Plaintiff's Opposition to Writ of Certiorari (Draft)

    COUNTER-STATEMENT OF THE ISSUE PRESENTED

As set forth more fully hereafter, respondents Bradley, 

et al. (plaintiffs in this cause), submit that this classic 

school segregation case is not in an appropriate posture for 

Supreme Court review.

Basically, the petitioners seek review of interlocutory 

remedial orders in advance of the framing and adoption of a 

remedial plan after hearings in the trial court. The Court of 

Appeals has affirmed the findings of constitutional violation, 

directed that plaintiffs amend their complaint to conform to 

the evidence, and ordered that a full hearing on remedy be 

held and that the Michigan State Legislature be given an 

opportunity to act before any final plan is selected by the 

District Court. Proceedings are underway in the District Court 

in compliance with those directions.

In such circumstances, this Court cannot properly consider 

the very issues —  for example, the practicalities of the local 

situation relative to remedy, the effectiveness of the alter­

native plans available, the extent of transportation required, 

the scope of the remedy compared to the violation, and the 

precise manner in which school district boundaries need be

permeated for the limited purpose of accomplishing relief —  which



are essential to review in a case like this. In the present

posture, only one issue possibly can be considered by this Court

(and that only within the limitations imposed by an incomplete

record with no remedial plan nor full hearing on remedy):

May local and intermediate school district 
boundaries fashioned by the State serve as an iraipK 
impenetrable barrier so as to defeat otherwise 
constitutionally required school desegregation?

COUNTER-STATEMENT OF THE CASE

In critical particulars the petitioners' statements of

the case are inaccurate and incomplete, and thereby fail to

provide this Court with a basis for understanding what has

transpired below and the present posture of the case. We,

therefore, make the following counter statement of the case:

A . Preliminary Proceedings

Plaintiffs commenced this action over three years ago,

August 18, 1970, against the Detroit School Superintendent and

Board of Education, the Michigan State Superintendent of Public

Instruction and the State Board of Education, the Governor and

1/Attorney General, challenging the de jure segregation of the

Detroit public schools resulting from historic public policies,

practices and actions. Plaintiffs sought complete and lasting

— / The Detroit Federation of Teachers and a group representing 
white homeowners within Detroit intervened as parties defendant.

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relief from that segregation, which kept well over 125,000 black

children in virtually all-black schools segregated from white 

children in virtually all-white schools.

The filing of the complaint was precipitated by the State 

of Michigan's then most recent direct imposition of school 

segregation on these black and white children: exercising the

State's plenary power over schools, the Legislature had acted 

with unusual dispatch following a Detroit Board vote in favor 

of an experimental, small-scale, high school desegregation attempt. 

It passed Act 48 of 1970, which (1) reorganized and decentralized 

the Detroit School District; (2) created racially discrete 

regional sub-districts; (3) revalidated the external boundaries 

of the Detroit School District; (4) nullified the previous 

desegregation incentive of the Detroit Board; and (5) interposed 

for all pupil assignments within Detroit, criteria which [as 

later found by the District Court] "had as their purpose and 

effect the maintenance of segregation." ((28a) )

Which appendix?

Plaintiffs prayed for a preliminary injunction to rein­

state the partial plan of high school desegregation adopted by 

the Detroit Board but thwarted by Act 48, pending a full hearing 

on the merits. After a preliminary hearing, the District Court

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denied all preliminary relief and dismissed the Governor and 

Attorney General by ruling and order of September 3, 1970. On 

plaintiffs' appeal the Court of Appeals for the Sixth Circuit 

affirmed the denial of preliminary relief but held Act 48 

unconstitutional insofar as it either h nullified the initial 

steps taken by the Detroit Board to desegregate high schools or 

interposed segregative general pupil assignment criteria. The 

Court also directed that the Governor and Attorney General 

remain parties defendant. Bradley v. Milliken, 433 F.2d 897 

(6th Cir. 1970).

