Correspondence from Edmisten to Leonard; Gingles v. Edmisten and Pugh v. Hunt and Cavanagh v. Brock Motion for Extension of Time; Orders
Public Court Documents
January 12, 1983
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No. 72-8002
IN THE
United States Court of Appeals
for the Sixth Circuit
RONALD BRADLEY, et al,
Plaintiffs-Appellees,
v.
WILLIAM G. MILLIKEN, et al,
Defendants-Appellants,
and
DETROIT FEDERATION OF TEACHERS,
LOCAL 231, AMERICAN FEDERATION
OF TEACHERS, AFL-CIO,
Defendant-Intervenor,
and
DENISE MAGDOWSKI, et al,
et al.
Defendants-Intervenors,
On Appeal from the United States District Court for the
Eastern District of Michigan Southern Division
BRIEF ON BEHALF OF DEFENDANTS-APPELLANTS, GOVERNOR,
ATTORNEY GENERAL, STATE BOARD OF EDUCATION,
SUPERINTENDENT OF PUBLIC INSTRUCTION AND
STATE TREASURER OF THE STATE OF MICHIGAN.
FRANK J. KELLEY
Attorney General
720 Law Building
525 West Ottawa Street
Lansing, Michigan 48913
Robert A. Derengoski
Solicitor General
Eugene Krasicky
Gerald F. Young
George L. McCargar
Patrick Kowaleski
Assistant Attorneys General
No. 72-8002
IN THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
RONALD BRADLEY, et al,
Plaintiffs-Appellees,
v.
WILLIAM G. MILLIKEN, et al,
Defendants-Appellants,
and
DETROIT FEDERATION OF TEACHERS,
LOCAL 231, AMERICAN FEDERATION
OF TEACHERS, AFL-CIO,
Defendant-Intervenor,
and
DENISE MAGDOWSKI, et al,
et al.
Defendants-Intervenors,
- ____________________________________________________________________/
On Appeal from the United States District
Court for the Eastern District of Michigan
Southern Division
BRIEF ON BEHALF OF DEFENDANTS-APPELLANTS, GOVERNOR,
ATTORNEY GENERAL, STATE BOARD OF EDUCATION, SUPER
INTENDENT OF PUBLIC INSTRUCTION AND STATE TREASURER
OF THE STATE OF MICHIGAN.
720 Law Building
525 West Ottawa Street
Lansing, Michigan 48913
FRANK J. KELLEY
Attorney General
Robert A. Derengoski
Solicitor General
Eugene Krasicky
Gerald F. Young
George L. McCargar
Patrick Kowaleski
Assistant Attorneys General
TABLE OF CONTENTS
Page
Table of Cases ------------------------------------
Statement of Questions Involved---------- --------
Statement of Case ---------------------------------
Argument
I. Under Michigan law, local school districts
are created by the legislature as local
state agencies and bodies corporate
governed by locally elected boards of
education having such powers as are
conferred by statute -----------------------
II. Based on the record in this case, the
District Court's findings of fact and
conclusions of law of de jure segregation
in the public schools of the Detroit
School District is erroneous ---------------
III. The lower court erred in admitting into
evidence and relying upon evidence of
alleged racial discrimination in housing
by persons not parties to this cause, in
finding de jure segregation in the
Detroit Public Schools -------------------------
IV. The lower court's legal conclusion of de jure
segregation by these defendants in the matter
site selection for school construction is
erroneous as a matter of law -------------------
V ' Iwi,?'OWer-court erred in denying these defendants'
41(b) motions to dismiss made at the close of
plaintiffs' case in chief ----------------------
VI. The lower court erred in making findings
against tnese defendants based on evidence
introduced after these defendants had made
their 41(b) motions and elected to stand on
such motions at the close of plaintiffs'
case in c h i e f ---------------------- ------------
iv
xiii
2
9
34
40
47
51
65
'
VII.
VIII.
IX.
X.
XI.
The lower court's legal conclusion of
systematic educational inequality between
Detroit and the surrounding mostly white
suburban school districts, based upon
transportation funds, bonding limitations,
and the state school aid formula, is
erroneous as a matter of l a w ------------- ■— 6 8
Based on the record in this cause, the
Detroit public schools are not de jure
segregated schools as a result of the
conduct of any of the state defendants
h e r e i n----------- ---- -— --- ------------------ gg
A finding of de jure segregation as to some
schools within the Detroit school district
does not warrant a desegregation remedy for
all schools in the school district. Only
those schools within the school district
found to be de jure segregated schools
must be desegregated------------------------ 97
Based on the record in this case, a
constitutionally adequate unitary school
system can be established within the
geographical limits of the Detroit school
district-------------------------------------- 3_02
Where only the Detroit school district has
been found to have committed acts of de jure
segregation, and in the absence of any claims,
proofs or findings concerning either the
establishment of the boundaries of the 86
public school districts in Wayne, Oakland and
Macomb counties or whether any of these 86
school districts, except Detroit, have
committed any acts of de jure segregation, the
District Court may not adopt a metropolitan
remedy including at least 53 school districts
and 780,000 pupils------------------ --------- 113
XII. State officials may not be compelled by a
District Court in a school desegregation
remedial order to perform acts beyond
their lawful authority to perform under
state l a w ------------ ----------------------
XIII. The expenditures of state funds from the
state treasury required by the District
Court in this case are not authorized by
the appropriation acts of the Michigan
legislature as required by the Michigan
Constitution-------------- ------------------- 134
XIV. Section 803 of the education amendments of
1972, Pub. L. No. 92-318, applies to
metropolitan transportation orders which
have been or may be entered by the District
Court in this c a s e -------------------------- 149
XV. Section 80 3 is constitutional---------------- igg
Addendum------------------------------------------- 270
Conclusion-------------------- ^71
INDEX OF AUTHORITIES
Page
A & N Club v Great American Insurance Co,
404 F2d 100, 103-104 (CA 6 , 19 6 8 )------------ 51, 52,
65, 6 6 , 78, 95*
Airport Community Schools v State Board of
Education, 17 Mich 574 (1969) ---------------- 30
Alexander v Holmes County Board of Education,
396 US 19, 20 --------------------------------- 105
Attorney General, ex rel. Zacharias v Board of
Education of City of Detroit, 154 Mich 584 (1908) 19
Bacon v Kent-Ottawa Metropolitan Water Authority,
354 Mich 159 (1958) --------------------------- H
Baker v Carr, 369 US 186, pp 194-195 Footnote 15,
(1962 -------- ----- ----------------------------- 59
Beech Grove Investment Company v Civil Rights
Commission, 380 Mich 405 (1968) -------------- 4 3 , 44
Board of Education v City of Detroit,
30 Mich 505 (1875) ---------------------------- 1 4 , 32
Board of Education of Presque Isle Township
School District No. 8, Presque Isle County
Board of Education, 357 Mich 148 (1959) ----- 13, 20
Board of Education of the City of Detroit v
Superintendent of Public Instruction, 319
Mich 436 (19 47) ------------------------------- 9
Bradley, et al v Milliken, et al, 433 F2d
897 (1970) ------------------------------------ 21
Bradley, et al v School Board of the City of
Richmond, Virginia, et al, 51 FRD 139, 142
Bradley v School Board of City of Richmond
Virginia (CA 4, No 72-1058, February 8, 1972)
Bradley, et al v School Board of the City of
Richmond,___F 2 d _____ (CA 4, decided ~
June 5, 1972) ---- --------- ------------------ 104, 120
Brown v Board of Education, 347 US 483 (1954)- 34
Burruss v Wilkerson, 310 F Supp 572, 574
(WD Va 1969) affirmed 397 US 44 (1970)------ 80, 83,
Child Welfare Society of Flint v Kennedy
School District, 220 Mich 290 (1922) ------- 19
Common Council of the City of Detroit v
Engel, 202 Mich 536 (1918) ----------------— 19
Corpus Christi Independent School District v 169
Cisneros, 404 US 1211 (1971) ----------------
Cotton v Scotland Neck City Board of Education,
92 S Ct 2214 (1972) -------------------------- H O
Dandrige v Williams, 397 US 471, 485 (1970) — 74
Davis v School District of City of Pontiac, Inc,
443 F2d 573, 575 (CA 6, 1971), cert den
404 US 913 (1971) ----------- -----------------
Deal v Cincinnati Board of Education, 369 F2d
55, 60-61 (CA 6, 1966) cert den 389 US
847 (1967) -----------------------------------
Deal v Cincinnati Board of Education, 419 F2d
1387, 1392 (CA 6, 1969), cert den 402 US
962 (1971) --------- --------------------------
Duplex Printing Press Co v Derring,
254 US 443 (1921) ----------------------------
Edgar v United States, 404 US 1206 (1971) ----
Fox v Employment Security Commission, 379 Mich
579, 588 (1967) -------------------------------
Gentry v Howard, 288 F Supp 495, 498
(ED Tenn, 1969)
40, 46,
40,
40, 41,
162
124
58
121, 129
36
84, 95
50, 128, 169
128
128
v
Green v School Board of New Kent County,
391 US 430 (1968) -------- — ------- ------ 110, ISO, 168
Griffin v County School Board of Prince
Edward County, 377 US 218, 228 (1964) ---- 53, 133
Iliers v Detroit Superintendent of Schools,
376 Mich 225 (1965) ---------- -------------- 16, 31, 47, 91
Hobson v Hansen, 269 F Supp 401, 495
(D.D.C. 1967) modified sub.nom. ---------- 90, 92
Imlay Township Primary School District No. 5
v State Board of Education, 359 Mich 478
(I960) --------- --------------________----- 20
In re School District No. 6 , Paris and
Wyoming Townships, Kent County, 284 Mich
132 (1938) — ------------------------------- 19
In re State of New York, 256 US 490, 497 (1921) 53
Ira School District No. 1 Fractional v
Chesterfield School District No. 2
Fractional, 340 Mich 678 (1954) ---------- 19
Jipping v Lansing Board of Education, 15
Mich App 441 (1968), Leave to Appeal denied
382 Mich 760 (1969) ----------------------- 1 7 , 35
Jones v Grand Ledge Public Schools, 349 Mich 1,
(1957) ------------------------------------- 20, 32, 89,
90, 122
Kent County Board of Education v Kent County
Tax Allocation Board, 350 Mich 327 (1957)— 11
Keyes v School District No. 1, Denver Colorado,
313 F Supp 61, 74-75 (D Colo, 1970),
modified 445 F2d 990, 1006, (CA 10, 1971),
cert granted 804 US 1036 (1972) ---------- 90, 92, 98, 99,
1 0 0 , 128
Gordon v Lance, 403 US 1 ( 1 9 7 1 ) ------------ - 77
vi
Lockerty v Phillips, 319 US 182, 187 (1942) ----
MacQueen v City Commission of City of
Port Huron, 194 Mich 328 (1916) ---------------
Marathon School District No. 4 v Gage, 39 Mich
484 (1878) — --------------------- 1-------------
Margeta v Ambassador Steel Co, 380 Mich 513 (1968)
Mason v Board of Education of the School District
of the City of Flint, 6 Mich App 364 (1967) — -
Mclnnis v Ogilvie, 394 US 322 (1969) ------------
Mclnnis v Shapiro, 293 F Supp 327, 335-336
(ND 111 1968) -----------------------------------
King v Smith, 392 US 309 (1968) -----------------
McKibbin v Corporation and Securities Commission,
369 Mich 69 (1963) ------------------------------
Michigan Education Association, et al v
State Board of Education, Michigan Court of
Appeals, No. 11,900 -----------------------------
Milliken v Kelley, et al v Allison Green, et al,
Supreme Court, No. 53,809 ------------------------
Munro v Elk Rapids Schools, 383 Mich 661 (1970) -
Northcross v Board of Education of Memphis,
Tenn, 420 F2d 546, 548 (1969) ------- ----------
Penn Scnool District No. 7 v Lewis Cass Inter
mediate School District Board of Education,
14 Mich App 109, 120 (1968) --------------------
People, ex rel. Tibbals v Board of Education of
of Port Huron, 39 Mich 635 ---------------------
Plessy v Ferguson, 163 US 537 (1896)-------------
vii
84
Ranjel v City of Lansing, 417 F2d 321, 324 (CA 6 ,
1969), cert den 397 US 980 (1970), reh den
397 US 1059 (1970) -----------------------------
Rehberg v Board of Education of Melvindale,
Ecorse Township School District No. 11, Wayne
County, 330 Mich 541, 548 (1951) — ------------
School District for the City of Holland v
Holland Education Association, 380 Mich 314
(1968)------------------------------ -----------
School District Number Three of the Township of
Everett v School District Number One of the
Township of Wilxox, et al, 63 Mich 51 (1886) —
School District of the City of Lansing v State
Board of Education, 367 Mich 591 (1962) -------
Schwan v Lansing Board of Education, 27 Mich
App 391 (1970) ----------------------------------
Sengnas v L'Anse Creuse Public Schools, 368
Mich 557 (1962) ---------------------------------
Smith v North Carolina State Board of Education,
444 F2d 6 (CA 4, 1971) --- ----------------------
Smith, et al v State Board of Education, Ingham
County Circuit Court, No. 12167C ---------------
Smuck v Hobson, 408 F2d 175 (DC Circuit, 1969) —
Sparrow v Gill, 304 F Supp 8 6, (MD NC 1969) -----
Spencer v Kugler, 326 F Supp 1235, 1242-1243
(DC NJ, 1971) , affirmed on appeal 404 US
1027 (1972) -------------------------------------
Sturgis v County of Allegan, 343 Mich 209 (1955)-
State Board of Agriculture v Auditor General
226 Mich 417, 425 (1924) -----------------------
26
27, 31
13
11, 12, 20
26, 32
15
131, 132
79
90, 92
74
36, 41, 46, 50,
103, 104, 105,
119, 129
20
142
V l l l
Swann v Charlotte-Mecklenburg Board of Education,
402 US 1, 15-18 ( 1971) — ----------------------- 35, 37, 40
50, 99, 100, 106, 117, 120, 128, 129
151
Taylor v Board of Education of City School
District of City of New Rochelle, 191 F Supp
181 (SD, NY, 1961), appeal dismissed 288 F2d
600 (CA 2, 1961), 195 F Supp 231 (SD, NY, 1961)
affirmed 294 F2d 36 (CA 2, 1961), cert den 368
US 940 (1961) ----------------------------------- 98
The People, ex rel Workman v Board of Education
of Detroit, 18 Mich 399, 408-409 (1869) ------- 34
Township of Saginaw v School District No. 1 of the
City of Saginaw, 9 Mich 540 (1862) --------------- 14
United States v Board of Education (CA 10, 1922) ,
459 F2d 720 -------------------------------------
United States v School District 151 of Cook County,
Illinois, 301 F Supp 201 (ND 111, 1969), affirmed
as modified 432 F2d 1147 (CA 7, 1970) cert den
402 US 943 (1971) ---------------------------------- 132
United States v State of Texas, 321 F Supp 1043
(ED Tex, 1970), 330 F Supp 235 (ED Tex, 1971),
affirmed and modified 447 F2d 441 (CA 5, 1971) 123, 124
United States of America v Texas Education
Agency, ___ F2d _____ (CA 5, August 2, 1972) - 100
Van Fleet v Oltman, 244 Mich 241 (1928)---------- 19
Weinberg v Regent of University, 97 Mich 246,
254 (1893) ---------- ---------------------------- 142
Welling v Livonia Board of Education, 382 Mich
620, 623 (1969) --------------------------------- 9, 22, 23,
24, 25, 26, 28, 31
Williams v Primary School District #3,
Green Township, 3 Mich App 468 (1966) --------- 12
xx
Wright v Council of City of Emporia US
92 S Ct 2196 (1972), 40 US LW 4806 US June 20,
1972 ------------ ------------------------------ 33, 38,
122, 123
Wright v Rockefeller, 376 US 52 (1964) -------- 55
109,
x
Michigan Constitution
1835, art 1 0 , § 3
1850, art 13, § 4
1908, art 5, §; 13
1908, art 1 0 , § 2 1
1908, art 1 0 , § 23
1908, art 1 1 , § 2
1908, art 1 1 , § 6 •
1908, art 1 1 , § 9 •
1963, art 1 , § 2 -
1963, art 5, § 19 -
1963, art 5, § 29 -
1963, art CO > 073 2 —
1963, art 073CO 3 —
1963, art 9, § 6 —
1963, art 9, § 1 1 -
1963, art 9, § 17 -
Michigan Public Acts
1937 PA 120 ------
1962 PA 175 ------
1969 PA 306 ------
1969 PA 307 ------
9
136
11
9
20 ,22
20
9, 20
58, 59
54, 144
43
9
■ 9, 2 1 , 34, 58, 59, 70
•2 1 , 2 2 , 23, 24, 31, 48
60, 93, 142
71, 122
31, 145
131
135, 136, 137, 138, 139
49
31, 43, 48, 49
143
xx
1970 PA 48, § 12 94
1970 PA 84 -------------------------------------- 143
1970 PA 100 ------------------------------------- 72,
77,
1971 PA 1 2 0 ----------------------------------- - 143
1972 PA 225 -------------- ---------------------- 137,
1972 PA 246 ----------- — ---------------------- - 140,
1972 PA 258 -------- ---------------------------- 29,
147,
MCLA 16.400-402; MSA 3.29(300)-29(302) ------- 25
MCLA 24.201 et seq; MSA 3.560(101) et seq ---- 23
MCLA 3 40.1 et seq; MSA 15.3001 et s e q -------- 9,
15, 16, 18, 25,
30, 34, 76, 133
MCLA 388.621; MSA 15.1919(61) ------- ---------- 72,
MCLA 564.101 et seq; MSA 26.1300(101) et seq -
73, 74,
85
138, 140
143, 144, 148
144, 145,
148
146
1 1 , 14,
26, 28,
77
FR Civ P 41(b) ------------------------------------- 51, 65
Journal of the House No. 98, p 2705 ------- ------ 137
Journal of the Senate No. 96, p 1 8 1 4 ------------ 137
Michigan Manual, 1971-1972, pp 366-408 ---------- 73
Opinions of the Attorney General
1928-30, pp 498, 502 ---------- ---------------- 14
1960, Vol 2, p 138-139 — --------------------- 89
1960, Vol 2, p 140-142 ------------------------ 89
1963-64, p 1 4 2 ------------- ----------- -------- 44
1969-70, p 1 5 6 ------------------- --------------- 27
1971, May 5, No. 4707------------ ---- --------- 27
xii
STATEMENT OF QUESTIONS INVOLVED
II.
III.
IV.
WHAT IS THE PRECISE LEGAL STATUS UNDER STATE
LAW OF LOCAL SCHOOL DISTRICTS AND BOARDS OF
EDUCATION VIS-A-VIS THE STATE OF MICHIGAN?
The lower court did not answer this question.
These defendants say that under Michigan law,
local school districts are created by the
legislature as independent local state agencies
and bodies corporate governed by locally elected
boards of education having such powers as are
conferred by statute.
WHETHER, BASED ON THE RECORD IN THIS CASE, THE
DISTRICT COURT'S FINDINGS OF FACT AND CONCLUSIONS
OF LAW OF DE JURE SEGREGATION IN THE PUBLIC
SCHOOLS OF THE DETROIT SCHOOL DISTRICT IS ERRONEOUS?
The lower court answered "no."
These defendants say the answer is "yes."
WHETHER THE LOWER COURT ERRED IN ADMITTING INTO
EVIDENCE AND RELYING UPON EVIDENCE OF ALLEGED
RACIAL DISCRIMINATION IN HOUSING BY PERSONS NOT
PARTIES TO THIS CAUSE, IN FINDING DE JURE
SEGREGATION IN THE DETROIT PUBLIC SCHOOLS?
The lower court answered "no."
These defendants say the answer is "yes."
WHETHER THE LOWER COURT'S LEGAL CONCLUSION OF
DE JURE SEGREGATION BY THESE DEFENDANTS IN THE
MATTER OF SITE SELECTION FOR SCHOOL CONSTRUCTION
IS ERRONEOUS AS A MATTER OF LAW?
The lower court answered "no."
These defendants say the answer is "yes."
Xiii
V. WHETHER THE LOWER COURT ERRED IN DENYING THESE
DEFENDANTS' 41(b) MOTIONS TO DISMISS MADE AT
THE CLOSE OF PLAINTIFFS' CASE IN CHIEF?
The lower court answered "no."
These defendants say the answer is "yes."
VI. WHETHER THE LOWER COURT ERRED IN MAKING FINDINGS
AGAINST THESE DEFENDANTS BASED ON EVIDENCE
INTRODUCED AFTER THESE DEFENDANTS HAD MADE
THEIR 41(b) MOTIONS AND ELECTED TO REST AND
STAND ON SUCH MOTIONS AT THE CLOSE OF PLAINTIFFS'
CASE IN CHIEF?
The lower court answered "no."
These defendants say the answer is "yes."
VII. WIETHER THE LOWER COURT'S LEGAL CONCLUSION
OF SYSTEMATIC EDUCATIONAL INEQUALITY BETWEEN
DETROIT AND THE SURROUNDING MOSTLY WHITE
SUBURBAN SCHOOL DISTRICTS, BASED UPON TRANS
PORTATION FUNDS, BONDING LIMITATIONS, AND THE
STATE SCHOOL AID FORMULA, IS ERRONEOUS AS A
MATTER OF LAW?
The lower court answered "no."
These defendants say the answer is "yes."
VIII. WHETHER, BASED ON THE RECORD IN THIS CAUSE,
THE LOWER COURT ERRED IN RULING THAT THE
DETROIT PUBLIC SCHOOLS ARE DE JURE SEGREGATED
SCHOOLS AS A RESULT OF THE CONDUCT OF ANY OF
THESE DEFENDANTS HEREIN?
The lower court answered "no."
These defendants say the answer is "yes."
xiv
IX.
X.
XI.
WHETHER THE LOWER COURT ERRED IN RULING,
BY IMPLICATION, THAT A FINDING OF DE JURE
SEGREGATION AS TO SOME SCHOOLS WITHIN THE
DETROIT SCHOOL DISTRICT WARRANTS A DESEGRE
GATION REMEDY FOR ALL SCHOOLS IN THE SCHOOL
DISTRICT?
The lewer court, by implication, answered "no.
These defendants say the answer is "yes."
WHETHER, BASED ON THE RECORD IN THIS CASE,
A CONSTITUTIONALLY ADEQUATE UNITARY SYSTEM
OF SCHOOLS CAN BE ESTABLISHED WITHIN THE
GEOGRAPHICAL LIMITS OF THE DETROIT SCHOOL
DISTRICT?
The lower court answered "no."
These defendants say the answer is "yes.
WHETHER THE DISTRICT COURT ERRED IN RULING
THAT, WHERE ONLY THE DETROIT SCHOOL DISTRICT
HAS BEEN FOUND TO HAVE COMMITTED ACTS OF
DE JURE SEGREGATION, AND IN THE ABSENCE OF
ANY CLAIMS, PROOFS OR FINDINGS CONCERNING
EITHER THE ESTABLISHMENT OF THE BOUNDARIES
OF THE 86 PUBLIC SCHOOL DISTRICTS IN WAYNE,
OAKLAND AND MACOMB COUNTIES, OR WHETHER ANY
OF THESE 86 SCHOOL DISTRICTS, EXCEPT DETROIT,
HAVE COMMITTED ANY ACTS OF DE JURE SEGREGATION,
IT MAY ADOPT A METROPOLITAN REMEDY INCLUDING
AT LEAST 53 SCHOOL DISTRICTS AND 780,000 PUPILS?
The lower court answered "no."
These defendants say the answer is "yes."
xv
XII.
XIII .
XIV.
XV.
WHETHER THE DISTRICT COURT ERRED IN RULING
THAT THESE DEFENDANT STATE OFFICIALS MAY BE
COMPELLED BY A DISTRICT COURT IN A SCHOOL
DESEGREGATION REMEDIAL ORDER TO PERFORM
ACTS BEYOND THEIR LAWFUL AUTHORITY TO
PERFORM UNDER STATE LAW?
The lower court answered "no."
These defendants say the answer is "yes."
WHETHER THE LOWER COURT ERRED IN REQUIRING
THESE DEFENDANTS TO MAKE EXPENDITURES FROM
THE STATE TREASURY THAT ARE NOT AUTHORIZED
BY THE APPROPRIATION ACTS OF THE MICHIGAN
LEGISLATURE AS REQUIRED BY THE MICHIGAN
CONSTITUTION?
The lower court answered "no."
These defendants say the answer is "yes."
WHETHER SECTION 803 OF THE EDUCATION
AMENDMENTS OF 1972, PUB. L. No. 92-318,
APPLIES TO METROPOLITAN TRANSPORTATION
ORDERS WHICH HAVE BEEN OR MAY BE ENTERED
BY THE DISTRICT COURT IN THIS CASE?
The lower court did not answer this question
These defendants say the answer is "yes."
WHETHER SECTION 803 OF THE EDUCATION
AMENDMENTS OF 1972, PUB. L. No. 92-318,
AS APPLIED TO METROPOLITAN TRANSPORTATION
ORDERS IN THIS CAUSE, IS CONSTITUTIONAL?
The lower court did not answer this question
These defendants say the answer is "yes."
xvi
No. 72-8002
IN THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
RONALD BRADLEY, et al,
Plaintiffs-Appellees,
v.
WILLIAM G. MILLIKEN, et al,
Defendants-Appellants,
and
DETROIT FEDERATION OF TEACHERS,
LOCAL 231, AMERICAN FEDERATION
OF TEACHERS, AFL-CIO,
Defendant -Intervenor,
and
DENISE MAGDOWSKI, et al,
Defendants-Intervenors
et al.
/
On Appeal from the United States District
Court for the Eastern District of Michigan
Southern Division
BRIEF ON BEHALF OF DEFENDANTS-APPELLANTS
GOVERNOR, ATTORNEY GENERAL, STATE BOARD
OF EDUCATION, SUPERINTENDENT OF PUBLIC
INSTRUCTION AND STATE TREASURER OF THE
STATE OF MICHIGAN
STATEMENT OF CASE
(References to the record herein are references to the pages
of the Appendix unless otherwise indicated by TR for trans
cript and EX for exhibits.)
Plaintiffs filed their class action complaint on
August 18, 1970, alleging (a) the constitutional invalidity
of Sec. 12 of 1970 PA 48 ( iaio ) and (b) that the
policies and practices of the defendants have the purpose and
effect of perpetuating a racially segregated system of public
schools in which both pupils and school personnel are assigned
to particular schools on the basis of race. (Ial7)
Plaintiffs' complaint sought declaratory relief and temporary
and permanent injunctive relief limited to remedying alleged
racial segregation in the Detroit public schools by the establish
ment of a system of unitary public schools therein. (Ial9~21)
The plaintiffs in this cause are parents and their
children attending schools in the Detroit School District
which has a 63„8%black student body. The defendants included
tlie Detroit Board of Education, three of its members and its
Superintendent, the Governor, Attorney General, State Board
of Education and Superintendent of Public Instruction of the
State of Michigan. The Detroit Board of Education, a body
corporate, has been represented throughout this cause by
private counsel of its own choosing.
-2-
On October 13, 1970, this Court held Section 12
of 1970 PA 48 unconstitutional, affirmed the lower court's
denial of a preliminary injunction to, inter alia, implement
the Detroit Board of Education's April 7 plan, which would
have altered the attendance zones of twelve high schools
to effect a more balanced ratio of Negro and white students
at those 12 schools over a 3 year period, and reversed the
lower court's order dismissing the Governor and Attorney
General as parties "at least at the present stage of the
proceedings." 433 F2d 897, 905.
On December 3, 1970, in response to plaintiffs'
motion for immediate implementation of the April 7 plan and
the Detroit Board of Education's alternate McDonald and
Campbell plans, the lower court entered an order directing
trie implementation of the McDonald Plan in September, 1971.
The McDonald Plan involved providing specialized curriculums
at certain high schools that would serve two of the eight
regions within the school system with the expectation of
attracting students from a wider area, on a voluntary basis,
thereby achieving a greater degree of integration. This plan,
which was implemented in September, 1971, also provided for
establishing certain middle or junior high schools having
racially balanced enrollments. (Ial04-112 ) This Court,
on appeal, denied plaintiffs' motion for summary reversal of
-3-
such order and directed the District Court to set the case
for hearing forthwith. 438 F2d 945.
Prior to the trial on the merits, the District Court
permitted the intervention, as defendants, of the Detroit
Federation of Teachers, the collective bargaining organi
zation representing all teachers within the Detroit school
system, and Magdowski, et al, a group of parents with children
attending the Detroit public schools.
The trial on the merits concerning the allegations
of de jure segregation in the Detroit public schools commenced
on April 6 , 1971. On September 27, 1971, the lower court
issued its "Ruling on Issue of Segregation" holding:
" . . . [T]hat both the State of Michigan and
the Detroit Board of Education have committed
acts which have been causal factors in the
segregated condition of the public schools
of the City of Detroit. . (Ia21Q)
These defendants respectfully submit that such
holding is erroneous. The Detroit Board of Education, found
innocent by the trial court of any racial discrimination as
to faculty and staff, has not, on the basis of the trial
record, conducted the operation of the school district with
the purpose and effect of segregating children by race in the
public schools under its jurisdiction. As to these defendants,
-4-
it will be demonstrated that the lower court's adverse
ruling is not supported by either the facts or the applicable
law in this matter. These defendants, in the course of their
conduct as elected or appointed public officials, have not,
based on the record in the cause, committed any acts with
the purpose and effect of segregating children by race in
the Detroit public schools.
On November 5, 1971, the District Court entered its
order directing the defendants to prepare and submit both
intra-district and metropolitan plans of desegregation .
(Ia220-221)
The school districts of Allen Park, et al,
Grosse Pointe, Royal Oak and Southfield, each a body corporate
under Michigan law and represented by private counsel of its
own choice, were allowed to intervene, as defendants. In
addition, Green, et al, Tri-County Citizens for Intervention
in Federal School Action No. 35257, was permitted to intervene
as a defendant. These interventions were pursuant to the
lower court's order of March 15, 1972. (Ia407-410)
The lower court entered various rulings and orders
in the process of shaping a metropolitan remedy involving
Detroit and 52 other school districts having approximately
780,000 students or 1/3 of the public school pupils in the
-5-
state of Michigan. ( Ia539 ) . Eighteen of the
affected school districts, each a body corporate, with
the power to sue and be sued under Michigan law and the
authority to retain private counsel of its own choosing,
have never been parties to tnis litigation. Further, the
lower court directed these defendants to pay for the
acquisition of at least 295 buses, at an approximate cost
of 3 million dollars, to implement an interim or partial
metropolitan remedy in September, 1972, and added the State
Treasurer as a party defendant for purposes of affording
such relief. ( ia576-579)
A metropolitan remedy was decreed by the lower
court in the absence of any proofs or findings concerning
either the establishment of the boundaries of the 53 affected
school districts or whether, with the exception of Detroit,
any of the other 52 school districts has committed any acts
of de jure segregation, ( ia497-498 ) Further, although
the lower court had expressly found no de jure segregation
as to faculty and staff in the Detroit public schools
( Ia2Q5-209 ) r each school within the judicially created
metropolitan desegregation area must have at least 1 0%
black faculty. (Ia540-541)
-6-
On July 20, 1972, the lower court entered an order
directing that each of the following enumerated orders:
"1. Ruling on Issue of Segregation,
September 27, 1971;
"2. Ruling on Propriety of Considering a
Metropolitan Remedy to Accomplish
Desegregation of the Public Schools
of the City of Detroit,
March 24, 1972;
"3. Findings of Fact and Conclusions of Law
on Detroit-Only Plans of Desegregation,
March 28, 1972;
"4. Ruling on Desegregation Area and
Development of Plan, and Findings of
Fact and Conclusions of Law in Support
thereof, June 14, 1972; and
"5. Order for Acquisition of Transportation,
July 11, 1972
"shall be deemed final orders under Rule 54(b)
of the Federal Rules of Civil Procedure and
the court certifies the issues presented therein
under the provisions of 28 U.S.C. 1292(b)."
