all levels, Federal, State and local, have combined with those of private organisations, such as loaning institutions and real estate associations and brokerage firms, to establish and to maintain the pattern of residential segregation throughout the Detroit metropolitan area." We also rI - 21 - noted that this deliberate setting of residential patterns had an important effect not only on the racial composition of inner-city schools but the entire School District of the City of Detroit. Ruling on Issue of Segregation at Just as evident is the fact that suburban school districts in the main contain virtually all-white schools. (E.g., P.X. l8l, 182, 185; P.M. 13, P.M.14) The white population of the city declined and in the suburbs grew; the black population in the city grew, and largely, was contained therein by force of public and private racial discrimination at all levels. (E.g. P.X. 16A-16D; P.X.184; P.M.15. See also Puling on Issue of Segregation. ) 39.3 We also noted the important interaction of school and residential segregation: "Just as there is an interaction between residential patterns and the racial composition of the schools, so there is a corresponding effect on the residential pattern by the racial composition of schools." Ruling on Issue of Segregation at 10. Cf. Swann v. Charlotte-Mecklenherg, 402 U.S. 1, 20-21(1971): "People gravitate toward school facilities, just as schools are located in response to the needs of people. The location of schools may thus influence the patterns of residential development of a metropolitan area and have important impact on composition of inner city neighborhoods." 39.4 Within the context of the segregatory housing market, it is obvious that the white families who left the city schools would not be as likely to leave in the absence of schools, not to mention white schools, to attract, or at least serve, their children.14 Tr. 769-770(Henricksonj/ Inmigrating families were affected in their school and housing choices in a similar manner. Between 1950 and 1969 in the tri-county area, approximately 13,900 "regular classrooms," capable of serving and attracting over 400,000 pupils, * were added in school districts which were less than 2$ black in their pupil racial composition in the 1970-71 school year. (P.M. 14; P.14.15) 39.5 The precise effect of this massive school construction on the racial composition of Detroit area public schools cannot be measured. It is 14This phenomenon was noted in Swann, 402 U.S. 1, 20-21(See 39*3 supra.) The principle was long known, and actively, supported by the F.H.A. For example, consider that public agency's early understanding in its 1936 manual that white subdivision developments require white schools: "if the children of people living in such area are compelled to attend school where the majority or a good number of the pupils represent a far lover level of society or an incompatible racial element, the neighborhood under consideration will prove far less stable and desirable than if the condition did not exist." (P.X. 56B) 14,1This figure assumes 30 children/regular classroom. Although rated capacities may be lower, the figure for regular classrooms does not include several types of instructional, recreational, laboratory, and other rooms which add overall pupil capacity to schools. (P.M.15) - 22 - clear, however, that the effect has been substantial.^4*^ Unfortunately, the State, despite its awareness of the important impact of school con struction and announced policy to control it (P.X. 19), acted "in keeping, generally, with the discriminatory practices which advanced or perpetuated racial, segregation in these schools," Ruling on Issue of Segregation at 15; see also id,, at 13. 39.6 In addition to the interim reewOLuation of new school construction required in the order, pursuant to the State Board's own requirements, the final plan will consider other appropriate provisions for future construction throughout the metropolitan area. F. Governance, Finance, and Administrative Arrangements 40.1 The plans submitted by the State Board, the Detroit Board, and the intervening defendants Magdowski, et al., discuss generally possible 15governance, finance, and administrative arrangements which may be appro priate for operation of an interim or final plan of desegregation. (M.2; M.5; M.10) Without parsing in detail the interesting, and sometimes sensible, concepts introduced by each plan, it is sufficient to note that each con templates overlaying some broad educational authority over the area, creating or using some regional arrangement (with continued use or eventual redrawing of existing districts), and considerable input at the individual school level. The Court has made no decision in this regard and will consider the matter at a subsequent hearing. 