On remand, the plaintiffs sought again to require the 

immediate implementation of the Board's high school plan as a 

matter of interim relief to remedy the mischief created by the 

enactment of the unconstitutional statute without determination 

of the more general issues raised in the complaint. The 

District Court permitted the Detroit Board of Education to 

propose alternative plans and approved one of them (which later 

proved upon implementation to be wholly ineffective); plaintiffs 

again appealed, but the Court of Appeals remanded the matter 

"with instructions that the case be set forthwith and heard on 

its merits," stating:
"The issue in this case is not what might be a 
desirable Detroit school plan, but whether or not 
there are constitutional violations in the school 
system as presently operated, and if so, what

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relief is necessary to avoid further impairment 
of constitutional rights." 438 F.2d 945, 946 
(6th Cir. 1971) (emphasis supplied).

B. Hearings on the Question of Constitutional Violation

On April 6, 1971, as directed, the District Court began

the reception of proof on the subject of constitutional violation

—  a process which continued for 41 abbreviated trial days 

throughout the spring and summer of 1971. The Court supervised 

a full and painstaking inquiry into the forces and agencies 

which contributed to establishment of the by-now obvious pattern 

of racial segregation in the Detroit public schools.

The evidence revealed a long history, both before and

y y /after Brown, of knowledgeable or careless official actions

facilitating Detroit's extensive pupil segregation. Virtually

all of the classic segregating techniques which have been judi-
zz/

cially identified, by this Court in Keyes and elsewhere, were 

employed or sanctioned by Detroit and State school officials

during the two decades from 1950 to 1970: racial gerrymandering,

intact busing, in-school segregation, optional attendance areas,

22/ In 1960-61, of 251 Detroit regular (K-12) public schools,
171 had student enrollments 90% or more one race (71 black, 100 
white); 61% of the system's 126,278 black students were assigned 
to the virtually all-black schools. In 1970-71 (the school year 
in progress when the trial on the merits began), of 282 Detroit 
regular public schools, 202 had student enrollments 90% or more 
one race (69 white, 133 black); 74.9% of the 177,079 black stu­
dents were assigned to the virtually all-black schools.
yy/ Brown v. Board of Educ., 347 U.S. 483 (1954).
zz/ Keyes v. School Dist. No. 1, Denver, _ U.S. ____  (1973).

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ww/
discriminatory allocation of faculty, construction (both of 

new schools and of enlargements to old ones) and site location 

policies which intensified student segregation, etc.

The District Court concluded, in its September 27, 1971 

opinion, 338 F. Supp. 582 (17a-39a), that although certain non­

governmental forces had also contributed to the creation of 

Detroit's highly segregated school system, pervasive discrimi­

natory state action was a significant causative factor. There­

fore, the Court held, the Fourteenth Amendment required "root 

and branch" elimination of the unlawful segregation.

C . Remedial Proceedings

The evidence at the violation hearing focused primarily 

on the Detroit public schools, where over 125,000 black children 

were assigned to virtually all-black schools, identified as 

black by official state action. However, in exploring how these 

black schools were created and maintained, the proof of the 

pattern of state action x effecting school segregation —  just 

as did the acts themselves —  extended beyond the geographical

The d±x District Court found, however, that by 1970 —  and 
in large measure at the behest of the Detroit Federation of 
Teachers —  the Detroit public schools were engaged in a 
significant program designed to overcome past racial faculty 
assignment patterns, and that because this program showed 
promise of achieving its goals within Detroit, injunctive relief 
was not required as to faculty allocation in the city schools.

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vv/
limits of Detroit.

The proof showed that in practical terms there are two 

sets of schools: one, virtually all black, in the central

core of the city of Detroit, surrounded by another, virtually 

all white, forming a ring beginning within the City but extending 

throughout the suburban area beyond the geographical limits of 

the Detroit School District.

The District Court also found, based upon evidence which 

was £x±±x fairly uncontested, that there had been a steady 

enlargement of the geographic areas served by, and increase in 

the number of, black schools in Detroit. At the same time,

the school construction practices of State and Detroit officials

resulted in concomitant white school growth along Detroit's

outer edge and outside the boundaries of its school system.
uu/

In the metropolitan areas surrounding the Detroit

public schools, between 1950 and 1969 over 400,000 pupil

This evidence of discrimination ran only against the
state defendants —  the chief state school officer, the state 
Board of Education which is charged with general supervision of 
public education, the chief state legal officer and the state's 
chief executive —  and Detroit defendants. The evidence presented 
related primarily to (1) the State's policies and practices 
affecting segregation within and of the Detroit public schools 
vis-a-vis its suburban neighbors with respect to Act 48, school 
construction, merger of districts, pupil assignment across school 
district boundaries for the purpose of segregation, and disparity 
of bonding and transportation funding and (2) to actions by 
Detroit defendants which not only contained black youngsters in 
designated Detroit schools but which had the reciprocal effect 
of strengthening the racial identifiability of suburban white 
schools.
uu/ Hamtramck (28.7% black) and Highland Park (85.1% black) are 
surrounding by the Detroit School District. (P.M.13).