(Ia59Q-591)
On the same date, this Court entered its order
granting both the motion of these defendants under 28 USC
1292(b) for leave to appeal from the five orders set forth
above and the motion of these defendants for a stay of
proceedings, other than planning proceedings, pending
appeal ( Ia592-593 ) . On August 1, 1972, these
defendants also filed a Notice of Appeal from these same
five orders.
-7-
In the interests of facilitating a clear
presentation and conserving space by avoiding repetition,
the remaining facts relevant to each question presented
for review will be set forth in connection with the argument
on each question.
-8-
ARGUMENT
I.
UNDER MICHIGAN LAW, LOCAL SCHOOL DISTRICTS
ARE CREATED BY THE LEGISLATURE AS LOCAL
STATE AGENCIES AND BODIES CORPORATE GOVERNED
BY LOCALLY ELECTED BOARDS OF EDUCATION HAVING
SUCH POWERS AS ARE CONFERRED BY STATUTE
A. The legal nature of Michigan School Districts
In Michigan, as authorized by the Michigan Con
stitution of 1963, art 8, § 2, the legislature has provided
for the organization of school districts, pursuant to the
provisions of 1955 PA 269, MCLA 340.1 et seq; MSA 15.3001
sometimes
et seq, hereinafter/referred to as the school code of 1955.
Welling v Livonia Board of Education, 382 Mich 620, 623 (1969).
Previous constitutional authority is found in Const 1908,
art 11, § 9 •, Const 1850, art 13, § 4 and Const 1835, art 10,
§ 3.
The meaning of the term "school district" came before
the Michigan Supreme Court for decision in Board of Education
of the City of Detroit v Superintendent of Public Instruction,
319 Mich 436 (1947). The people had adopted the term "school
district" in Const 1908, art 10, § 23, setting up a constitutional
fund for the support of school districts and other governmental
units. Thereafter the legislature passed an act designating
the state as one school district and making appropriation from
such fund to such single, state-wide school district. The
-9-
court rejected the formation of a single, state-wide school
district empowered only to receive appropriation.
". . . I n Board of Metropolitan Police of
the City of Detroit v. Board of Auditors of
Wayne Countyj 68 Mich. 576, 5*79, it was said:
"'Our State Constitution has provided for
local municipalities, embracing counties,
cities, villages, townships, and school
districts, which it has been held mean such
bodies of those names as were of a nature
familiar and understood.'
"The school district is commonly regarded as
a State agency. Attorney General, ex rel.
Kies, v. Lowrey, 131 Mich. 639; Attorney General,
ex rel. McRae, v. Thompson, 168 Mich. 511. Such
concept is scarcely consistent with the idea of
the State making itself a school district and
treating such district as an agency of the State
for the purpose involved in the instant case.
Webster's New International Dictionary (2d Ed.),
defines the term 'district' as:
"'A division of territory; a defined portion of
a state, county, country, town, or city, etc.,
made for administrative, electoral, or other
purposes; as, a Congressional, federal, judicial,
land, militia, magisterial, or school district.'
"Other dictionaries contain similar definitions,
thereby indicating the common understanding of
the word. It is, generally speaking, something
less than the whole. We think it may fairly be
said that the term 'school district' is commonly
regarded as a legal division of territory, created
by the State for educational purposes, to which the
State has granted such powers as are deemed
necessary to permit the district to function as a
State agency. Stuart v. School District No. 1 of
the Village of Kalamazoo, 30 Mich. 69"; Daniels v.
Board of Education of "the City of Grand.Rapids’,
191 Mich. 339 (L.R.A. 1916 F, 468); MacQueen v
City Commission of Port Huron, 194 Mich. 328;
Public Schools.of the city of Battle Creek v.
Kennedy, 245 Mich. 585.
-10-
"It should be noted also that under Act No. 331
the State school district is not vested with
powers and duties of the character commonly
delegated to school districts. It is declared
a school district for one purpose only, namely,
as indicated in the title of the act, 'to
receive, administer and disburse' certain
appropriations. Under chapter 3, §61, specific
authority with reference thereto is vested in
existing boards and commissions. In other words,
the State school district as such exercises no
prerogatives. . . . " pp 449-450 [Emphasis supplied]
School districts have also been held to be municipal
corporations. Marathon School District No. 4 v Gage, 39 Mich
484 (1878). In Kent County Board of Education v Kent County
Tax Allocation Board, 350 Mich 327 (1957), the Michigan
Supreme Court expressly held that school districts are "municipal
corporations" for the purpose of the tax limitation contained
in Const 1908, art 10, § 21. For the purpose of property tax
imposition, school districts possess the authority of "municipal
corporations." Bacon v Kent-Ottawa Metropolitan Water Authority,
354 Mich 159 (1958) .
More recently the Michigan Supreme Court in School
District of the City of Lansing v State Board of Education, 367
Mich 591 (1962), held that school districts are local state
agencies organized with plenary powers to carry out the delegated
functions given by the legislature.
The Michigan Court of Appeals has sought to harmonize
-11-
this apparent inconsistency by recognizing that for purposes
of tort liability school districts are considered state
agencies but they remain "municipal corporations" for
"purposes of property tax imposition." Williams v Primary'
School District #3, Green Township, 3 Mich App 468 (1966).
Thus, it is clear that for some purposes school
districts are agencies of the state and for other purposes
tney are municipal corporations. Under either designation,
it is abundantly clear that school districts are organized
by the legislature with plenary powers to carry out the
delegated functions given them by the legislature. School
District of tne City of Lansing v State Board of Education,
supra.
More importantly, the legislature has defined the
legal status of a school district in § 352 of the school
code, supra:
"Every school district shall be a body corporate
under the name provided in this act, and may sue
and be sued in its name. . . . "
In the case of first and second class school districts,
§ 192 and § 154 of the school code of 1955, supra, the legis
lature has designated the respective board of education to be
a body corporate with authority to "sue and be sued."
Tnus, Michigan school districts, by legislative
-12-
mandate, have been bodies corporate with power to sue and
be sued since at least 1881.
As a body corporate, a school district had the
right to invoke the aid of a court of equity to prevent an
illegal levy of taxes upon taxable property within the school
district. School District Number Three of the Township of
Everett v School District Number One of the Township of Wilcox,
et al, 63 Mich 51 (1886). It is noted that the litigant school
districts were neither represented by the Attorney General of
Michigan, Moses Taggart, nor by the Newaygo Prosecuting Attorney
but by private practitioners.
In fact the legal status of a school district
continues,even after the forced annexation of a closed school
district, to seek judicial aid or review so long as its pleadings
fairly present a justiciable controversy in some meritorious
respect. Board of Education of Presque Isle Township School
District No. 8 v Presque Isle County Board of Education, 357
Mich 148 (1953).
The legislature has also provided in § 609 of the
school code of 1955, supra:
-13-
"The board shall have authority to employ an
attorney to represent the school district or
board in all suits brought for or against the
district, and to render such other legal service
as may be for the welfare of the school district."
This express grant of power to hire its own attorneys to sue
or represent a school district or board of education when sued
was conferred by 1927 PA 319, Part II, Chap. 5, § 24, the
school code of 1927 supplanted by 1955 PA 269, the school
code of 1955, supra.
In OAG 1928-30, pp 498, 502, the Attorney General
ruled that the Prosecuting Attorney was not required to
represent school districts when sued because they were
empowered by law to employ their own attorneys.
The reported cases decided by the Michigan Supreme
Court since the time that Michigan became one of the states of
the United States list inumerable cases in which school districts
have been parties. A review of a broad sampling of these cases
reveals that the Attorney General of Michigan has not represented
school districts in such litigation. Rather, they have been
consistently represented by private attorneys selected by them.
See, for example: Township of Saginaw v School District No. 1
of the City of Saginaw, 9 Mich 540 (1862); Board of Education v
City of Detroit, 30 Mich 505 (1875); People, ex rel. Tibbals v
Board of Education of Port Huron, 39 Mich 635 (1878).
-14-
Generally, school districts are established by the
legislature pursuant to the appropriate provisions of the
school code of 1955, supra, as fourth class, third class,
second class and first class school districts, depending upon
school population census. Fourth class school districts are
provided for in §§ 51-77; third class school districts in
§§ 101-122; second class school districts in §§ 141-166; and
first class school districts in §§ 181-230 of the school code
of 1955, supra. Michigan also has primary school districts
(operating grades K-8 only) and special act school districts
established by the legislature, but since none of these classes
of school districts are within the metropolitan desegregation
area designated by the District Court, no further discussion
of such classes of school districts appears warranted.
Fourth class, third class, second class and first
class school districts are each governed by a board of education
elected by school electors of the respective districts. The
number of members of the board of education varies with the class
of the district.
Boards of education have such powers, express or by
reasonably necessary implication, as have been conferred by the
legislature. Senghas v L'Anse Creuse Public Schools, 368 Mich
557 (1962).
The powers of the various school districts are set forth
-15-
specifically in enumerated sections of the school code of 1 9 5 5 ,
supra, listed above as pertaining to the specific class school
district as well as generally in the appropriate provisions of
the school code of 1 9 5 5 , supra.
It must be stressed that each board of education is
expressly empowered by the legislature to locate and acquire
sites for schoolhouse or school buildings. Fourth Class, § 77;
Third Class, § 1 1 3 ; Second Class, § 1 6 5 ; and First Class, § 192
of the school code of 1 9 5 5 , supra
The legislature has expressly empowered boards of
education to hire teachers and staff (§569, §574), determine
curriculum (§ 583), control attendance of nonresident pupils
(§582), acquire transportation on title retaining contracts
(§ 594), consent to annexation of other school districts (§ 431),
to consolidate with other school districts (§ 402), and to
determine attendance areas (§ 589). These powers are conferred
by the cited sections of the school code of 1955, supra.
The M ic h ig a n Suprem e C o u r t h a s p a s s e d upon t h e p o w e r
o f a b o a r d o f e d u c a t i o n t o d e t e r m i n e a t t e n d a n c e a r e a s i n H i a r s
v D e t r o i t S u p e r i n t e n d e n t o f S c h o o l s , 376 M ich 2 2 5 ( 1 9 6 5 ) , a s u i t
b r o u g h t and d e c i d e d a f t e r t h e e f f e c t i v e d a t e o f t h e 1 9 6 3
C o n s t i t u t i o n . The C o u r t u p h e l d t h e a u t h o r i t y o f t h e D e t r o i t
B o a r d o f E d u c a t i o n t o e s t a b l i s h a t t e n d a n c e a r e a s i n t h e s c h o o l
d i s t r i c t , p a s s e d upon t h e n a t u r e o f t h e p o w e r l e g i s l a t i v e l y
-16-
conferred and ruled:
"In this case, the authority was ample
for what the school board intended.
School boards are authorized by statute
to establish attendance areas within the
school district (CLS 1961, §340.589
[Stat Ann 1959 Rev §15.3589].) A school
board is empowered to 'establish and carry
on such grades, schools and departments as
it shall deem necessary or desirable for
the maintenance and improvement of the
schools.' (CLS 1961, §340.583 [Stat Ann
1959 Rev §15.3583].) In addition, defen
dant board as a school district of the
first class is specifically empowered 'to
adopt bylaws, rules and regulations for
its own government and for the control
and government of all schools, school
property and pupils.' (CLS 1961, §340.192
[Stat Ann 1959 Rev §15.3192].) We conclude,
therefore, that defendants not only are
given broad powers by the legislature but
specific powers embracing the establishing
of schools and attendance areas within
the district...." p 235
Moreover, in Mason v Board of Education of the
School District of the City of Flint, 6 Mich App 364
(1967) and Jipping v Lansing Board of Education, 15 Mich
App 441 (1968) Leave to Appeal Denied 382 Mich 760 (1969)
Michigan's appellate courts have sustained the discretionary
power of local boards of education, as provided by statute,
-17-
to change attendance areas within the school districts
under their jurisdiction. Further, in these two Michigan
cases Michigan's appellate courts have held that, in the
exercise of such discretionary statutory authority, local
boards of education may establish or alter attendance
areas to provide increased racial balance within the
schools.
Most importantly, the power to certify and
levy taxes within the appropriate tax limitations provided
by the people in Const 1963, art 9, §6, is conferred by
§§564, 615 and 643a of the school code of 1955, supra.
Thus, it must be concluded that the legislature
has organized school districts or boards of education of
first and second class school districts as bodies corporate
with the power to sue and be sued. Even a forcibly
annexed school district has legal authority to sue to ques
tion the validity of the annexation proceedings. As bodies
corporate, school districts or boards of education have
express statutory authority to retain their own attorneys
to advise them and to represent them in all courts.
-18-
In this regard, it must be stressed that the complaint filed
by appellees herein listed the Board of Education of the City
of Detroit, organized under the laws of this state, as one of
the defendants herein. From the very first the Detroit Board
of Education has been ably represented by attorneys of their
own choosing. Certainly there should not be one rule for the
Detroit Board of Education in this regard and another rule for
the remaining 52 school districts within the desegregation area.
Further, whether designated as agencies of the state or municipal
corporations, school districts possess plenary powers as are con
ferred by the legislature to carry out the delegated functions
entrusted to them by the legislature.
B . The power of control over school districts
There is a vast body of case law issued by the Michigan
Supreme Court that subject only to the provisions of the Michigan
Constitution, the legislature has the entire control over public
schools in the state of Michigan. Attorney General, ex rel.
Zacharias v Board of Education of City of Detroit, 154 Mich 584
(1908); MacQueen v City Commission of City of Port Huron, 194
Mich 328 (1916); Common Council of the City of Detroit v Engel,
202 Mich 536 (1918); Child Welfare Society of Flint v Kennedy
School District, 220 Mich 290 (1922); Van Fleet v Pitman, 244
Mich 241 (1928); In re School District No. 6, Paris and Wyoming
Townships, Kent County, 284 Mich 132 (1938); Ira School District
No. 1 Fractional v Cnesterfieia School District No. 2
Fractional, 340 Mich 678 (1954); Sturgis v County of Allegan,
343 Mich 209 (1955); Jones v Grand Ledge Public Schools, 349
Mich 1 (1957); Board of Education of Presque Isle Township
School District No. 8 v Presque Isle County Board of Education,
357 Mich 148 (1959); Imlay Township Primary School District
No. 5 v State Board of Education, 359 Mich 478 (1960).
It must be noted that the Michigan constitutional
provisions in effect during this time were:
Const 1908, art 11, § 9:
"The legislature shall continue a system of
primary schools, whereby every school district
in the state shall provide for the education
of its pupils without charge for tuition;
II
Const 1908, art 11, § 2:
"A superintendent of public instruction shall
be elected . . . He shall have general super
vision of public instruction in the state. . .
His duties and compensation snail be orescribed
by law."
Const 1908, art 11, § 6:
"The state board of education shall consist of
four members. . . . The state board of education
shall have general supervision of the state
normal college and the state normal schools,
and the duties of said board shall be prescribed
by law."
Thus, the controlling law can be summarized by quoting
from School District of the City of Lansing v State Board of
-20-
Education, 367 Mich 591 (1962);
"Unlike the delegation of other powers by the
legislature to local governments, education is
not inherently a part of the local self
government of a municipality except insofar
as the legislature may choose to make it such.
Control of our public school system is a State
matter delegated and lodged in the State legis
lature by the Constitution. The policy of the
State has been to retain control of its school
system, to be administered throughout the
State under State laws by local State agencies
organized with plenary powers to carry out the
delegated functions given it by the legislature."
p 595
Indeed, this Court, in Bradley v Milliken, 433 F2d
897 (1970), has recognized the plenary power of the legislature
over school districts as arms and instrumentalities of the state,
including local boards of education, subject to federal consti
tutional provisions.
In 1963 tiie people revised the Michigan Constitution,
effective January 1, 1964. Provisions pertinent to this case are
"Const 1963, art 8, § 2:
"The legislature shall maintain and support a
system of free public elementary and secondary
schools as defined by law. Every school district
shall provide for the education of its pupils
without discrimination as to religion, creed,
race, color or national origin."
Const 1963, art 8, § 3:
"Leadership and general supervision over all
public education, . . . is vested in a state
board of education. It shall serve as the
general planning and coordinating body of all
public education, including higher education,
-21-
and shall advise the legislature as to the
financial requirements in connection therewith.
"The state board of education shall appoint a
superintendent of public instruction whose term
of office shall be determined by the board.
He shall be the chairman of the board without the
right to vote, and shall be responsible for the
execution of its policies. He shall be the
.principal executive officer of a state department
of education which shall have powers and duties
provided by law. . . . "
Comparing the controlling provisions of the 1908 and
1963 Michigan constitutions, cited in pertinent part above, it
is clear that under both constitutions, the power of "general
supervision" of public instruction (Const 1908, art 11, § 2)
and of "public education" (Const 1963, art 8, § 3) was vested
in the superintendent of public instruction, and is now reposed
in the state board of education. In addition, a new power of
"leadership" is vested in the State Board of Education. The role
of the legislature in maintaining and supporting a system of free
public schools "as defined by law" is virtually unchanged under
both constitutions.
The meaning and inter-relationship of Const 1963,
art 8, §§ 2 and 3 came before the Michigan Supreme Court in
Welling v Livonia Board of Education, supra. At issue in Welling
was the power of the board of education to provide half-day
instruction for its pupils because of lack of funds. Relying
upon Const 1963, art 8, § 2 and quoting the first sentence
thereof, the court unanimously held:
-22-
"The legislature has set up a system of free
public elementary and secondary schools by
enacting the provisions of the school code."
(1955 PA 269, supra.) p 623
The Court then considered the grant of power to the
State Board of Education as conferred by the people in the first
sentence of Const 1963, art 8, § 3, and held that as a part of the
responsibility of the state board of education it was empowered
to promulgate regulations to specify the number of hours to
constitute the school day. The unanimous per curiam opinion of
the Court in Welling emphasized the exercise by the State Board
of Education of its constitutional authority to specify the number
of hours of the school day through the promulgation of rules or
regulations. Promulgation of rules or regulations by the State
Board of Education must be in compliance with the provisions of
1969 PA 306, MCLA 24.201, et seq; MSA 3.560(101) et seq, which
require public inspection of proposed rules, notice of hearing
to the public, public hearing, filing with the secretary of state
and publication in the state administrative code as a minimum
to valid promulgation. The predecessor act, 1943 PA 88, also
contained comparable requirement for promulgation of rules.
In the absence of the promulgation of such a regulation, a
board of education did not abuse its discretion in providing
half-day instruction to its pupils because of lack of funds to
operate a full day. Such a holding was responsive to the issue
in tiie case and, it is emphasised, represents a unanimous
-23-
We stress the unanimous holding in Welling because
of the concurring opinion of Mr. Justice Black in Welling,
supra, joined by only two other justices and thus a minority
view of the Court, in which Mr. Justice Black held that the
overall power of the legislature over public education had been
transferred by the people to the state board of education in
Const 1963, art 8, § 3, supra. He reasoned that the powers of
the state board of education were unfettered by the limitation
of "prescribed by law" or "provided by law." It must be noted
that the decision in Welling was rendered only two days after
oral argument, possibly explaining the brevity of the two
opinions.
However, it is not difficult to understand why the
concurring opinion of Mr. Justice Black failed to receive a
majority of signatures of the Court. It is abundantly clear
that the concurring opinion of Mr. Justice Black failed to
consider the second paragraph of Const 1963, art 8, § 3,
particularly the plain intent of the people expressed therein
to create a "state department of education which shall have
powers and duties "provided by law" as well as art 5, § 2,
which requires all executive and administrative offices, agencies
and instrumentalities and their respective functions, powers and
duties to be allocated by law within 20 principal departments.
decision of the Michigan high court.
-24-
Under the mandate of 1963, art 5, § 2, the legislature
has created a department of education, designated the state
board of education as the head of the department and transferred
all of its powers, duties and functions to such department.
See 1965 PA 380, §§ 300, 301 and 302, MCLA 16.400-402? MSA
3.29(300)-29(302).
Thus, the decision in Welling stands for the following
propositions:
1. The power of the legislature to set up and organize
school districts, as provided in the school code of 1955, supra,
is undiminished.
2. The state board of education has the constitutional
authority to promulgate rules and regulations in accordance with
law to prescribe the number of hours of the school day. In the
absence of the promulgation of such a rule or regulation, and the
imposition of a clear duty upon the local board of education by the
state board of education, the local board of education did not
abuse its discretion when it provided half-day instruction to its
pupils because of lack of funds.
The decision in Welling does not stand for the proposition
that the people have transferred all the authority over public
education from the legislature to the state board of education.
Such a reading of Welling is supported by the decision
-25-
of the Michigan Court of Appeals in Schwan v Lansing Board of
Education, 27 Mich App 391 (1970), leave to appeal denied in
384 Mich 797 (1971), where the Court found broad authority in
a board of education to establish and operate nongraded school
programs in elementary schools as conferred by § 583 of the
school code of 1955, supra, the Court not being appraised of
any action by the state board of education prohibiting establish
ment of nongraded programs.
Subsequent to the decision in Welling, the Michigan
Supreme Court in Munro v Elk Rapids Schools, 383 Mich 661 (1970)
construed the Tenure of Teachers Act as it affects school districts
and their relationship with their teachers and administrators
and quoted with approval the following language from Rehberg v
Board of Education of MeIvindale, Ecorse Township School District
No. 11, Wayne County, 330 Mich 541, 548 (1951):
"School districts, though state agencies, are
governed locally and their controlling boards
are chosen by the electorate. (See PA 1927,
No. 319 [CL 1948, § 341.1 et seq. (Stat Ann
§15.1 et seq.)].) If the legislature intended
to deprive local governing bodies of adminis
trative control of teachers, that intent should
have been definitely stated in the tenure act."
(p 674)
On rehearing, the majority reversed and ruled that the legislature
had indeed placed such limitation upon school districts. 385 Mich
618 (1971). Thus Munro holds that the legislature has the power
to place limitations upon school districts in their relationships
-26-
with teachers and other educational personnel. Further, the
authority of the legislature to proscribe the strike of or with
holding of services of public school teachers from Michigan
school districts was upheld in School District for the City
of Holland v Holland Education Association, 380 Mich 314 (1968),
even though the Court disagreed under what circumstances
injunctive relief would be granted to prevent teachers not
under contract with the school district to withhold their
services.
The Attorney General has ruled that the State Board
of Education has constitutional and statutory rule-making power
for procedural safeguards in the suspension or expulsion of
pupils. OAG 1969-70, p 156.
". . . The State Legislature has not required
the STATE BOARD OF EDUCATION to act in this
area, either by a grant of power to suspend or
expel, or by a mandatory requirement to offer
an appeal procedure. An opinion of the Attorney
General of the State of Michigan that the STATE
BOARD has discretionary powers adds nothing to
the statute."
Slip Opinion of Judge Cornelia Kennedy in Claus
v State Board of Education, et al, U.S. District
Court, ED Mich SD, decided on July 12, 1972.
The Attorney General has also ruled that the State Board of
Education has constitutional authority to establish a program
for the accrediting of Michigan public schools but is under no
constitutional duty to do so. OAG No. 4707, dated May 5, 1971.
-27-
Under these decisions of the Michigan Supreme
Court and the Court of Appeals, it must be concluded that
the power of the legislature to set up and organize school
districts, and to prescribe their powers and duties is
undiminishea. Welling v Livonia Board of Education, supra,
Senghas v L'Arise Creuse School District, supra.
Tnere is a suggestion by the District Court in
tire latter portion of paragraph 13 of the Conclusions of
Law in the Ruling on Segregation (la 213-214) that the State
Board of Education possesses plenary power over school
districts because it may ratify, reject, amend or modify
actions of school districts under certain cited statutes.
Even a cursory examination of such statutes reveals that the
District Court's inferences are unwarranted.
MCLA 340.442; MSA 15.3442, authorizes the State
Board of Education to review the annexation or attachment
of a closed school district not operating any schools for
any two year period but only if one or all of the affected
districts specifically request such review.
MCLA 340.467; MSA 15.3467, confers authority upon
the State Board of Education to review requests for the
transfer of territory between school districts and to confirm,
modify or set aside orders of intermediate boards of education,
-28-
but only if requested by appeal of one or more resident
owners of lana considered for transfer or by the board of
any district that is affected by the proposed transfer.
Reference was also made to MSA 15.1919(61), which imposes
a statutory duty only upon the superintendent of public
instruction to review bus routes.
MCLA 388.628(a); MSA 15.1919(68b) provides for addi
tional state aid allotments to school districts that had been
reorganized and imposes only ministerial duties upon the
superintendent of public instruction. These provisions have
been repealed by 1972 PA 258, § 179. (ixa 640)
MCLA 388.681 et seq; MSA 15.2299(1) et seq, provides
- - . . antor the reorganization of school districts by/intermediate
district committee for the reorganization of school districts
Neither the state board of education nor the superintendent
of public instruction has any authority under this act. It
is noted that the act expired on the filing of a final report
of the state commission on or before September 1, 1968. The
authority of the superintendent of public instruction over
the construction of school buildings, as set forth in 1937
PA 306, Sec. 1, MCLA 388.851; MSA 15.1961, is discussed infra
-29-
There is no authority in this act to ratify, reject,
amend or modify the action of inferior state agencies.
The District Court also cites MCLA 340.402; MSA
15.3402. This section authorizes the superintendent of
public instruction to approve or deny a proposal to
initiate proceedings to effect a proposed consolidation,
but no consolidation can take effect without the approval
of the electors as set forth in MCLA 340.409; MSA 15.3409.
Finally, the District Court relied upon MCLA
388.717 et seq; MSA 15.2299(57). The limited authority
of the state board of education to reorganize a district,
if an emergency warrants such reorganization, exists solely
by file autnority conferred by the legislature. Airport
Community Schools v State Board of Education, 17 Mich
574 (1969).
Thus, it must follow that the suggestion of plenary
authority is totally unwarranted since the legislature, in
specified grants of authority, has imposed certain duties
upon the state board of education and superintendent of
public instruction to be exercised within the limits specified
by the legislature.
-30-
Clearly, the legislature has the authority to:
(1) alter school dxstrict boundaries, Penn School District
N o . 7 v Lewis Cass Intermediate School District Board of
Education, 14 Mich App 109, 120 (1968); (2) appropriate
money for the support of public school districts, Mich
Const 1963, art 8, § 2 and art 9, § 11; (3) establish
schools and attendance areas, Iiiers v Detroit Superintendent
of Schools, supra; (4) govern the relationships of school
districts and their teachers and other educational personnel,
Munro v Elk Rapids Schools, supra, and (5) control the
labor relationships of the school district and its teachers
as well as to prohibit strikes by teachers, School District
for City of Holland v Holland Education Association, supra.
The decided Michigan cases hold that in accorcance
with rules and regulations promulgated under the provisions
of 1969 PA 306, supra, the state board of education has consti
tutional authority to prescribe the length of the school day, Welling
v Livonia Board of Education, supra, and arguably to prohibit the
-31-
establishment of ungraded programs in elementary schools.
Schwan v Lansing Board of Education, supra. Until the State
Board of Education promulgates such rules and regulations,
boards of education do not abuse their discretion when they,
under broad authority conferred by the legislature, offer
half-day programs to their pupils for lack of funds or when
they establish nongraded programs in elementary schools.
There is no appellate decision of a Michigan court extending
the constitutional authority of the State Board of Education
beyond these limits.
Moreover, the Michigan Supreme Court in Jones v
1 ~
Grand Ledge Public Schools, 349 Mich 1 (1957), has clearly
recognized school districts as independent governmental
agencies, separate and distinct from other municipal
corporations and separate and distinct from other school
districts so that the Grand Ledge Board of Education was not
required to educate pupils residing in other school districts.
School districts are distinct governmental agencies independent
of townships, cities and counties in which they may be located.
Board of Education v City of Detroit, 30 Mich 505 (1875).
Thus, in Michigan, school districts are governmental entities
independent of other governmental entities, including other
school districts. See dissenting opinion of Mr. Chief Justice
lrPhis case is consistent with Const 1963, art 8, § 2 which
requires every school district to “provide for the education
Cj- ^ -s, pupirs without discrimination." [Emphasis supplied]
-32-
Burger, Wright v Council of City of Emporia, ___ US ___;
92 S Ct 2196, 2211 (1972), also cited herein as 40 US LW 4806,
(US, June 20, 1972)
In all candor these appellants must inform this
Court that the State Board of Education does not possess
constitutional authority to organize school districts, to
designate the legal status of school districts or their
boards of education as bodies corporate with power to sue or
to be sued, to determine what attorneys shall represent them,
to alter school district boundaries, to appropriate money for
the support of school districts, Michigan Education Association,
et al v State Board of Education, Michigan Court of Appeals
No. 11,900, decided and order issued July 8, 1971, to establish
schools and determine attendance areas, to govern the relation
ships of school districts and their teachers and other educational
personnel, and to control labor relations of school districts
and its teachers, as well as to prohibit strikes by teachers,
under the decisions of the Michigan Supreme Court and Court
of Appeals cited herein. The people have reposed these
powers in the Michigan legislature under the Constitution
of 1963.
-33-
II.
BASED ON THE RECORD IN THIS CASE, THE DISTRICT
COURT’S FINDINGS OF FACT AND CONCLUSIONS OF
LAW OF DE JURE SEGREGATION IN THE PUBLIC SCHOOLS
OF THE DETROIT SCHOOL DISTRICT IS ERRONEOUS_____
Michigan, unlike some other states, has a strong legal
tradition of prohibiting, by positive law, de jure dual school
systems. In The People, ex rel Workman v Board of Education of
Detroit, 18 Mich 399, 408-409 (1869), the Michigan Supreme Court
held, based on statutory enactments of the legislature, that the
Detroit Board of Education could not lawfully maintain separate
schools for black and white children. In doing so, the Court re
cognized, at p. 412, that the Detroit Board of Education could
lawfully establish geographical attendance areas for its schools,
provided all children within each attendance area have an equal
right to attend school irrespective of race. It must be observed
that this decision, which is still the law in Michigan, was handed
down 27 years before the United States Supreme Court enunciated the
pernicious doctrine of separate but equal in Plessy v Ferguson,
163 US 537 (1896), and 85 years before Brown v Board of Education,
347 US 483 (1954).
Section 355 of 1955 PA 269, as amended, supra, provides:
"No separate school or department shall be kept
for any person or persons on account of race or
color..."
In Const 1963, art 8, §2, the people of the State of
Michigan have provided:
-34-
"The legislature shall maintain and support a
system of free public elementary and secondary
schools as defined by law. Every school district
shall provide for the education of its pupils
without discrimination as to religion, creed,
race, color or national origin."
The Address to the People accompanying this constitutional
provision provides, in pertinent part, as follows:
"The anti-discrimination clause is placed in
this section as a declaration which leaves no
doubt as to where Michigan stands on this
question."
Thus, it is beyond dispute that Michigan is not a de jure
state with a dual school system mandated by state law.
Moreover, it must be emphasized that some Michigan school
boards in large city school districts have altered school attendance
areas to achieve racial balance although there is no constitutional
duty to achieve racial balance. See Mason v Board of Education
g l ._the School District of the City of Flint, 6 Mich App 364
; -lipping v Lansing Board of Education, 15 Mich App 441 (1968);
leave to appeal denied 382 Mich 760 (1969); and Swann v Charlotte-
Meek lenburg Board of Education, 402 US 1, 15-18, (1971). These
two Michigan cases negative any suggestion that Michigan is, in
the operation of its school districts, a de jure state with a dual
school system.