14 15 14*^Ehe resulting pattern is unmistakable: "Residential segregation within the city and throughout the larger metropolitan area is substantial, perva sive and of long standing. Black citizens are located in separate and distinct areas within the city and are not generally found in the suburbs. While the racially unrestricted choice of black persons and economic factors may have played some part in the development of this pattern of residential segrega tion, 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. Perhaps the most that can be said is that all of them /various governmental units7 , including school suthorities, are, in part, responsible for the segregated condition which exists." Ruling on Issue of Segregation 8 and 10. Moreover, an examination of PX l8l, 182 and 185 shows that black children often remain isolated in predominately black schools in the few suburban school districts with any numbers of black pupils. In the last several weeks the local press has reported that the United States Office of Education cut off funds for one such district. 15Included in this set of arrangements are contract relationships of various types concerning personnel, property, and debts. - 23 - 40.2 Each concept needs to he "fleshed-out" in the hard prospect of implementation of a final plan of desegregation and what is necessary and essential, and only that, for the successful operation of that plan of school desegregation now on an interim basis and hereafter on a permanent footing. 41.1 There are now some 86 school districts in the tri-county area of varying size, numbers of pupils, shapes, and wealth. (E.g., P.M.2; P.M. 13; M.13) 41.2 In another context, the State Board of Education found each related to a "metropolitan core city" (Detroit) as "city," "town," or "urban fringe" districts. (M.1 3 ) 41.3 The boundaries of these school districts in general bear no relation ship to other municipal, county, or special district governments, needs or services. /E.g. M.2; 2 Tr. Hearings re Intra-City Plans(Marz); 8 Tr. 898-9 (Flynn); Porter Deposition, 3/23/72 p. 95-57.7 41.4 Some educational services are already provided to students on an interdistrict, county, inter-county, or metropolitan basis (E.g., Porter Deposition, 3/23/72, p. 93-95; See also Wagner Deposition, 3/22/72 pp. 10-16); and many support services are provided by the intermediate school districts and the State Department of Education, /E.g. Porter Deposition, 3/23/72, pp. 93-95; M.10, p. 22-23; 5 Tr. 656(Rankin j7 For various reasons many pupils already cross school district lines to attend school or receive educational 15,1services. (E.g., Porter Deposition, 3/23/72, pp. 93-95) 42.1 In many respects— patterns of economic life, work, play, popula tion, planning, transportation, health services — the tri-county area con stitutes a rough series of interrelated communities constituting, in the view of the United States Census Bureau, a single standard metropolitan statistical area. /E.g., 2 Tr. Hearings re Intra City Plans(Marz); 2 Tr. Hearings re Intra City Plans(Kuthy); See also 6 Tr. 893(Flynn)/ 42.2 Local units of government in the metropolitan 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 disregarded .local boundaries or have concluded that the problems were such as to call for a metropolitan solution. In some cases they have created overlay organizations. SEMC00, recreational authorities, a metro politan sewage system, SUITA, and the Detroit Water System are examples of these metropolitan approaches. /E.g., 2 Tr. Hearings re Intra City Plans (Marz); (Kuthyj/ ' I5T* For years black children in the Carver School District were assigned to black schools in the inner city because no white suburban district (or white school in the city) would take the children. /8 Tr. Hearings re Issue of Segregation 885; 11 Tr. Hearings re Issue of Segregation 1259-60 (1959 Boundary Bui do Book); D rudder Depositions 3/ll/71, p. 1 3 , 6/?8/71, P. 48.7 Inched, the State defendants at this very moment are attempting in state court to strike down one irrationality, and discriminatory effect, of the existing school district arrangement, i.e., finance, apparently in the hope of moving to a virtual state-wide assumption of costs. (Cf. M.8; Ruling on Issue of Segregation at 14 . ) 43. In such circumstances there has been no showing that the existing school district boundaries are rationally related to any legitimate puipose; and the Court finds that the particular welter of existing boundaries for 86 school districts is not necessary to the promotion of any compelling state interest. 