Petition for Writ of Certiorari

    IN THE SUPREME COURT OF THE UNITED STATES

October Term 1973 

No. ______

WILLIAM J, MILLIKEN, Governor of the State of Michigan; FRANK J. 
KELLEY, Attorney General of the State of Michigan; MICHIGAN 
STATE BOARD OF EDUCATION, a constitutional body corporate; 
JOHN W. PORTER, Superintendent of Public Instruction of the State 
of Michigan, and ALLISON GREEN, Treasurer of the State of Michigan,

■VS’
Petitioners,

RONALD BRADLEY and RICHARD BRADLEY, by their Mother and 
Next Friend, VERDA BRADLEY; JEANNE GOINGS, by her Mother 
and Next Friend, BLANCH GOINGS; BEVERLY LOVE, JIMMY LOVE 
and DARRELL LOVE, by their Mother and Next Friend, CLARISSA 
LOVE; CAMILLE BURDEN, PIERRE BURDEN, AVA BURDEN, 
MYRA BURDEN, MARC BURDEN and STEVEN BURDEN, by their 
Father and Next Friend, MARCUS BURDEN; KAREN WILLIAMS 
and KRISTY WILLIAMS, by their Father and Next Friend, C. WIL­
LIAMS; RAY LITT and MRS. WILBUR BLAKE, parents; all parents

(Continued on Inside Front Coyer)

PETITION FOE W RIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS  

FOR THE SIXTH CIRCUIT

FRANK J. KELLEY 
Attorney General

Robert A. Derengoski 
Solicitor General

Engene Krasieky 
Gerald F. Young 
George L. MeCargar 
L. Graham Ward

Assistant Attorneys General

Attorneys for Petitioners 
720 Law Building 
525 West Ottawa Street 
Lansing, Michigan 48913

Dated: September 6, 1973.

P R IN T E D  B Y  S P E A K E R -H IN E S  A N D  T H O M A S , IN C ,, L A N S IN G , M IC H IG A N I S 7 S



having children attending the public schools of the City of Detroit, 
Michigan, on their own behalf and on behalf of their minor children, 
all on behalf of any person similarly situated; ami NATIONAL ASSO­
CIATION FOR THE ADVANCEMENT OF - COLORED PEOPLE, DE­
TROIT BRANCH; DETROIT FEDERATION OF TEACHERS, LOCAL 
231, AMERICAN FEDERATION OF TEACHERS, AFL-CIO; BOARD 
OF EDUCATION OF THE CITY OF DETROIT, a school district of 
the first class; PATRICK McDONALD, JAMES HATHAWAY and 
CORNELIUS GOLIGHTLY, members of the Board of Education of 
the City of Detroit; and NORMAN DRACOLER, Superintendent of 
the Detroit Public Schools; ALLEN PARK PUBLIC SCHOOLS, 
SCHOOL DISTRICT OF THE CITY OF BERKLEY, BRANDON 
SCHOOLS, CENTERLINE PUBLIC SCHOOLS, CHERRY HILL 
SCHOOL DISTRICT, CHIPPEWA VALLEY PUBLIC SCHOOLS, 
SCHOOL DISTRICT OF THE CITY OF CLAWSON, CRESTWOOD 
SCHOOL DISTRICT, DEARBORN PUBLIC SCHOOLS, DEARBORN 
HEIGHTS SCHOOL DISTRICT NO. 7, EAST DETROIT PUB­
LIC SCHOOLS, SCHOOL DISTRICT OF THE CITY OF FERNDALE, 
FLAT ROCK COMM CM  TV SCHOOLS, GARDEN CITY PUBLIC- 
SCHOOLS, GILBRALTAR SCHOOL DISTRICT, SCHOOL DISTRICT 
OF THE CITY OF HARPER WOODS, SCHOOL DISTRICT OF THE 
CITY OF HAZEL PARK, INTERMEDIATE SCHOOL DISTRICT OF 
THE COUNTY OF MACOMB, LAKE SHORE PUBLIC SCHOOLS, 
LAKEVIEW PUBLIC SCHOOLS, THE LAMPHERE SCHOOLS, LIN­
COLN PARK PUBLIC SCHOOLS, MADISON DISTRICT PUBLIC 
SCHOOLS, M E L VIN D A LE-NORT11 ALLEN PARK SCHOOL DIS­
TRICT, SCHOOL DISTRICT OF NORTH DEARBORN HEIGHTS, 
NOVI COMMUNITY SCHOOL DISTRICT, OAK PARK SCHOOL DIS­
TRICT, OXFORD AREA COMMUNITY SCHOOLS, REDFORD UNION 
SCHOOL DISTRICT NO. 1, RICHMOND COMMUNITY SCHOOLS, 
SCHOOL DISTRICT OF THE CITY OF RIVER ROUGE, RIVER- 
VIEW COMMUNITY SCHOOL DISTRICT. ROSEVILLE PUBLIC 
SCHOOLS, SOUTH LAKE SCHOOLS, TAYLOR SCHOOL DISTRICT, 
WARREN CONSOLIDATED SCHOOLS, WARREN WOODS PUBLIC 
SCHOOLS, WAYNE-WESTLAND COMMUNITY SCHOOLS, WOOD- 
HAVEN SCHOOL DISTRICT and WYANDOTTE PUBLIC SCHOOLS, 
KERRY and COLLEEN GREEN, by their Father and Next Friend, 
DONALD G. GREEN, JAMES, JACK and KATHLEEN ROSEMARY, 
by their Mother and Next Friend, EVELYN G. ROSEMARY, TERRI 
DORAN, by her Mother and Next Friend, BEVERLY DORAN, SHER­
RILL, KEITH, JEFFREY and GREGORY COULS, by their Mother 
and Next Friend, SHARON COULS, EDWARD and MICHAEL ROMES- 
BURG, by their Father and Next Friend, EDWARD M. ROMESBURG, 
JR., TRACEY and GREGORY ARLEDGE, by their Mother and Next 
Friend, AILEEN ARLEDGE, SHERYL and RUSSELL PAUL, by their 
Mother and Next Friend, MARY LOU PAUL, TRACY QUIGLEY, by 
her Mother and Next Friend, JANICE QUIGLEY, IAN, STEPHANIE, 
KARL and JAAKO SUNI, by their Mother and Next Friend, SHIRLEY 
SUM , and TRI-COUNTY CITIZENS FOR INTERVENTION IN FED­
ERAL SCHOOL ACTION NO. 35257; DENISE MAGDOWSKI and 
DAVID MAGDOWSKI, by their Mother and Next Friend, JOYCE 
MAGDOWSKI; DAVID VIETTI by his Mother and Next Friend, 
VIOLET VIETTI, and the CITIZENS COMMITTEE FOR BETTER 
EDUCATION OF THE DETROIT METROPOLITAN AREA, a Mich­
igan non-Profit Corporation, SCHOOL DISTRICT OF THE CITY 
OF ROYAL OAK, SOUTHFIELD PUBLIC SCHOOLS, GROSSE 
POINTE PUBLIC SCHOOLS, MICHIGAN EDUCATION ASSOCIA­
TION and PROFESSIONAL PERSONNEL OF VAN DYKE,

Respondents.