Thus, the question of whether the Detroit public schools are
de jure segregated must be answered by reference to the conduct of
-35-
the original defendants relating to the operation of such schools.
These defendants v/ould strongly emphasize that the district court
erred in finding de jure segregation in the Detroit public schools.
The lower court obliterated the firm legal distinction between
de jure segregation by school authorities (Brown v Board of Educa
tion , supra) and racial imbalance in the public schools as a result
of housing patterns which school authorities have no affirmative
duty to overcome. Spencer v Kugler, 326 F Supp 1235, 1242-1243
(DC NJ, 1971) affirmed on appeal 404 US 1027 (1972).
This contention is vividly illustrated by the following
language from the "Ruling on Issue of Segregation" as follows:
. . As we assay the principles essential to
a finding of de jure segregation, as outlined in
rulings of the United States Supreme Court, they
are:
1. The State, through its offices and agencies,
and usually, the school administration, must have
taken some action or actions with a purpose of
segregation. 2 3
2. This action or these actions must have
created or aggravated segregation in the schools
in question.
3. A current condition of segregation exists.
"We find these tests to have been met in this case.
We recognize that causation in the case before us
is both several and comparative. The principal
causes undeniably have been population movement
and housing patterns, but state and local governmental
actions, including school board actions, have played
a substantial role in promoting segregation. It is,
the Court believes, unfortunate that we cannot deal
-36-
with public school segregation on a no-fault basis,
for if racial segregation in our public schools is
an evil, then it should make no difference whether
we classify it de jure or de facto. Our objective,
logically, Tt seems to us” iHouldbe to remedy a
condition which we believe needs correction. In
the most realistic sense, if fault or blame must
be found it is that of the community as a whole,
including, of course, the black components. We
need not minimize the effect of the actions of
loaning~Tnstitutions and real estate firms, in
fe5ira~XT~ state and"ToeaT.gbvernmental.officers
and agencies, and the actions".ofT the e s t ab11 "sfiment
and maintenance of segregated resl^entlaX'laabterni' -
which lead to schooT~~segregatibn . . T 11
(Emphasis supplied). ("l a 194, 210-211}
These defendants agree with the three principles enunciated
by the lower court as essential to a finding of de ;jure segregation,
with the caveat that the first principle must be limited to the
actions of school authorities. Swann v Charlotte-Mecklenburg
Board of Education, 22-23, supra. However, these defendants *
respectfully submit that the lower court's opinion is not consistent
with the principles enunciated therein. Rather, the District Court
opinion relies heavily upon findings of racial discrimination in
housing, by persons and agencies not parties to this cause, and
the failure to act on the part of the defendants to overcome racial
residential separation within the City of Detroit in the operation
of the Detroit public schools. ( I a 200, 201)
Further, an analysis of the "Ruling on Issue of Segregation"
compels the conclusion that such ruling is manifestly inconsistent.
The beginning pages contain a procedural history of the case and
demographic data. The next portion of the opinion recites the
-37-
findings of de jure segregation by the defendants as to pupil
assignments. Yet, in the subsequent pages of its opinion the
lower court expressly finds no de jure segregation as to faculty
assignments and praises defendant, Detroit Board of Education, for
advancing the cause of racial integration in the areas of faculty
integration, vocational education and instructional materials.
( I a 205-210 ) It must be stressed that it is the same Detroit
Board of Education that is, at once, found to be pursuing twin
purposes of segregation and integration. This dual finding is
simply contrary to human experience. These defendants submit that,
over the years, the Detroit Board of Education has operated the
schools under its jurisdiction without any segregatory purpose
in providing educational services for all its students.
It must be emphasized that the majority opinion in Wright
v Council of the City of Emporia, 40 U.S.L.W. 4806, 4810, {US,
June 20, 1972), in rejecting the dominant purpose test and looking
only at the effect of ". . . carving out a new school district
from an existing district that has not yet completed the process of
dismantling a system of enforced racial segregation. . ." (4807),
did so only in the context of the remedy phase of the case and only
within the school district area previously found to be de jure
segregated. Thus, the requirement of purposeful action with the
intent and effect of segregating children by race, as a necessary
prerequisite to finding a'constitutional violation of de jure
-38-
segregation., remains settled law.
These defendants respectfully submit that the lower court
erred in concluding that de jure segregation exists in the Detroit
public schools. The Detroit school district defendants will brief
this question as it pertains to their conduct. This brief will
address primarily, the question of whether the Detroit public schools
are de jure segregated schools as a result of the conduct of any of
these defendants.
-39-
III.
THE LOWER COURT ERRED IN ADMITTING INTO
EVIDENCE AND RELYING UPON EVIDENCE OF
ALLEGED RACIAL DISCRIMINATION IN HOUSING
BY PERSONS NOT PARTIES TO THIS CAUSE, IN
FINDING DE JURE SEGREGATION IN THE DETROIT
PUBLIC SCHOOLS
The l o w e r c o u r t ' s r u l i n g o f S e p t e m b e r 2 7 , 1 9 7 1 , r e l i e s ,
i n s u b s t a n t i a l m e a s u r e , u p on f i n d i n g s o f r a c i a l d i s c r i m i n a t i o n i n
h o u s i n g i n f i n d i n g d e j u r e s e g r e g a t i o n i n t h e D e t r o i t p u b l i c s c h o o l s .
( I a 2 1 0 , . I a 200 )The f i n d i n g s o f r a c i a l d i s c r i m i n a t i o n i n h o u s i n g a r e
b a s e d u p on e v i d e n c e o f a l l e g e d d i s c r i m i n a t i o n b y p e r s o n s o r a g e n c i e s
n o t p a r t i e s t o t h i s c a u s e t h a t w as i n t r o d u c e d o v e r t h e r e p e a t e d and
c o n t i n u i n g o b j e c t i o n s o f t h e d e f e n d a n t s . ( l l a 1 8 - 1 9 ) T h i s
c o u r s e o f c o n d u c t b y t h e t r i a l j u d g e c o n s t i t u t e s a p a t e n t d i s r e g a r d
f o r t h e c o n t r o l l i n g p r e c e d e n t s o f t h i s C o u r t t h a t , i n a s c h o o l
d e s e g r e g a t i o n c a s e , e v i d e n c e o f a l l e g e d r a c i a l d i s c r i m i n a t i o n i n
h o u s i n g b y p e r s o n s o r a g e n c i e s n o t p a r t i e s t o t h e c a u s e i s i n a d m i s s
i b l e . Deal v C i n c i n n a t i B o a r d o f E d u c a t i o n , 369 F2d 5 5 , 6 0 - 6 1
(CA 6 , 1 9 6 6 ) , c e r t d en 389 US 847 ( 1 9 6 7 ) , h e r e i n a f t e r r e f e r r e d t o
a s D e a l I ; D e a l v C i n c i n n a t i B o a r d o f E d u c a t i o n , 419 F 2d 1 3 8 7 , 1 3 9 2
(CA 6 , 1 9 6 9 ) , c e r t d en 402 US 9 6 2 ( 1 9 7 1 ) ; h e r e i n a f t e r r e f e r r e d t o
a s D e a l I I ; D a v i s v S c h o o l D i s t r i c t o f C i t y o f P o n t i a c , I n c , 4 4 3 F2d
5 7 3 , 5 7 5 , (CA 6 , 1 9 7 1 ) , c e r t d en 4 04 US 9 1 3 ( 1 9 7 1 ) .
M o r e o v e r , t h i s C o u r t ' s r u l i n g i n t h e s e t h r e e c a s e s i s
c o n s i s t e n t w i t h t h e o p i n i o n o f t h e U n i t e d S t a t e s S u prem e C o u r t on
t h i s q u e s t i o n i n Swann v C h a r l o t t e - M e c k l e n b u r g B o a r d o f E d u c a t i o n ,
-40-
22-23, supra. More recently, in Spencer v Kugler, supra, the United
States Supreme Court affirmed the holding of a three judge panel that
"A continuing trend toward racial imbalance caused
fay housing patterns within the various school
districts is not susceptible to federal judicial
intervention. . ." p 1243
In Deal II, supra, this Court reiterated its holding
that:
"We dealt with this same issue in the first appeal,
and pointed out:
"'The District Court correctly excluded evidence of
alleged discrimination in the public and private
housing markets. Such discrimination is caused,
if in fact it does exist, by persons who are not
parties to this case and the Board has no power
to rectify that situation. If appellants have any
valid claim for infringement of their rights by
public housing or urban renewal officials, they
may obtain appropriate relief against them under
the Fourteenth Amendment. With respect to private
actions amounting to discriminatory practice, while
there is no federal constitutional right available
to appellants, they may seek relief from the state
Civil Rights Commission or in the state courts, if
relief is denied, under the provisions of the Ohio
Fair Housing Law. Ohio Rev. Code § 4112.-01~.07.'
"Boards of Education can hardly be blamed or held
responsible for neighborhood residential patterns.
"In our opinion, the burden of righting wrongs alleged
to have been committed by public or private agencies
ought not to be foisted upon Boards of Education, which
have enough problems of their own to solve in pro
viding proper education for the young. Nor should
such burden be saddled upon the owners of real property
who are taxed in Ohio to provide funds for the opera
tion of public schools. Appellants should invoke
whatever remedy they have against the agencies which
committed the alleged wrongs of which they complain.
-41-
These agencies were not made parties to this
case." p 1392
This holding must be compared with the "Ruling on Issue
of Segregation" (I a 194 et seq), where the lower court found racial
discrimination in housing by private and public persons and agencies,
including federal, state and local governments, through both actions
and inactions, However, the lower court made no express findings
of racial discrimination in housing by any of the defendants or their
predecessors in office. In fact, the lower court stated that . . .
it would be unfair to charge the present defendants with what other
governmental officers or agencies have done. . ." (x a
The evidence concerning alleged racial discrimination in
housing related primarily to the conduct of private individuals
and agencies and the federal government through FHA and VA housing-
programs. Cr a 200-201 ) The only evidence in the housing area
relating to the conduct of any governmental agency at the state
level, was a 1946 publication by the Michigan Corporation and
Securities Commission which, after reciting the applicable binding
statutory and administrative rules provisions applicable to realtors,
also contained the Code of Ethics of the National Association of
Real Estate Boards. This publication stated that realtors must
follow the statutes and administrative rules and ought to follow
the Code of Ethics. One provision of such Code made reference to
race and property values. It is undisputed, and we ask this Court,
to take judicial notice that such Code of Ethics was never part of
-42-
the legally enforceable administrative rules of the State of
Michigan which must, under 1943 PA 88 and its successor act, 1969
PA 306, supra, be published in the State Administrative Code.
Further, the record is clear that subsequent similar publications
by that agency and its statutory successor did not contain such
provision. ( n a 62-64, II A 74-76, IX a 273-278)
Moreover, in 1960, the Michigan Corporation and Securities
Commission adopted an administrative rule prohibiting racial
discrimination by Michigan realtors. In 1963, a unanimous Michigan
Supreme Court declared such administrative rule invalid as beyond
the scope of the statutorily conferred rule-making power of the
agency. McKibbin v Corporation and Securities Commission, 369 Mich
69 (1963).
In Const 1963, art 5, § 29, the people of the State of
Michigan created a Civil Rights Commission charged with the duty
of securing the equal protection of civil rights guaranteed by
law without racial discrimination. The Michigan Supreme Court
has held that, even in the absence of enabling legislation, the
Civil Rights Commission has jurisdiction over complaints of racial
discrimination by any seller in the business of selling housing to
the public since, under Michigan law, there is a civil right to
private housing where such housing has been publicly offered for sale
by one in the business of selling housing to the public. Beech Grove
-43-
Investment Company v Civil Rights Commission, 380 Mich 405 (1968).
This decision confirmed, in part, the broader ruling of the
Michigan Attorney General, that the Civil Rights Commission may,
absent enabling legislation, enforce the civil right to purchase,
mortgage, lease or rent private housing. OAG No. 4161, 1963-1964,
pp 142-152. It should also be observed that such opinion was issued
by the Attorney General, a defendant herein, at the request of a
state senator who is now Governor of Michigan and a defendant herein.
In 1968, shortly after the decision in Beech Grove
Invgstment Company v Civil Rights Commission, supra, the Michigan
legislature enacted the "Fair Housing Act of 1968" {1968 PA 112,
MCLA 564.101 et seq; MSA 26.1300(101) et seq) which prohibits
private racial discimination in real property transactions,
prescribes the functions of the Civil Rights Commission with
respect to enforcement of the statute, and provides remedies for
violations of the act. Thus, in Michigan, like Ohio, persons
allegedly discriminated against in-private housing may seek relief
from the State Civil Rights Commission or the state courts. Further,
in Michigan, like Ohio, the school authorities may not be held
responsible for neighborhood residential patterns.
In summary, it is clear that, to the considerable extent
the lower court relied upon evidence of alleged racial discrimination
in housing by private and public persons and agencies not parties
-44-
to this cause, in finding de jure segregation in the Detroit public
schools, the lower court committed reversible error. This Court
must so hold in light of its own prior precedents on this question
which are clearly in conformity with the decisions of the United
States Supreme Court.
At this point, it must be observed that the lower court, in
its "Ruling on Issue of Segregation," attempted to connect racial
discrimination in housing with the actions of some of the defendants
in the following language:
" . . . While it would be unfair to charge the
present defendants with what other governmental
officers or agencies have done, it can be said
that the actions or the failure to act by the
responsible school authorities, both city and
state, were linked to that of these other govern
mental units. When we speak of governmental action
we should not view the different agencies as a
collection of unrelated units. Perhaps the most
that can be said is that all of them, including
the school authorities, are, in part, responsible
for the segregated condition which exists. And
we note that just as there is an interaction
between residential patterns and the racial
composition of the schools, so there is a cor
responding effect on the residential pattern by
the racial composition of the schools."
{Emphasis supplied) ( I a 201)
This broad, sweeping finding, stated in the most general
of terms, purports to link housing discrimination to the conduct
of the responsible school authorities, both city and state, in
terms of action or failure to act.
-45-
Here, it must be stressed that this Court has squarely
ruled in Davis, supra, that:
"Appellants correctly contend that under Deal v
Cincinnati Bd. of Educ., 363 F2d 55 (6th Cir. 1966),
cert, denied, 389 U.S. 847, 88 S.Ct. 33, 19 L. Ed.
2d 114 (1967), a school district has no affirmative
obligation to achieve a balance of the races in~the
schools when the existing imbalance is not attributable
to school policies or practices and is the result of
housing patterns and other forces over which the
school administration had no control. . ." p 575
(Emphasis supplied)
Subsequently, this rule has been enunciated by a three judge panel
and affirmed by the United States Supreme Court in Spencer v Kugler,
supra. Thus, the law is firmly settled that there is no affirmative
duty on the part of school authorities to achieve racial balance
in the schools when any existing imbalance is the result of housing
patterns and other forces over which they have no control. Such a
duty arises only when the racial imbalance is attributable to school
policies and practices, i.e., to acts of de jure segregation. Thus,
the lower court was manifestly in error, as a matter of law, in
finding de jure segregation on the basis of a failure to act, by
the city and state school authorities, in overcoming the pattern
of racial residential separation in Detroit in the conduct of the
public schools therein. If there is any constitutional violation
of these defendants, it must be based, not on inaction, but on
affirmative conduct constituting acts of de jure segregation. These
defendants respectfully submit that the following analysis will
demonstrate no such affirmative misconduct by them or their
predecessors in office.
-46-
IV.
THE LOWER COURT'S LEGAL CONCLUSION OF DE JURE
SEGREGATION BY THESE DEFENDANTS IN THE MATTER
OF SITE SELECTION FOR SCHOOL CONSTRUCTION IS
ERRONEOUS AS A MATTER OF L A W _______________
The lower court's conclusions of law in its "Ruling on
Issue of Segregation," (I a 194, 211) contain extensive con
clusions of law concerning the powers of these defendants, part
icularly the State Board of Education and the Superintendent of
Public Instruction, under Michigan law concerning the operation
of the approximately 600 school districts in Michigan. Yet, the
lower court did not conclude, as it could not, that any of these
defendants has the power, under Michigan law, to establish or
modify attendance areas within school districts. Further, the case
of Kiers v Detroit Superintendent of Schools, supra, recognizes the
broad discretionary statutory authority of defendant, Detroit Board
of Education, to establish and alter the attendance areas within
its school district.
In the matter of site selection for school construction, the
conclusions of the trial court are both patently inconsistent
and erroneous as a matter of law. In the "Ruling on Issue of
Segregation," the lower court correctly concluded that . . [t]he
duties of the State Board and Superintendent include, . . . approval
until 1962 of school sites; approval of school construction plans;
. . ." (Emphasis supplied) ( j a 213 ) Thus,
after 1962, defendants State Board of Education and Superintendent
of Public Instruction ceased to have any authority under state law
to approve or disapprove school construction sites selected by local
-47-
boards of education. Yet, relying upon a 1966 Joint Policy Statement
and a 1970 School Plant Planning Handbook, in which these two
defendants admonished local school boards to consider racial balance
as one factor among many in school site selections, the lower court
found that the state defendants failed to take affirmative action
to implement such admonition in connection with certain Detroit
schools that opened for use in 1970-1971. (I a 203-204)
The Joint Policy Statement and the School Plant Planning
Handbook represent an admonition to local school boards by the
State Board of Education, in the exercise of its leadership
function under Const 1963, art 8 , § 3, to consider racial balance
as one of the factors in selecting new school sites. The Joint
Policy Statement and School Plant Planning Handbook admonitions
on sits selection were never reduced to legally enforceable rules
in the State Administrative Code for the reason, as correctly
concluded by the trial court, that, after 1962, neither the State
Board of Education nor the Superintendent of Public Instruction
possessed any power of approval over school site selections made
by local boards of education. Moreover, as testified by the
Superintendent of Public Instruction, these two documents were viewed
by him as containing recommendations. (Ill a 101 ) We ask
this Court to take judicial notice that neither the Joint Policy
Statement nor the School Plant Planning Handbook were ever published
in the State Administrative Code, as required by 1943 PA 88 and its
-48-
successor act, 1969 PA 306, supra, and Welling v Livonia Board of
Education, supra, for legally binding administrative rules.
The basic Michigan statute dealing with the construction of
school buildings is 1937 PA 306, as amended, MCLA 338.851 et seq;
MSA 15.1961 et seq. In 1949, by 1949 PA 231, the legislature
amended section 1 of this act to provide that in the approval of
construction plans by the Superintendent of Public Instruction, he
was to consider, as one factor, the adequacy and location of the
site. Thus, clearly, site approval was given only within the context
of approving school construction plans at a time when the school
district had already acquired the land on which the building would
be erected. In 1362, by virtue of 1962 PA 175, the legislature
amended section 1 of this statute again, thereby removing any power
to approve or disapprove school construction sites on the part of
either the State Board of Education or the Superintendent of Public
Instruction. The statute, as presently constituted, deals only
with approval of construction plans in terms of fire, health, and
safety.
It is manifestly unjust and illogical to base a finding of
de jure segregation on the failure to exercise a non-existent power
under state law. Further, the finding that the state defendants fail
ed to affirmatively effectuate this admonition on considering racial
balance is contrary to the decided cases of both this Court and the
-43-
United States Supreme Court that there is no affirmative consitutional
duty to achieve racial balance in the public schools. Davis v
School District of City of Pontiac, Inc, supra, p 575; Swann v
Charlotte-Mecklenburg Board of Education, supra, pp 15-18; Spencer
v Kugler, supra, pp 1242-1243. Thus, as a matter of law, the con
clusion of de jure segregation by these defendants as to site selection
for school construction is in error and must be reversed on appeal.
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V.
THE LOWER COURT ERRED IN DENYING THESE
DEFENDANTS'41(b) MOTIONS TO DISMISS MADE
AT THE CLOSE OF PLAINTIFFS' CASE IN CHIEF
At the close of plaintiffs' case in chief, two motions
to dismiss were filed, pursuant to FR Civ P, 41(b), one on behalf of
the Governor and the Attorney General and the other on behalf of the
State Board of Education and The Superintendent of Public Instruction.
(I a 134-135 ) At the conclusion of oral argument on both
motions, the District Court took them under advisement. At that
point, these defendants elected to stand on their 41(b) motions,
rather than to present evidence during the remainder of the trial
on the question of de jure segregation in the Detroit public
schools. (Ill a 191 ) Thereafter, counsel for these defendants
did not participate in any evidentiary hearings before the trial
court until the hearings were commenced on the question of relief
or remedy. On June 25, 1971, the lower court entered its order
denying both 41(b) motions although no reasons were given for such
denial until the "Ruling on Issue of Segregation" was issued on
September 27, 1971. (I a 153, I a 194 et seq)
Thus, under the rule enunciated by this Court in A.& N .
Club v Great American Insurance Co, 404 F2d 100, 103-104, (CA 6 ,
1968) these defendants, by standing on their 41(b) motions to dismiss
and not putting in evidence during the remainder of the trial on de
jure segregation in the Detroit public schools, have preserved
-51-
their right to assign as error the denial of their 41{b) motions
based upon evidence introduced prior to the point of the motion.
Under the teaching of this court in A. & N. Club v Great American
Insurance Cof 103, supra, if a defendant proceeds to put in its
case, this " . . . will constitute a waiver of defendants right
to allege error on the motion's disposition only in light of the
evidence introduced up to the point of the motion, . ." No such
waiver occured in the instant cause.
These defendants respectfully submit that, based on the
record in this cause at the time plaintiffs had presented
their case in chief, the lower court was manifestly in error in
denying these defendants' 41(b) motions to dismiss. An analysis
of the evidence in the record to that point will clearly demonstrate
the error committed by the lower court. It must be observed that,
in its "Ruling on Issue of Segregation", the lower court's
ultimate holding was as follows:
"In conclusion, however, we find that both the
State of Michigan and the Detroit Board of
Education have' committed acts which have been
causal factors in the segregated condition of
the public schools of the City of Detroit. . ."
(Emphasis supplied) { I a 210)
It must be stressed that this suit is not one brought against the
State of Michigan. ( I a 7 ) The State of Michigan has never
given its consent to being sued in this cause. Such a suit, to
-52-
which the State of Michigan has never consented, would clearly vio
late the Eleventh Amendment to the United State Constitution and
the decided cases of the United States Supreme Court. In re State
of New York, 256 US 490, 497 (1921). Obviously, this firmly
established principle does not prevent suits against named state
officials as defendants who have allegedly invaded plaintiffs' consti
tutional rights. Griffin v County School Board of Prince Edward
County, 377 US 218, 228 (1964). However, it is equally clear that
a suit against specific state officials must focus on their conduct.
These defendants are not aware of any recognized principle in our
jurisprudence under which a suit against certain named state officer
defendants may be used as a launching pad for findings against the
state itself. Thus, the lower court's ultimate holding of de jure
segregation in Detroit, as a result of the conduct of the State of
Michigan, is demonstrably suspect as representing an erroneous
application of established constitutional law principles.
The "Ruling on Issue of Segregation" refers repeatedly to
the conduct of "The State and its agencies," and "The State" with
very few express references to specific conduct by the named officer
defendants. (I a 204-205 ) This aspect of the Court's opinion
constitutes an implicit finding or conclusion of vicarious liability
contrary to law as to these named defendants. Once plaintiffs
have named these state officers or agencies as defendants, they are
-53-
entitled, like any other party defendant, to have their conduct
adjudicated on its own merits. As in the case of every other
citizen, they are entitled to their good names.
Turning to the evidentiary record made during plaintiffs’
case in chief concerning the conduct of the Governor with respect
to the Detroit public schools, such conduct may be summarized as
follows:
1. The Governor is an ex-officio member of the
State Board of Education without the right to
vote. Const 1963, art 8, § 3.
2. The Governor signed 1970 PA 48, section 12
of which was later declared unconstitutional by
this Court. However, it must be stressed that
1970 PA 48, passed with only one dissenting vote in
the Michigan Legislature, contained many sections
dealing with the decentralization of first class
school districts. Journal of the House No. 103,
p 2797. Journal of the Senate No. 97, p loSlT
Further, under Michigan Lav/, the Governor does not
possess an item veto except for items appropriating
money in appropriation bills. Const 1963, art 8,
§ 33 and art 5, § 19. These defendants are aware
of no judicial authority holding that a chief
executive officer, whether it be the President of
the United States, governor of a state or the mayor
of a city, violates the constitution by signing
into law a legislative enactment, a portion of
which is later held to be unconstitutional. See
Wright v Rockefeller, 376 US, 52, 55-57, (1964)
where the majority opinion discussed,
not the intent of the Governor, but the purpose or
motivation of the legislature in ascertaining
whether the challenged part of the statute was
invalid.
3. Pursuant to section 2a of 1970 PA 48, the
Governor appointed the boundary commission that
-54-
established the regional boundaries within the
Detroit school district for administrative
decentralization and greater community control of
the schools. The United State Supreme Court has
recently recognized the importance of local
community control in public education. Wright v
i"?-u-nc:4 o£ the City Of Emporia, 40 US LWT8067
4VL2, 4815 (US, June 20, 1972T
4. Pursuant to Section 970 of 1954 PA 116, MCLA
168.970; MSA 6.1970, the Governor appointed four
interim members of the Detroit Board of Education,
following the recall by election of four members
of such ooard, who served until the offices of the
four recalled school board members could be filled
through the election process.
The record concerning the conduct of the Attorney General
with respect to the affairs of the Detroit Public Schools may be
summarized as follows:
1*. The Attorney General, upon request, issues
opinions, some of which relate to school matters
including^the Detroit school system. Otherwise,
the record in this cause is barren of any evidence
concerning activities of the defendant, Attorney
General, that relate in any way to the affairs of
the Detroit public schools.
Tne record contains no extrinsic evidence justifying
any inference that either the Governor or the Attorney General
committed any of the acts set forth above with a purpose or
motivation to segregate pupils on the basis of race in the Detroit
public schools. Thus, it must be concluded that neither of these
two defendants has violated plaintiffs' asserted constitutional
rights. Wright v Rockefeller, 55-57, supra. It must also be
-55-
observed that the same holds true as to the State Board of Education
and the Superintendent of Public Instruction.
Moreover, the uncontradicted testimony of defendant, Superin
tendent of Public Instruction, concerning the conduct of defendants,
Governor and Attorney General, with respect to the operation of the
Detroit public schools is as follows.
"Q. Now, in the area that we have gone through
at some length of pupil attendance, of school
construction, of allocation of funds between
buildings, of the hiring and placement of
teachers, in these particular areas does the
Governor of this state exercise any supervision
over the decisions made by the Detroit"Board
or any other school district?
,!A. To my knowledge the Governor has not exercised
any control over the internal decisions of
local school districts.
"Q. And in the same area has the Attorney General
exercised any supervision over decisions of the
Detroit Board or any other Board of Education?
"A. To my knowledge that has not been the case."( III a 106)
Thus, it is beyond dispute, based on the record in this
cause, that neither the Governor nor the Attorney General partici
pated in the decisions concerning pupil and faculty assignment within
the Detroit public schools. There is simply no evidence, extrinsic
or otherwise, that either of these defendants took any action with
respect to the Detroit public schools with the purpose and effect
of segregating pupils or faculty by race. Consequently, it is
-56-
patent that the lower court erred in denying the 41(b) motion
to dismiss as to these two defendants.
At this point, it should be observed that in the "Ruling
on Issue of Segregation" the lower court's conclusions of law
included the following:
"14. State officials, including all of the
defendants, are charged under the Michigan
constitution with the duty of providing pupils
an education without discrimination with respect
to race. Art. VIII, § 2, Mich. Constitution of
1963. Art. I, § 2, of the constitution provides:
"'No person shall be denied the equal protection
of the laws; nor shall any person be denied the
enjoyment of his civil or political rights or be
discriminated against in the exercise thereof
because of religion, race, color or national
origin. The legislature shall implement this
section by appropriate legislation.'"
It must be emphasized that, to the extent the lower court
relied upon this conclusion of law for ruling against the Governor and
the Attorney General herein, such reliance is manifestly misplaced.
To state the obvious, the Equal Protection Clause of the
Fourteenth Amendment prohibits racially discriminatory conduct by
both the Governor and the Attorney General in the field of public
education. However, these defendants are unaware of any authority
holding, assuming arguendo unconstitutional conduct by a given
school district in a state, that such conduct may serve as a valid
basis for finding de jure segregation against either the Governor
-57-
or Attorney General of such state. In Michigan, there are over
600 school districts, each with its own locally elected board of
education. To say that either the Governor or the Attorney General
is vicariously liable for the conduct of each such board of education
is patently untenable. There is simply no way that either the
Governor or the Attorney General can perform the many functions
of their respective offices and also monitor the affairs of over
600 school districts.
Moreover, neither such authority nor duty is imposed upon
either the Governor or the Attorney General by the 1963 Michigan
Constitution or any state law. In apparently finding such a duty,
the lower court relied upon the Equal Protection Clause contained
in Const 1963, Art I, § 2. The Michigan Supreme Court has
squarely held that Michigan's Equal Protection Clause secures the
same rights guaranteed by the Equal Protection Clause of the Fourteenth
Amendment. Fox v Employment Security Commission, 379 Mich 579,
588 (1967). In addition, the Address to the People accompanying
this constitutional provision contemplates legislative implemention
of this section and makes reference to education as one principal
area of concern for the Civil Rights Commission. Further, Const
1963, Art 8 , § 2, also relied upon by the District Court, is a
positive prohibition against racial discrimination by Michigan's
School Districts. Neither of these constitutional provisions im-
-58-
poses any authority or duty upon either the Governor or the
Attorney General to police the affairs and decisions of Michigan's
600 or more school districts and their locally elected boards of
education.
Furthermore, the rule is settled that any rights existing
solely under state law are neither protected by the Federal
Constitution or federal statutes nor enforceable in the federal
courts. Baker v Carr, 369 US 186, pp 194-195 footnote 15, (1962)
Gentry v Howard, 288 F Supp 495, 498 (ED Tenn, 1969). Thus,
assuming arguendo that Const 196 3, Art I, § 2 and Art 8 , § 2,* any
state statute or the admonitions on racial balance in the Joint Policy
Statement and School Plant Planning Handbook impose some higher
duty upon the Governor and the Attorney General than is imposed by
the Fourteenth Amendment, the enforcement of such duty is a function
for Michigan courts rather than the federal courts.
To summarize this portion of the argument, it must be
stressed that the lower court erred in denying the 41(b) motion
to dismiss made by defendants Governor and Attorney General at the
close of plaintiffs' case in chief. The Detroit public schools are
not de jure segregated schools. Further, based on the record made
during plaintiffs' case in chief, it is crystal clear that neither
the Governor nor the Attorney General committed any de jure acts
-59-
with respect to the Detroit public schools. The state of the
proceedings at which this court ruled that it was error to dismiss
these two defendants has long since passed. 433 F2d 897, 905.
Thus it was error for the lower court to deny the 41(b) motion
made on behalf of these two defendants.
Turning to defendants State Board of Education and Super
intendent of Public Instruction, the proofs relating to their conduct
in the area of site selection have already been discussed above.
Moreover, in the exercise of its "leadership" authority conferred
by the people in Const 1963, art 8 , § 3 relative to sites, as
reflected in the Joint Policy Statement and School Construction
Handbook, (IX a 2 79-2 81 ) the state board of education was
striving to enhance the racial balance of pupils, although it should
be stressed that achieving racial balance was only one factor to be
considered by school districts in selecting sites for school construc
tion. The other proofs concerning these two defendants made during
plaintiffs' case in chief relating to pupil and staff assignments
include the following uncontradicted testimony by Dr. Porter,
Superintendent of Public Instruction, as follows:
"Q. Doctor Porter, I believe you testified you
are chief executive officer of the Department
of Education, is that right?