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spaces were added in school districts now serving less than 2%

black student bodies. (A (P,M.14,15)). By 1970, these
tt/

suburban areas assigned a student population of 625,746 pupils, 

620,272 (99.13%) of whom were white, to virtually all-white 

schools. Throughout the metropolitan area, faculties rasa mirrored 

the racial composition of the student bodies of schools, thereby 

further earmarking them as 'white1 or 'black1 schools.

Finally, the evidence indicated that even absent judicial 

intervention, the pattern would continue: the black school

population of the City of Detroit would continue to rise and 

within a decade, all of Detroit's schools were likely to have 

virtually all-black student bodies.

It was in the light of this factual background, then, that 

the District Court set about the difficult task of devising a 

complete remedy for the extensive constitutional violation hh 

and resulting massive school segregation which it had found.

From the beginning of its search for an appropriate remedy, the 

District Court was guided by the prior rulings of this Court and 

by settled equitable principles.

— ^ There are also small, long-established concentrations of 
black population outside Detroit which are located in Ecorse, 
River Rouge, Inkster, Westland, the old Carver School District 
(Ferndale and Oak Park), and Pontiac. As within the city, the 
black pupils in these districts also remained substantially 
segregated in 1970-71, (See P.M.13)^ e/csp-̂ Pow-Kcic,

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In its first colloquy with counsel concerning remedy, on
ss/

October 5, 1971, the district judge made clear that Davis and 
rr/

Brown II established the contours of the future proceedings in 

the case:

I want to make it plain I have no preconceived 
notions about the solutions or remedies which 
will be required here. Of course, the primary 
and basic and fundamental responsibility is that 
of the school authorities. As Chief Justice 
Burger said in the recent case of Davis v. Board 
of School Commissioners:

-- school authorities should make every
effort to achieve the greatest possible 
degree of actual desegregation, taking 
into account the practicalities of the 
situation.

Because these cases arise under different local 
conditions and involve a variety of local problems 
their remedies likewise will require attention to 
the specific case. It is for that reason that the 
Court has repeatedly said, the Supreme Court, that 
each case must be judged by itself in its own 
peculiar facts.
As early as Brown II the Court had this to say:

Full implementation of these constitutional 
principles may require solution of varied 
local school problems. School authorities 
have the primary responsibility for elucidat­
ing, assessing, and solving these problems; 
courts will have to consider whether the hk 
action of school authorities constitutes good 
faith implementation of the governing consti­
tutional principles.
In fashioning and effectuating the decrees, 

the courts will be guided by equitable prin­
ciples. ...At stake is the personal interest 
of the plaintiffs in admission to public schools 
as soon as practicable on a nondiscriminatory 
basis.

I might say in that regard, as you lawyers know 
the Supreme Court took a little over a year to 
implement Brown I and Brown II. So they them­
selves, with better minds than mine and to the 
number of nine, had difficulty in resolving the 
problems that those four cases presented. (T. 6-7)

Davis v. Board of School Comm'rs of Mobile, 402 U.S. 33 (1971). 
rr/ Brown v. Board of Educ., 349 U.S. 294 (1955).

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In order to evaluate all feasible alternative desegre­

gation techniques, at a pre-trial conference and by written

order on November 5, 1971, the District Court directed that

Detroit school officials submit a plan limited to the City of

Detroit, and also that state defendants recommend a plan not

limited to the existing boundaries of the Detroit public schools

33/—  a wm* "metropolitan" plan.

The State defendants sought to overturn the District Court's 
ruling on violation by appealing from its orders requiring sub­
mission of plans; the Court of Appeals held this procedure to be 
premature. 468 F.2d 902, cert, den., 409 U.S. 844 (1972).

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