INDEX
Page

Opinions and Orders B elow __________________________  1

Jurisdiction ________,_________________________________ 3

Questions Presented _________________________________ 3

Constitutional and Statutory Provisions Involved __  4

Statement of the Case ________________ ~_____________  5

Reasons For Granting the Writ

I. THE RULING OF THE SIXTH CIRCUIT 
COURT OF APPEALS THAT THE STATE 
OFFICER DEFENDANTS HAVE COMMIT­
TED ACTS RESULTING IN DE JURE 
SEGREGATION OF PUPILS, BOTH W ITH ­
IN THE SCHOOL DISTRICT OF THE CITY 
OF DETROIT AND BETW EEN DETROIT 
AND OTHER SCHOOL DISTRICTS IN THE 
TRI-COUNTY AREA, IS WITHOUT BASIS 
IN LA W  OR FACT AND IN CONFLICT 
W ITH  THE DECISIONS OF BOTH OTHER 
COURTS OF APPEALS AND THIS COURT 12

II. THE RULING OF THE COURT OF A P ­
PEALS THAT A “ DETROIT-ONLY”  DE­
SEGREGATION PLAN COULD NOT REM­
EDY THE UNCONSTITUTIONAL SEG­
REGATION FOUND IN THE DETROIT 
SCHOOL DISTRICT IS NOT SUPPORTED 
BY THE RECORD, IS CLEARLY ERRO­
NEOUS AND IN CONFLICT W ITH  THE



n

DECISIONS OF THIS COURT AND OTHER 
COURTS OF APPEALS ___________________  27

III. THE DECISION OF THE COURT OF
APPEALS TH AT A  MULTI-SCHOOL DIS­
TRICT REMEDY IS CONSTITUTIONALLY 
PERM ISSIBLE HEREIN, IS ERRONEOUS 
AND IN CONFLICT W ITH  THE DECI­
SIONS OF OTHER COURTS OF APPEALS 
AND THIS COURT _________________________  38

IV. THE QUESTION OF W H ETH ER A  MULTI­
SCHOOL DISTRICT REMEDY IS CONSTI­
TUTIONALLY PERM ISSIBLE IN THIS 
CAUSE IS AN IMPORTANT QUESTION 
OF FEDERAL LAW  W HICH SHOULD BE 
DEFINITIVELY SETTLED BY THIS COURT 49

Page

Conclusion 53



CITATIONS

Alexander v Holmes County Board of Education,
396 US 19 (1969) _______________________27,28,32,33,37

Attorney General, ex rel Kies v Lowrey, 131 Mich 
639 (1902), a f f ’d 199 US 233 (1905)_______________  15

Page

Bradley v Milliken, 433 F2d 897 (CA 6, 1970);
438 F2d 945 (CA 6, 1971) ________________________ 25

Bradley v School Board of Richmond, Virginia,
462 F2d 1058 (CA 4, 1972), a f f ’d ____U S _____,
93 S Ct 1952 (1973) ________________________37, 38, 42, 43,

44, 48, 50, 51

Brown v Board of Education, 347 US 483 (1954) _ 14

Brown v Board of Education, 349 US 294 (1955) _ 3 3

Goss v Board of Education of the City of Knoxville,
____F 2 d _____, decided July 18, 1973 _____________ 30

Green v School Board of New Kent County,
391 US 430 (1968) __________________ 27,28,32,33,35,37

Hiers v Detroit Superintendent of Schools,
376 Mich 225 (1965) ____________________________  23

Higgins v Board of Education of the City of 
Grand Rapids, Michigan, (WD Mich CA 6386),
Slip Opinion, July 1, 1973, p 77 -------------------------- 18,19

Keyes v School District No. 1, Denver, Colorado,
____U S _____, 93 S Ct 2686, (1973) ____ 16,19, 20, 21, 23,

24, 25, 26, 33,42, 
44, 48, 50, 51

Northeross v Board of Education of Memphis,
420 F2d 546 (1969) ______________________________  35

Pierce v Society of Sisters, 268 US 510 (1925) 47



Page
Raney v Board o f Education of Gould School 

District, 391 US 443 (1968) ______________________35,38

San Antonio Independent School District v Rodriguez,
____  US ____ , 93 S Ct 1278 (1973) _________ 17,19,24,

26, 45, 46

School District of the City of Lansing v State Board 
of Education, 367 Mich 591 (1962) _____ ....________  15

Senghas v L ’Anse Oreuse Public Schools, 368 Mich 
557 (1962) _____________________________-__________  15

Smith v North Carolina State Board of Education,
444 F2d 6 (CA 4, 1971) __________________________ 23, 26

Spencer v Kugler, 326 P Supp 1235 (D NJ, 1971), 
a f f ’d 404 US 1027 (1972) ________________ 34,41,42,48

Sparrow v Gill, 304 F Supp 86 (MD NC 1969) _____  19

Swann v Charlotte-Meeklenburg Board of Education,
402 US 1 (1971) ______________________27,28,32,33,34,

35, 37,40, 41

United States v Board of School Commissioners, 
Indianapolis, Indiana, 332 F Supp 655 (1971) ------  50

United States, et al v Board of School Commissioners 
of the City of Indianapolis, Indiana, et al (SD Ind),
No. IP  68-C-225, Slip Opinion, July 20,1973 -------32, 51, 52

United States v Scotland Neck Board of Education,
407 US 484 (1972) ___________________________ 35,38

Wisconsin v Yoder, 406 US 205 (1972) -------------------  47

Wright v Council of the City of Emporia,
407 US 451 (1972) _________________________35,38,45,47