"A. That is correct.
"Q. And the Department of Education is one of
nineteen executive departments?
-60-
"A. That is correct.
"Q. Now, the head of the department is the State
Board of Education, is that right?
"A. That is correct.
"Q. And you are their chief executive officer?
"A. That is correct.
"Q. Can you tell the Court how many school districts
there are in the State of Michigan at the present
time?
"A. As of April 1, 1971 there were 530, K-12
districts, that would be kindergarten through
12th grade and 87 non-K-12 grades, that would
be a total of 617.
"Q. Do you know how many children are being educa
ted in these school districts in Michigan during
the current school year?
"A. Approximately 2.2 million.
"Q. Does the State Board of Education — - let me
put it another way -— has the State Board of Ed
ucation supervised the hiring of teachers in the
Detroit School District?
"A. The State Board of Education does not
supervise the hiring of the teachers in
Detroit or any other school district except
we must certify the teachers they employ
and must approve any employees that are not
fully certificated.
"Q. Does either the State Board of Education
or your office supervise the assignment of
teachers in the Detroit School District to
particular schools?
"A. We make no supervision as to assignments
except according to the State Certification
Code, teachers must be assigned according to
their majors and minors but we do not make
-61-
the assignments.
”Q. Does the State Board of Education or your
office supervise the establishment of
attendance areas in the Detroit School District
or in any other school district?
"A. The State Board of Education does not super
vise attendance area assignments. The State
Board has received during my tenure I think
the first one of its kind, an appeal from a
school district, not Detroit, requesting that
the State Board overturn attendance areas and the
Attorney General's office advised the Board in
writing that it had no jurisdiction in regard to
attendance area lines.
"Q. Does the State Board of Education or your office
supervise the establishment of feeder patterns
for junior high school and high schools in the
Detroit School District or any other school
district?
"A. No.
,!Q • Does the State Board of Education or your office
supervise the bussing of children in the Detroit
School District or any other school district to
relieve overcrowding?
"A. No, except as I testified earlier that our
recommendations in regard to both that issue and
the previous one be consistent with the policies
of the State Board in terms of recommendations
for equal educational opportunity in desegregation,
but we do not supervise in this area.
‘■Q. Now, the policies of the State Board of Education
which were alluded to on direct examination, these
are recommendations, are they not?
"A. That is correct. (Ill a 99-101 )
* * *
”Q. Does either the State Board or your office
exercise any supervision over the selection of
administrators by the Detroit School District or
-62-
by any other school district?
"A. No. (HI a 106)
In addition, it must be observed that the lower court's
conclusions of law in its "Ruling on Issue of Segregation",
( 1 a 211 ) recite at length the statutory duties of defendants
State Board of Education and Superintendent of Public Instruction.
This extended recitation of statutory duties does not include any
duties with respect to either the hiring and assigning of teachers
and administrators or the establishment of attendance areas and the
assigning of pupils to schools within such attendance areas by
school districts. Thus, on both the facts and the law, it is beyond
dispute that defendants State Board of Education and Superintendent
of Public Instruction have not taken any affirmative actions with
the purpose and effect of causing either pupil or faculty segregation
in the Detroit public schools. Consequently, the lower court was
clearly in error in denying the 41(b) motion to dismiss filed by
these defendants at the close of plaintiffs' case in chief.
In summary, the Detroit public schools are not de jure
segregated schools. Further, based on the record in this cause
made during plaintiffs' case in chief, none of these four defendants
has committed any acts with the purpose and effect of causing pupil
or faculty racial segregation in the Detroit public schools. There
fore , the lower court clearly erred in denying the 41(b) motions
-63-
t o d i s m i s s f i l e d b y t h o s e d e f e n d a n t s a t t h e c l o s e o f p l a i n t i f f s '
case i n c h i e f .
Till', LOWER COURT ERRED IN MAKING FINDINGS
AGAINST THESE DEFENDANTS BASED ON EVIDENCE
INTRODUCED AFTER THESE DEFENDANTS HAD MADE
THEIR >\ 1(b) MOTIONS AND ELECTED TO STAND
ON SUCH MOTIONS AT THE CLOSE OF PLAINTIFFS'
CASE IN CHIEF.
These defendants respectfully submit that, based
on uhe teaching of this Court in A. £■ N. Club v Grea.t American
Insurance Co, supra, and the fact that pursuant thereto these
defendants stood on their 41(b ) motions made at the close of
plaintiffs' case in chief rather than participate in the
remainder of the trial on de jure segregation in Detroit, it
was clearly error for the lower court to rely on evidence intro
duced thereafter in making certain findings against these
defendants. Such a course of conduct by the trial court const!
tutes a blatant disregard for the minimum requirements of due
process of law. To rule that the lower court properly relied
on evidence, introduced after these defendants elected to stand
on their 4l(b) motions and thereby did not participate in
the remainder of the trial on de jure segregation In Detroit,
so as not to waive their right to assign error as to the dis
position of sucfl notions, would be to vitiate in large measure
the future efficiency of F R Civ P, 41(b).
The specific portion of the "Ruling on Issue of
Segregation" as to which error in this regard is claimed by
these defendants is as follows:
-65-
"The State and its agencies, in addition
to their general responsibility for and
supervision of public education, have acted
directly to control and maintain the pattern
of segregation in the Detroit schools'. .. .This
and other financial limitations, such as
those on bonding and the working of the state
aid formula whereby suburban districts were
able to make far larger per pupil expenditures
despite less tax effort, have created and
perpetuated systematic educational inequalities.
(I a 204 )
This language in the lower court's opinion, is taken
verbatim from plaintiffs' proposed findings of fact. (I a 154 et seq)
The pages of the trial transcript cited in support of such
findings by plaintiffs, which the lower court obviously relied
upon, are all pages of the record that were made after these
defendants stood on their 41(b) motions to dismiss and refrained
Irom further particInation in the trial on do jure segrega
tion in Detroit so as to preserve their right to assign error
on the disposition of such motions by the lower court.
(Ill a 191 )
The controlling principle here, as plainly and
unanimously set forth by this Court in A. & :I. Club v Great
American Insurance Co, 103-104, supra, is that, if a defendant
proceeds with its case then it waives the right to assign
error as to the disposition of its 4l(b) motion, based on the
evidence introduced tc the time the motion was first made,
and the Court on appeal will consider all of the evidence pre
sented. However, if a defendant stands on its 4l(b) motion,
-66-
rather than proceeding with its case, then it preserves the
right to assign error as to the disposition of such motion on
appeal, based only on the evidence introduced up to the time
the motion was first presented.
Under this controlling principle, the lower court
erred, as a matter of law, in relying upon evidence introduced
after these defendants stood on their 4l(b) motions, in making
the findings or conclusions quoted above in its "Ruling on
Issue of Segregation." Thus, such findings and conclusions
must be reversed by this Court on appeal.
-67-
VII.
THE LOWER COURT'S LEGAL CONCLUSION OF
SYSTEMATIC JSDUCATIONA1, INEQUALITY BETWEEN
DETROIT AND THE SURROUNDING MOSTLY WHITE
SUBURBAN SCHOOL DISTRICTS, BASED UPON
TRANSPORTATION FUNDS, BONDING LIMITATIONS
AND THE STATE SCHOOL AID FORMULA, IS
ERRONEOUS AS A MATTER OF LAW.
The argument in this portion of the brief is directed
to the following paragraph of the lower court's "Ruling on
Issue of Segregation":
i
"The State and its agencies, in addition to
their general responsibility for and super
vision of public education, have acted
directly to control and maintain the pattern.,
of segregation in the Detroit schools. The '
State refused, until this session of the
legislature, to provide authorization or
funds for the transportation of pupils within
Detroit regardless of their poverty or distance
from the school to which they were assigned,
while providing in many neighboring, mostly
white, suburban districts the full range of
state supported transportation. This and
other financial limitations, such as those on
bonding and the working of the state aid
formula whereby suburban districts were able
to make far larger per pupil expenditures
despite less tax effort, have created and per
petuated systematic educational inequalities...
(Ia 20A)
With the exception of the second sentence of this paragraph,
dealing with transportation funds, the lower court relied
upon evidence introduced after these defendants had rested
on their h 1 (l)) motions, as is set forth more fully in the
preceeding section of this brief. However, since these
-68-
defendants have no way of knowing whether this Court will
agree with their position concerning reliance on such evi
dence by the lower court, these defendants are compelled to
also set forth their argument on the substantive, as opposed
to procedural, merits of this portion of the lower court's
opinion.
It must be noted that neither plaintiffs' complaint,
nor plaintiffs' statement of issues in the Joint Pre-Trial
Statement contains any reference to claims or issues concern
ing the financing of public education in the areas of trans
portation, bonding, or the state aid formula in terms of any
alleged educational inequality between Detroit and the sur
rounding suburban school districts. (la 7 ; la 120) This case
was presented by plaintiffs as a school desegregation case
limited to the Detroit public schools, not as a school finance
case covering both Detroit and neighboring school districts.
Thus, this portion of the lower court's opinion, dealing with
school finance beyond the Detroit public schools, is patently
inappropriate in a school desegregation case involving one
school district.
These defendants would emphasize their contention
that in this portion of its opinion, the district court has
erected an edifice of unconstitutionality on a foundation of
sand. The ensuing analysis will demonstrate, both as a
-69-
matter of fact and law, that this portion of the trial court's
opinion is clearly in error.
The first sentence of the challenged paragraph
concludes that the state and its agencies, in addition to their
general responsibility for public education, have acted directly
to control and maintain a pattern of segregation in the Detroit
schools. Plaintiffs' proposed findings of fact, from which
this paragraph was lifted verbatim by the lower court, cite
two pages of the trial transcript in support of the first
sentence of this paragraph. (Ia 190, IV a 293-294)
A reading of these two pages reveals no testimony
whatsoever as to any pattern of segregation in the Detroit
public schools. Rather, we find testimony by Dr. Guthrie,
an educational expert and admitted non-lawyer, to the effect
that, under a provision of the Michigan Constitution, it is
his view that the state is responsible for financing educa
tion in Michigan's school districts.
The constitutional provision to which he makes
reference must be Const 1963, Art 8, § 2, which directs the
legislature to maintain and support a system of free public
elementary and secondary schools. Here, it is instructive
to note, that in the constitutional debates on Committee
Proposal No 30, which eventually became Const 1963, Art 8,
§ 2, the following dialogue occured between Mr. Bentley,
-70-
Chairman of the Committee on Education, and a fellow conven
tion delegate as follows:
"MR. WANGER: Mr. Bentley, I noticed the word
'continue' is deleted, and the words 'maintain
and support' are inserted. Does this raise a
question as to whether or not the state is
obligated to pay for all of these schools,
rather than the financing by the local units?
"MR. BENTLEY: I think not, Mr. Chairman. The
committee took this language from the provision
in the model state constitution, which is in
chapter 11, on page 10 of your citizens research
council book, and which reads: 'The legisla
ture shall provide for the maintenance and sup
port of a system of free public schools open to
all children in the state.' I believe that no
such interpretation, Mr. Chairman, can reason
ably be placed upon this language."
Constitutional Convention, 1961, Official Record,
Vol 1, pp 762-763
Thus, with all due deference to Dr. Guthrie, as an educator,
it is beyond dispute that the financing of public education
in Michigan is a responsibility shared by the Michigan Legis
lature, not a party to this cause, and local school districts.
Further, in Const 1963, Art 9, § 6 , we find provisions relating
to the imposition of general ad valorem property taxes by
school districts as a major source of revenue.
The next two sentences of the paragraph challenged
in this section of the brief contain purported "findings"
that refer, without citation, or declaration of unconstitu
tionality, to state statutes relating to transportation funds,
-71-
bonding, and the state aid formula for disbursing login]ativoly
appropriated fund:; to school districts. It Is not clear
whether these "findings" are intended to be findings of fact
or conclusions of law that the statutes involved are unconsti
tutional. This brief will demonstrate that, whether these two
sentences constitute findings of fact or conclusions of law,
they are clearly in error.
A careful scrutiny of the three trial transcript
pages cited by plaintiffs in support of the "finding" on
transportation funds reveals absolutely no testimony to support
such a finding. ( III a 95-91 ) Th e lower court’s reference to
transportation funds is directed at section 11 of 1957 PA 312,
as amended by 1970 PA 100, MCLA 338.621: MSA 15.1919(61),
which was the statutory section in effect at the time of trial
concerning state aid reimbursement to school districts of a
portion of the cost of transporting certain children.
It must be stressed that all Michigan school districts
have the authority to transport children and to expend their
locally derived general ad valorem property tax revenues for
such purpose. ( m a 95 ) The lower court's "Ruling on
Issue of Segregation" contains several references to the trans
portation of students within the Detroit school district.
( V a 202 )
72-
The provisions of section 11 of 1957 PA 312, as
amended by 1970 PA 100, supra, relate to the extent to which
school districts transporting children will receive state aid
reimbursement for a portion of the cost of such transportation.
Under this section, generally speaking, state aid allotments
for transportation are limited to school districts transporting
children "...living outside the village or city limits and
more than 1 1/2 miles from the school they attend..." Further,
this statutory section provides reimbursement to school districts
for the transportation of handicapped children irrespective
of whether they live outside village or city limits. Thus,
the basic statutory distinction is between urban and rural
transportation without regard to race.
It must also be noted that, in the counties of Wayne,
Oakland and Macomb, there are, in addition to the City of
Detroit, 65 other incorporated cities and 17 incorporated
villages. Michigan Manual, 1971-1972, pp 366-908. There is
simply no evidence in this record to support a finding that
state aid transportation reimbursement for school children
living in these 65 other cities and 17 villages is provided,
while it is not provided for pupils living in the City of
Detroit, except to the extent that such school children may
be transported outside city or village limits in traveling to
their school of attendance within the school district bound
aries by the nearest traveled public highway.
-73-
This very type of urban-rural statutory distinction
for purposes of state school aid reimbursement for transporta
tion was held ''plainly constitutional" by a three judge
federal court in Sparrow v Gill, 304 F Supp 86, (MD N C , 1969),
as follows:
"Applying this test, we find N.C.G.S. § 115-
186(e) wholly reasonable. The degree of
urbanization of the entire state, alluded to
by plaintiff, has not yet become so pronounced
that the legislature might not reasonably con
clude that city students have easier access
than do county students to public transporta
tion:. that they are more apt to have sidewalks
and other pedestrian protections on their way
to school; that they are more apt to partici
pate in an 'automobile’ culture simplifying
family transportation and the formation of
carpools, than their county-dwelling counter
parts. We think N.C.G.S. § 115-l86(e) is
plainly constitutional." (pp 90-91)
In summary, section 11 of 1957 PA 312, as amended by
1970 PA 100, supra, Is clearly constitutional in allocating
limited state funds to transportation reimbursement for children
living in rural areas rather than to children living in incor
porated cities and villages. This statute clearly meets the
applicable reasonable basis test enunciated by the United
States Supreme Court in Dandridge v Williams, 397 US ^71, h85
(1970).
Further, the record is barren of proof that children
living in other Michigan cities and villages within the three
county area that are transported within such cities or villages
74-
to their school of attendance are treated any differently, for
purposes of state aid reimbursement, than children residing in
the City of Detroit. Finally, it is difficult, if not impos
sible, to see how state aid transportation provisions could
create or perpetuate any systematic educational inequalities
in view of the fact that the record in this cause is totally
devoid of any proof that any child was unable to attend school
in Detroit because of lack of transportation. Consequently,
the lower court's ruling concerning transportation funds,
whether treated as a finding of fact or a conclusion of law, is
clearly in error.
Turning to the third sentence of the paragraph chal
lenged in this section of the brief, it must first be observed
that none of the pages of the record cited by plaintiffs'
proposed findings of fact in support of the lower court's
'■'finding'1 concerning bonding limitations makes any reference
to bonding or limitations on bonding for school construction.
IV a 71-2, 291-5, 304-5, 322-3, 452-3)
( I a 190-1/ ) This part of the trial transcript simply lacks
any references to bonding limitations. Moreover, the trial
court's "Ruling on Issue of Segregation," refers to much new
construction (1970-1971) and unused space In the Detroit public
schools. ( la 2 0 2 , 204 )
The so-called limitation on bonding turns out, upon
a careful examination of Michigan statutes, to be non-existent.
-75-
Pursuant to sections 77a, 115, 158 and 220a of 1955 PA 269,
as amended by 1968 PA 316, supra, Michigan school districts
of the fourth, third and second class, respectively, were per
mitted to issue bonds for school construction up to 5% of the
assessed valuation of the taxable property within the district
without a majority vote of the people, while a first class
district, which includes only Detroit, was permitted to issue
bonds for school construction up to 3% without a majority vote
of the people. Here, it must be stressed that the Detroit
school district has the largest total assessed valuation of
taxable property of any Michigan school district. Further,
with a majority vote of the people, all classes of school
districts had equal bonding power for school construction. See
section 681 of 1955 PA 269, as last amended by 1965 PA 258,
supra.
Moreover, and more importantly, since May 13, 1971,
some four months prior to the lower court's "Ruling on Issue
of Segregation" of September 27, 1971, a first class school
district has been permitted by the legislature to issue bonds
for school construction up to 5% of the assessed valuation of
the taxable property within the district without a majority
vote of the people. See Section 220a of 1955 PA 269, as last
amended by 1971 PA 23, supra.
-76-
In addition, this portion of the lower court's
opinion is not consistent with the recent decision of the
United States Supreme Court sustaining a West Virginia limita
tion on bonded indebtedness for all purposes, including school
construction, that could only be exceeded by a 6 0 % affirmative
vote of the people. Gordon v Lance, 403 US 1 (1971)
There is simply no evidence in the record to support
a finding of "systematic educational inequality" between
Detroit and neighboring suburban school districts in the matter
of bonding for school construction. Further, treated as a
conclusion of lav/, such conclusion is patently erroneous. Thus,
this portion of the lower court's opinion on the merits is
clearly erroneous and must be reversed on appeal by this Court.
The lower court's reference to the working of the
state aid formula is, in effect, a reference to section 8a of
1957 PA 312, as last amended by 1970 PA 100, UCLA 338.6l8a;
MSA 15•1919(58a) ; which was in effect during the 1970-71
school year and the course of the trial on the merits in this
cause. The pages of the transcript cited by plaintiffs' pro
posed findings of fact in support of this portion of the lower
court's opinion deserve careful scrutiny by this Court.
IV a 71-2, 304-5, 322-3, 452-3)
(I a 191, / ) These defendants respectfully submit that
such scrutiny will reveal the lack of foundation for this part
of the "Ruling on Issue of Segregation."
-77-
The testimony of Dr. Della-Dora on this matter
relied upon by plaintiffs is as follows:
Q. "Is the situation in Detroit somewhat
different from some of the surrounding
school districts in Wayne County which
you may be more familiar with because of
your Intermediate School District role
but in general the suburban community
school? Is Detroit in a more difficult
position in terms of money?
A. I!I suspect it is, it has a more difficult
problem than most of the school districts,
but not all of them in the surrounding
area because some of the school districts
have had relatively adequate industrial
tax basis over a period of years and have
not experienced a great deal of growth, for
example. Dearborn, River Rouge and Ecorse
would be examples of school districts which
have had a long-time industrial tax base
and have not experienced great increases in
school population so they are relatively
well off by way of contrast.
Q. ,:In terms of a city such as Detroit and the
needs of the Detroit School System, is tills
also a part of function of the state alloca
tion formula? Are there disparities fostered
by this between Detroit and some of the
other suburban districts?
A. "That would be my opinion. We do not have,
in my opinion, equitable distribution
money for schools throughout the state."
(emphasis supplied) ( IV a 72)
It must be stressed that, of the three suburban
school districts enumerated above as wealthy districts, two
of them, River Rouge and Ecorse, have respectively, 43.2# and
50.8# black student bodies. ( IX a 5 8 4 ) Further, as demon
strated in Welling v Livonia Board of Education, supra, the
-78-
elementary grades in the suburban Livonia school district were
on half day sessions, because of lack of funds to operate a
full day schedule of instruction, during the 1969-1970 school
year. The suburban Livonia school district has 10 black
students among its student body of 38,939 pupils. ( IX a 583 )
Also, this court may take judicial notice of Smith
_al v State Board of Education, Ingham County Circuit Court
H 12167C, a case in which the same Dr. Della Dora filed an
affidavit on behalf of the plaintiff parents that were challeng
ing the operation of the Lincoln Park School District on a sub
stantially reduced schedule of student instruction for lack of
operating funds during the 1970-71 school year. The suburban
school district of Lincoln Park has one black student among
its 11,959 pupils. ( IX a 584 )
The Detroit public schools were not on a reduced
schedule of student instruction during either the 1969-70 or
1970-71 school years. Thus, any contention that the Michigan's
state aid formula has created and perpetuated systematic edu
cational inequalities between the Detroit public schools, with
a 6 5 % black student body, and many neighboring mostly white
suburban school districts is sheer fiction.
It must also be emphasized that the question and
presumably the answer quoted above, vrith respect to the state
allocation formula, are based on the concept of the "needs” of
-79-
the Detroit school system. The United States Supreme Court
has affirmed, on two separate occasions, holdinps of three
judge federal courts that there is no constitutional duty to
allocate funds for public education on the basis of educational
needs. Mclnnis v Shapiro, 293 F Supp 327, 335-336 (ND 111 1968),
affirmed sub nom Mclnnis v Ogilvie, 394 US 322 (1969), Burruss
v Wllkerson, 310 F Supp 572, 574 (WD Va. 1969), affirmed 397
US 44 (1970).
The notion that funds for public education must be
allocated on the basis of the diverse educational needs of
students has been considered and expressly rejected by the
federal courts for lack of any judicially manageable standard!
to determine whether the constitution has been violated or
satisfied. However, this was no impediment to the trial judge
in this cause, who, without citing a single specific fact,
proceeded to condemn Michigan's state aid formula for school
districts on the basis of opinion testimony concerning educa
tional needs.
Other parts of the record that allegedly support
the lower court's "finding'1 concerning the state aid formula
turn out, on examination, to deal with alleged intra-district
disparities In resource allocation among schools within the
_ . . IV a 3 2 2 - 3same school district. (j a 190-1/ ) At this point, it should
be observed that neither the State Board of Education, nor the
-80-
Superintendent of Public Instruction, none of these defendants
for that matter, supervise the allocation of general state
aid funds among school buildings within school districts by
boards of education, with the exception of compensatory edu
cation funds appropriated by the legislature and disbursed to
Detroit and other school districts qualifying for such funds.
(Ill a 104-5-6 ) The lower court's "Ruling on Issue of Segre
gation11' contains no findings concerning any disparate alloca
tion of funds among school buildings within the Detroit school
system by any of the defendants. (I a 194 et seg)
Still other parts of the record that allegedly sup
port the lower court's ruling concerning the state aid formula,
con;'. 1st largely of testimony by Dr. Guthrie concerning the
suburban school district of Inkster and the Detroit school
system as follows:
Q. "...We may not know necessarily that
another district gets five or $600.00
more per child to use in its school,
but it knows that it gets more and
it' s different ?
A. "Better, and that is where people want
to go to school and teach and so forth.
Q. "I'm sorry, don't let me interrupt you.
A. "I believe at one time in my analysis of
schools and school districts in Michigan
I was moderately familiar with the
district of Inkster.
Q. "That's a black district?
-81-
A. "PriMloiri i until'. 1 y blade. F understood it
van;; character*i zed by nl;;o poor blade
families ami at that time receiving, I
believe, as a consequence of state
action very little, relatively very little
by way of financing. And I talked with
people who worked at Inkster. The super
intendent there at that time, Doctor Edward
Fort, I don't know if he is still there or
not, was a graduate of the institution that
I teach at. And he was able to describe
to me this expectation constellation you
have been discussing of how it was diffi
cult for him to obtain teachers and how
the students in his district realized
that their school was — their district
was somewhat stigmatized, and so forth.
My point being as I don't think I made it
clear, that a district as large as Detroit
can also become so stigmatized and in the
eyes of all of its employees -- I don't
know that It lias, don't _get_ me wrong. But
it's possible that it can get that way.
Q. "It's pretty well known that Detroit has
financial problems and its needs and their
relationship to many of the surrounding
districts. That's a fairly commonly known
fact in education in general?
A. "It is known to people outside of the
State of Michigan even, if that's what
we are getting at.
Q. "Let's turn to the district. Certainly
because of the close proximity, the dif
ferences between schools, would be better
known, would they not?
A. "Well, if you had — here my Ignorance of
Detroit handicaps me.
Q. "Speaking in general, not necessarily
Detroit.
A. "Right. If you have In this city schools
of widely varying reputations, then It
would seem to me that it could be harmful
to students in those schools which are
82-
stigmatized by low reputations. I do
not know in fact if, indeed, you have
schools of widely varying reputations.
It seems to me that at one time Detroit
might have had such, but my reason for
moving to the district level is that
increasingly big cities are becoming
stigmatized and not the schools within
them. The whole city itself.(emphasis
supplied) ( IV a 304-305 )
This expert testimony should be carefully scrutinized
and evaluated by this Court. The question of whether the
Detroit school system is somehow stigmatized in the eyes of
its employees should be evaluated in light of the fact that,
for the 1.970-71 school year, teachers In Detroit with a
bachelor's degree received a salary that was the average of
the top 7 salaries among the school districts in Wayne, Oakland
and Macomb counties, while Detroit teachers with a master's
degree received a salary that was the average of the top 9
salaries among the school districts in the sane three counties.
( IX a 180 )
Further, the question and answer concerning the
needs of the Detroit school system, in relationship to sur
rounding school districts, Is based on a false premise,
squarely rejected by the federal courts, that the constitution
requires the allocation of funds to school districts on the
basis of educational needs. MeInnis v Shapiro, supra,
Burruss v Milkers on , supra..
-83-
In addition, the general expert testimony concerning
big city school districts, with an admitted lack of knowledge
as to Detroit specifically, is precisely the kind of expert
testimony rejected by this Court in Ran j.e 1 v City of Lansing,
1 7 I1'2 d 391, 3 f ( C A 6, I960), cert den 397 US 900 (1970),
re!i den 397 US 1059 (1970).
Another portion of the record relied upon for this
1 finding51 concerning the state aid formula includes the testi
mony of Dr. Guthrie concerning the allocation of financial
resources among Michigan's school districts in relationship
to whether they have a high or low socio-economic status, SES,
level. (Ia 190, IVa 291-3) Again, it must be emphasized that
under the decided cases there is no constitutional obligation
to a]locate funds for public education on the basis of educa
tional needs. MeInnIs v Shapiro , supra, Durruss v ¥11Person,
supra.
Turning to specific factual analysis of the Detroit
school district, In comparison with other school districts in
the state, we find the following:
1. In 1969-70, Detroit ranked in the 77th
percentile among Michigan's school
districts In terms of wealth or revenue
producing ability, as measured by the
-84-
state equalized valuation of taxable
■ property within its boundaries.
(Exhibit C—14, pp 26, 27)
2. However, in 1969-70 in terns of tax
effort, or operating mi11age, 30 of
the 35 school districts in Wayne County
had higher operating millage rates.
Bulletin 1012, Michigan Department of
Education, December, 1970, pp 32-35.
3. Yet, in 1969-70 Detroit ranked in the
85th percentile among Michigan's school
districts in terms of total current
operating expenditures per pupil.
(Exhibit C-14, pp 26, 27)
4. In 1069-70, Detroit ranked in the 97th
percentile in terms of average salary
of teachers and in the 76th percentile
in terms of average years of teaching
experience among Michigan's school
districts. (Exhibit C-l4 , pp 26 , 27)
In addition, an examination of the basic state aid
formula found discriminatory by the lower court, section 8a
of 1957 PA 312, as last amended by 1970 PA 100, supra, reveals
-85-
that school districts v/ith a lower state equalized valuation
of taxable property per pupil received larger amounts per
pupil in state aid to more nearly equalize revenues among
Michigan’s school districts. Further, neither the Governor
nor the Attorney General are involved in the disbursement of
funds under this section of the statute.
In fact, the Governor and the Attorney General of
Michigan have filed a suit attacking the constitutionality of
Michigan's system of financing the operation of its public
schools, under both the Michigan and United States Constitu
tions, on the ground that the present system constitutes an
invidious Wealth discrimination against children residing in
school districts v/i th a low state equalized valuation of
taxable property per pupil. This Court is requested to talce
judicial notice of this cause, Mllliken and Kelley et al v
Allison Green et al, Supreme Court i t53,809 , which has been
briefed and argued in the Michigan Supreme Court but no deci
sion has been rendered to date.
However, the Michigan system of wealth classification
of school districts by their state equalized valuations of
taxable property per pupil Is not racially discriminatory.
Rather, as demonstrated above, it is color blind and benefits
or burdens both white and black children alike according to
the school district In which they happen to reside, whether
such district happens to be urban, suburban or rural in character.
-86-
To summarise, tho lower court's '"finding" of
systematic educational Inequality between Detroit and neigh
boring mostly white suburban school districts, based on
transportation funds, bonding limitations and the state aid
formula, is, as a finding of fact, clearly erroneous. The
lack of specific facts set forth in this portion of the trial
court's ruling is matched only by the lack of specific facts
in the record to support such a finding. Whether treated as
findings of fact or conclusions of lav/, this aspect of the
;’Ruling on Issue of Segregation" is clearly in error and must
be reversed by this Court.
-87-
VIII.
BASED ON THE RECORD IN THIS CAUSE, THE
DETROIT PUBLIC SCHOOLS ARE NOT DE JURE
SEGREGATED SCHOOLS AS A RESULT OF THE
CONDUCT OF ANY OF THE STATE DEFENDANTS
HEREIN.________________________________ _
Although this brief is addressed primarily to the
conduct of the state defendants, these defendants would reiterate
their conviction that the Detroit school district defendants
have not operated the public schools under their jurisdiction
with the purpose and effect of segregating children by race in
such schools. The slender reeds upon which plaintiffs have asked,
first, the district court and now this court to erect a declara
tion of unconstitutionality against the defendants is vividly
illustrated by the following example.
During the oral argument before this court on July 20,
1972, plaintiff's chief counsel laid a great emphasis on the
transportation of certain black students from the Carver School
District past white schools to a black high school within the
Detroit School District. However, this court was not fully informed
during oral argument of the many facets, both past and present,
concerning this example of alleged racial discrimination as a basis
for the sweeping metropolitan relief decreed herein by the lower
court.
-88-
The students involved in this transportation incident,
during the years 1949-1952, were high school students residing
not
in the Carver School District that did /operate a high school.
Although the Detroit school district had no legal duty, under
Michigan law, to educate these non-resident high school students,
they voluntarily chose to do so. Jones v Grand Ledge Public
Schools, 349 Mich 1, (1957). This transportation practice was
subsequently discontinued by the Detroit school system.
Thereafter, the Carver School District, located in Royal
Oak Township, became a part of the Oak Park School District
under the provisions of 1955 PA 269, as amended, supra, dealing
with the attachment of a disorganized school district to an
operating school district. (Tr 993-997 ) The Michigan Attorney
General issued two opinions, upon request, which helped facilitate
the attachment of the Carver School District, as a disorganized
school district to the Oak Park School District.
OAG NOS 3571 and 3568, 1960, Vol II, pp 138-139 and
140-142 respectively.
Thus, the black children residing in the former Carver
School District now attend the public schools of the Oak Park
which
School District as resident students thereof. This school district /
-89-
is included in the judicially established metropolitan
desegregation area, has a 10.1% black student body.