44. on the basis of the present accord, the Court is of the view that the shifts in faculty, staff, resources and equipment and the exchanges of pupils necessary to accomplish maximum actual desegregation may be made, at least on an interim basis, by contractual agreements or otherwise among and between the existing school districts. /E.g. 3 Tr.(Rankin); 8 Tr. 1178-1179(Foster); 2 Tr. 217(Morshead_)7 The Court has serious reservations, however, whether such procedures will inevitably threaten the continuing effectiveness of a plan of desegregation over the long-term. ^E.g., 8 Tr. ll8o(Foster); M .5/ On these issues more evidence and further hearings will be necessary before reaching a final decision. 45. The State defendants, and in particular the State Board of Education which is charged with the primary responsibility for public education in Michigan, are the primary parties to be charged with responsibility to under take that vital inquiry and return with recommendations about those governance, fianancial, and administrative arrangements which are necessary and essential to t}- successful implementation of a plan of desegregation on an interim and continuing basis. G. Involvement of Affected Persons and Communities and Protection Against Racial Discrimination in the Desegregation Process Ccurt }las received uncontroverted evidence in the plans filed by every party and in testimony, and advice in several briefs amicus curia.e, and the Court finds, that the following additional factors are essential to implementation and operation of an effective plan of desegregation in the circumstances of this case: (a) Biracial councils made up of the parents and staff, and where appropriate pupils, should be set up at each school; the per sons most affected must be encouraged and given every opportunity to participate in the implementation of desegregation. - 25 - (c) (b) Curriculum content, and all curriculum materials and student codes, must be re-evaluated and reflect the diversity of s ^ o L r ^Ural backSrouDds the children now in the schools. Insofar as possible, those immediately affected f C<1SiCr at ^ individual school levellhouS participate in that process. In-service training for faculty and staff for multi-ethnic hr an relations Should be required; we must, all, rely primarily on our teachers and children to nreSrt’inUt'bU^^, dfial With the diversity of students present in the desegregated school. The entire grading, reporting, counselling, and testing program should be reviewed in light of desegregated schools comparea to traditional schools and to avoid imposing the effects of past discrimination on the children.' Tracing ^ s H o t ' b e ^ n 6" 7 1 teSt> * * racial^!fects are substantSi’i'12^ ' schools a pattern of classes whichS L t a n t i a H y disproportionate in their racial composition relevant school or grade mix should be closely comnellin^ 7* ^ intained only if necessary to promote a compelling educational objective. /pee, e.g., K.5; M.8; M.10; P.C.2; and the testimony m various hearings on remedy of Guthrie, Foster, Rankin, Flynn, and KorsheadJ (a) ■ 111 “akln« m e flndlnS above, we remind the parties that this “r s ash is to enforce constitutional rights not to act as a school- m s er; the Court's task is to protect the constitutional rights here found “ ; s r ie intrusio0 int° * • — - possihie vithin whi h° r 1TC 13 t0 eStabllEh 4110 SiHiSia constitutional framework " iCh Of public schools may operate now and hereafter t h e " b T aT Uaifled’ noa-dlE=rl“ibatoiy fashion. Within that framework the body politic, educators, parents, and most particularly the children “ opportunity to experiment and secure a high J a m , I c L er atl0nal °PPOTt"nlty- experience has proven that specific goals, deadlines and methods of reporting and review must be re quired in all desegregation cases to insure compliance. K. Timing « ' r 7 bU1'Jen rei5aiOS Slth Stote defendants to show why desegrega. tren lor all schools, grades, classrooms, and pupils in the desegregat on area should not proceed now, l.e., in the context of this litigation for f^r T T tGCT‘ ^ deSlED “ d f^e-ntation of desegregation ^lans « n t of C l ln ” ClUSterS' ^ ClUdinE P“P U - s l a n t s , necessary reassigi y &nd rcstructuring of facilities, planning and acquiring the ' needed transportation facilities--!, conceded by all parties to be a mjaor un ,ra g. /See, e.g., 8 Tr. U7T(Fosterj7 Yet next fall will already - 26 - be a full year, not just four or six or even eight weeks, Cf. Carter v. West Feliciano Parish School BA., 396 U.S. 290(1970), after the initial ruling by this Court of the need for maximum feasible desegregation "now." In such circumstances the burden to prove the infeasibility of implementation of complete relief is high. 49.1 The desegregation team, therefore, must make every effort to plan to implement as much actual desegregation, for as many clusters, schools, grades, classrooms, and students as possible. 