Wright v Rockefeller, 376 US 52 (1964) ----------------  45

US Const, Amendments, art V 4



V

US Const, Amendments, art X ________________________ 4

US Const, Amendments, art X I __________________  4

US Const, Amendments, art XIV, § 1 ____________  5

Midi Const 1963, art 8, § 2 ________________________ 46

Mich Const 1963, art 8, § 3 ________________________ 6

Mich Const 1963, art 9, § 6 and § 11 _______________17,18

28 USCA 1254 ( 1 ) ___________________ ,r______________  3

1842 PA  7 0 ___________________________________________  41
j .

1937 P A  306, as amended, MCLA 388.851 et seq.;

MSA 15.1961 et seq. ______________________________  22

1949 PA  231__________________________________________  22

1955 PA 269, as amended, MCLA 340.1 et seq.;
MSA 15.3001 et seq. ___________________ 15, 22, 24, 44, 46

1962 PA  175 _________________________________________ 22

1969 PA  244, as amended by 1970 PA 48, MCLA 
388.171 et seq.; MSA 15.2298(1) et seq---------------7,24,25

FR  Civ P, 1 9 _________________________________________ 40

Michigan Statistical Abstract, 1972 (9th ed.) ---------  5

Statistical Abstract of United States, 1972 (93rd ed.) 5

1971 HEW  Enrollment Survey, 118 Cong. Rec.
S 144-148 50





IN THE SUPREME COURT OF THE 
UNITED STATES

No________

W ILLIAM  Gr. MILLIKEN, et al, 

v
RONALD BRADLEY, et al,

Petitioners,

Respondents.

PETITION FOR W RIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

Petitioners William Gr. Milliken, Governor of the State of 
Michigan; Frank J. Kelley, Attorney General of the State 
of Michigan; Michigan State Board of Education, a con­
stitutional body corporate; John W. Porter, Superintendent 
of Public Instruction of the State of Michigan, and Allison 
Green, Treasurer of the State of Michigan, pray that a writ 
of certiorari be issued to review the judgment and opinion 
of the United States Court of Appeals for the Sixth Circuit 
entered in this proceeding on June 12, 1973.

OPINIONS AND ORDERS BELOW

The opinion of the Court of Appeals, not yet reported, 
appears in the Joint Appendix, pp 110a-240a.1 Other 
opinions delivered in the Courts below are:

1
Hereafter references to the Joint Appendix filed herewith will be 

indicated by page numbers enclosed in parentheses.



— 2—

United States District Court for the Eastern 
District of Michigan, Southern Division

September 27, 1971, Ruling on Issue of Segregation, 338 
F Supp 582. (17a-39a).

November 5, 1971, Order [for submission of Detroit-only 
and metropolitan desegregation plans], not reported. (46a- 
47a).

March 24, 1972, Ruling on Propriety of Considering a 
Metropolitan Remedy to Accomplish Desegregation o f the 
Public Schools of the City of Detroit, not reported. (48a- 
52a).

March 28, 1972, Findings of Fact and Conclusions of Law 
on Detroit-Only Plans of Desegregation, not reported. (53a- 
58a).

June 14, 1972, Ruling on Desegregation Area and Order 
for Development of Plan, and Findings of Fact and Conclu­
sions of Law in Support of Ruling on Desegregation Area 
and Development of Plan, 345 F Supp 914. (59a-105a).

July 11, 1972, Order for Acquisition of Transportation, 
not reported. (106a-107a).

United States Court of Appeals for the Sixth Circuit

July 20, 1972, Order [granting leave to appeal], not re­
ported. (108a-109a).

Other opinions of the Court of Appeals rendered at prior 
stages of the present proceedings are reported in 433 F2d 
897, 438 F2d 945 and 468 F2d 902, cert den, 409 US 844 
(1972).



—3—

JURISDICTION

The judgment of the Court of Appeals for the Sixth 
Circuit was entered on June 12, 1973. This petition for 
certiorari was filed within 90 days of that date. This 
Court’s jurisdiction is invoked under 28 USC 1254(1).

QUESTIONS PRESENTED

I.

Whether, based upon the controlling precedents of this 
Court, the state officer defendants have committed acts 
of de jure segregation with the purpose and present causal 
effect of separating school children by race either within 
the School District of the City of Detroit or between Detroit 
and other school districts in the 1,952 square mile tri­
county area of Wayne, Oakland and Macomb?

II.

Whether the Detroit School District, a 63.8% black 
school district, could operate a unitary system under 
a Detroit-only desegregation plan, thus meeting the re­
medial requirements of the Constitution and the decisions 
of this Court?

III.

Absent any pleaded allegations, any proofs or any find­
ings either that the boundaries of any of the 86 independent 
school districts within the 1,952 square mile tri-county area 
of Wayne, Oakland and Macomb have ever been estab-



lished and maintained with the purpose and present causal 
effect of separating children by race, or that any such 
school districts, with the sole exception of Detroit, has 
ever committed any acts of de jure segregation, does the 
Constitution or any decision of this Court permit a multi­
school district remedy?

— 4—

CONSTITUTIONAL AND STATUTORY  
PROVISIONS INVOLVED

United States Constitution:

Amendments, Article V— “No person shall be held to 
answer for a capital, or otherwise infamous crime, unless 
on a presentment or indictment of a Grand Jury, except in 
cases arising in the land or naval forces, or in the Militia, 
when in actual service in time of War or public danger; nor 
shall any person be subject for the same offence to be twice 
put in jeopardy of life or limb; nor shall be compelled in 
any Criminal Case to be a witness against himself, nor be 
deprived of life, liberty, or property, without due process 
of law; nor shall private property be taken for public use, 
without just compensation.”

Amendments, Article X — “ The powers not delegated to 
the United States by the Constitution, nor prohibited by it 
to the States, are reserved to the States respectively, or to 
the people.”

Amendments, Article X I— “ The Judicial power of the 
United States shall not be construed to extend to any suit 
in law or equity, commenced or prosecuted against one of 
the United States by Citizens of another State, or by Citi­
zens or Subjects of any Foreign State.”



—5—

Amendments, Article XIV, Section 1— “All persons born 
or naturalized in the United States, and subject to the 
jurisdiction thereof, are citizens of the United States and 
of the State wherein they reside. No State shall make or 
enforce any law which shall abridge the privileges or im­
munities of citizens of the United States; nor shall any State 
deprive any person of life, liberty, or property, without due 
process of law; nor deny to any person within its jurisdic­
tion the equal protection of the laws.”