( IX a 582 ) Further, Oak Park's per pupil expenditures
for 1969-70 were at the 99th percentile in comparison to
Michigan's other school districts. (EX C-14 p 58}
Finally, as testified to by one of plaintiff's expert
witnesses, the black students in Oak Park are thriving
academically. (Tr 939-40)
In light of these facts, it is difficult, if not
impossible, to perceive any rational connection between the
1952 transportation incident and either a finding of
de jure segregation in Detroit in 1971 or the decreeing
of a metropolitan remedy affecting 52 other school districts,
including Oak Park, in 1972. Further, these facts vividly
illustrate the wisdom of the settled rule that, to establish
a constitutional violation, there must be a causal relation
ship between the act complained of and a present condition
of segregation. Hobson v Hansen, 269 F Supp 401, 495 (D.D.C.
1967), modified sub.nom., Smuck v Hobson, 408 F2d 175 (D,C.
Circuit, 1969), Keyes v School District Number One, Denver
Colorado, 313 F Supp 61, 74-75 (D. Colo. 1970), modified
445 F2d 990, 1006, (CA 10, 1971), cert, granted 404 US 1036
(1972)
-90-
Clearly, the transportation incident concerning the Carver
students in 1952 fails to meet this sound test for establishing
a constitutional violation of the rights of the present
plaintiffs in 1972.
In the matter of attendance areas, it is clear that,
pursuant to its broad statutory grant of discretionary
authority, the Detroit Board of Education has established
and modified the attendance areas within the school district.
Hiers v Detroit Superintendent of Schools, supra. The
uncontradicted testimony in this matter is that, as a result
of actions of the Detroit Board of Education, the public
schools under its jurisdiction are more integrated than the
residential patterns within the City of Detroit. (Ill a 375-376)
The major finding by the lower court in this area, and
about the only finding set forth with even a modimom of
specificity, has to do with the prior existence of optional
attendance areas affecting certain high schools
and two junior highs. (ia 201-202)
These defendants would urge that the record does
not support a finding that these optional attendance areas
were created and maintained with the purpose and effect of
segregating pupils by race, since the option was equally
available to all students living in the area. In any event,
-91-
assuming arguendo such purposes and effect, it is undisputed
that by the 1970-71 school year all such optional attendance
areas had been eliminated. Further, during the decade of
the 1960's the elimination of such areas, in a number of
instances, was done in a manner that contributed to greater
school integration as testified to by one of plaintiffs1
witnesses. (Tr 2373, 2399, 240t) addition, the elimination
of the last optional attendance area in 1970 contributed to
integration at Southwestern High School. Moreover, as found
by the lower court, the present effect of these optional
attendance areas is limited to 11th and 12tn grade students
at one high school and, thus, will disappear once the last
of these students graduate at the end of the 1972-73 school
year. (I a 202)
The judicial remedy for optional attendance areas
found to be unconstitutional, decreeing their elimination, has
already been accomplished by the Detroit Board of Education.
Hobson v Hansen, supra, modified sub.nom. Smuck v Hobson, supra.
Further, the elimination of such optional areas was done in
a manner contributing to integration. Their lack of present
effect on plaintiffs and their class demonstrates the error
of the lower court in finding a constitutional violation
based on optional attendance areas previously eliminated by
the time of trial. Keyes v School District Number One,
-92-
Denver, Colorado, supra, 74-75. Finally, it must be
emphasized that, based on the record in this cause, it
is beyond dispute that these defendants did not establish
or modify attendance areas within the Detroit school system.
In the. area of site selection for school con
struction, the lower court erroneously found de jure conduct
by these defendants for failure to affirmatively exercise
a non-existent power under state law. Further, the admonition
in the Joint Policy Statement and School Plant Planning
Handbook by the State Board of Education, in the exercise
of its leadership role under Const 1963, art 8, § 3, to
local school boards to consider racial balance as one factor
among many in selecting school sites is hardly an act of
de jure segregation.
The lower court's findings concerning site selection
by the Detroit Board of Education, relating to new school
construction opened for use in 1970-71, consist primarily
of reciting the racial composition of such schools. This
information, without more, overlooks the fact that many
factors are involved in site selection including, for example,
neighborhood residential patterns in the area where new
construction is needed, the availability and cost of suitable
land, and the factors of time, distance and safety in terms
-93-
°f pupil attendance. These various factors are given no
mention by tne district court in erroneously arriving at its
conclusion concerning site selection for school con
struction by the Detroit Board of Education.
Section 12 of 1970 PA 48 has been declared
unconstitutional by this Court. 433 F2d 847. The lower
court, in response to plaintiffs' motion for implementation
7
of the April/plan affecting twelve high school attendance
areas, chose the McDonald Plan, which included both high
schools with specialized curriculums drawing students from
two regions within the school system and racially balanced
junior high schools, as superior in advancing integration
and ordered its implementation in September, 1971. This
Court subsequently denied plaintiffs' motion for summary
reveral of such order. 438 F2d 945. Subsequently, no
appeal has been taken by any party from the lower court's
order of December 3, 1970 directing the implementation of
the McDonald Plan in September 1971. Thus, Section 12 of
1970 PA 48 is no longer a part of this cause.
The uncontradicted testimony of the Superintendent
of Public Instruction is that both pupil and faculty assign
ments within the Detroit school system are made at the local
school district level rather than by any of these defendants.
Ilia 106
{ Ilia 99-101,/} Thus, the conclusion is compelled that none of
-94-
these defendants has committed acts with the purpose and
effect of segregating either pupils or faculty by race
within the Detroit public schools.
The lower court's determination in the area of
finance, relating to transportation funds, bonding fox'
school construction and the state aid formula as they
effect Detroit and neighboring suburban school districts,
is manifestly in error on two counts. First, contrary to
A and N Club v Great American Insurance Company, supra, the
lower court relied upon evidence introduced after these
defendants had stood on their 41(b) motions to dismiss
made at the close of plaintiffs' case in chief.
Second, and alternatively, the record simply does
not support the finding of systematic educational inequality
between Detroit and neighboring mostly white suburban school
districts. As demonstrated above, both the lower court's
"Ruling on Issue of Segregation" and the record are barren
of specific facts to support this determination. Moreover,
the law is settled that there is no constitutional duty to
allocate funds for public education among school districts
on the basis of educational needs. Mclnnis v Shapiro,
supra, Burruss v Wilkerson, supra.
-95-
To summarize, Michigan is not a de jure state
with a dual school system mandated by state law. The trial
court erroneously permitted the introduction of and relied
upon evidence of alleged racial discrimination in housing
by persons and agencies not parties to this cause, contrary
to the decided cases of this Court, in finding de jure
segregation. These defendants would urge that, based on
the record herein, Detroit is not a de jure segregated
school district. Further, the lower court was clearly
in error, as a matter of both fact and law, in its deter
mination that Detroit is a de jure segregated school district
as a result of any acts by any of these defendants. The
"Ruling on Issue of Segregation" is manifestly in error,
as to both the facts and the law, and must be reversed by
this Court on appeal.
IX
A FINDING OF DE JURE SEGREGATION AS TO SOME
SCHOOLS WITHIN THE DETROIT SCHOOL DISTRICT
DOES NOT WARRANT A DESEGREGATION REMEDY FOR
ALL SCHOOLS IN THE SCHOOL DISTRICT. ONLY
THOSE SCHOOLS WITHIN THE SCHOOL DISTRICT FOUND
TO BE DE JURE SEGREGATED SCHOOLS MUST BE DE
SEGREGATED_______________________________________
It is the position of these defendants that in
establishing a unitary system out of an unconstitutionally
segregated system, the courts need only desegregate those schools
which have been found to be de jure segregated and need
not alter the entire system.
This concept has received attention recently
because of the increasing incidence of desegregation cases
outside of the South. The typical case in the past dealt with
a southern school system which by state law was specifically
required to separate the races in the school system. These
"dual" systems were required to desegregate system-wide since
the unconstitutional segregation had been system-wide.
More recent court decisions have not limited the
definition of de jure segregation to segregation resulting
from specific statutory requirements but have extended it to
include other forms of state action. Since these other forms
of state action, such as the shifting of attendance zones,
-97-
affect only certain schools and not the entire system, it is
logical that the remedy should be limited only to the certain
schools found to be de jure segregated. The cases support
this position, but unfortunately, no finding was made by the
lower court concerning whether each of the 319 schools in the
Detroit system was de jure segregated.
In Taylor v Board of Education of City School
District of City of New Rochelle, 191 F Supp 181 (SD, NY, 1961)
appeal dismissed 288 F2d 600 (CA 2, 1961), 195 F Supp 231
(SD, NY, 1961), affirmed 294 F2d 36 (CA 2, 1961), cert den 368
US 940 (1961), the District Court found that the local school
district had "intentionally created Lincoln School as a
racially segregated school. . ." p 183. The remedy called
for was a desegregation of Lincoln School, not the en
tire school district.
The same result was reached in Keyes v School
District No. 1, Denver, Colo., supra. The Court there recognized
that in determining whether de jure segregation exists it is
significant that the state involved has not had a specific
statutory mandate of racial separation in the schools:
"Where, as here, the system is not a dual
one, and where no type of state imposed
segregation has previously been established,
-98-
the burden is on plaintiff to prove by a
preponderance of evidence that the racial
imbalance exists and that it was caused bv
intentional state action. . ." p 1006
This distinction remains significant when the remedy
s tage is reached. In Keyes, the Court of Appeals found that
onxy certain of the schools in the Denver school district were
de jure segregated and rejected the claim that an unconstitutional
denial of equal educational opportunity could be established
absent a finding of de jure segregation. The desegregation
was consequently directed only to those schools which had been
found to be de jure segregated.
The concept of exercising judicial authority only
on the basis of a constitutional violation is important to
the maintenance of our tripartite form of government. As the
Supreme Court said in Swann, supra,:
"School authorities are traditionally charged
with broad power to formulate and implement
educational policy and might well conclude,
for example, that in order to prepare students
to live in a pluralistic society each school
should have a prescribed ratio of Negro to
white students reflecting the proportion for
the district as a whole. To do this as an
educational policy is within the broad
discretionary powers of school authorities;
absent a finding of a constitutional violation,
however, that would not be within the
authority of a federal court. As with any
equity case, the nature of the violation
determines the scope of the remedy. . p 16.
-9 9-
It should also be noted that Swann has also rejected
the proposition that any particular racial balance in the
schools will be required of a desegregation plan:
. , The constitutional command to desegregate
schools does not mean that every school in every
community must always reflect the racial composition
of the school system as a whole. " p 24.
The Court of Appeals for the Fifth Circuit has in
dicated recently that at least as to the scope of the remedy,
it concurs with the Keyes decision. This affirmation comes in
United States of America v Texas Education Agency, ______ _ F2d
________ (CA 5, August 2, 1972). The Texas case involved
Mexican-Americans who had never been the victims of a dual school
system— 'that is, they had never been prevented by specific state
law from attending certain schools. The court had found, though,
that other state action had intervened to unconstitutionally
segregate some Mexican-American children. In fashioning a
remedy the majority of the court recognized that since no dual
system had existed in the past as to Mexican-Americans, the
remedy need encompass only those schools which were found to have
been de jure segregated:
"(3) The power of the district court will
depend first upon a finding of the proscribed
discrimination in the school system. Swann,
402 U.S. at 16. In determining the fact of
discrimination vel non, whether imposed by
statute or as a result of official action,
the district court must identify the school
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or schools which are segregated as a result
of such discrimination. This identification
must be supported by findings of fact. The
importance of such a determination will be
seen in some populous school districts
embracing large geographical areas. There
may be segregated schools which are the
result of unconstitutional statutes or of
official action. There may be other one
race schools which are the product of neutral
non-discriminatory forces." pp 75, 76.
The Court below, in its Ruling on Issue of Segregation,
made no finding that a dual system was in operation in the schools
of the City of Detroit. The cases are consistent in their
position that where no dual system exists in a state, by virtue
of state statutes or constitution, a court, in remedying de jure
segregation is limited in its remedy to those schools, within a
given school district, which have been found to be de jure
segregated.
-101-
X.
BASED ON THE RECORD IN THIS CASE, A
CONSTITUTIONALLY ADEQUATE UNITARY SCHOOL
SYSTEM CAN BE ESTABLISHED WITHIN THE
GEOGRAPHICAL LIMITS OF THE DETROIT SCHOOL
DISTRICT _________________________
After having found, on September 27, 1971, that
the public schools of the City of Detroit were unconstitu
tionally segregated, the Court below considered means for
remedying the segregated condition. The Court, therefore,
asked that the parties submit to it proposed plans to inter alia
desegregate the Detroit school system, confining the remedy
to the geographical limits of the Detroit public schools.
Subsequently the Court, in its Findings of Fact and
Conclusions of Law on Detroit-Only Plans of Desegregation,
found that one sucn plan, submitted by the plaintiffs, would
accomplish more desegregation than the other plans submitted.
( I a 45/ ) it found, however, that none of the plans
would properly alleviate the segregated situation. It
declared that "the racial composition of the student body
is such that the [plaintiffs'] plan's implementation would
clearly make the entire Detroit public school system racially
identifiable as Black." (I a 457 ) In its consequent
conclusion of law, the Court found, inter alia, that:
"Plaintiffs' Plan, while it would provide a
racial mix more in keeping with the Black-
White proportions of the student population
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than under either of the Board's plans or as
the system now stands, would accentuate the
racial identifiability of the district as a
Black school system, and would not accomplish
desegregation.
"The conclusion, under the evidence in this
case, is inescapa!JTe~~tlvat.reixeT^of segrega
te i on in the~~pub 1 ic'"ichoo 1 s oT~the~C i ty of
Detroit- cannot be a c c ompITs HecT~ w 1 t K T n tfie
corporate geographTcaT'.lTmTti~oT 'the.city.
. . (ErnpFasis supplied) (T a 459")
Apparently the District Court perceives the
controlling law to prohibit the establishment of a unitary
system within a school district possessing a pupil population
of 63.8% black. In this the District Court is patently in
error.
The above cited finding of fact and conclusions of
law clearly indicate the mistaken legal concept under which
the lower court has proceeded in all its hearings and rulings
on a metropolitan area remedy, namely, that a plan of desegre
gation must provide for schools in which whites, not blacks,
predominate. This position is rejected in Spencer v Kugler,
supra, where the Court determined that racial imbalance in the
New Jersey schools, unaccompanied by any discriminatory state
action, is beyond the ambit of the Fourteenth Amendment.
-103-
The effect of Spencer was discussed by the Court
of Appeals for the Fourth Circuit in deciding Bradley v
School Board of the City of Richmond, ___F2d ____(CA 4,
decided June 5, 1972). The Richmond school district was
70% black in 1970 and the lower court had determined that
"desegregation cannot now be achieved within the current
school division bounds." Slip Opinion, p 40. The Fourth
Circuit put the controlling question, and the Court's
conclusion, very simply:
"May a United States District Judge compel
one of the States of the Union to restructure
its internal government for the purpose of
achieving racial balance in the assignment
of pupils to the public schools? We think
not, absent invidious discrimination in the
establishment or maintenance of local govern
mental units, and accordingly reverse."
Slip Opinion, p 2.
As Spencer, supra, and Bradley, supra, both
demonstrate, absent a finding of invidious state discrimina
tion in the establishment or maintenance of boundary lines,
a cause of action does not lie. In its Findings of Fact and
Conclusions of Law in Support of Ruling on Desegregation Area
and Development of Plan the court below clearly stated that
it "has taken no proofs with respect to the establishment of
the boundaries of the 86 public school districts in the counties
of Wayne, Oakland and Macomb, nor on the issue of whether,
with the exclusion of the city of Detroit school district,
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such school districts have committed acts of de jure
segregation." (I a 498)
The Court also declared that Richmond had a
"unitary system." Slip Opinion, p. 3. The majority noted
that Spencer had been affirmed without opinion by a nearly
it
unanimous United States Supreme Court and found/indis-
tinguisuable and controlling. It is significant to note
that the dissenting judge distinguished Spencer only by
pointing out that Virginia, unlike New Jersey, had "a history
of a state-required dual system of schools." Slip Opinion,
p 62. It is noted that such dual system history is lacking
in Michigan. The dissent noted further:
. . I n Spencer.the essence of the
complaint was that there should be racial
balancing for its own sake - the very
principle condemned in Swann, 402 U.S.
at 22-25." Slip Opinion, p 62.
The very concept of "racial balancing for its own sake" is
what the lower court has undertaken here.
The Detroit school system in 1970 was 63.8% black.
Ruling on Issue of Segregation. ( la 194-8) The proper goal
of any desegregation plan is the establishment of a "unitary
school system within which no person is to be effectively
excluded from any school because of race or color."
Alexander v Holmes County Board of Education, 396 US 19, 20
-105-
(1969). As the cases which follow indicate, a unitary system
may be predominantly black. Swann, supra, recognizes that
the creation of a unitary system will not necessarily lead
to racially balanced schools:
"Our objective in dealing with the issues
presented by these cases is to see that
school authorities exclude no pupil of a
racial minority from any school, directly
or indirectly, on account of race; it does
not and cannot embrace all the problems
of racial prejudice, even when those
problems contribute to disproportionate
racial concentrations in some schools."
p 23.
Even tiie chief counsel for the plaintiffs has
recognized that the most that can be sought from a desegre
gation decree is an order that each school in a dual school
system shall have the same black-white ratio as the school
system as a whole, subject to minor adjustment. Indeed,
this is precisely what plaintiffs’ counsel here informed
this Court of Appeals in Northcross v Board of Education of
Memphis, Tenn, 420 F2d 546, 548 (1969), which involved a
system containing a pupil population of 55% black, 45% white.
As the Court of Appeals for this Circuit there said:
" . . . Upon the oral argument of this
appeal, we asked counsel for plaintiffs
[who is also chief counsel for plaintiffs
herein] to advise what he considered would
be the 'unitary system* that should be
forthwith accomplished in Memphis. He
replied that such a system would require
that in every public school in Memphis
-106-
there would have to be 55% Negroes and
45% whites. Departures of 5% to 10% from
such rule would be tolerated. . . . "
Plaintiffs' expert witness, Dr. Foster, who is
very familiar with school desegregation cases and who was
appointed to Judge Roth's panel, also indicated that he felt
tiiat plaintiffs ' intra-district plan met the requirements of
the Fourteenth Amendment for a unitary system. (Hearings on
Intra-District Remedy, 3-16-71, V a 201)
A further indication that plaintiffs do not, or at
least did not, perceive of a desegregation remedy as requiring
the inclusion of any but the Detroit school district is seen
in the Prayer of their Complaint. There the plaintiffs, at
paragraph e, asked the Court to require the defendants "to
eliminate the racial identity of schools by assigning such
personnel to each school in accordance with the ratio of
white and black personnel throughout the system." (I a 7, 2Q)
The concept there expressed that racial identiflability is
corrected by establishing in each school the system-wide
ratio of white and black personnel is inconsistent with
relief which attempts to destroy "racial identifiability"
by going outside the desegregated system and establishing
some court-determined racial proportion.
The actions of the lower court indicate that it
-107-
is not attempting to desegregate the Detroit schools by
establishing in those schools a racial mix which roughly
approximates the racial mix of the Detroit school system.
Rather, the Court is attempting to disestablish the black
student majority in the Detroit public schools. This will
be done by arbitrarily including in the desegregation plan
a sufficient number of majority-white schools which will
allow it to meet a black-white ratio, again arbitrarily
arrived at, which the Court believes will destroy racial
identifiability. See, for example, Findings of Fact and
Conclusions of Law in Support of Ruling on Desegregation
Area and Development of Plan. ('la 497, 506^8) This concept
of fashioning a remedy using students who are not attending
the unit or units found to have been unconstitutionally
segregated is without precedent.
These defendants do not agree even with the position
that the establishment of schools which are 63.8% black is
necessary for the establishment of a unitary system in the
City of Detroit. Rather,’ as was argued in the last
section, a unitary system is established when a school
district desegregates only those schools which have been
found to be de jure segregated, not the entire system.
These defendants do contend, however, that in seeking to
join school districts without a finding of de jure segregation
-108-
as to them, and merely for the purpose of establishing a
sociologically, and not legally mandated racial mix, the
Court below is without the slightest legal precedent.
Nothing in the cases has modified the rule that
the maximum that can be accomplished within a school district
segregated by law, and only then when there has been a dual
system, is the establishing of racial compositions, within
schools, which approximate the racial composition of the
district as a whole. When this is done a unitary system,
as concerns student assignments, has been established. This
concept, even in districts which are predominantly black,
has been reinforced by recent decisions of the United States
Supreme Court. In Wright v Council of the City of Emporia,
supra, the Supreme Court,in viewing a desegregaton plan for
a formerly dual system, said:
"According to figures later supplied to the
District Court, there were 3,759 children
enrolled in the unitary system contemplated
by the desegregation decree, of whom 66%
were Negro and 34% were white." p 4808
The decision of the Supreme Court upheld the desegregation plan
and is at obvious odds with the finding of the District Court
here that a unitary system cannot be created in a school
district which is 63.8% black. The dissent, by four members
of the court, went even further and suggested that the Emporia
school district would be "fully unitary and non-racial" even
-109-
if it were 72% black, 28% white, p 4814. Moreover, it
must be remembered that the case involved the remedy stage
of proceedings, was an intra-district remedy involving a
dual system and was limited in its scope to the district
which had been found to be segregated.
The case of Cotton v Scotland Neck City Board of
Education, 92 S Ct 2214 (1972), decided the same day as
Emporia, is an even more striking affirmation of the proposition
that desegregation can be accomplished in a district which is
predominantly black. In Cotton, the Court was dealing with
a North Carolina system, formerly dual, which was 77% black,
22% white and 1% American Indian. The Supreme Court, in an
unanimous decision, failed to allude to any constitutional
infirmity in the intra-district remedy which had been imposed
and in fact referred to the "unitary school plan" which took
effect.
Another pertinent Supreme Court case is Green v
School Board of New Kent County, 391 US 430 (1968). The
Court in that case was dealing with a dual school system
which was 57% black, 43% white. The local board propounded
a "free of choice" plan to desegregate the district. The
Supreme Court iterated the necessity of a unitary and non-racial
plan and found the board's plan to be unacceptable. The
Supreme Court's suggestions for the creation of a unitary
system are significant:
-110-
"The Board must he required to formulate a new
plan and, in light of other courses which appear
open to the Board, such as zoning6 , fashion steps
which promise realistically to convert promptly
to a system without a 'white' school and a 'Negro'
school, but just schools." p 442
Footnote 6 is as follows:
"'In view of the situation found in New Kent
County, where there is no residential segre
gation, the elimination of the dual school
system and the establishment of a "unitary,
non-racial system" could be readily achieved
with a minimum of administrative difficulty by
means of geographic zoning— simply by assign
ing students living in the eastern half of the
county to the New Kent School and those living
in the western half of the county to the Wat
kins School. Although a geographical formula
is not universally appropriate, it is evident
that here the Board, by separately busing
Negro children across the entire county to
the "Negro" school, and the white children to
the "white" school, is deliberately maintaining
a segregated system which would vanish with
non-racial geographic zoning. The conditions
in this county present a classical case for
this expedient.' Bowman v County School Board,
supra, n 3, at 332 (concurring opinion).
"Petitioners have also suggested that the
Board could consolidate the two schools, one
site (e. g ., Watkins) serving grades 1-7 and
the other (e„ g., New Kent) serving grades
8-1 2 , this being the grade division respondent
makes between elementary and secondary levels.
Petitioners contend this would result in a
more efficient system by eliminating costly
duplication in this relatively small district
while at the same time achieving immediate
dismantling of the dual system.
"These are two suggestions the District Court
should take into account upon remand, along
with any other proposed alternatives and in
-111-
light of considerations respecting other
aspects of the school system such as the
matter of faculty and staff desegregation
remanded to the court by the Court of Appeals,"
Thus, it is clear that the Supreme Court harbored no doubts
that a unitary system could be established in a district
with a 55% black majority and even suggested means for its
accomplishment.
The clear conclusion to be drawn from the Northcrossj.
Bradley and United States Supreme Court cases cited herein
is that the District Court erred in its conclusion that
because the Detroit school system was 63.8% black a constitu
tional plan of desegregation, which would set up a unitary
system, could not be accomplished within the boundaries of
the school district of the City of Detroit.
-112-
XI.
WHERE ONLY THE DETROIT SCHOOL DISTRICT HAS BEEN
FOUND TO HAVE COMMITTED ACTS OF DE JURE SEGREGA
TION, AND IN THE ABSENCE OF ANY CLAIMS, PROOFS OR
FINDINGS CONCERNING EITHER THE ESTABLISHMENT OF
THE BOUNDARIES OF THE 86 PUBLIC SCHOOL DISTRICTS
IN WAYNE, OAKLAND AND MACOMB COUNTIES OR WHETHER
ANY OF THESE 86 SCHOOL DISTRICTS, EXCEPT DETROIT,
HAVE COMMITTED ANY ACTS OF DE JURE SEGREGATION,
THE DISTRICT COURT MAY NOT ADOPT A METROPOLITAN
REMEDY INCLUDING AT LEAST 53 SCHOOL DISTRICTS AND
780,000 PUPILS
This portion of the brief is directed to the
following orders of the lower court, all of which these
defendants maintain are manifestly erroneous:
"2. Ruling on Propriety of Considering a
Metropolitan Remedy to Accomplish
Desegregation of the Public Schools
of the City of Detroit, March 24, 19 72;
* * * *
4. Ruling on Desegregation Area and Develop
ment of Plan, and Findings of Fact and
Conclusions of Law in Support thereof,
June 14, 1972; and
5. Order for Acquisition of Transportation,
July 11, 1972 . . . " (I a 591)
In its "Ruling on Propriety of Considering a Metro
politan Remedy" the lower court concluded that, although "the
Supreme Court has not yet ruled directly on this issue" it
was proper for the trial court to consider a metropolitan
remedy. Thus, fully aware of the lack of appellate precedent
for such a course of action, the lower court commenced the
process of fashioning a metropolitan remedy.
-113-
Subsequently, in its "Findings of Fact and
Conclusions of Law in Support of Ruling on Desegregation
Area and Development of Plan" the lower court candidly
stated the following:
. . I t should be noted that the court
has taken no proofs with respect to the
establishment of the boundaries of the
86 public school districts in the counties
of Wayne, Oakland and Macomb, nor on the
issue of whether, with the exclusion of
the city of Detroit school district, such
school districts have committed acts of de
jure segregation." (I a 497-498)
Thus, based only upon findings of de jure segregation within
the Detroit public schools, in a state with a strong tradition
of prohibiting, by state law, dual school systems, the lower
court proceeded to enter its "Ruling on Desegregation Area and
Order for Development of Plan of Desegregation".
This remedial order, the most sweeping ever entered
in a school desegregation case, created a 53 school district
desegregation area, involving at least 780,000 or 1/3 of the
state's public school pupils, and established a desegregation
panel charged with the responsibility of preparing interim (Fall
term, 1972), and final (Fall term, 1973) plans of desegregation
with, as an irreducible minimum, K - 6 pupil reassignment and trans
portation in as many clusters as practicable by the Fall of 1972,
together with faculty integration in the Fall of 1972 by
-H4-
reassigning teachers within the 53 affected school districts.
This order compels these defendants or some of them to bear
all reasonable costs incurred by the judicially created de
segregation panel, to disapprove all new construction plans
when housing patterns in an area would result in a school
largely segregated on racial lines, and to take immediate
action concerning the establishment of faculty and staff in
service training and the employment of black counselors.
Further, such order compels the Superintendent of Public Instruction
to make recommendations to the Court for appropriate interim
and final arrangements for the financial, administrative and
school governance, and contractual arrangements for the desegre
gation area independently of the provisions of Michigan law.
(I a 537-542)
Subsequently, in its "Order for Acquisition of
Transportation" the lower court commanded these defendants to
pay for the acquisition of at least 295 buses for use in the
partial, interim metropolitan desegregation plan during the
1972-1973 school year. (I a 576-577 ) The approximate cost
of this initial order to acquire transportation for implementation
of a partial interim plan is approximately three million dollars
since one school bus meeting Michigan standards costs approx
imately $10,500.00.
-115-
There are preliminary aspects of the lower court's
order of June 14, 1972 that deserve careful scrutiny by this
Court. First, although the District Court specifically and
expressly found no de jure segregation as to faculty and staff
within the Detroit public schools, (I a 205-209 ) this de
segregation order commands that each school within the
judicially created desegregation area must have at least 1 0%
black faculty and staff. (I a 541 ) Thus, in the
absence of any finding of a constitutional violation as to
faculty and staff teachers within the desegregation area
having lawful contracts with boards of education covering
wages, hours and conditions of employment are now subject
to reassignment in school districts governed by other boards
of education with whom they have no contractual relationship.
See section 569 of 1955 PA 269, as amended, supra, and 1947
PA 336, as amended, MCLA 423.201 et seq; MSA 17.45541 et seq.
Second, the desegregation area established by the
June 14, 1972 order includes 18 school districts, each an in
dependent body corporate with the power to sue and be sued and to
be represented by private counsel of its own choosing, under
Michigan law, that have never been made parties to this cause.
This novel exercise of judicial power, affecting the educa
tional welfare of thousands upon thousands of children and
-116-
parents living in school districts not even parties to the
case and against whom no findings have ever been made, except
that the school district and its residents happen to be there,
must be carefully evaluated by this Court. The tradition of
equity is fariness. It cannot be said that this aspect of
the lower court's order is consistent with any notion of
fundamental fairness.
The lower court's rulings and orders establishing
a massive metropolitan remedy in this cause must be tested
against the controlling federal appellate precedents. These
defendants submit that, when so tested, it is manifestly with
out doubt that the lower court exceeded the scope of its judicial
authority in decreeing a metropolitan remedy herein, based only
upon a finding of de jure segregation within the Detroit
public schools.
The leading United States Supreme Court case con
cerning school desegregation remedies is Swann v Charlotte-
Mecklenburg Board of Education, supra, where a unanimous
court enunciated the following controlling principles:
" . . . The task is to correct, by a balancing
of the individual and collective interests,
the condition that offends the Constitution.
"In seeking to define even in broad and
general terms how far this remedial power
-117-
extends it is important to remember
that judicial powers may be exercised
only on the basis of a constitutional
violation. . .
. .As with any equity case, the nature
of the violation determines the scope of
the remedy. . ." p 16
Here, the violation or condition that offends the
Constitution is the lower court's finding of de jure segregation
within the Detroit public school system. Thus, judicial equitable
remedial powers extend only to correcting the condition that
offends the constitution as determined by the nature of the
constitutional violation, de jure segregation within Detroit.
It cannot be said that the lower court's metropolitan remedial
orders are consistent with these governing principles. Rather,
contrary to such principles, the lower court, based on a
constitutional, violation within one school district, and no more,
has expanded the remedy to include 52 other school district
without the support of any claims, proofs or findings concern
ing either the establishment of school district boundaries or
any de jure conduct by these 52 school districts.
This Court, in a previous opinion in this cause, has
recognized these sound principles governing the right to relief
in the following language:
"The issue in this case is not what might
be a desirable Detroit school plan, but
whether or not there are constitutional
-118-
violations in the school system as
presently operated, and, if so, what
relief is necessary to avoid further
impairment of constitutional rights.
There must be a trial on the merits
as to the alleged constitutional viola
tions as a predicate to relief in the
federal courts. . . "
(Emphasis supplied) 438 F2d 945, at 946
On the question of a metropolitan remedy, there has been
neither any alleged constitutional violations, nor a trial
on the merits concerning same in this cause.
Moreover, the recent affirmance, with only one
dissent, by the United States Supreme Court, of the holding
of a three judge court that racial imbalance among school
districts caused by housing patterns is beyond the scope of
federal judicial intervention, compels the conclusion that the
lower court erred in decreeing a metropolitan remedy. Spencer
v Kugleri 1241-1243, supra. Here, as in Spencer v Kugler, supra,
there has been no showing or finding that the school district
boundary lines have been established and maintained for the
purpose of segregating school children by race.