49.2 At a minimum, there is agreement among, and uncontroverted evidence from, the experts that desegregating several grades, and more particularly entire elementary schools, within many;if not all, clusters may be accomplished in the fall. /See, e.g., 8 Tr. 1177(Foster); 9 Tr. 1333-1338(Rankin); M.2? 49.3 la view of findings 36.1 to 36.3 supra, if hard choices must be made for the fall, any interim plan should attempt to desegregate grades k-6, k**8, or k-9 in as many entire clusters as possible; and, in the absence of some other showing, there appears no reason why a complete plan may not 1 c be implemented at mid-year or at the very latest by fall 1973. 50. A heavy burden rests with those who seek delay in any way, shape, kind, degree or extent to convince the Court that maximum actual desegrega tion cannot proceed effectively forthwith. 51. In view of the time constraints, the need to discharge this burden forthwith, the State defendants’ default in assisting this Court to determine the appropriate desegregation area, and the State defendants' asserted and evident lack of available planning capacity suited to the task, the Court finds that some additional entity must be charged with the task of preparing a pupil assignment plan to accomplish maximum actual desegregation and a transportation plan within the framework this day established. To that end a team of skilled experts, broadly representative of all the parties and interests (including State defendants), appointed by the Court and assigned that task, is requir d to discharge effectively and pre :ptly these two tasks. These findings are made on the basis of the present record and are subject to modification based on evidence which may be developed once the specific problems of actual desegregation are faced in the planning process. - 27 - 52. State Defendants remain charged with the duty, however, of coining forward with other necessary reports and plans concerning those governance, administrative, and financial arrangements necessary and essential to the implementation of an effective plan of desegregation on an interim and on-going basis. I. The Plan 53. Based on the entire evidence amassed in this case, the Court finds that an educationally sound, administratively feasible, constitutionally adequate, practicable and effective plan of desegregation may be developed, implemented and operated hereafter for the desegregation area as set forth in findings 1-52 above. Conclusions of Law 1 . The Court has continuing jurisdiction of this action for all purposes, including the granting of effective relief. Bradley v. Milliken, Ruling on Issue of Segregation, September 27, 1971; Findings of Fact and Conclusions of Law on Detroit-Only Plans of Desegregation, March 28, 1972. 2. A dejure segregation violation having been found, the minimum remedy is maximum actual desegregation, taking into account the practicalities of the situation. Bradley v. Milliken, Oral Order, October 4, 1971; Findings of Fact and Conclusions of Law on Detroit-Only Plans of Desegregation, March 28, 1972; Brown v. Board of Education, 347 U.S. 483(1954), 349 U.S. 294(1954); Green v. County School ?.a„, 391 U.S. 430(1968); Alexander v. Holmes County Bd. of Ed., 396 U.S. 19 (1969); Carter v. West Feliciano School Bd. 396 U.S. 290(1570); Swann v. Charlotte Mecklenberg Bd. of Ed., 402 U.S. 1(1971); Davis v. Board of School Commissioners of Mobile, 402 U.S. 33(1971); Davis v. School District of City of Pontiac, 443 F.2d 573, cert, den. 925. Ct. 233(1971). 3. The remedial obligation rests with school authorities; but where in any way they fail, or are unable because of the circumstances of the case, to fulfill any part of the obligation promptly and fully, the Court has broad equity power, and the duty, to insure that demonstrable progress be made now; that a schedule for planning be adopted forthwith; and that necessary planning be specifically ordered and immediately undertaken (including by a master or expert team appointed by the Court) in order that a constitutionally adequate plan may be fashioned and finally ordered implemented as soon as possible. Swann ve Charlotte-Hecitlenberg Board of Education. 311 F.Supp. 265(W.D.H.C. 1970), aff'd 402 U.S. l(l97l); Carter v. West Feliciano School Bd., 396 U.S. 226, 227-228(1969), 396 U.S. 290(1970); Acree v. County Board of Education, Ho. 72-121l(5th Cir. March 3 1, 1972); Rule 53, F.R.Civ.P.; P.A.R.C. v. Pennsylvania. 