STATEMENT OF THE CASE 

Introduction

According to the 1970 census, the population of Michigan 
is 8,875,083, almost half of which, 4,199,931, resides in the 
tri-county area of Wayne, Oakland and Macomb. Oakland 
and Macomb Counties abut Wayne County to the north 
and Oakland County abuts Macomb County to the west. 
These counties cover 1,952 square miles.2 The population 
of Wayne, Oakland and Macomb counties is 2,666,751, 
907,871 and 625,309, respectively. The State’s largest city, 
Detroit, with a population of 1,513,601 is located in Wayne 
County.

In the 1970-71 school year, there were 2,157,449 children 
enrolled in the school districts in Michigan. 13.4% of these 
children were black and 84.8% were white. There are 86 
independent, legally distinct school districts within such 
tri-county area, having a total enrollment of approxi­

2
Michigan Statistical Abstract, 1972 (9th ed.). This area is ap­

proximately the size of the state of Delaware (2,057 sepiatc miles), 
more than half again the size of the state of Rhode Island (1,214 
square miles) and almost 30 times the size of the District of Colum­
bia (67 square miles). Statistical Abstract of United States, 1972 
(93rd ed.).



6—

mately 1,000,000 children, approximately 20% of whom 
are black. (66a). The largest is the School District of the 
City of Detroit with an enrollment (1970-71 school year) 
of 289,743 children (20a). In racial composition, 63.8% of 
these children were black and 34.8% were white. (21a-22a). 
The boundaries of the School District of the City of Detroit 
are coterminous with the boundaries of the City of Detroit 
and have been coterminous for more than 100 years.

The positive law of Michigan has prohibited dual school 
systems since at least 1869. (157a-158a).

Plaintiffs commenced this class action by filing a com­
plaint on August 18, 1970. (2a-16a). The complaint has not 
been amended or supplemented in any regard as of the 
date hereof.

The allegations in plaintiffs’ complaint were limited to 
claims of de jure segregation against the defendants solely 
within the School District of the City of Detroit. Further, 
plaintiffs’ prayer for relief was limited to the establish­
ment of a unitary system of schools within the School Dis­
trict of the City of Detroit. (13a-15a). In addition, plaintiffs 
challenged the constitutionality of § 12 of 1970 PA 48 on 
the grounds that it interfered with the implementation of 
the Detroit Board of Education’s April 7, 1970 plan in­
volving alterations in attendance areas for 12 of the 21 
Detroit high schools to increase racial balance in those 12 
schools. (13a-15a).

The named defendants were William G. Milliken, Gover­
nor of the State of Michigan and ex officio member (with­
out vote) of the Michigan State Board of Education; Frank 
J. Kelley, Attorney General of the State of Michigan; Mich­
igan State Board of Education, a constitutional body created 
by Const 1963, art 8, § 3; John W. Porter, Superintendent



— 7-

of Public Instruction of the State of Michigan, ex officio 
chairman of the State Board of Education (without vote) 
and principal executive officer of the Michigan State De­
partment of Education; Board of Education of the School 
District of the City of Detroit, a body corporate under the 
laws of the State of Michigan; the individual members of 
said Board of Education, and the Superintendent of Schools 
of said Board of Education. No school district other than 
the School District of the City of Detroit was named as a 
defendant. On September 3, 1970, Denise Magdowski, et al, 
were permitted to intervene as defendants, as parents and 
representatives of parents of children attending the Detroit 
Public Schools. On November 4, 1970, Detroit Federation 
of Teachers, Local 231, the collective bargaining representa­
tive of the Detroit teachers, was permitted to intervene as a 
party defendant.

At the conclusion of a hearing upon plaintiffs’ applica­
tion for preliminary injunctive relief, the District Court 
denied all relief on the grounds that the existence of racial 
segregation in the School District of the City of Detroit had 
not been established, and the Court dismissed the action as 
to the Governor and the Attorney General. In denying in­
terlocutory relief, the District Court did not rule on the 
constitutionality of 1970 PA 48. Plaintiffs appealed to the 
Court of Appeals for the Sixth Circuit. The Court of 
Appeals declared 1970 PA 48, § 12 to be unconstitutional and 
ordered reinstatement of the Governor and the Attorney 
General as parties, “ at least at the present stage of the 
proceedings,” but affirmed the denial of interlocutory 
relief. 433 F2d 897. Defendants did not seek a review of 
this decision of the Court of Appeals.

Upon remand, plaintiffs moved in the District Court for 
an order requiring immediate implementation of the April 
7,1970 racial balance plan. After receiving additional plans



— 8

from the Board of Education of the City of Detroit and 
conducting a hearing thereon, the District Court entered 
an order approving an alternative plan. Plaintiffs, claim­
ing the alternative plan to be constitutionally insufficient, 
sought emergency relief in the Court of Appeals. The Court 
of Appeals denied plaintiffs’ claim for relief and ordered 
the District Court to set a hearing on the merits forthwith. 
438 F2d 945.

Trial on the merits, limited to the issue of segregation 
within the School District of the City of Detroit, began on 
April 6, 1971 and concluded on July 22, 1971, consuming 41 
trial days. On September 27, 1971, the District Court 
rendered its ruling on issue of segregation in which it 
found 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 added.] (33a). 
The acts, which the District Court found to result in de jure 
segregation, related to pupil assignment solely within the 
School District of the City of Detroit.

At a hearing held on October 4, 1971, the Court orally 
ordered the Detroit Board of Education to submit its plan 
for desegregation of its schools within 60 days and ordered 
the “ State defendants” to submit “ a metropolitan plan of 
desegregation” within 120 days. (43a). A  written order to 
the same effect was entered on November 5,1971. (46a-47a).

The state officer defendants sought to appeal the Ruling 
on Issue of Segregation and the Order of November 5, 1971, 
requiring them to submit a metropolitan plan of desegrega­
tion. The appeal was dismissed for the stated reason that 
the decision and order sought to be appealed were not final. 
468 F2d 902. The state officer defendants sought to review 
the dismissal of the appeal by petitioning for certiorari in 
this Court. The petition was denied. 409 US 844.



— 9

The plans for desegregation were filed within the time 
limits imposed by the Court, that is, not later than February 
4,1972. Between February 9 and 17,1972, 43 school districts 
within the counties of Wayne, Oakland and Macomb filed 
motions to intervene for the purpose of representing their 
interests and those of the parents and children residing' in 
the respective school districts. On March 15, 1972, the 
District Court issued its order granting the school districts’ 
motions to intervene as a matter of right, but imposing 
conditions designed to limit their participation in the pro­
ceedings. (208a-209a). The intervenor school districts were 
afforded one week, to March 22, 1972, to file their briefs on 
the legal propriety of a metropolitan plan of desegregation. 
(209a-210a). The District Court filed its ruling that such 
a plan was appropriate on March 24, 1972. (48a).