As is demonstrated by the "Ruling on Issue of
Segregation", at one time the City of Detroit and its public
school system were 91% white. (1 a 196 ) Thus, it is
beyond dispute that the municipal and school district boundary
-119-
lines were not established to segregate black students.
Further, it must be observed that, of the 52 other school
districts included within the metropolitan desegregation area,
9 of such school districts have, 9% or more black students.
Thus, it is simply inaccurate to perceive Detroit, with a
63.8% black student body, as a black island surrounded by a
sea of all white suburban school districts. (ix a 580-584 )
Moreover, under the teaching of Swann v Charlotte-Mecklenburg
Board of Education, 31, 32, supra, district courts are not
constitutionally required to monitor changing demographic
patterns and make annual adjustments.
In the only other case involving a metropolitan
desegregation order similar to the one entered in this case,
the Court of Appeals for the Fourth Circuit, reversed the
, , absentDistrict Court. In doing so, that court held that/a showing of
invidious discrimination in the establishment and maintenance
of school district boundary lines, the federal courts lack
any authority to intervene. Bradley v School Board, of City
of Richmond, supra.
At least in that case, the lower court conducted a
trial in whicn tne suburban school districts were heard on
the question of whether they had committed acts of de jure
-120-
segregation. Here, there has never been any hearing, proofs
or findings on the questions of school district boundary lines
or the conduct of the suburban school districts. This is
primarily attributable to the fact that plaintiffs have never
plead any alleged constitutional violations with respect to
such matters.
Moreover, no valid distinction can be drawn between
the two Bradley cases on the basis that the Virginia case re
quired school district consolidation while, in the instant
cause, the lower court has not expressly ordered such consol
idation to date. The lower court has directed the Superintendent
of Public Instruction to submit recommendations " . . . for
appropriate interim and final arrangements for the (1 ) financial,
(2) administrative and school governance, and (3) contractual
arrangements for the operation of the schools within the
desegregation area, including steps for unifying, or otherwise
making uniform the personnel policies, procedures, contracts,
and property arrangements of the various school districts."
(I a 542 ) Further, the trial court ordered the Superinten
dent of Public Instruction to make such recommendations
independently of appliable existing state law. (I a 5 4 3)
An examination of the final recommendations submitted
by the Superintendent of Public Instruction reveals that
-121-
such recommendations contemplate, inter alia, the creation
of an area-wide authority with certain finance and governance
powers and the imposition of an area-wide operating millage
outside the 15 mill limitation, irrespective of whether
the voters have approved such increase in the tax limitation
set forth in Const 1963, art 9, § 6 . (la 610-613). Further,
the lower court's remedial orders are directly contrary to Jones
v Grand Ledge Public Schools, supra, which holds that, under
Michigan law, school districts have no legal duty to educate
non-resident students. Clearly, implementation of the lower
court's order of June 14, 1972 will work marked and substantial
changes in the present internal governmental structure of
Michigan's school districts.
As shown earlier in this brief, Michigan's school
districts are as independent from one another as one state is
from another. Michigan school districts are legally and
politically independent bodies corporate,each having its own
locally elected board of education empowered, by statute,
to levy taxes, hire personnel, determine curriculum and
generally to operate the schools under its jurisdiction in
providing educational services to the children residing within
its boundaries. Thus, as stressed by the Chief Justice and
3 other Justices in dissent in Wright v Council of rhe City of
-122-
Emporia, 4815, supra, "[t]he discretion of a district
court is further limited where, as here, it deals with totally
separate political entities. . ."
Moreover, it must be emphasized that the majority
opinion in Wright v Council of the City of Emporia, 4810, supra,
in rejecting the dominant purpose test and looking only at
the effect of the proposed new school district boundary lines,
did so only within the narrow context of considering " . . . the
circumstances under which a federal court may enjoin state
or local officials from carving out a new school district from
district that has not yet completed the process of
dismantling a system of enforced racial segregation. . ."
{Emphasis supplied) 4807. Thus, this case is expressly limited
to the question of remedy, not right to relief, and is further
limited to the question of relief within the confines of the
school district area previously found to be de jure segregated.
The lack of authority for plaintiffs' position
concerning the propriety of a metropolitan remedy has been
vividly illustrated to this court during the oral argument on
July 20, 1972 concerning these defendants' Application for Stay.
At that time, in response to a direct question from the bench,
plaintiffs' counsel cited to this Court United States v State of
-123-
Texas, 321 F Supp 1043, (ED Tex, 1970), 330 F Supp 235,
(ED Tex, 1971) affirmed and modified 447 F2d 441 (CA 5, 1971)
Application for Stay denied sub, nom. Edgar v United States
404 US 1206 (1971) as the federal judicial authority for a
metropolitan remedy in this case. It must be stressed that
the following analysis of such case will remove, once and for
all, any remaining doubt that the metropolitan remedy decreed
herein is without prior federal appellate precedent.
In distinguishing United States v State of Texas,
supra, from the instant cause, these defendants will utilize
several quotes from the first District Court opinion, followed
in each case by the reasons why such cause is not authority for
the metropolitan remedy decreed herein:
" . . . The allegations (in plaintiffs'
complaint) are based particularly on
actions in connection with the creation
and continued maintenance of nine all-black
school districts. . ." p 1045
Thus, that case, unlike the instant cause, was pleaded and
tried as a case involving the creation and maintenance of
numerous school district boundaries, not as a case involving
the question of de jure segregation within one school district,
only Detroit, having a 63.8% black student body. Further, it
dealt with 9 all-black school districts, not 53 school districts,
a substantial number of which already have racially heterogeneous
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student bodies. (IX a 580-584)
"Prior to 1954, the State of Texas operated
separate schools for white and black children
pursuant to the State Constitution and statutes.
The result was commonly the so-called dual school
districts. The necessity for separate educa
tion, enhanced by the sparce settlement of
many rural areas in the State, also led to the
establishment of school district lines enclosing
single schools established to serve small commun
ities, often consisting only of members of one
race. . ." p 1047
". . . All except three of the all-black
districts have fewer than 100 students. . .
p 1048
Thus, that case arose in a situation where, pursuant to
both state constitutional and statutory provisions commanding
racially separate schools, miniscule rural all-balck school
districts were created in sparsely settled rural areas. Here,
in a state with a strong tradition of prohibiting racially
separate schools by both constitutional and statutory provisions,
we are dealing with an urban school district that, in 1920,
was 91% white (I a 196 ) and that presently has a student
population that is 63.8% black.
"Several of the school districts involved
in this suit have experienced boundary
changes and have experienced increases or
decreases in their student enrollment be
cause of interdistrict student transfers.
The following districts have experienced
boundary changes, due to the annexation or
detachment (or both) of portions of their
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territory, which resulted in the removal
of all, or virtually all, white children
from the now all-black districts and the
siphoning off of black students from
neighboring districts with bi-racial en
rollments:. . p 1049
"The school districts involved in this suit
exhibit a pattern of student transfers
which may be categorized as follows:
(1) Black students transferring out
of districts with bi-racial enrollment into
predominantly or totally black districts.
(2) White students transferring out
of predominantly black districts into pre
dominantly or totally white districts.
(3) Students of all races transferring
out of their home districts to attend grades
not offered there." pp 1049-1050
Thus, in that case, the lower court made specific
findings concerning both school district boundary alterations
and interdistrict student transfers that contributed to the
existence of 9 all-black school districts. Such proofs and
findings are totally lacking in the instant cause.
"Separate neighboring or overlapping
school districts, one black and the other
white, are unconstitutional when created
and maintained to perpetuate a dual school
system, and such districts require consoli
dation with nearby units so as to assure
their students equal educational opportunities:
(Citations omitted)
"As noted above, Texas schools were
segregated by law prior to 1954. This
enforced segregation resulted in dual school
systems within districts, as well as in the
establishment of district lines which en
closed small communities often consisting
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only of members of one race. The
existence of small districts with en
rollments under 250 have not resulted
solely from the legal requirement of
segregation. By isolating racially homog
eneous residential areas into formal
political enclaves, district lines drawn
prior to 1954 have entrenched segrega
tion and insured its continuation after
its legal basis was declared unconstitu
tional. ” pp 1050-1051
Thus, that case stands for the proposition that
where, pursuant to state law, school district boundary
lines are found to have been created, manipulated and main
tained for the purpose of perpetuating a dual school system,
the federal courts may remedy same by requiring the reorgani
zation Of school districts to eliminate all-black school
districts. Such holding is manifestly inapplicable to this
cause. The lower court in this cause, by its own admission,
neither took proofs nor made findings concerning the establishment
of the boundaries of any of the affected school districts.
Further, the lower court herein has not taken proofs or made
any findings as to whether any of the affected school districts,
with the exception of Detroit, has committed any acts of de
jure segregation.
To summarize this part of the argument, based solely
upon findings of de jure segregation within one school district,
Detroit, the lower court has decreed a metropolitan remedy that
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is the most sweeping relief ever granted in a school desegrega
tion case. In the absence of any claims, proofs or findings
of metropolitan de jure segregation, whether as to the establish
ment of school district boundaries or the conduct of the 52
suburban school districts, it must be concluded that such
metropolitan remedy is for the purpose of achieving a judicially
perceived desirable racial balance to avoid majority black
schools in the Detroit public schools. This metropolitan
remedy is being imposed without any finding of a metropolitan
constitutional violation.
The cases are legion that racial balance in the public
schools is neither constitutionally required nor judicially
enforceable in the federal courts. Absent a constitutional
violation, boards of education have no affirmative constitutional
duty to achieve racial balance in the public schools, Deal I
and II, supra, Davis v School District of City of Pontiac,
Inc, 575, supra, Keyes v School District No.l, Denver, Colorado,
1005, supra, and federal courts lack the authority to impose
racial balance on the public schools within a school district.
Swann v Charlotte-Mecklenburg Board of Education, 16, supra.
Once a constitutional violation has been established, the con
stitutional obligation is to fashion a remedy commensurate in
scope with the violation to correct the condition that offends
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the Constitution. Swann v C'nariotte-Mecklenburg Board of
Education, 16, supra. However, the constitutional obligation is
to convert to a unitary school system in which school authorities
exclude no pupil of a racial minority from any school on account
of race. Even in the remedv stage of a school desegregation
case, the Constitution does not require any particular
degree of racial balance. Swann v Charlotte-Mecklenburg Board
of Education, 23-24, supra.
Finally, in the absence of a constitutional violation
as to the creation and maintenance of school district boundaries,
the federal courts lack the authority to alter or ignore such
boundaries and impose remedial decrees for the purpose of
achieving racial balance within school districts. Spencer v
Kugler, supra, Bradley v School Board of City of Richmond, supra.
Thus, the lower court is in error in decreeing a metropolitan
remedy herein and must be reversed by this court.
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XII.
STATE OFFICIALS MAY NOT BE COMPELLED BY A
DISTRICT COURT IN A SCHOOL DESEGREGATION
REMEDIAL ORDER TO PERFORM ACTS BEYOND THEIR
LAWFUL AUTHORITY TO PERFORM UNDER STATE LAW
The Michigan Constitution establishes the limitations
on defendants in the expenditures of funds.
Const 1963, art 4, §30:
"The assent of two-thirds of the members elected
to and serving in each house of the legislature
shall be required for the appropriation of public
money or property for local or private purposes."
Const 1963, art 9, §17:
"No money shall be paid out of the state treasury
except in pursuance of appropriations made by
law. "
The District Court has ordered defendants to pay for
295 buses, the costs of the panel, hiring black counsellors and
to provide inservice training for teachers and administrators
and to assume other costs to carry out the District Court's
order of June 14, 1972. The cost, estimated by these defendants,
of an interim program of inservice training prior to the opening
of the 1972-1973 school year is over $3,000,000. Another $3,000,000
would be spent on the purchase of 295 buses. The legislature
has not appropriated money to be spent for such purposes. These
defendants are thus ordered to perform actions not authorised by
Michigan law and to expend state funds contrary to state laws not
found unconstitutional by the district court, and before appellate
review of the ordered remedy.
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In remedying state imposed segregation in the public
schools, the federal courts may only order state officials to
exercise such powers as they possess under state law. This rule
was succinctly stated in Bradley et al v School Board of the City
of Richmond, Virginia, et al, 51 FRD 139, 142 (ED Va, 1970), as
follows:
"To be sure, state officials may only be
directed, in fulfillment of this duty, to use
those powers granted to them by state lav/.
For this reason the relief which may be demanded
of state, as opposed to local, officials is
restricted. Smith v North Carolina State Board
of Education , Mi sc. N o . 674 (4 th Cir.", July 31,
1570). By the same token there will be certain
relief which local officials are incapable of
affording. Cf. Thaxton v. Vaughan, 321 F2d 474
(4th Cir. 1963). In each case, however, the
obligation is commensurate with the scope of the
power conferred by state law."
Here, there is no obligation on the part of state
defendants and intervening defendants given the "scope of the
power conferred by state law". Bradley, supra, to provide
funds for the enumerated purposes. State law specifically pro
hibits expenditures of funds for a purpose for which there has
been no appropriation. Const 1963, art 9, § 17, supra. That
no appropriation has been made is shown in the next section of
this brief.
In further proceedings in the Smith case, cited
above, the Court of Appeals for the Fourth Circuit at 444 F2d 6
(CA 4, 1971), affirmed the action of a single Circuit judge
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in restricting the demands which could be made on the State
Board of Education and the Superintendent of Public Instruction.
The Circuit Judge, while noting that the state authorities
were obviously involved in public education in the state, also
said that they could find no authority for those defendants
to be involved with school attendance plans. Having found no
such statutory authority, and finding that authority over school
attendance zones was vested in the local school districts, the
Court, sitting en banc, vacated the order of the district judge
requiring the public officers to involve themselves in the
desegregation plans. The court did not, however, preclude the
defendants from assisting "within their respective areas of
responsibility as established by state law." p 8.
The same principle which was used in Bradley and Smith,
supra, was applied in United States v School District 151 of Cook
County, Illinois, 301 F Supp 201 (ND 111, 1969), affirmed as
modified 432 F2d 1147 (CA 7, 1970), cert den 402 US 943 (1971),
where the District Court for the Northern District of Illinois
declared that a person's constitutional rights could not be denied
merely because the implementation of those rights would require
the expenditure of funds, though the court did not reject the
concept that financial resources were relevant to the type of
plan enacted. It did say that funds must be raised by the schools
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t° the extent that they were authorized:
" . . . Ultimately, however, public officials
must 1 * * * exercise the power that is theirs
* * * to raise funds adequate to * * * maintain
without racial discrimination a public school
system.* * *' Griffin v County School Board,
377 U.S. 218, 2T3, 84'S.Ct. 1226 , 1234, 12
L.Ed. 2d 256 (1964)." p 232.
Lest it be forgotten in the rush to require these
defendants to pay for the enumerated expenses of the Detroit
and metropolitan school districts, it is clear that while these
defendants are not empowered to provide these services, the
local school districts, in some instances, clearly are.
School districts are authorized at section 594 of the
school code, MCLA 340.594; MSA 15.3594 to purchase buses.
Authorization for the boards to hire personnel, such as
counselors, is provided at MCLA 340.569; MSA 15.3569 and MCLA
340.574; MSA 15.3574.
The Griffin and other cases cited in this section
clearly stand for the proposition that public officials, if they
have both the power to levy taxes and the authority to spend those
taxes for a given purpose, may be required to levy taxes for that
given purpose. It does not stand for the proposition that public
officials without power to levy taxes, appropriate money, or spend
for unauthorized purposes, will be required to do so by a federal
court.
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XIII.
THE EXPENDITURES OF STATE FUNDS FROM THE
STATE TREASURY REQUIRED BY THE DISTRICT
COURT IN THIS CASE ARE NOT AUTHORIZED BY
THE APPROPRIATION ACTS OF THE MICHIGAN
LEGISLATURE AS REQUIRED BY THE MICHIGAN
CONSTITUTION_______________________________
The District Court has ordered these defendants
to pay for not less than 295 buses. (I a 576-77) The
record is undisputed that a new bus costs approximately
$10,500.00 so that the projected cost of 295 buses is in
excess of $3,000,000.00. The District Court has also
ordered these defendants to pay the costs of the panel.
(I a 533) These are presently estimated at approximately
$22,500.00. Further, all the defendants are ordered to
hire black counsellors and to provide in-service training
of teachers in the 53 school district "desegregation area."
(I a 542) The District Court was informed by these defen
dants that initial cost of in-service training was approx
imately $3,000,000.00.
There are four current acts of the legislature
of Michigan which appropriate funds for the "...Michigan
Board of Education, any affected local school district or
board of education, general educational purposes, or general
emergency purposes." (I a 597)
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1937 PA 120
We begin by considering Michigan statutes making
emergency appropriations. Research reveals that there is
only one such statute, 1937 PA 120, as amended, MCLA 5.1 et
seq; MSA 3.316(1) et seq. Basically this statute appropriates
the annual sum of $1 0 0 ,0 0 0 . 0 0 and sets up a special commission
consisting of the governor, the speaker of the house of rep
resentatives, the president of the senate and members of the
house and senate appropriations committee ( a total of 24
members for both committees ) to release sums from such
appropriation for emergency purposes. It must be noted that
the only member of the commission that is a party to this
action is the governor.
Sec. 2 thereof provides in part:
"The commission shall not have the authority
to appropriate money for any purpose that
could have been anticipated and made while
the legislature was in session, nor for any
purpose that has been considered and denied
by the legislature."
The statute further provides that no release of
funds from the appropriation shall be made unless it is approved
by a majority of the members of the commission. The governor
is authorized to veto any action of the commission within 5
days of such action and the commission is empowered to over
ride such veto within 14 calendar days thereafter.
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This coramission has been described as "the little
legislature" by the attorney general in OAG 1947-48, No 597,
p 461, created by 1937 PA 120 as an executive body which can
exercise no legislative functions.
When the legislature enacted 1937 PA 120, supra,
Const 1908, art 5, §13 provided that the legislature shall
meet on the first Wednesday in January of every odd year.
Thus, it must be concluded that the legislature intended
that the commission act only when the legislature is not in
session. It is noted that the people amended Const 1908,
art 5, §13 at the Biennial Spring Election held on April 2,
1951, to require the legislature to meet on the second Wed
nesday in January of each year. Since the enactment of
1937 PA 120, its provisions have been administered by the
commission on the basis that the little legislature was
authorized to act only when the legislature was not in
session. It should also be observed that since 1959 the
commission has not acted at all. This administrative con
struction is supported by the clear intent of the legislature
as expressed in the portion of Sec. 2 of 1937 PA 120, supra,
quoted above. An administrative construction given to a
statute by persons charged with the duty of executing it is
entitled to the respectful consideration of the courts and
should not be overruled without cogent reasons. Magreta v
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Ambassador Steel Co, 380 Mich 513 (1968).
The 1972 Michigan legislature is presently in
session although both houses are adjourned to September 5
and 6 , 1972 respectively because of the pending primary
election for members of the House of Representatives which
was held on August 8 , 1972. The Journal of the House No 98,
p 2705, Journal of the Senate No 96, p 1814. It should be
noted that under Rule 14 of the Joint Rules of the House
and Senate, 1971-72, upon a majority vote of a committee
composed of President pro tempore of the Senate, the majority
leader of the Senate, the Speaker of the House of Represen
tatives and the Speaker pro tempore of the House of Repre
sentatives, either or both houses of the legislature in
sessionbut adjourned to a date certain can be convened in
the case of emergency.
In 1972 PA 225, §19, ( ix a 620 ) which will be
discussed infra, the legislature has provided for emergency
loans to insolvent school district upon "approval of an
application for an emergency loan by concurrent resolution
of the legislature or,when the legislature is not in session
by majority vote of the members of the special commission
on appropriations created by Act No. 120 of the Public Acts
of 1937, as amended--- " Although this is a 1972 statute,
its plain terms confirm the legislative intent that the
special commission on appropriations created by 1937 PA 120
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shall act only when the legislature is not in session.
Based upon the administrative construction of
1937 PA 120, and, particularly the legislative intent as
expressed in Sec. 2 thereof, the special commission created
under 1937 PA 120 has exercised its powers only when the
legislature was not in session. Since the 1972 Michigan
legislature is in session and adjourned to September 5 and
6 , 1972, it must follow that 1937 PA 120 is not available
as a general emergency purpose appropriation act for the
purpose of expending state funds for buses, the costs of
the panel, hiring black counsellors and providing in-service
training for teachers in the desegregation area.
1972 PA 225
We next consider 1972 PA 225 appropriating the
sum of $300,000.00 from the general fund to the school
emergency loan revolving fund. Pursuant to Sec. 3 of 1972
PA 225, a board of education of a school district, which
incurs a deficit, is unable to meet its financial obligations
and its financial condition is attributable, at least in
part, to annual collections on tax settlement day of less
than 85% of ad valorem taxes levied by the district, may
apply for an emergency loan from the state. Before a school
district can be eligible for an emergency loan it must
certify that the school district is insolvent, based upon a
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certified audit by the state treasury department. Application
for an emergency loan must be made to the state board of
education, which shall make an appropriate recommendation to
the governor for review and recommendation to the legislature.
The legislature, if in session or the special commission on
appropriations created by 1937 PA 120, supra, must approve
the loan. Loans made under the act must be repaid in not
more than 10 years plus interest at the rate of 6% per annum.
This act expires on June 30, 1973.
It must be stressed that no school district is
eligible to obtain an emergency loan unless it incurs a
deficit verified by the state treasury department which is
attributable, at least in part, to annual collections of ad
valorem property taxes less than 85% on tax settlement day.
This Court is asked to take judicial notice of the
records of the Municipal Finance Commission, an agency of the
state of Michigan. Their records indicate that there is
presently only one school district in Michigan, the Baldwin
Public School District located in the central part of the
state, with a tax collection of less than 85% on tax settle
ment day. The records of the Municipal Finance Commission
also show that for the fiscal years 1965-67 through 1970-71,
the tax collection rate for the Detroit School District was
95% or better for each fiscal year.
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Thus, it must be concluded that none of the 53
school districts within the "desegregation area" designated
by the District Court would be eligible for emergency loans
under 1972 PA 225. It is also abundantly clear under the
plain terms of 1972 PA 225 that none of the $300,000
appropriated thereunder is available to any of these
defendants to be expended for any of the purposes ordered
by the District Judge.
1972 PA 246
Consideration should next be given to 1972 PA
246, which makes appropriations from the general fund for
the department of education for the fiscal year 1972-73.
This act makes no appropriation for the governor, the
attorney general or the state treasurer, defendants herein.
The total appropriation is slightly in excess of $36,000,000.
In our discussion of this act we will round off sums to the
nearest amount.
At the outset it should be stressed that some
$14,000,000 of such appropriation is to be paid for Michigan
residents attending Michigan colleges and universities by way
of scholarships or grants. In excess of $2,000,000 each have
been appropriated for the operation of the Michigan School
for the Blind and Michigan School for the Deaf. The legis
lature has appropriated in excess of $3,000,000 for library
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services, and nearly $5 ,0 0 0 , 0 0 0 for vocational
education and rehabilitation services. As to the appro
priation of state funds for library services and vocational
education and rehabilitation services, some of the appro
priations that had been made match federal grants.
Additional moneys are also appropriated to match federal
grants and must be spent in accordance with appropriate
federal laws. In addition, $500,000 has been appropriated
for the State Technical Institute and Rehabilitation Center.
The remaining moneys have been appropriated to the
department of education to staff component units of the
department, including an education data center, department
services, school management, research and education planning,
educational audit and improvements, elementary and secondary
grant program, special education, higher education planning,
certification and teachers education, the staffing of the
financial aids to students section and adult and continuing
education and other services.
In large part, the appropriations for departmental
services are line items for "salaries and wages— not to
exceed __ actual positions" and for contractual services,
supplies and materials to serve the various sections.
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In Sec. 9 the legislature has made its intent crystal clear
that appropriations for unclassfied positions shall be used
for such positions only and the appropriations for salaries
and wages shall be used only with respect to classified
positions established by the civil service commission.
Moreover, in Sec. 2(b) the legislature has specified
that "[e]ach of the amounts appropriated shall be used solely
for the respective purposes herein stated except as otherwise
provided by law..."
In making an appropriation, the legislature may
attach any condition it may deem expedient or wise, and the
body receiving the appropriation cannot receive it without
complying with the conditions. Weinberg v Regent of Univer
sity, 97 Mich 246, 254 (1893). The State Department of
Education, created by Const 1963, art 8, §3, "shall have powers
and duties provided by law." In the case of the Department
of Education, the legislature not only has the power to impose
conditions on an appropriation, but since the Department
has "powers and duties provided by law", the legislature
has the power to require compliance with the conditions.
Thus, the holding of the court in State Board of Agriculture
v Auditor General, 226 Mich 417, 425 (1924), -— that the
condition may not invade the constitutional powers of the
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recipient — nas no application to the Department of
Education.
Since the expenditures required by the District
Court under its orders of June 14, 1972 (I a 535 ) and
July 11, 1972 (I a 576 ) are not within the purposes as
set forth in 1972 PA 246, these defendants have no authority
to expend any of the moneys contained therein for the
purposes as ordered by the District Court.
While this Court's question is directed to current
acts only, an examination of previous annual appropriations
acts for the department of education for the past three
fiscal years, 1971 PA 120, 1970 PA 84 and 1969 PA 307,
is useful because it reveals no appropriation for the
purcnase of scnool buses for school districts, for the hiring
of black counsellors or for in-service teacher training and
for the payment of tne cost of any panel ordered by a district
court or any other court for that matter. The saKie is true of
the provisions of 1972 PA 246. Thus, if any of the line items
in 1972 PA 246 could somehow be construed to include the orders
of tne District Court, clearly such expenditures would be for
new programs not previously approved by the legislature.
Sec. 7 of 1972 PA 246, quoted in part here, would be applicable.
It provides:
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"No state agency shall establish new
programs nor expand programs including
any program involving federal or other
funds., beyond the scope of those already
established, recognized and appropriated
for by the legislature, until such program
and tiie availability of money shall be
submitted by each agency to the budget
director for recommendation to the legis
lature and until each program has been
authorized and funds appropriated there
for by the legislature. .
Reading the line item appropriations in 1972 PA 246,
and the restrictions placed thereon by the legislature, it
is clear that the act makes no provision for the purchase
of and payment for 295 buses
recommended by the panel, for the cost of the panel, for
the hiring of black counsellors, or for the cost of in-service
training for teachers and administrators as ordered by the
District Court. (i a 535; I a 576)
1972 PA 258
The next appropriation act to consider is 1972 PA
258, signed by the Governor on August 8, 1972 and given
immediate effect by the legislature, which is known as the
state school aid act of 1972. (ixa 621-640 ) It must first
be observed that, pursuant to the item veto power conferred
upon him by Const 1963, art 5, § 19 to veto any distinct
item or items appropriating moneys in an appropriation bill,
the Governor vetoed Sections 22, 46, 47 and 48 of 1972 PA 258.
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In analyzing 1972 PA 258, it is instructive to
first observe that, pursuant to Const 1963, art 9, § 11,
the people have established the state school aid fund in the
following language:
"There shall be established a state school
aid fund which shall be used exclusively for
aid to school dritricts, hxgher education
and school, employees" retirement systems,
as provided by law. One-half of all taxes
xmposed on retailers on taxable sales at
retail of tangible personal property, and
other tax revenues provided by law, shall
be dedicated to this fund. Payments from
this fund shall be made in full on a scheduled
basis, as provided by law."
[Emphasis supplied]
The Address to the People accompanying this consti
tutional section provided, in pertinent part, as follows:
"This is a new section which directs the
legislature to establish a school did fund
to which must be dedicated one-half of all
state sales tax collections and such other
revenues as the legislature may determine.
Moneys in the fund must be used for support
of education and school employees' retire
ment systems. Payments from the fund are to be
made in full on a basis scheduled by legislative
enactment."
Thus, it is clear that the constitutionally established state
scnool aid fund must be used exclusively for aid to school
districts and other specified educational purposes. This fund
was not created for the purpose of providing funds to be
appropriated, by enactment of the legislature, to any of these
defendants. Further, payments from the fund to its designated
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recipients must be made as provided by statute.
In Sec. 11 of 1972 PA 258, the legislature has
provided as follows:
"There is appropriated from the school aid
fund established by section 11 of article 9
of the constitution of the state for each
fiscal year, the sum necessary to fulfill
the requirements of this act, with any
deficiency to be appropriated from the
general fund by the legislature. The
appropriation shall be allocated as provided
xn this act." [Emphasis supplied! CTx- a~oTT)
It should be observed that Sec. 14 of 1972 PA 246
Provides:
"There is appropriated to the state school
aid fund from the general fund of the state
for the fiscal year ending June 30, 1973,
such sum as may be necessary to pay the
amount of state aid for schools as authorized
by Senate Bill No. 1269 of 1972." (IX a 613 )
Further, 1972 PA 258 is also Senate Bill No. 1265.
Thus, for the 1972-73 fiscal year the legislature has appro
priated, from the general fund to the state school aid fund
whatever additional amount is necessary to meet the require
ments of 1972 PA 258 for aid to school districts.
Sections 17 and 18(1) of 1972 PA 258 provide:
"Sec. 17. On or before August 1, October 1,
December 1, February 1, April I and June 1,
the department shall prepare a statement
of the amount to be distributed in the
installment to the districts and deliver uhe
statement to the state treasurer, who shall
draw his warrant in favor of the treasurer
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of each district for the amount payable to
the district according to the statement and
deliver the warrants to the treasurer or
each"district." [Emphasis supplied]
"Sec. 18. (1) Except as provided in chapters
3, 4 and 6, each district shall apply the
moneys received by it under this act on
salaries of teachers and other employees.,
tuition, transportation, lighting, heating
and ventilation and water service and on the
purchase of textbooks and other supplies.
An amount equal to not more than 5% of the
total amount received by any district under
chapter 2 may be' expended by the board for
capital costs or debt service for debts
contracted after December 8, 1932. ho part
of the money shall be applied or taken for
any purpose whatsoever except as provided
Inthis section. The department [State
Department of Education] shall determine
the reasonableness of expenditures and may
withhold from any distract the apportionment
otherwise due for the fiscal year following
the discovery by the department of a violation
by this district. . . ." [Emphasis supplied] (iXa. 623)
By its plain and unambiguous terms, this statute
appropriates funds to school districts rather h an no any
of these defendants. Thus, 1972 PA 258 provides neither
funds nor authority for these defendants to make any or the
expenditures required of them by the District Court herein.
Further, the Department of Education and, ultimately, the
State Treasurer, disburse the funds appropriated to school
districts by 1972 PA 258 in accordance with the allocation
formulas established by the legislature and the funds may
be expended by the school districts only for those purposes
authorized by the legislature.
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In addition to appropriating state schooi. aid
fund moneys to school districts, Chapter 17 of 1972 PA
258 contains appropriations from such fund to both the
Michigan Public School Employees* Retirement System and
the Detroit Public School Employees* Retirement System. <(IXa 639-40)
Clearly, such appropriations provide neither funds nor
authority for these defendants to make any of the expendi
tures required of them by the District Court herein.
In summary, by both constitutional (Const 1963,
art 9, § 11) ana statutory provisions (Sections 11, 17,
18 and Chapter 17) the state school aid fund moneys
appropriated by 1972 PA 258, as supplemented by Section 14
of 1972 PA 246, are appropriated either to school districts
or to retirement systems for public school employees. This
statute, 1972 PA 246, clearly does not appropriate state
school aid funds to any of these defendants. Thus, 1972
PA 246 provides neither funds nor authority for these derendants
to make any of the expenditures required of them by the District
Court.