334 F. Supp. 1247, 1266-7 (E.D.Pa. 1971) Only then will the Court in -this case be apprised fully of the practicalities of the situation, and what is reasonable and feasible, in order that a final order may issue. School authorities, of course, will he given an opportunity to (l) raise relevant objections, (2 ) make suggestions for modifications, (3 ) or present an alternative plan of desegregation; and their judgment and expertise will be considered end given appropriate weight hy the Court. - 29 - 4. Funds must either be raised or reallocated, where necessary, to remedy the deprivation of plaintiffs' constitutional rights and to insure that no such unconstitutional neglect recurs again. Shapiro v, Thomason. 397 U.S. 254, 265-266(1970); Boddie v. Connecticut. 91 S.Ct. 780, 788(19 7 1); Griffin v. Illinois, 351 U.S. 12(1956); Graham v. Richardson. 403 U.S. 365, 374-375(1971); Mayer v. Chicago, 404 U.S. 189 197(1971); Griffin v. Prince Edvard County, 377 U.S. 218(1964); Hoosier v. Evans, 314 F.Supp 316, 320-321 (D.St. Croix, 1970); United States v. School District 151. 301 F.Supp. 201, 232(N.D.111. 1969), aff’d as modified, 432 F.2d 1147(7th Cir. 1970), cert, den. 402 U.S. 943(1971); Plaquemines Parish School Board v, U.S., 415 F.2d 319(5th Cir. 1970); Bradley v. Richmond, _____F.Supp._____(April 1971); Brewer v. Norfolk. No. 71-1900 (4th Cir., March 7, 1972)(Slip. op. at pp. 7-8). It would be a cruel mockery of constitutional law If a different rule were to be applied to school desegregation cases. After all schooling is this nation's biggest industry and the most important task of government left to the states by the Constitution. In this case, were a different rule to be applied, it would constitute a gigantic hypocrisy: After all the treasure which has been spent over the years creating and maintaining the segregated condition, the relatively small amounts of money required to undo that segregation can be found. The law, surely, requires at least that. And the application of the commands of Swann does require that in almost every school desegregation case which has been brought to this Court's attention. 5. In the substantial reassignment of faculty and restructuring of facilities required by the clustering, pairing, and grouping of schools to accomplish pupil desegregation, normal administrative practice should lead to 1 schools with substantially like facilities, faculty and staff, and equipment. Swann, supra, 402 U.S. at 18-20. Moreover, special care should be taken in the necessary reassignment of faculty to avoid creating or maintaining the racial identification of schools "simply by reference to the racial composi tion of teachers and staff." Swann, supra, 402 U.S. at 18. In any event, the equitable discretion of the court is broad enough to insure that those aspects of faculty desegregation and equalisation of facilities which are essential to the effective operation of a desegregation plan are included in the planning and final order, Swann, supra, 402 U.S. at 15; U.S. v, Montgomery County Board Q-' Ed., 395 U.S. 225(1969); Hecht v. Bowles, 321 U.S. 329-330 (1944); and no contract, union agreement or otherwise, or Board policy or practice may impede these Fourteenth Amendment obligations. U.S. v. Greenwood Municipal Separate School District, 406 F.2d 1086, 1094(5th Cir.), cert. den. 395 U.S. 907(1969); Berry y, Benton Harbor, _____F.Supp._____(W.D.Mich. 1971). 6. The Federal Courts have repeatedly rejected plans exempting the lower grades from integration, relying less on educational data than upon the hard legal fact that segregation at any age is a denial of the equal protection of the law. See e.g., United States v, Jefferson County Bd, of Educ., 372 F.2d 836(9th Cir., 1966), aff’d. on rehearing en banc, 380 F. 2d 385(5th Cir. 1967). To leave grades K through 3 exempt from a desegre gation plan is not to eliminate segregation "root and branch." Grean v. County School Board of Hew Kent County, 391 U.S. 430(1968). 7. The consistent application of settled constitutional law invests this Court with the equitable power, and the duty, to order preparation, and thereafter implementation^of a practicable and sound plan which embodies the principles set forth in these findings and conclusions and the attached memorandum and order. See, generally, Ruling on Propriety of Considering a Metropolitan REmedy to Accomplish Desegregation of the Public Schools of the City of Detroit, March 24, 1972; Findings of Fact and Conclusions of Law on Detroit-only Plans, March 24, 1972; oral ruling on offers of proof, 10 Tr. 1485-1492, April 13, 1972; and the cases cited therein. 