Having concluded that consideration of a metropolitan 
remedy was appropriate, the District Court commenced 
taking testimony on such a plan on March 28, 1972. Later 
that day, the District Court filed its Findings of Fact and 
Conclusions of Law on Detroit-Only Plans of Desegregation. 
(53a). The essence of the Court’s ruling was that no Detroit- 
only plan could result in the desegregation of the School 
District of the City of Detroit because it has a majority black 
student body.

On June 14, 1972, the District Court filed its Ruling on 
Desegregation Area and Order for Development of Plan of 
Desegregation (97a) and its Findings of Fact and Conclu­
sions of Law in Support of Ruling on Desegregation Area 
and Development of Plan. (59a). The judicially decreed 
“ desegregation area”  included 53 school districts covering 
approximately 700 square miles within a three county area. 
The District Court’s remedial decree involved 780,000 school 
children of which at least 310,000 were required to be 
transported. (72a). The June 14, 1972 order of the District



10-

Court requiring pupil reassignment and cross-district trans­
portation of pupils for racial balance purposes constitutes 
the most massive remedial decree entered heretofore in a 
school desegregation case. Further, although the District 
Court had expressly found no de jure segregation as to 
faculty within Detroit, this order required faculty and staff 
reassignment among school districts. (Compare 28a-33a 
with 102a-103a.)

In entering this order, the District Court expressly noted 
that it had taken no proof 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 Detroit School District, 
such school districts have committed any acts of de jure 
segregation. (59a-60a). Further, 18 of the school districts 
included in the “ desegregation area” had never been made 
parties to this litigation.

The Ruling on Desegregation Area also appointed a panel 
of nine persons, later increased to eleven, and charged it 
with the responsibility of preparing and submitting a de­
segregation plan in accordance with the provisions of the 
ruling. (99a).

On July 5,1972, the panel recommended to the Court “ the 
use of state funds for the immediate purchase of at least 
295 additional vehicles to be used in the implementation of 
the interim plan.” On July 11, 1972, the District Court en­
tered an order directing the Board of Education of the City 
of Detroit to acquire 295 buses, the contracts for such 
acquisition to be entered into not later than July 13, 1972. 
(106a-107a). The “ state defendants” including added “ state 
defendant state treasurer Allison Green” were ordered to 
bear the cost thereof. By a contemporaneous order, the



11—

Court on its own motion ordered Allison Green, Treasurer 
of the State of Michigan, to be made a party defendant in 
the action.

On July 20, 1972, the District Court, pursuant to oral 
motions made on July 19, 1972, and under the provisions of 
28 USC 1292(b) certified the issues presented by the 5 
controlling orders or rulings, to-wit, (1) Ruling on Issue of 
Segregation, September 27, 1971, (2) Ruling on Propriety 
of Considering Metropolitan Remedy, 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 Order for Development of Plan, 
and Findings of Fact and Conclusions of Law in Support 
thereof, July 14, 1972, and (5) Order for Acquisition of 
Transportation, July 11, 1972. The state officer defendants, 
and others, petitioned the Court of Appeals for permission 
to appeal the controlling orders, which permission was 
granted by the Court of Appeals. (108a). In granting per­
mission, the Court of Appeals said:

“ This court concludes that among the substantial 
questions presented there is at least one difficult issue 
of first impression which has never been decided by 
this court or the Supreme Court.” (108a).

In said order, the Court of Appeals stayed the order for 
acquisition of transportation, July 11,1972, and all proceed­
ings with regard to the assignment of children and faculty 
within the desegregation area, except planning. (109a).

On August 21, 1972, the Court of Appeals granted inter­
vention in this cause to the Michigan Education Association, 
and on July 21,1973, the Court of Appeals granted interven­
tion herein to the Professional Personnel of Van Dyke.



— 12—

A  panel of the Court of Appeals filed its opinion on 
December 8, 1972. Thereafter, defendants moved for a re­
hearing in banc which was granted. Following rehearing, 
in a 6 to 3 decision the Court of Appeals (in banc) in 
substance affirmed the District Court’s ruling on the issue 
of segregation and its ruling on Detroit-only plan of desegre­
gation. Although vacating or partially vacating the Ruling 
on Propriety of Metropolitan Remedy, Ruling on Desegrega­
tion Area, and Order for Acquisition of Transportation, the 
Court of Appeals affirmed the power of the District Court 
to enter such orders herein. The sole infirmity found on 
appeal was the failure to add as parties the 18 school dis­
tricts within the “ desegregation area”  that had never been 
joined as parties in this cause. In substance, the Court of 
Appeals held that a multi-district remedy was not only 
constitutionally permitted, but mandated in this cause.

On August 6,1973 plaintiffs filed a motion in the District 
Court, seeking to join as parties in this cause all of the 
school districts in the counties of Wayne, Oakland and 
Macomb that have not already been made parties herein, 
with the exception of the Pontiac School District.

REASONS FOR GRANTING THE W R IT

I.

THE RULING OF THE SIXTH  CIRCUIT COURT OF 
APPEALS THAT THE STATE OFFICER DEFEND­
ANTS HAVE COMMITTED ACTS RESULTING IN 
DE JURE SEGREGATION OF PUPILS, BOTH W IT H ­
IN THE SCHOOL DISTRICT OF THE CITY OF DE­
TROIT AND BETW EEN DETROIT AND OTHER 
SCHOOL DISTRICTS IN THE TRI-COUNTY AREA, 
IS W ITHOUT BASIS IN L A W  OR FACT AND IN 
CONFLICT W ITH  THE DECISIONS OF BOTH  
OTHER COURTS OF APPEALS AND THIS COURT.



13—

At the outset it is emphasized that the decisions of the 
lower courts herein represent, not a faithful adherence to 
the Constitution and the binding precedents of this Court, 
but rather an attempt to use the law as a lever in attaining 
what the lower courts decided is the desirable social goal 
of multi-school district racial balance throughout a huge 
three county area. This is vividly demonstrated by the trial 
court’s statement in a subsequent remedy pre-trial con­
ference, “ [i]n  reality, our courts are called upon, in these 
school cases, to attain a social goal, through the educa­
tional system, by using law as a lever.” (41a).