-148-
XIV
SECTION 803 OF THE EDUCATION AMENDMENTS OF
1 9 7 2 , PUB. L . NO. 9 2 - 3 1 8 , APPLIES TO METRO
POLITAN TRANSPORTATION ORDERS WHICH HAVE
BEEN OR MAY BE ENTERED BY THE DISTRICT COURT
IN THIS CASE
S e c t i o n 803 o f t h e E d u c a t i o n A m endm ents o f 1 9 7 2 ,
Pub L No 9 2 - 3 1 8 , r e a d s a s f o l l o w s :
" S e c . 8 0 3 . N o t w i t h s t a n d i n g a n y o t h e r la w
o r p o r v i s i o n o f l a w , i n t h e c a s e o f any
o r d e r o n t h e p a r t o f a n y U n i t e d S t a t e s
D i s t r i c t C o u r t w h ic h r e q u i r e s t h e t r a n s f e r
o r t r a n s p o r t a t i o n o f a n y s t u d e n t o r s t u d e n t s
fr o m a n y s c h o o l a t t e n d a n c e a r e a p r e s c r i b e d by
c o m p e t e n t S t a t e o r l o c a l a u t h o r i t y f o r t h e
p u r p o s e s o f a c h i e v i n g a b a l a n c e among s t u d e n t s
w i t h r e s p e c t t o r a c e , s e x , r e l i g i o n , o r s o c i o
e c o n o m ic s t a t u s , t h e e f f e c t i v e n e s s o f s u c h o r d e r
s h a l l b e p o s t p o n e d u n t i l a l l a p p e a l s i n c o n n e c
t i o n w i t h s u c h o r d e r h a v e b e e n e x h a u s t e d o r ,
i n t h e e v e n t no a p p e a l s a r e t a k e n , u n t i l t h e
t i m e f o r s u c h a p p e a l s h a v e e x p i r e d . T h i s
s e c t i o n s h a l l e x p i r e a t m i d n i g h t o n J a n u a r y 1 , 1 9 7 4 ."
A . INITIA L OBSERVATIONS
1 . The s e c t i o n w as o f f e r e d by C o n g r e s sm a n B r o o m f i e l d
a s a " n o n -g e r m a n e " am endm ent t o t h e e d u c a t i o n a l am endm ent c o n
t a i n e d i n S 6 5 9 . 1 17 Cong R ec H 1 0 4 0 7 - 1 0 4 0 8 ( D a i l y e d , N ovem ber
4 , 1 9 7 1 ) .
2 . The e x p r e s s e d s o l e p u r p o s e o f t h e am endm ent w as
t o s t a y d u r i n g a p p e a l . C o n g r e s sm a n B r o o m f i e l d s a i d :
"My am endm ent w o u ld o n l y d e l a y a l o w e r
c o u r t ' s b u s i n g o r d e r u n t i l a l l t h o s e
p a r t i e s h a d a c h a n c e t o p l e a d t h e i r c a s e
i n t h e i r c o u r t o f l a s t r e s o r t . "
I d , p H 1 0 4 0 8 .
-149-
3 . By i t s e x p r e s s t e r m s t h e l a n g u a g e o f t h e am end
m en t p u r p o r t s t o do no m ore t h a n g r a n t a s t a y " o f a n y o r d e r
on t h e p a r t o f a n y U n i t e d S t a t e s D i s t r i c t C o u r t w h ic h r e q u i r e s
t h e t r a n s f e r o r t r a n s p o r t a t i o n o f a n y s t u d e n t o r s t u d e n t s from
any s c h o o l a t t e n d a n c e a r e a p r e s c r i b e d by c o m p e t e n t S t a t e o r
l o c a l a u t h o r i t y f o r t h e p u r p o s e s o f a c h i e v i n g a b a l a n c e among
s t u d e n t s w i t h r e s p e c t t o r a c e , s e x , r e l i g i o n , o r s o c i o - e c o n o m i c
s t a t u s " u n t i l a l l a p p e a l s i n c o n n e c t i o n w i t h s u c h o r d e r s h a v e
b e e n e x h a u s t e d o r t h e t i m e t h e r e f o r e h a s e x p i r e d .
4 . The s t a y g r a n t e d p e n d i n g a p p e a l i s a p p l i c a b l e
o n l y t o o r d e r s r e q u i r i n g " t h e t r a n s f e r o r t r a n s p o r t a t i o n o f
a n y s t u d e n t o r s t u d e n t s from a n y s c h o o l a t t e n d a n c e a r e a p r e
s c r i b e d by c o m p e t e n t S t a t e o r l o c a l a u t h o r i t y . " T h e r e f o r e ,
i t i s a t l e a s t a r g u a b l e t h a t t h e am endm ent h a s no a p p l i c a t i o n
t o w h a t i s b e l i e v e d t o b e t h e h i s t o r i c d e j u r e s e g r e g a t e d s c h o o l
s y s t e m — w h e r e by s t a t e la w ( s t a t u t e an d c o n s t i t u t i o n ) a l l b l a c k
c h i l d r e n , r e g a r d l e s s o f w h e r e t h e y l i v e d w i t h i n t h e s c h o o l
s y s t e m , w e r e r e q u i r e d t o a t t e n d c e r t a i n s c h o o l s , and a l l w h i t e
c h i l d r e n , r e g a r d l e s s o f w h e r e t h e y l i v e d w i t h i n t h e s y s t e m ,
w e r e r e q u i r e d t o a t t e n d c e r t a i n o t h e r s c h o o l s . S e e , e . g . ,
G r een v C o u n ty S c h o o l B o a r d o f New K e n t , 3 9 1 US 430 ( 1 9 6 8 ) .
T h i s a l s o a p p e a r s t o b e t h e i n t e n t i o n o f t h e s p o n s o r s o f t h e
am endm ent a s d i s c l o s e d by t h e c o n g r e s s i o n a l d e b a t e s , o f w h ic h
m ore l a t e r .
t h e p r o -5 . The p u r p o s e o f t h e a m en d m en t, i . e . ,
v i d i n g o f a s t a y p e n d i n g a p p e a l i n c o n n e c t i o n w i t h o r d e r s
r e q u i r i n g t r a n s f e r o f s t u d e n t s fr o m s c h o o l a t t e n d a n c e a r e a s
p r e s c r i b e d by c o m p e t e n t S t a t e o r l o c a l a u t h o r i t y , i s e n t i r e l y
d i f f e r e n t fro m t h e p u r p o s e e v i n c e d by e i t h e r s e c t i o n 8 0 2 ( a ) o f
t h e E d u c a t i o n A m endm ents o f 1 9 7 2 , o r by 42 USC 2 0 0 0 c ( b ) and
2 0 0 0 c - 6 h e l d t o b e i n a p p l i c a b l e t o t h a t c a s e i n Swann v C h a r -
l o t t e - M e c k l e n b u r g B o a rd o f E d u c a t i o n , 4 02 US 1 , 1 7 - 1 8 ( 1 9 7 1 ) .
S e c t i o n 8 0 2 (a ) p r o h i b i t s t h e u s e o f a p p r o p r i a t e d f u n d s f o r
t r a n s p o r t a t i o n o f s t u d e n t s t o o v e r c o m e r a c i a l im b a l a n c e i n a n y
s c h o o l o r s c h o o l s y s t e m o r t o c a r r y o u t a p l a n o f r a c i a l d e s e
g r e g a t i o n . I n S w an n , t h e q u e s t i o n w as t h e "rem edy f o r s t a t e -
im p o s e d s e g r e g a t i o n i n v i o l a t i o n o f Brown I . " p 1 8 . The s t a t e
im p o s e d s e g r e g a t i o n w as s e p a r a t e s c h o o l s f o r w h i t e and b l a c k
p r e s c r i b e d b y s t a t e l a w . The c a s e d i d n o t i n v o l v e s c h o o l a t t e n
d a n c e a r e a s . The s t a t u t e , 42 USC 2 0 0 0 c and 2 0 0 0 c - 6 , by i t s
e x p r e s s t e r m s d i d n o t p u r p o r t t o a f f e c t e x i s t i n g r e m e d i e s , b u t
o n l y t o i n s u r e t h a t t h e s e c t i o n s w e r e n o t i n t e r p r e t e d t o e x p a n d
e x i s t i n g r e m e d i e s . I n s h o r t , t h e C o u r t i n Swann q u i t e p r o p e r l y
c o n c l u d e d t h a t 42 USC 2 0 0 0 c and 2 0 0 0 c - 6 d i d n o t e x p a n d i t s
p o w e r s t o d e a l w i t h t h e Brown I s e g r e g a t i o n v i o l a t i o n .
B. THE DISTRICT COURT'S DECISION AND
ORDERS - DESEGREGATION OR RACIAL
_______________BALANCE?___________________
T h e s e d e f e n d a n t s r e s p e c t f u l l y s u b m i t t h a t a f a i r
r e a d i n g o f t h e r e c o r d i n t h i s c a s e c o n c l u s i v e l y r e v e a l s
t h a t s o m e t im e d u r i n g t h e s e p r o c e e d i n g s t h e D i s t r i c t C o u r t
d e v e l o p e d an a b i d i n g c o n v i c t i o n , i n g o o d f a i t h , t h a t i t
s h o u l d rem edy w h a t i t p e r c e i v e d a s an u n d e s i r a b l e r a c i a l
i m b a l a n c e (63.8% b l a c k , 34.8% w h i t e ) e x i s t i n g i n t h e D e t r o i t
p u b l i c s c h o o l s when co m p a red t o t h e l a r g e r m e t r o p o l i t a n
a r e a . W h i le t h e s e d e f e n d a n t s v i g o r o u s l y d i s a g r e e w i t h t h e
l e g a l c o n c l u s i o n s a d v a n c e d by t h e D i s t r i c t C o u r t i n s u p p o r t
o f a m e t r o p o l i t a n r e m e d y , t h e y do n o t f o r o n e m in u t e q u e s t i o n
t h e s i n c e r i t y o f t h e D i s t r i c t C o u r t , b o t h a s a p e r s o n and
a s an i n s t i t u t i o n , i n s t r i v i n g t o e f f e c t u a t e w h a t i t p e r c e i v e d
a s t h e b e s t i n t e r e s t s o f t h e s c h o o l c h i l d r e n o f t h e D e t r o i t
p u b l i c s c h o o l s .
On p a g e 22 o f t h e " R u l in g on I s s u e o f S e g r e g a t i o n "
t h e C o u r t s a i d :
"* * * I t i s , t h e C o u r t b e l i e v e s , u n f o r t u n a t e
t h a t we c a n n o t d e a l w i t h p u b l i c s c h o o l s e g r e
g a t i o n o n a n o - f a u l t b a s i s , f o r i f r a c i a l
s e g r e g a t i o n i n o u r p u b l i c s c h o o l s i s an e v i l ,
t h e n i t s h o u l d make n o d i f f e r e n c e w h e t h e r we
c l a s s i f y i t d e j u r e o r de f a c t o . Our o b j e c t i v e ,
l o g i c a l l y , i t s e e m s t o u s , s h o u l d b e t o rem edy
a c o n d i t i o n w h ic h we b e l i e v e n e e d s c o r r e c t i o n . * * *"
( I a 2 1 0 )
-152
A t t h e h e a r i n g o f O c t o b e r 4 , 1 9 7 2 , t h e C o u r t
r e m a r k e d a s f o l l o w s :
"The C o u r t h a s made i t s d e t e r m i n a t i o n
o f t h i n g s a s t h e y a r e , o r a s i t fo u n d
t h i n g s i n t h e p u b l i c s c h o o l s y s t e m o f
t h e C i t y o f D e t r o i t . Our c o n c e r n now —
t o t a k e a t h o u g h t fro m A r i s t o t l e — i s o f
t h i n g s a s t h e y m i g h t b e , o r o u g h t t o b e .
* * *
"As t h e C o u r t i n d i c a t e d d u r i n g t h e c o u r s e
o f t h e t a k i n g o f p r o o f s , i t e n t e r t a i n s
s e r i o u s r e s e r v a t i o n s a b o u t a p l a n o f i n t e
g r a t i o n , w h ic h e n c o m p a s s e s n o m ore t h a n
t h e p u b l i c s c h o o l s o f t h e C i t y o f D e t r o i t .
I t a p p e a r s t o u s t h a t p e r h a p s o n l y a p l a n
w h ic h e m b r a c e s a l l o r som e o f t h e g r e a t e r
D e t r o i t m e t r o p o l i t a n a r e a c a n h o p e t o
s u c c e e d i n g i v i n g o u r c h i l d r e n t h e k i n d o f
e d u c a t i o n t h e y a r e e n t i t l e d t o c o n s t i t u t i o n a l l y .
* * *
"A l a r g e m e t r o p o l i t a n a r e a s u c h a s we h a v e
i n o u r c a s e c a n n o t b e made t h e s u b j e c t o f
i n s t a n t i n t e g r a t i o n . We m u s t b e a r i n m ind
t h a t t h e t a s k we a r e c a l l e d upon t o p e r f o r m
I s a s o c i a l o n e , w h i c h s o c i e t y h a s b e e n
u n a b l e t o a c c o m p l i s h . I n r e a l i t y , o u r c o u r t s
a r e c a l l e d u p o n , m t h e s e s c h o o l c a s e s t o
a t t a i n a s o c i a l g o a l , t h r o u g h t h e e d u c a t i o n a l
s y s t e m , by u s i n g la w a s a l e v e r . (E m p h a s is
s u p p l i e d )
* * *
-153-
"I w o u ld sum up o u r e n d e a v o r s i n d e v e l o p i n g
a m e t r o p o l i t a n p l a n a s an e m b a r k a t io n on an
u n c h a r t e r e d c o u r s e i n s t r a n g e w a t e r s i n an
e f f o r t t o r e s c u e d i s a d v a n t a g e d c h i l d r e n . ir~
(E m p h a s is s u p p l i e d ) (IV a 4 5 4 - 4 5 5 )
I n c o m m e n t in g on t h e p l a i n t i f f s ' p l a n f o r d e s e g r e g a t i o n
o f t h e D e t r o i t p u b l i c s c h o o l s i n t h e F i n d i n g s o f F a c t and
C o n c l u s i o n s o f Law on D e t r o i t O n ly P l a n s o f D e s e g r e g a t i o n , t h e
C o u r t s a i d :
" 7 . The p l a n w o u ld make t h e D e t r o i t s c h o o l
s y s t e m m ore i d e n t i f i a b l y B l a c k , and l e a v e
many o f i t s s c h o o l s 75 t o 90 p e r c e n t B l a c k .
"8 . I t w o u ld c h a n g e a s c h o o l s y s t e m w h ic h
i s now B l a c k and W h ite t o o n e w h ic h w o u ld
b e p e r c e i v e d a s B l a c k , t h e r e b y i n c r e a s i n g
t h e f l i g h t o f W h i t e s from t h e c i t y and t h e
s y s t e m , t h e r e b y i n c r e a s i n g t h e B l a c k s t u d e n t
p o p u l a t i o n . " (x a 4 5 8)
An e x a m i n a t i o n o f t h e R u l i n g on D e s e g r e g a t i o n ,
J u n e 1 4 , 1 9 7 2 , m akes t h e p u r p o s e and i n t e n t o f t h e D i s t r i c t
C o u r t c r y s t a l c l e a r .
" P u p i l r e a s s i g n m e n t t o a c c o m p l i s h t h e
d e s e g r e g a t i o n o f t h e D e t r o i t p u b l i c s c h o o l s
i s r e q u i r e d w i t h i n t h e g e o g r a p h i c a l a r e a
w h ic h may b e d e s c r i b e d a s e n c o m p a s s i n g t h e
f o l l o w i n g s c h o o l d i s t r i c t s ( s e e E x h i b i t
P .M . 1 2 ) , and h e r e i n a f t e r r e f e r r e d t o a s
t h e ' d e s e g r e g a t i o n a r e a ' " : (E m p h a s is s u p p l i e d )
(5 3 s c h o o l d i s t r i c t s a r e d e s c r i b e d by nam e,
i n c l u d i n g E c o r s e , H am tram ck, H i g h l a n d P a r k ,
I n k s t e r , R i v e r R o u g e , W e s tw o o d , among o t h e r s ) (I a 539 )
" W ith in t h e l i m i t a t i o n s o f r e a s o n a b l e t r a v e l
t i m e and d i s t a n c e f a c t o r s , p u p i l r e a s s i g n m e n t s
-154-
:
s h a l l b e c f f e e t c d w i t h i n t h e c l u s t e r s d e s c r i b e d
m E x h i b i t P .M . 12 s o a s t o a c h i e v e t h e
g r e a t e s t d e g r e e o f a d u a l d e s e g r e g a t i o n t o
t h e e n d t h a t , upon i m p l e m e n t a t i o n , n o s c h o o l ,
o r c i a s s r o o m b e s u b s t a n t i a l l y d i s p r o p o r t i o n -
t l a t 5 3 9 - 5 4 0 >r e r a 1 1 p Upi1 r a c i a l c o m p o s i t i o n . "
E x h i b i t P .M . 12 (IX a 5 8 0 - 5 8 4 ) sh o w s t h a t t h e r a c i a l m a k e-u p
o f p u p i l s i n t h e " d e s e g r e g a t i o n a r e a " i s r o u g h l y 75% w h i t e
and 25% b l a c k , i t a l s o i n d i c a t e s t h e f o l l o w i n g :
E c o r s e
Hamtramck
H i g h l a n d P ark
I n k s t e r
R i v e r R ouge
W estw ood
50.8% b l a c k p u p i l s
28.7% b l a c k p u p i l s
85.1% b l a c k p u p i l s
8 8 . 0% b l a c k p u p i l s
43.2% b l a c k p u p i l s
39.9% b l a c k p u p i l s
I f t h e t r u e p u r p o s e and i n t e n t o f t h e D i s t r i c t
C o u r t ' s d e s e g r e g a t i o n a r e a i s " t o a c c o m p l i s h t h e d e
s e g r e g a t i o n o f t h e D e t r o i t p u b l i c s c h o o l s " , t h e t r a n s p o r t i n g
o f w h i t e p u p i l s fro m H i g h l a n d P a rk i n t o D e t r o i t w i l l o n l y
l e a v e H i g h l a n d P a r k w i t h p r o p o r t i o n a t e l y
-155-
m ore b l a c k s t u d e n t s . The sam e c a n b e s a i d o f I n k s t e r ,
E c o r s e , R i v e r R o u g e , W estw ood and Hamtramck s o t h a t e a c h
d i s t r i c t w o u ld c o n t a i n much m ore t h a n a v e r a g e 25% b l a c k
p u p i l s f o r t h e d e s e g r e g a t i o n a r e a . The t r u t h i s t h a t w hen
t h e s e d i s t r i c t s w e r e made p a r t o f t h e " d e s e g r e g a t i o n a r e a , "
t h e r e c o u l d b e n o i n t e n t t o t r a n s p o r t w h i t e p u p i l s from any
o f t h e s e s c h o o l d i s t r i c t s i n t o D e t r o i t . R a t h e r , t h e c l e a r
p u r p o s e w as t o t r a n s p o r t b l a c k c h i l d r e n from e a c h o f t h e s e
d i s t r i c t s i n t o p r e d o m i n a t e l y w h i t e s c h o o l d i s t r i c t s i n o r d e r
t o r e a c h t h e 75% w h i t e and 25% b l a c k c o n f i g u r a t i o n f o r t h e
d e s e g r e g a t i o n a r e a . T h i s i s am ply b o r n e o u t b y e x a m i n i n g
t h e c l u s t e r s i n E x h i b i t P .M . 1 2 . (IXa 5 8 2 )
T o t a l P e r c e n t
T o t a l B l a c k B l a c k
"D i s t r i c t S t u d e n t s S t u d e n t s S t u d e n t s
C l u s t e r 6
B ir m in g h a m 1 6 , 9 1 2 7 .0
H a z e l P a rk 7 , 8 6 8 1 .0
H i g h l a n d P a rk 7 , 7 0 8 6 , 5 5 6 8 5 . 1
R o y a l Oak 1 8 , 5 8 3 5 .0
D e t r o i t M urray 9 , 5 6 4 7 , 0 4 2 7 3 . 6
6 0 , 6 3 5 1 3 , 6 1 1 2 2 .4 "
I t i s d e m o n s t r a b l e t h a t i n o r d e r t o a c h i e v e a
r o u g h p o p u l a t i o n o f 75% w h i t e and 25% b l a c k i n C l u s t e r 6 ,
b l a c k p u p i l s from H i g h l a n d P a r k an d D e t r o i t M urray w i l l b e
-156-
t r a n s p o r t e d t o B ir m in g h a m , H a z e l P a r k and R o y a l Oak, w h i l e
w h i t e p u p i l s fro m B ir m in g h a m , H a z e l P a r k and R o y a l Oak w i l l
b e t r a n s p o r t e d t o H i g h l a n d P a r k and D e t r o i t M u r r a y . T h e r e
w i l l b e n o m ovem en t o f p u p i l s b e t w e e n H i g h l a n d P a r k and
D e t r o i t M u r r a y . T h u s , i t c a n n o t b e s a i d t h a t t h e p u p i l s
i n H i g h l a n d P a r k , w h i t e o r b l a c k , m u s t b e r e a s s i g n e d " t o
a c c o m p l i s h t h e d e s e g r e g a t i o n o f t h e D e t r o i t P u b l i c S c h o o l s . "
What m u s t b e s a i d , an d i t i s t h e o n l y c o n c l u s i o n p o s s i b l e ,
t h a t t h e i n c l u s i o n o f H i g h l a n d P a rk w i t h i n t h e " d e s e g r e g a t i o n
a r e a " a s a p a r t o f C l u s t e r 6 w i l l s e r v e t o r a c i a l l y b a l a n c e
p u p i l s i n t h e B ir m in g h a m , H a z e l P a r k , R o y a l Oak, and H i g h l a n d
P a rk S c h o o l D i s t r i c t s a s w e l l a s i n t h e D e t r o i t M urray
c o n s t e l l a t i o n .
E x a m i n a t i o n , o f t h e i n c l u s i o n o f I n k s t e r and
W estw ood w i t h i n t h e "d e s e g r e g a t i o n a r e a " i s e v e n m ore
c o n c l u s i v e .
"D i s t r i c t
T o t a l
T o t a l
B la c k
P e r c e n t
B la c k
S t u d e n t s S t u d e n t s S t u d e n t s
C l u s t e r 12
C h e r r y H i l l 4 , 6 2 7 16 . 3
I n k s t e r 4 , 3 1 1 3 , 7 9 5 88.0
Wayne 2 3 , 2 1 8 30 .1
W estw ood 4 , 9 6 1 1 , 9 8 0 3 9 . 9
D e t r o i t C h a d s e y 5 , 9 9 8 2 , 0 5 3
p l u s C a d i l l a c JHS
1 / 5 C o o le y 4 , 2 5 0 2 , 5 2 6 4 4 . 7
4 3 , 4 2 0 1 0 , 4 0 0 2 2 . 0 "
-157-
How t h e i n c l u s i o n o f t h e I n k s t e r and W estw ood
s c h o o l d i s t r i c t s c a n h e l p t o d e s e g r e g a t e t h e D e t r o i t C h a d s e y
and r e m a i n i n g i d e n t i f i e d D e t r o i t s c h o o l s i s b e y o n d o u r
i m a g i n a t i o n . T he D e t r o i t s c h o o l c o n s t e l l a t i o n s a r e l e s s
t h a n 50% b l a c k . I n k s t e r i s 88% b l a c k and W estw o o d i s 40%
b l a c k . I n o r d e r t o a c h i e v e t h e m ix o f 75% w h i t e and 25%
b l a c k i n C l u s t e r 1 2 , b l a c k p u p i l s fr o m n o t o n l y t h e D e t r o i t
s c h o o l s b u t I n k s t e r and W estw ood s c h o o l d i s t r i c t s w i l l b e
t r a n s p o r t e d t o C h e r r y H i l l and Wayne s c h o o l d i s t r i c t s , and
w h i t e c h i l d r e n from C h e r r y H i l l an d Wayne s c h o o l d i s t r i c t s
w i l l b e t r a n s p o r t e d n o t o n l y t o t h e D e t r o i t s c h o o l s b u t t o
I n k s t e r and W estw ood s c h o o l d i s t r i c t s . T h u s , t h e r e c a n b e
n o b a s i s t o c o n c l u d e t h a t t h e p u p i l s i n I n k s t e r and W estw ood
a r e n e e d e d t o d e s e g r e g a t e t h e D e t r o i t p u b l i c s c h o o l s .
A s t u d y o f C l u s t e r 1 4 , i n v o l v i n g R i v e r R o u g e , and
C l u s t e r 1 3 , i n v o l v i n g E c o r s e , c o m p e l t h e s i m i l a r c o n c l u s i o n
t h a t n e i t h e r s c h o o l d i s t r i c t i s n e c e s s a r y t o d e s e g r e g a t e t h e
D e t r o i t p u b l i c s c h o o l s , b u t r a t h e r t h e D i s t r i c t C o u r t i s
a p p l y i n g a r a c i a l b a l a n c e n o t o n l y t o t h e D e t r o i t p u b l i c
s c h o o l s b u t t h e R i v e r R ouge and t h e E c o r s e s c h o o l d i s t r i c t s
a s w e l l .
F i n a l l y , b r i e f r e f e r e n c e s h o u l d b e made t o t h e
i n c l u s i o n o f t h e Hamtramck s c h o o l d i s t r i c t i n t h e d e s e g r e g a t i o n
-158-
a r e a a s n e c e s s a r y t o a c c o m p l i s h t h e d e s e g r e g a t i o n o f t h e
D e t r o i t p u b l i c s c h o o l s . I t s b l a c k s t u d e n t s r e p r e s e n t 28.7%
o f i t s p u p i l p o p u l a t i o n . T h u s , t h i s d i s t r i c t i s a l i t t l e
a b o v e t h e 75% w h i t e and 25% b l a c k p u p i l c o m p o s i t i o n f o r t h e
53 d i s t r i c t d e s e g r e g a t i o n a r e a . I n o r d e r t o m e e t t h i s
f o r m u l a , i t w i l l b e n e c e s s a r y t o t r a n s p o r t a l i m i t e d num ber
o f b l a c k p u p i l s o u t o f Hamtramck b u t c e r t a i n l y n o t t o t h e
D e t r o i t P e r s h i n g c o n s t e l l a t i o n . O b v i o u s l y t h i s t r a n s p o r t a t i o n
w i l l b e t o C la w s o n , L a m p h ere , M a d is o n H e i g h t s o r T r o y , t h u s
a s s i s t i n g i n s m a l l p a r t a t l e a s t i n t h e d e s i r e d r a c i a l b a l a n c e
i n t h e s e f i v e s c h o o l d i s t r i c t s an d t h e D e t r o i t P e r s h i n g
c o n s t e 11a t i o n .
I t i s r e c o g n i z e d t h a t t h e p a n e l a p p o i n t e d b y t h e
D i s t r i c t C o u r t h a s recom m end ed som e a d j u s t m e n t s i n t h e v a r i o u s
c l u s t e r s b u t t h e s u g g e s t e d c h a n g e s do n o t a f f e c t i n o n e i o t a
t h e i n e s c a p a b l e c o n c l u s i o n t h a t u n d e r t h e g u i s e o f a c c o m p l i s h i n g
t h e d e s e g r e g a t i o n o f t h e D e t r o i t p u b l i c s c h o o l s , t h e D i s t r i c t
C o u r t h a s p r o c e e d e d t o o r d e r t h e r a c i a l b a l a n c i n g o f t h e
w h i t e and b l a c k p u p i l p o p u l a t i o n s i n a " d e s e g r e g a t i o n a r e a "
w i t h i n s o u t h e a s t e r n M i c h ig a n r o u g h l y m a t c h i n g t h e t o t a l
p o p u l a t i o n o f w h i t e and b l a c k p u p i l s i n t h i s l a r g e g e o g r a p h i c a l
a r e a .
i
-159-
The p o i n t i s f u r t h e r i l l u s t r a t e d b y t h e R u l i n g
on D e s e g r e g a t i o n A r e a , J u n e 1 4 , 1 9 7 2 , a t p a g e 6 :
" P r o v i d e d , h o w e v e r , t h a t i f i n t h e a c t u a l
a s s i g n m e n t o f p u p i l s i t a p p e a r s n e c e s s a r y
an d f e a s i b l e t o a c h i e v e e f f e c t i v e and
c o m p l e t e r a c i a l d e s e g r e g a t i o n t o r e a s s i g n
p u p i l s o f a n o t h e r d i s t r i c t o r o t h e r d i s t r i c t s ,
t h e d e s e g r e g a t i o n p a n e l m ay, upon n o t i c e t o
t h e p a r t i e s , a p p l y t o t h e C o u r t f o r an
a p p r o p r i a t e m o d i f i c a t i o n o f t h i s o r d e r . "
( I a 5 3 9 )
The p a n e l i n e f f e c t i s g i v e n t h e p r e r o g a t i v e t o r a c i a l l y
b a l a n c e an u n l i m i t e d a r e a , s u b j e c t o n l y t o i t b e i n g " f e a s i b l e . "
The ' f e o c i a l g o a l " t o b e a t t a i n e d " t h r o u g h t h e
e d u c a t i o n a l s y s t e m , b y u s i n g la w a s a l e v e r " h a d b e e n
a c n i e v e d . T h i s s o c i a l g o a l i s t o m i n i m i z e t h e p r o p o r t i o n
o f b l a c k s t u d e n t s i n t h e p u b l i c s c h o o l s . S t a t e d a n o t h e r
w a y , t h e s o c i a l g o a l i s r a c i a l b a l a n c e .
C. THE MEANING OF SECTION 803
In Swa n n , s u p r a , t h e C o u r t i n s p e a k i n g o f T i t l e IV
o f t h e C i v i l R i g h t s A c t o f 1 9 6 4 , 42 USCA 2 0 0 0 c e t s e q , made
t h e f o l l o w i n g o b s e r v a t i o n :
" . . . The l e g i s l a t i v e h i s t o r y o f T i t l e IV
i n d i c a t e s t h a t C o n g r e s s w as c o n c e r n e d t h a t
t h e A c t m i g h t b e r e a d a s c r e a t i n g a r i g h t
o f a c t i o n u n d e r t h e F o u r t e e n t h Amendment
i n t h e s i t u a t i o n o f s o - c a l l e d 'd e f a c t o
s e g r e g a t i o n ' , w h e r e r a c i a l i m b a l a n c e e x i s t s
i n t h e s c h o o l s b u t w i t h n o s h o w in g t h a t i t
w as b r o u g h t a b o u t by t h e d i s c r i m i n a t o r y
a c t i o n o f s t a t e a u t h o r i t i e s . * * * " p 1 7 - 1 8
The p o i n t made by t h e C o u r t , b u t n o t s t r e s s e d , p r o b a b l y b e c a u s e
i t i s q u i t e o b v i o u s , i s t h a t f o r t h e r e t o b e a c o n s t i t u t i o n a l
v i o l a t i o n t h e r e m u s t b e a r a c i a l im b a l a n c e c a u s e d by t h e
d i s c r i m i n a t o r y a c t s o f s t a t e a u t h o r i t i e s . When t h i s c o n d i t i o n
e x i s t s t h e r e m e d y , i n p a r t , c o n s i s t s o f r e q u i r i n g r a c i a l b a l a n c e ,
S w an n , s u p r a , p a g e s 2 3 - 2 4 , b u t t h i s d o e s n o t mean t h a t e v e r y
s c h o o l i n t h e c o m m u n ity m u s t r e f l e c t t h e r a c i a l c o m p o s i t i o n
o f t h e s c h o o l s y s t e m a s a w h o l e . S w an n , s u p r a , p 1 6 , 2 4 .