8. School construction practices throughout the metropolitan area have added to and reinforced the pattern of segregation referred to. Although there were vacant seats throughout the city to which students could have been assigned at lesser cost and with the achievement of integration, continued sums were expended for construction of new schools designed to service particular areas of racial concentration, and such schools opened as and have continued to be racially identifiable in violation of the Fourteenth Amendment. Swann v, Charlotte-Mecklenberg Bd. of Educ.. 40 U.S. 1, 18-20(1971); United States v. School Dist. 151. 404 F.2d 1125, 1132-33(7th Cir. 1968); Davis v. School Dist. of Pontiac, 309 F.Supp. 734, 7*1-42(E.D. Mich. 1970), aff'd 443 F.2d. 573(6th Cir. 1971); Spangler v. Pasadena City Bd, of Educ,, 311 F.Supp. 501, 517-18(C.D. Cal. 1970); Johnson v. San Francisco Unified School Dist., Civ. No. C-70-L33l(N.D. Cal. April 28, 1971); Brewer va School Board of the City of Norfolk, 397 F.2d 37, 42(4th Cir. 1968); ef. Sloan v, Tenth, School Dist. of Wilson County, ____F.2d____, (6th Cir. 1970); United States v. Board of Educ, of P,,lk County. ____F.2d____(5th Cir. 1968); Kelley v,_ Altheimor, ____F.2d____(8th Cir. 1967); Bradley v. School Bd., ___ F.Supp (E.D. Va. 1971); Clark v. Board of Edue. of Little Rock, 401 U.S. 971(1971). - 31 - 9. The legal effects of racially discriminatory confinement to a school district are not different from the effects of such containment within a district. E.g., Lee v. Macon County Board of Education. 448 F.2d 746(5th Cir. 1971); Haney v. County Board Sevier, 410 F.2d 920(8th Cir. 1969), 429 F.2d 364(8th Cir. 1970). 10. Where the actions of state defendants and local school authorities throughout the metropolitan area have had the natural, foreseeable, and actual effect of building upon, taking advantage of, and encouraging racially segre gated demographic patterns deliberately fixed by governmental action at all levels with the effect of creating and maintaining racial segregation in the public schools, there is a present obligation to eliminate the continuing effects of such violation; and the District Court has the duty, upon default by school authorities, to intervene to secure compliance with the Constitution pursuant to the sound exercise of traditional equity powers consistent with the practicalities of the local situation. Swann v. Charlotte-Mecklenburg, 402 U.S. 1, 15-16, 20-21, 31-32(1971). Cf. Findings of Fact and Conclusions of Law on Detroit-Only Plans of Desegregation, p. 5, Conclusion 4. In devising remedies where state-imposed segregation has been established, it is the responsibility of school authorities and district courts to see to it that future school construction and abandonment is not used and does not serve to perpetuate or re-establish the violation. Swann, supra, 402 U.S. at 21. 11. Moreover, where the State, and nam defendants, are substantially implicated in the segregation violation found and are ultimately responsible for public schooling throughout the state, the consistent application of constitutional principles requires that this Court take all steps necessary and essential to require them to desegregate the Detroit public schools effectively and maintain, now end hereafter, a racially unified, non-discrimin atory system in the absen-e of a showing that the judicial intervention here contemplated will frustrate the promotion of a legitimate and compelling state policy or interest. Reynolds v. Sims, 377 U.S. 533, 575(1964); Hunter v. City of Pittsburg, 207 U.S. l6l, 178-179(1907); Phoenix v. Kolodziejski, 399 U.S. 204,212-213(1970); Kramer v. Union Free School District, 395 U.S. 621, 633 (l9o9); Williams v. Illinois, 399 U.S. 235, 244-45(1970); Shelton v. Tucker, 364 U.S. 479, 488(1906); Green v. County School Bd., 391 U.S. 430, 439, 442;Swann v. Chariot.,e-Mecklenburg, 402 U.S. l(l97l); Davis v. Bd. of School Commissioners, 402 U.S. 33(1971); Brown v. Board of Education, 347 U.S. 483 (1954); Brown v. Board of Education, 349 U.S. 292, 30U (1955); Monroe v. Board of Commissioners, 391 U.S. 450, 4-59(1968). - 32 - Respectfully submitted, WILLIAM E. CALDWELL Ratner, Sugarmon & Lucas 525 Commerce Title Building Memphis, Tennessee 38103 NATHAI'JIEL R. JONES General Counsel, N.A.A.C.P. 1790 Broadway New York, New York 10019 E. WHETHER McCROOM 3245 Woodbum Avenue Cincinnati, Ohio 45207 JACK GREENBERG NORMAN J. CHACHKIN 10 Columbus Circle New York, New York 10019 J. HAROLD FLANNERY PAUL R. DIMOND ROBERT PRESSMAN Center for Law & Education Harvard University Cambridge, Massachusetts 02138 CERTIFICATE OF SERVICE This is to certify served upon all counsel pre-pald. that a copy of the foregoing has been of record by United States mail, postage May 5, 1972