Js

Moving to the appellate level, the sound dissent of the 
late Circuit Judge Kent sets forth the overriding concern 
of the Sixth Circuit majority for racial balance among 
school districts as follows:

“ Through the majority’s opinion runs the thread 
which holds it together. That thread is the unwilling­
ness apparent in the minds of the majority to sanction 
a black school district within a city which it concludes 
will be surrounded by white suburbs. While the major­
ity does not now state that such a demographic pattern 
is inherently unconstitutional, nevertheless, I am per­
suaded that those who subscribe to the majority opinion 
are convinced, as stated in the slip opinion of the origi­
nal panel, ‘big city school systems for blacks surrounded 
by suburban school systems for whites cannot represent 
equal protection of the law.’ While that statement 
has been removed from the opinion of the majority, 
yet the premise upon which the statement was obviously 
based must necessarily form the foundation for the 
conclusions reached in the majority opinion. It may 
be that such will become the law, but such a conclusion 
should not receive our approval on a record such as 
exists in this case.” (224a).



— 14—

Thus, the underlying premise of both lower courts is the 
achievement of what they perceived as the desirable social 
goal of racial balance among school districts, rather than 
the vindication of constitutional rights to attend a school 
free from racial discrimination by public school authorities. 
Brown v Board of Education, 347 US 483 (1954). Viewed 
against this background, the state officer defendants sub­
mit that the de jure findings against them are mere make­
weights designed to provide the legal window dressing for 
the achievement of multi-school district racial balance.

The constitutional violations found to have been com­
mitted by the state officer defendants are set forth 
under the caption of “ State of Michigan” . The majority 
opinion elsewhere declares that the State of Michigan 
is not a party to this cause and that references thereto 
are to be read as references to the state and local o ffi­
cials through whom the state allegedly acted, thus com­
pelling the conclusion that the findings are directed 
against the state officer defendants. (115a, 151a-152a). The 
following review of these findings, focusing on patent con­
flicts with decisions of both other circuits and this Court, 
demonstrates the compelling need for immediate review 
by this Court.

Finding (1) —  Detroit Board of Education 
an Agency of the State of Michigan

If finding (1) means only that the actions of defendant 
Detroit Board of Education constitute state action within 
the scope of the Equal Protection Clause, then it merely 
confirms the obvious and adds nothing to the opinion. 
(151a). If, on the other hand, this finding constitutes a 
determination of vicarious liability against the state officer 
defendants, based on the conduct of the Detroit Board of 
Education, then such finding is erroneous.



— 15—

To the extent finding (1) is based upon an agency theory 
of vicarious liability, it must be stressed that, under settled 
Michigan law, school districts are local state agencies of 
legislative creation exercising plenary discretionary power 
over student assignment within their respective school 
districts. Attorney General, ex rel Kies v Lowrey, 131 Mich 
639, 644 (1902), a f f ’d 199 US 233 (1905). School District 
of the City of Lansing v State Board of Education, 367 
Mich 591, 595 (1962), Senghas v L ’Anse Creuse Public 
Schools, 368 Mich 557, 560 (1962), 1955 PA 269, as amended, 
MCLA 340.1 et seq; MSA 15.3001 et seq, hereinafter re­
ferred to as the school code of 1955. Thus, assuming argu­
endo any vitality to an agency theory of vicarious liability, 
it is clear that the School District of the City of Detroit 
is not an agent, under Michigan law, of any of the state 
officer defendants herein.3 Indeed, the Court of Appeals’
3

The position of the state officer defendants is that the existing 
racial imbalance in the Detroit public schools is the product of popu­
lation movement and housing patterns, as emphasized by trial court 
that “ [ t ] he principal causes undeniably have been population move­
ment and housing patterns. . . .” Further, the district court ruled 
that there was no de jure faculty segregation in Detroit. In ad­
dition, it is significant by way of illustration that, as to the optional 
attendance zones, all but one had been eliminated prior to trial, and 
the remaining optional zone was in the process of being eliminated 
in a manner that increased integration. (33a, 28a, 25a). The Detroit 
Board of Education has voted not to file a petition for certiorari. 
The election of the Detroit Board of Education to accept, without 
challenge, the findings of de jure conduct against it, in its desire 
to embrace and achieve a multi-school district remedy, is its 
decision alone to make under Michigan law. This development is 
proof positive that, under Michigan law, the Detroit Board of Educa­
tion governs and controls the conduct of the Schoool District of the 
City of Detroit. The state officer defendants are no more able to 
represent the interests of the Detroit Board of Education, with its 
own locally selected legal counsel, than they are the other school 
districts in Wayne, Oakland and Macomb counties, with their own 
locally chosen legal counsel. (233a-234a).



— 1 6 -

majority opinion expressly rejects any agency theory, as 
between the state officer defendants and local school dis­
tricts in its holding that any “ affected district first must 
be made a party to this litigation and afforded an oppor­
tunity to be heard.”  (177a).

Neither lower court made any findings against either 
the Governor or the Attorney General of conduct resulting 
in de jure segregation. Thus, absent the erroneous notion 
of vicarious liability, there is simply no basis for either 
a finding of acts having been committed by these state 
defendants which resulted in de jure segregation, or the 
granting of relief as against these two defendants and 
the case as to them must be dismissed. This is the sound 
result reached initially by the District Court herein, 433 
F2d 897, 905 (CA 6, 1970), and on appeal by Circuit 
Judge Weick. (216a). The reliance of the lower courts 
on the “ inaction”  of the state officer defendants squarely 
conflicts with this Court’s ruling in Keyes v. School Dis­
trict No. 1, Denver, Colorado,____U S _____, 93 S Ct 2686,
2696 (1973), that “ intentional state action”  is an essential 
element of a finding of de jure segregation. (173a).

The defendant, State Treasurer, was added after the 
violation hearings so that the District Court could order 
the State Treasurer to pay funds from the state treasury 
to purchase 295 buses for the multi-district remedy. As to 
him also, the case must be dismissed since there is no 
claim or finding of unconstitutional conduct by him and 
the settled case law of this Court under the Eleventh 
Amendment precludes compelling payment of funds out 
of the State Treasury where, as here, the State of Mich­
igan has never consented to this suit in Federal Court. 
(See the sound discussion of this point in the dissenting 
opinion of Circuit Judge Weick.) (213a-215a).