S e c t i o n 803 s t a y s " * * * o r d e r s w h ic h r e q u i r e t h e t r a n s
f e r o r t r a n s p o r t a t i o n o f a n y s t u d e n t o r s t u d e n t s fro m an y s c h o o l
a t t e n d a n c e a r e a p r e s c r i b e d by c o m p e t e n t S t a t e o r l o c a l a u t h o r i t y
f o r p u r p o s e o f a c h i e v i n g a b a l a n c e among s t u d e n t s w i t h r e s p e c t
t o r a c e * * * . P l a i n t i f f s w o u ld h a v e u s b e l i e v e , b a s e d upon
t h e C o u r t s c o n s t r u c t i o n o f T i t l e IV i n S w an n , t h a t t h i s l a n g u a g e
s h o u l d a p p l y o n l y t o a c a s e w h e r e t h e r a c i a l i m b a l a n c e e x i s t s
i n t h e s c h o o l s , b u t w i t h n o s h o w in g t h a t i t w as b r o u g h t a b o u t
by d i s c r i m i n a t o r y a c t i o n o f s t a t e a u t h o r i t i e s . I s t h i s t h e
m e a n in g i n t e n d e d by c o n g r e s s ? (The q u e s t i o n o f w h e t h e r t h i s i s
t h e o n l y m e a n in g t h a t may b e a t t a c h e d and s t i l l s a v e t h e c o n
s t i t u t i o n a l i t y o f t h e s e c t i o n w i l l be d i s c u s s e d i n f r a ) .
The f i r s t o b s e r v a t i o n t o b e made i s t h a t i f c o n g r e s s
h a d i n t e n d e d s e c t i o n 803 t o s o m ean , i t c e r t a i n l y h a s t h e
t o s o s t a t e . C f 42 USC 2 0 0 0 c - 6 . The s e c o n d o b s e r v a t i o n
i s t h a t i f i t w e r e n o t known b e f o r e , Swann made i t c r y s t a l
-161-
c l e a r t h a t r a c i a l im b a l a n c e p e r s e i s n o t a c t i o n a b l e : The
a c t i o n a b l e c o n s t i t u t i o n a l v i o l a t i o n i s r a c i a l im b a l a n c e b r o u g h t
a b o u t by d i s c r i m i n i n a t o r y a c t i o n o f s t a t e a u t h o r i t i e s . I t i s
a p p r o a c h i n g t h e r i d i c u l o u s t o s a y t h a t a f t e r Sw ann , and e v e n
b e f o r e , a D i s t r i c t C o u r t w o u ld p r e d i c a t e a c o n s t i t u t i o n a l
v i o l a t i o n u p on r a c i a l im b a l a n c e p e r s e w i t h o u t t h e f a c a d e o f
t h e r o l e p l a y e d by a p u b l i c o f f i c i a l . The F o u r t e e n t h Amendment
e x p l i c i t l y s t a t e s "No s t a t e s h a l l * * * . "
As t h e C o u r t d i d i n S w an n , i t i s n o t u n u s u a l f o r a
c o u r t t o c o n s i d e r t h e l e g i s l a t i v e h i s t o r y o f an a c t t o d e t e r
m in e t h e c o n g r e s s i o n a l i n t e n t . K in g v S m i t h , 392 US 309 ( 1 9 6 8 ) .
D u p le x P r i n t i n g P r e s s Co v D e r r i n g , 254 US 443 ( 1 9 2 1 ) . I n
D u p l e x , t h e C o u r t s a i d t h a t w h i l e d e b a t e s e x p r e s s i v e o f t h e
v i e w s o f i n d i v i d u a l m em bers a r e n o t a s a f e g u i d e t o t h e l e g i s
l a t i v e i n t e n t , t h e r e p o r t s o f c o m m i t t e e s an d e x p l a n a t o r y s t a t e
m e n t s o f m em bers i n c h a r g e o f t h e b i l l i n t h e c o u r s e o f i t s
p a s s a g e a r e r e g a r d e d a s an e x p o s i t i o n o f t h e l e g i s l a t i v e i n t e n t ,
p 4 7 4 - 4 7 5 .
The E d u c a t i o n a l A m endm ents o f 1 9 7 2 , i n c l u d i n g t h e
p r o v i s i o n t h a t b eca m e s e c t i o n 8 0 3 , w as s i g n i f i c a n t , c o m p l i c a t e d
and c o n t r o v e r s i a l l e g i s l a t i o n . N e e d l e s s t o s a y , i t s l e g i s l a t i v e
h i s t o r y i s e x t e n d e d , and f o r t h i s r e a s o n , i t i s n o t f e a s i b l e
t o i n c l u d e a s u b s t a n t i a l p o r t i o n i n t h i s b r i e f . The e s s e n c e o f
o f t h e l e g i s l a t i v e h i s t o r y i s f o u n d i n t h e d e b a t e s i n t h e
H ou se o n t h e c o n f e r e n c e r e p o r t o n J u n e 8 , 1 9 7 2 , t h e d a y on
-162-
w h ic h t h e c o n f e r e n c e r e p o r t w as a d o p t e d .
"Mr. O'HARA. Mr. S p e a k e r , I am p a r t i c u l a r l y
i n t e r e s t e d i n t h e p r o v i s i o n s o f s e c t i o n 803
o f t h e c o n f e r e n c e r e p o r t .
F i r s t , I w o u ld l i k e t o a s k Mr. BROOMFIELD
a b o u t h i s m e a n in g when h i s am endm ent s p o k e
o f an o r d e r o f a d i s t r i c t c o u r t r e q u i r i n g
t h e t r a n s f e r o r t r a n s p o r t a t i o n o f s t u d e n t s
' f o r t h e p u r p o s e o f a c h i e v i n g a b a l a n c e among
s t u d e n t s w i t h r e s p e c t t o r a c e , s e x , r e l i g i o n ,
o r s o c i o e c o n o m i c s t a t u s . ' I n a l l o f t h e
c o u r t o r d e r s w i t h w h ic h I am f a m i l i a r , t h e
c o u r t h a s s t a t e d t h a t i t s p u r p o s e i s t o p r e v e n t
u n c o n s t i t u t i o n a l s e g r e g a t i o n o f s t u d e n t s . May
I i n q u i r e o f t h e g e n t l e m a n fr o m M i c h ig a n i f i t
w as h i s i n t e n t i o n t h a t s e c t i o n 803 a p p l y t o
o r d e r s t h a t h a v e t h e p r a c t i c a l e f f e c t o f a c h i e v i n g
som e s o r t o f r a c i a l b a l a n c e , a l t h o u g h t h e c o u r t
may h a v e s t a t e d t h a t i t s o r d e r w as e n t e r e d f o r
t h e p u r p o s e o f c o r r e c t i n g u n c o n s t i t u t i o n a l
s e g r e g a t i o n ?
Mr. BROOMFIELD. Y e s ; i t w as my i n t e n t i o n
t o c o v e r s u c h c a s e s an d s p e c i f i c a l l y , i t w as
my i n t e n t i o n t o c o v e r c a s e s l i k e t h o s e now
b e i n g l i t i g a t e d i n R ichm ond and D e t r o i t .
Mr. O'HARA. May I a s k t h e c h a ir m a n o f
t h e c o n f e r e n c e c o m m i t t e e , t h e g e n t l e m a n fro m
K e n t u c k y , i f h i s u n d e r s t a n d i n g i s t h e same
a s t h a t o f t h e g e n t l e m a n fr o m M i c h ig a n
(Mr. BROOMFIELD)?
Mr. PERKINS. Y e s , i t i s . I t i s my u n d e r
s t a n d i n g t h a t s e c t i o n 803 c o v e r s d i s t r i c t
c o u r t o r d e r s w h ic h r e q u i r e t h e t r a n s f e r o r
t r a n s p o r t a t i o n o f s t u d e n t s f o r r a c i a l p u r p o s e s
w h e t h e r t h e c o u r t o r d e r i s fr a m e d i n t e r m s
o f c o r r e c t i n g u n c o n s t i t u t i o n a l s e g r e g a t i o n o r
w h e t h e r i t i s fr a m e d i n t e r m s o f ' a c h i e v i n g a
b a l a n c e among s t u d e n t s w i t h r e s p e c t t o r a c e . '
Mr. O'HARA. I f I c o u l d c o n t i n u e t o h a v e
t h e a t t e n t i o n o f t h e g e n t l e m a n fro m K e n t u c k y ,
t h e e f f e c t i v e d a t e o f s e c t i o n 803 i s J u l y 1
o f t h i s y e a r .
-163-
The j o i n t e x p l a n a t o r y s t a t e m e n t o f t h e
c o m m i t t e e o f c o n f e r e n c e s a y s :
' T h i s s e c t i o n d o e s n o t a u t h o r i z e t h e
r e o p e n i n g o f f i n a l o r d e r s , h o w e v e r , a p p e a l
a b l e o r d e r s a r e c o n s i d e r e d t o b e w i t h i n t h e
s c o p e o f t h i s a m e n d m e n t . '
D o e s t h i s mean t h a t i f an o r d e r r e q u i r i n g
t h e t r a n s f e r o r t r a n s p o r t a t i o n o f s t u d e n t s
h a s b e e n e n t e r e d p r i o r t o J u l y 1 , 1 9 7 2 , t h e
e f f e c t i v e n e s s o f s u c h o r d e r s h a l l b e p o s t p o n e d
u n t i l a l l a p p e a l s i n c o n n e c t i o n w i t h s u c h o r d e r
h a v e b e e n e x h a u s t e d o r , i n t h e e v e n t t h a t no
a p p e a l s a r e t a k e n , u n t i l t h e t i m e f o r s u c h
a p p e a l h a s e x p i r e d ?
. Mr* PERKINS. The g e n t l e m a n fr o m M i c h ig a n
i s c o r r e c t . S e c t i o n 803 w i l l a p p l y t o s u c h
?Q ^?r s w h e t h e r e n t e r e d b e f o r e o r a f t e r J u l y 1 ,
1 9 7 2 , a s l o n g a s a p n e a l s o f s u c h o r d e r s h a v e
n o t b e e n e x h a u s t e d , o r i n t h e e v e n t no a p p e a l
o f s u c h o r d e r w as t a k e n , u n t i l t h e t i m e f o r
s u c h a p p e a l h a s e x p i r e d .
Mr. O'HARA. I th a n k t h e g e n t l e m a n fro m
M i c h ig a n and t h e g e n t l e m a n fro m K e n tu c k y f o r
t h e i r e x p l a n a t i o n s and I u r g e a d o p t i o n o f
t h e c o n f e r e n c e r e p o r t w i t h t h e v e r y i m p o r t a n t
p r o v i s i o n s c o n t a i n e d i n s e c t i o n 8 0 3 ."
1 18 C o n g . R e c . H 5416 ( D a i l y e d . J u n e 8 , 1 9 7 2 ) .
D* RETROSPECTIVE or p r o s p e c t i v e o p e r a t i o n
S t a t u t e s o r am en d m en ts p e r t a i n i n g t o p r o c e d u r e a r e
g e n e r a l l y h e l d t o o p e r a t e r e t r o s p e c t i v e l y , w h e r e t h e s t a t u t e
o r am endm ent d o e s n o t c o n t a i n l a n g u a g e c l e a r l y s h o w in g a
c o n t r a r y i n t e n t i o n . I n d e e d , i n t h e a b s e n c e o f a n y s a v i n g s
c l a u s e , a new la w c h a n g i n g a r u l e o f p r a c t i c e i s g e n e r a l l y
r e g a r d e d a s a p p l i c a b l e t o a l l c a s e s t h e n p e n d i n g . 50 Am J u r ,
s t a t u t e s , § 4 8 2 , p 5 0 5 - 5 0 6 .
-164-
I h D u p le x P r i n t i n g P r e s s , s u p r a , o n e o f t h e q u e s t i o n s
c o n s i d e r e d w as w h e t h e r t h e C l a t o n A c t w as o p e r a t i v e i n t h e
l i t i g a t i o n b e c a u s e t h e a c t w as p a s s e d m ore t h a n tw o y e a r s
a f t e r t h e l i t i g a t i o n b e g a n . The C o u r t , i n h o l d i n g t h a t t h e
a c t w as a p p l i c a b l e , s a i d :
" . . . I n s o f a r a s t h e a c t (a ) p r o v i d e d f o r
r e l i e f by i n j u n c t i o n t o p r i v a t e s u i t o r s
(b) im p o s e d c o n d i t i o n s u p o n g r a n t i n g
r e l i e f u n d e r p a r t i c u l a r c i r c u m s t a n c e s , an d
(c ) o t h e r w i s e m o d i f i e d t h e Sherm an A c t ,
i t w as e f f e c t i v e fro m t h e t i m e o f i t s
p a s s a g e , and a p p l i c a b l e t o p e n d i n g s u i t s
f o r i n j u n c t i o n . O b v i o u s l y , t h i s fo rm o f
r e l i e f o p e r a t e s o n l y i n f u t u r o , and t h e
r i g h t t o i t m u s t b e d e t e r m i n e d a s o f t h e
t i m e o f h e a r i n g ( c i t a t i o n s o m i t t e d ) . " p 464
A l t h o u g h t J u s t i c e s B r a n d i s , H o lm e s , an d C la r k d i s s e n t e d , t h e y
c o n c u r r e d w i t h t h e m a j o r i t y o n t h i s p o i n t .
The i n t e n t i o n o f C o n g r e s s i n t h i s r e g a r d i s a b u n d a n t l y
c l e a r .
"Mr. 0"HARA. I f I c o u l d c o n t i n u e t o h a v e
t h e a t t e n t i o n o f t h e g e n t l e m a n fro m K e n tu c k y
[C o n g r e s sm a n P e r k i n s , c h a ir m a n o f t h e H ou se
c o n f e r e n c e c o m m i t t e e ] , t h e e f f e c t i v e d a t e o f
§ 8 0 3 i s J u l y 1 o f t h i s y e a r .
"The j o i n t e x p l a n a t o r y s t a t e m e n t o f t h e
c o m m i t t e e o f c o n f e r e n c e s a y s :
' T h i s s e c t i o n d o e s n o t a u t h o r i z e t h e r e
o p e n i n g o f f i n a l o r d e r s , h o w e v e r , a p p e a l a b l e
o r d e r s a r e c o n s i d e r e d t o b e w i t h i n t h e
s c o p e o f t h i s a m e n d m e n t . '
" D oes t h i s mean t h a t i f an o r d e r r e q u i r i n g
t h e t r a n s f e r o r t r a n s p o r t a t i o n o f s t u d e n t s
h a s b e e n e n t e r e d p r i o r t o J u l y 1 , 1 9 7 2 , t h e
e f f e c t i v e n e s s o f s u c h o r d e r s h a l l b e p o s t
p o n e d u n t i l a l l a p p e a l s i n c o n n e c t i o n w i t h
-165-
s u c h o r d e r h a v e b e e n e x h a u s t e d o r , i n
t h e e v e n t t h a t no a p p e a l s a r e t a k e n ,
u n t i l t h e t i m e f o r s u c h a p p e a l h a s e x p i r e d .
"Mr. PERKINS. The g e n t l e m a n from M i c h ig a n
i s c o r r e c t . S e c t i o n 803 w i l l a p p l y t o s u c h
o r d e r s w h e t h e r e n t e r e d b e f o r e o r a f t e r
J u l y 1 , 1 9 7 2 , a s l o n g a s a p p e a l s o f s u c h
o r d e r s h a v e n o t b e e n e x h a u s t e d , o r i n t h e
e v e n t no a p p e a l o f s u c h o r d e r w as t a k e n ,
u n t i l t h e t i m e f o r s u c h a p p e a l h a s e x p i r e d . "
Cong R e c , s u p r a .
S e c t i o n 803 i s a p p l i c a b l e t o t h e D i s t r i c t C o u r t ' s
de
r u l i n g o n / s e g r e g a t i o n a r e a and o r d e r f o r d e v e l o p m e n t o f p l a n
o f d e s e g r e g a t i o n , J u n e 1 4 , 1 9 7 2 , and i t s o r d e r f o r a c q u i s i t i o n
o f t r a n s p o r t a t i o n , J u l y 1 1 , 1 9 7 2 , a s w e l l a s a l l f u t u r e o r d e r s
o f t h e D i s t r i c t C o u r t i n t h i s r e g a r d .
XV
SECTION 803 IS CONSTITUTTONAT.
"The j u d i c i a l P ow er o f t h e U n i t e d S t a t e s ,
s h a l l b e v e s t e d i n o n e su p r e m e C o u r t and
i n s u c h i n f e r i o r C o u r t s a s t h e C o n g r e s s
may fr o m t i m e t o t i m e o r d a i n and e s t a b l i s h .
***" US C o n s t , a r t I I I , § 1 .
C o n g r e s s h a s t h e u n d o u b t e d p o w e r t o r e g u
l a t e t h e p r a c t i c e an d p r o c e d u r e o f t h e
F e d e r a l C o u r t s * * * . " S i b b a c h v W i l s o n C o.
3 1 2 US 1 , 9 ( 1 9 4 0 ) r e h a e n 312 US"'7i3 ( 1 9 4 0 ) .
"***AH f e d e r a l c o u r t s , o t h e r t h a n t h e
Suprem e C o u r t d e r i v e d t h e i r j u r i s d i c t i o n
w h o l e l y fr o m t h e e x e r c i s e o f t h e a u t h o r i t y
t o ' o r d a i n an d e s t a b l i s h ' i n f e r i o r c o u r t s ,
c o n f e r r e d o n C o n g r e s s b y A r t i c l e I I I ,
S e c t i o n 1 , o f t h e C o n s t i t u t i o n . A r t i c l e I I I
-166-
l e f t C o n g r e s s f r e e t o e s t a b l i s h i n f e r i o r
f e d e r a l c o u r t s o r n o t a s i t t h o u g h t a p p r o
p r i a t e . I t c o u l d h a v e d e c l i n e d t o c r e a t e
a n y s u c h c o u r t s l e a v i n g s u i t o r s t o t h e
rem e d y a f f o r d e d by s t a t e c o u r t s w i t h s u c h
a p p e l l a t e r e v i e w by t h i s C o u r t a s C o n g r e s s
m ig h t p r e s c r i b e . ( c i t a t i o n o m i t t e d ) . The
C o n g r e s s i o n a l p o w e r t o o r d a i n an d e s t a b l i s h
i n f e r i o r c o u r t s i n c l u d e s t h e p o w e r ' o f
i n v e s t i n g th em w i t h j u r i s d i c t i o n e i t h e r
l i m i t e d , c o n c u r r e n t , o r e x c l u s i v e , and w i t h
h o l d i n g j u r i s d i c t i o n fr o m th em i n e x a c t
d e g r e e s an d c h a r a c t e r w h ic h t o C o n g r e s s may
se e m p r o p e r t o t h e p u b l i c g o o d . ' ( c i t a t i o n
o m i t t e d ) . * * * ."
L o c k e r t y v P h i l l i p s , 319 US 1 8 2 , 187 ( 1 9 4 2 ) .
I n i t s p l a i n , u n a m b ig u o u s l a n g u a g e § 8 0 3 s a y s o n e
t h i n g : I t o r d a i n s a s t a y o f a n y d i s t r i c t c o u r t o r d e r " w h ich
r e q u i r e s t h e t r a n s f e r o r t r a n s p o r t a t i o n o f a n y s t u d e n t o r
s t u d e n t s fr o m a n y s c h o o l a t t e n d a n c e a r e a p r e s c r i b e d by com
p e t e n t s t a t e o r l o c a l a u t h o r i t y f o r t h e p u r p o s e s o f a c h i e v i n g
a b a l a n c e among t h e s t u d e n t s w i t h r e s p e c t t o r a c e * * * . " I t i s
t o t a l l y p r o c e d u r a l . I t a f f e c t s no o n e s s u b s t a n t i v e r i g h t s .
To a r g u e t h a t C o n g r e s s h a s a c t e d u n c o n s t i t u t i o n a l l y i n i m p o s i n g
t h i s p r o c e d u r a l r e q u i r e m e n t i s t o w i t h h o l d fr o m C o n g r e s s n o t
o n l y t h o s e p o w e r s e x p r e s s l y g r a n t e d b y t h e su p r e m e la w o f
t h e l a n d , b u t t h o s e p o w e r s r e p e a t e d l y c o n f i r m e d by t h e U n i t e d
S t a t e s Suprem e C o u r t .
F u r t h e r , i t c a n n o t b e d e n i e d t h a t C o n g r e s s e x e r c i s e d
i t s c o n s t i t u t i o n a l p o w e r w i t h r e s t r a i n t an d s o l e l y i n t h e
p u b l i c i n t e r e s t t o a f f o r d an o p p o r t u n i t y f o r t h e Suprem e C o u r t
^ e e c o l l o q u y b e t w e e n S e n a t o r s P e l l & C r a n s t o n ,
118 Cong R ec § 8 3 7 8 ( D a i l y e d , May 2 4 , 19 7 2 )
-167
t o p r o v i d e d e f i n i t i v e a n s w e r s f o r tw o o f t h e m o s t c o n t r o
v e r s i a l i s s u e s t h a t a r e f a c i n g t h e n a t i o n : (1 ) W h e th e r a
l a c k o f r a c i a l b a l a n c e i n a s c h o o l d i s t r i c t c o n s t i t u t e s de
j u r e s e g r e g a t i o n p e r s e , a n d (2 ) W h e th e r t h e d e t e r m i n a t i o n
o f a n u n c o n s t i t u t i o n a l r a c i a l i m b a l a n c e a u t h o r i z e s a d i s t r i c t
c o u r t t o f a s h i o n a rem ed y t o i n c l u d e a r e a o u t s i d e o f t h e
b o u n d a r i e s o f t h e a r e a w h e r e t h e r a c i a l i m b a l a n c e i s f o u n d
t o e x i s t .
As t h e s e d e f e n d a n t s h a v e i n d i c a t e d a b o v e , t h e y do
n o t b e l i e v e t h a t § 8 0 3 a p p l i e s t o t h o s e c a s e s w h e r e t h e s e p a r a
t i o n o f t h e r a c e s i n t h e s c h o o l s i s d e c r e e d by s t a t e s t a t u t e
o r c o n s t i t u t i o n , e x c e p t i n a c a s e l i k e R ichm ond w h e r e t h e
d i s t r i c t c o u r t ' s rem ed y w e n t b e y o n d t h e s c h o o l d i s t r i c t
b o u n d a r i e s . I n t h e c a s e o f r a c i a l s e p a r a t i o n by c o n s t i t u t i o n a l
o r s t a t u t o r y m a n d a te , g e o g r a p h i c a l a t t e n d a n c e a r e a s a r e n o t
p r i m a r i l y i n v o l v e d - - a t t e n d a n c e i s d e t e r m i n e d p r i m a r i l y b y r a c e .
As a p p e a r s fro m t h e l a n g u a g e o f t h e s e c t i o n and a s C o n g r e s sm a n
B r o o m f i e l d made c l e a r i n h i s r e m a r k s b e f o r e c o n g r e s s , 1 1 8 Cong
R ec H 5416 ( D a i l y e d , J u n e 8 , 1 9 7 2 ) , t h e s e c t i o n i s draw n s p e c i
f i c a l l y t o c o v e r c a s e s l i k e t h e c a s e a t b a r an d t h e R ichm ond
c a s e .
P l a i n t i f f s , u n d o u b t e d l y , w i l l c l a i m § 8 0 3 t o b e
u n c o n s t i t u t i o n a l b e c a u s e o f t h e "work now " m a n d a te o f t h e
U n i t e d S t a t e s Suprem e C o u r t i n G r e e n v C o u n ty S c h o o l B o a rd o f
New K e n t C o u n t y , 3 9 1 US 4 30 ( 1 9 6 8 ) . S e e a l s o S w a n n , p 1 3 .
-168-
I f t h i s i s p l a i n t i f f s ' p o s i t i o n , t h e y m i s c o n s t r u e t h e m e a n in g
o f t h e "now" c a s e s . I n t h o s e c a s e s , t h e r e w e r e d u a l s c h o o l
s y s t e m s r e n d e r e d c o n s t i t u t i o n a l l y v o i d by Brown I and Brown I I .
T h e r e w as no i s s u e a s t o t h e c o n s t i t u t i o n a l v i o l a t i o n , i t had
b e e n d e t e r m i n e d by Brown I . Y e t , t h e d e f e n d a n t B o a r d s o f
E d u c a t i o n by b o t h ad am ancy and s u b t e r f u g e r e f u s e d t o e s t a b l i s h
a u n i t a r y s y s t e m . G r e e n , and i t s c o m p a n i o n s , w e r e t h e d i r e c t
command o f t h e c o u r t t o t h e s e b o a r d s o f e d u c a t i o n t h a t t h e
t i m e f o r s t a l l i n g w as o v e r .
By c o n t r a s t , t h e p r im a r y i s s u e i n t h e c a s e a t b a r i s
w h e t h e r d e j u r e s e g r e g a t i o n e x i s t s . T h i s i s s u e h a s n o t b e e n
d e t e r m i n e d a s a m a t t e r o f la w by t h e U n i t e d S t a t e s Suprem e
C o u r t , a n d , i n f a c t , h a s n o t b e e n c o n s i d e r e d by t h e C o u r t ,
a l t h o u g h K e y e s , s u p r a , i s p e n d i n g .
I f p l a i n t i f f s ' c o n t e n d t h a t G r e e n , e t a l , r e n d e r s
a l l s t a y s u n c o n s t i t u t i o n a l , how d o t h e y e x p l a i n t h e s t a y o r d e r s
g r a n t e d by t h i s c o u r t i n D a v i s v S c h o o l D i s t r i c t o f t h e C i t y
o f P o n t i a c , 443 F 2d 572 (CA 6 , 1 9 7 1 ) , N o r t h c r o s s v B o a r d o f
E d u c a t i o n o f C i t y o f M em p h is , ( m is c 1 5 7 6 , J u n e 2 , 1 9 7 2 , e n b a n c
J u l y 1 0 , 1 9 7 2 ) , t h e s t a y o r d e r g r a n t e d i n B r a d l e y v S c h o o l B o a rd
o f C i t y o f R ich m o n d , V i r g i n i a , (CA 4 , No 7 2 - 1 0 5 8 , F e b r u a r y 8 ,
1 9 7 2 ) , and t h e s t a y o r d e r g r a n t e d by Mr. J u s t i c e B l a c k i n C o rp u s
C h r i s t i I n d e p e n d e n t S c h o o l D i s t r i c t v C i s n e r o s , 404 US 1 2 1 1
( 1 9 7 1 ) . Where Q o n g r e s s n o t o n l y h a s t h e c o n s t i t u t i o n a l p o w e r
t o e s t a b l i s h t h e c o u r t b u t a l s o t o d e t e r m i n e i t s p r o c e d u r e and
-169-
i t s j u r i s d i c t i o n , c a n i t b e s a i d t h a t t h e C o u r t s h a v e p o w e r s
o v e r p r o c e d u r e w h i c h , i f e x e r c i s e d b y C o n g r e s s , a r e u n c o n s t i t u
t i o n a l
T h e s e d e f e n d a n t s s u b m i t t h a t t h e r e ca n b e n o q u e s
t i o n t h a t s e c t i o n 803 i s a v a l i d e x e r c i s e o f c o n g r e s s i o n a l
p o w e r p u r s u a n t t o US C o n s t , a r t I I I , § 1 .
ADDENDUM
We w o u ld d i r e c t t h i s C o u r t ' s a t t e n t i o n t o a r e c e n t
c a s e U n i t e d S t a t e s v B o a rd o f E d u c a t i o n , 459 F2d 720 (CA 1 0 ,
1 9 7 2 ) i n w h ic h t h e C o u r t a f f i r m e d t h e l o w e r c o u r t ' s r u l i n g t h a t
5 o f t h e 9 b l a c k e l e m e n t a r y s c h o o l s i n t h e s c h o o l s y s t e m w e r e
d e f a c t o , n o t d e j u r e , s e g r e g a t e d s c h o o l s and t h a t , a s t o t h e s e
5 s c h o o l s , n o rem edy w a s r e q u i r e d . T h i s c a s e u n d e r s c o r e s t h e
s o u n d r u l e o f l a w , n o t f o l l o w e d b y t h e t r i a l c o u r t h e r e i n ,
t h a t s p e c i f i c f i n d i n g s o f de j u r e s e g r e g a t i o n m u st b e made w i t h
r e f e r e n c e t o e a c h p a r t i c u l a r s c h o o l s i n c e t h e r e m e d i a l p o w e r s o f
a c o u r t e x t e n d o n l y t o t h o s e s c h o o l s t h a t a r e s e g r e g a t e d by
v i r t u e o f d i s c r i m i n a t o r y s t a t e a c t i o n .
F i n a l l y , i n l i g h t o f t h e t im e c o n s t r a i n t s i n v o l v e d
i n t h e p r e p a r a t i o n o f t h i s b r i e f , t h e s e d e f e n d a n t s r e s p e c t f u l l y
r e s e r v e a n y and a l l a d d i t i o n a l d e f e n s e s , i s s u e s o r q u e s t i o n s
f o r p u r p o s e s o f f u r t h e r a p p e l l a t e a r g u m e n t .
-170-
CONCLUSION
T he r e l i e f r e s p e c t f u l l y s o u g h t by t h e s e d e f e n d a n t s
i s f o r t h i s C o u r t t o r e v e r s e t h e D i s t r i c t C o u r t w i t h
r e s p e c t t o t h e f o l l o w i n g o r d e r s :
1 . R u l i n g on I s s u e o f S e g r e g a t i o n ,
S e p t e m b e r 2 7 , 1 9 7 1 t o t h e e x t e n t
s u c h r u l i n g c o n t a i n s f i n d i n g s o f f a c t
and c o n c l u s i o n s o f la w a d v e r s e t o
e i t h e r t h e s e d e f e n d a n t s o r t h e
D e t r o i t S c h o o l D i s t r i c t d e f e n d a n t s ;
2 . R u l i n g on P r o p r i e t y o f C o n s i d e r i n g a
M e t r o p o l i t a n Remedy t o A c c o m p l i s h
D e s e g r e g a t i o n o f t h e P u b l i c S c h o o l s
o f t h e C i t y o f D e t r o i t , M arch 2 4 , 1 9 7 2 ;
3 . F i n d i n g s o f F a c t and C o n c l u s i o n s o f Law
on D e t r o i t - O n l y P l a n s o f D e s e g r e g a t i o n ,
March 2 8 , 1 9 7 2 ;
4 . R u l i n g on D e s e g r e g a t i o n A r e a and D e v e lo p m e n t
o f P l a n , and F i n d i n g s o f F a c t and C o n c l u s i o n s
o f Law i n S u p p o r t t h e r e o f , J u n e 1 4 , 1 9 7 2 ;
5 . O r d e r f o r A c q u i s i t i o n o f T r a n s p o r t a t i o n ,
J u l y 1 1 , 1 9 7 2 ,
an d t o rem and t h e c a s e t o t h e D i s t r i c t C o u r t d i r e c t i n g t h a t
s u c h C o u r t e n t e r an o r d e r d i s m i s s i n g p l a i n t i f f s " c o m p l a i n t
w i t h p r e j u d i c e .
E u g e n e K r a s i c k y
G e r a ld F . Young
G e o r g e L . M cC argar
P a t r i c k K o w a l e s k i
A s s i s t a n t A t t o r n e y s G e n e r a l
A t t o r n e y s f o r G o v e r n o r , A t t o r n e y
G e n e r a l , S t a t e B o a r d o f E d u c a t i o n ,
S u p t . o f P u b l i c I n s t r u c t i o n and
S t a t e T r e a s u r e r o f t h e S t a t e o f
M ic h ig a n