17

Finding (4) —  Allocation of Transportation Funds

The District Court’s opinion contained the following 
language which was quoted on appeal by the majority 
opinion:

“  C . . The State refused, until this session of the 
legislature, to provide authorization or funds for the 
transportation o f pupils within Detroit regardless of 
their poverty or distance from the school to which 
they were assigned, while providing in many neighbor­
ing, mostly white, suburban districts the full range of 
state supported transportation. This and other finan­
cial 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 ex­
penditures despite less tax effort, have created and 
perpetuated systematic educational inequalities. ’ ”  
(Emphasis added.) (152a).

This language, which constitutes a major part of the Dis­
trict Court’s holding against the state officer defendants 
on the initial question of de jure segregation in Detroit 
goes, not to the question of pupil assignment in Detroit, 
but to the markedly different question of inter-district 
disparities in school finance. This question has subsequent­
ly been definitively adjudicated by this Court in San An­
tonio Independent School District v. Rodriguez, ____ US
____, 93 S Ct 1278 (1973), and the conclusion is compelled
that both lower courts erred in relying on alleged inter­
district financial disparities. The financial disparities 
among school districts in Michigan, as in Texas, are the 
result of local variations in both taxable property per pupil 
and school tax rates that are not violative of the Equal 
Protection Clause under the applicable rational basis test. 
Rodriguez, supra, 1302-1304. See, also, Mich Const 1963,



- 18-

art 9, § 6 and § 11 for the constitutional outline o f Mich­
igan’s system of school finance.

The majority opinion in the Sixth Circuit, while quoting 
this language, appears to expressly adopt as its own find­
ing only the language dealing with transportation funds. 
This reluctance to embrace and approve the general operat­
ing and bonding portions of the trial court’s finance lan­
guage is understandable since such findings are contrary 
to the facts in this cause.

The trial court’s ruling as to state aid transportation 
funding, which was independently adopted and set forth as 
finding (4) on appeal, warrants scrutiny. (151a). This 
urban rural statutory distinction was recently found to be 
both reasonable and non-racial by another Federal District 
Court in Michigan as follows:

u There was proof that rural school districts received 
up to 75% reimbursement for student transportation 
expense where none was, until recently, received by the 
Grand Rapids Board or other districts for students 
residing within the city limits. While plaintiffs do not 
press any claim that the law is unconstitutional, they 
urge that the fact of the distinction is discriminatory 
as part of overall state action claimed violative of 
plaintiffs’ rights. It is an urban-rural classification 
distinction based upon known differences usually char­
acteristic of urban and rural areas: absence of public 
transportation, sidewalks, lesser density of student 
population and genarally longer distances. It is in no 
part related to racial difference.”

Higgins v Board of Education of the City of Grand 
Rapids, Michigan, (WD, Mich, CA 6386), Slip



19

Opinion of Judge Albert J. Engel, July 18, 1973, 
p 77J

Further, applying the correct reasonable basis test enun­
ciated in Rodriguez, supra, a three judge federal court held 
this very type of urban-rural classification for purposes 
of state school aid transportation funding “ plainly con­
stitutional.”  Sparrow v Gill, 304 F Supp 86, 90-91, (MD 
NC 1969). As recognized in the opinion of Mr. Justice 
Powell in Keyes, supra, 2714, the need for pupil transpor­
tation is obviously greater in rural than in urban areas.

In Keyes, supra, 2697, this Court emphasized that the 
difference between de jure and de facto segregation is 
a finding of purposeful intent to segregate. In the instant 
cause, neither lower court made any finding of purposeful 
segregation in connection with the statutory urban-rural 
classification employed for allocating categorical state 
school aid transportation funds to school districts. Clearly, 
this urban-rural geographical statutory classification is 
not based on race but on whether children reside within 
or without incorporated cities, irrespective of race. 4

4
In Higgins, supra, plaintiffs sought a multi-district desegregation 

remedy involving Grand Bapids, which has only a 2o% black student 
body, and 11 other surrounding school districts. In a 105 page 
opinion, following a 27 day trial in which all 12 school districts and 
the same state officer defendants involved herein fully participated, 
the District Court ruled that, with the sole exception of faculty 
assignment within Grand Bapids, “ . . . the proofs have failed to 
establish the other allegations in plaintiffs’ complaint, as amended, 
as to the Grand Bapids Board of Education or as to any other de­
fendants in the case.” Slip opinion, p. 103. Thus, in Higgins, supra, 
plaintiffs’ claims of de jure conduct against the state officer de­
fendants, not unlike those made herein, were found wholly lacking 
in merit.



2 0 -

More over, in Keyes, supra, 2698, 2699, this Court held 
that another finding esisential in determining de jure segre­
gation is that the acts in question must have a present 
causal effect of segregation. In this regard, the District 
Court’s finding on transportation reimbursement made no 
reference to any finding of segregative effect within De­
troit. (27a). The Court of Appeals’ majority opinion er­
roneously conveys the impression that the trial court made 
a finding that the lack of state aid transportation reim­
bursement ‘ ‘ contributed to pupil segregation.”  (154a).

However, the trial court made no such finding as, indeed, 
it logically could not in light of its de jure findings con­
cerning the conduct of the Detroit Board of Education in 
transporting children to relieve overcrowding. (129a-139a). 
The Court of Appeals’ majority opinion is manifestly 
inconsistent in its dual ruling that, while Detroit trans­
ported children in a manner furthering segregation, the 
lack of state school aid transportation funds in Detroit also 
contributed to pupil segregation in some inexplicable way.

Finally, as to finding (4), neither lower court made any 
finding that the urban-rural statutory classification em­
ployed for state school aid transportation reimbursement 
to school districts to transport their own pupils had any 
effect on the distribution of pupils by race as between 
Detroit and the other 85 school districts in Wayne, Oak­
land and Macomb counties.

Finding (5) —  Transportation of Carver School 
District’s High School Students

Finding (5) relates to the transportation, by the Detroit 
Board of Education, of high school students from the



.2 1 -

Carver School District, which did not have a high school, 
to Northern High School within Detroit during the late 
1950’s. The majority opinion states that such transporta­
tion “ could not have taken place without the approval, 
tacit or express, of the State Board of Education.”  (Em­
phasis added) (137a-139a, 152a).

The trial court’s finding on this point contains no refer­
ence to the State Board of Education. (96a). The ambiguous 
phrase “ tacit or express” is employed for the reason that the 
record is barren of any proof that the State Board o f Edu­
cation possessed any actual knowledge of the transporta­
tion in question, let alone approving same. The reference 
to the State Board of Education by the Sixth Circuit ma­
jority is simply its own embellishment cut from whole cloth 
without any evidentiary support. The requirement of a 
finding of segregative purpose enunciated in Keyes, supra,
2697, is totally lacking as to finding (5).

The majority opinion of the Sixth Circuit correctly 
states that, in 1960, the Carver School District lost its 
identity and became a part of the Oak Park School District 
under Michigan law. (169a). This Court has adopted the 
sound rule that, to establish a constitutional violation, there 
must be a causal relationship between the act complained 
of and a present condition of segregation. Keyes, supra,
2698, 2699. Obviously, the reliance of the majority herein 
on the transportation of Carver students in the late 1950’s 
to a Detroit high school fails to meet this controlling test 
of present causal nexus in light of subsequent developments 
since 1960 involving the attachment of the Carver School 
District to Oak Park, a basically all white school district, 
and the attendance of students now residing in the former 
Carver area in the Oak Park schools since that time.



■22-

Finding' (3) —  School Construction

Finding (3) relates to the matter of school construction. 
This finding is premised on the alleged statutory control 
of defendant State Board of Education over site selection 
by local school boards for new school construction. (151a, 
157a). This finding of de jure segregation must be care­
fully examined in light o f Michigan’s statutory provisions 
relating to site selection and school construction.

Under Michigan law, defendant Detroit Board of Educa­
tion is empowered with plenary discretionary authority to 
acquire school sites. See sections 192 and 220a of the School 
Code of 1955, supra. The basic Michigan statute dealing 
with the construction of school buildings is 1937 PA  306, 
as amended, MCLA 388.851 et seq; MSA 15.1961 et seq. 
In 1949, by 1949 PA  231, the legislature amended section 1 
of this act to provide, for the first time, that in the ap­
proval of construction plans by the Superintendent of 
Public Instruction, not the State Board of Education, he 
was to consider, as one of several factors, “  [t]he adequacy 
and location of the site.”  In 1962, by virtue of 1962 PA 
175, the legislature amended section 1 o f this statute again, 
thereby removing any power on the part of the Superin­
tendent of Public Instruction to consider site location as 
a factor in approving or disapproving school construction 
plans. This statute, since 1962 and presently, deals only 
with approval of school construction plans in terms of fire, 
health and safety requirements.

Thus, under Michigan law, the legal authority of de­
fendant, Superintendent of Public Instruction in site selec­
tion was, prior to 1949 and after 1962, nonexistent. During 
the intervening period, this limited role related, not to the 
time at which the site was purchased by the local board 
of education but, to a subsequent point in time relating to



— 23—

the submission of construction plans for approval as to 
health, fire and safety, at which point he could consider, 
as one of several factors, the adequacy and location of 
the site. It is the Detroit Board of Education, acting alone, 
that establishes the attendance areas for each school under 
its jurisdiction. Hiers v Detroit Superintendent of Schools, 
376 Mich 225, 235 (1965).

Virtually all the construction relied upon by the lower 
courts in finding de jure segregation occurred after 1962. 
(144a-151a). Clearly, a failure on the part of the Super­
intendent of Public Instruction to exercise a nonexistent 
power under state law cannot constitute purposeful de jure 
segregation as required by Keyes, supra, 2697. This portion 
of the Court of Appeals’ majority opinion is in direct con­
flict with the en banc opinion of the Fourth Circuit in 
Smith v North Carolina State Board of Education, 444 
F2d 6 (CA 4, 1971), vacating portions of the District 
Court’s order directed at the state defendants therein 
for the reason that, under state law, such defendants 
lacked any lawful authority to prescribe school attendance 
plans for local school districts. As the North Carolina 
State Board of Education lacked authority, under state 
law, to prescribe school attendance plans for local school 
districts, so here the Superintendent of Public Instruction 
lacked any authority under Michigan law, to veto the; school 
site selections of defendant Detroit Board of Education.

Although all the construction relied upon relates solely 
to school construction within Detroit, the Court of Appeals ’ 
majority opinion transforms such evidence into a con­
clusion that such construction “ fostered segregation 
throughout the Detroit metropolitan area.”  (Compare 
144a-151a and 157a). It is impossible to conceive how the 
location and construction of school buildings in Detroit, 
by the Detroit Board of Education to serve the children



—2U -

residing therein, constitutes multi-school district de jure 
segregation by the Superintendent of Public Instruction in 
approving construction plans as to health, fire and safety. 
Further, such conclusion on appeal is impossible to recon­
cile with the trial court’s express statement that no proofs 
were taken as to whether any school district, other than 
Detroit, committed any acts of de jure segregation. (59a- 
60a).

Detroit and the other 85 school districts within the coun­
ties of Wayne, Oakland and Macomb each has a locally 
elected board of education with the duty to educate the 
resident children therein. To this end, each of these locally 
elected school boards is empowered to acquire sites and 
construct school buildings that are financed by the sale of 
bonds and the imposition of general ad valorem property 
taxes on property within each district to pay o ff such 
bonds. See sections 77a, 115, 158, 220a and 356 of the 
School Code of 1955, as amended, supra. Unless this entire 
statutory scheme of local governance and finance, involv­
ing separate, identifiable and unrelated school districts, 
Keyes, supra, 2695, is unconstitutional for failure to guar­
antee racial balance within a three county area, the Court 
of Appeals’ majority clearly erred in its purported finding 
of a multi-school district construction violation. As stated 
in Rodriguez, supra, 1307, footnote 110, “  [t]his Court has 
never doubted the propriety of maintaining political sub­
divisions within the States and has never found in the 
Equal Protection Clause any ‘ per se ’ rule of ‘ territorial 
uniformity.’ . . . ”

Finding (2) —  The Effect of 1970 PA 48

Finding (2) relates to Section 12 of 1969 P A  244, as 
amended by 1970 PA  48, MCLA 388.182; MSA 15.2298(12), 
which section delayed implementation of defendant Detroit



—25

Board of Education’s April 7, 1970 racial balance plan 
affecting 12 of its 21 high schools over a three year period. 
(114a-116a, 151a). Section 12 of 1969 PA 244, as amended 
by 1970 PA  48, supra, was held invalid by the Court of 
Appeals on October 13, 1970, and the trial court was ex­
pressly directed to give no effect to such section at the 
trial of this cause. However, the Court of Appeals refused 
to order implementation of the April 7, 1970 plan prior to 
a trial on the merits. 433 F2d 897, 904-905 (CA 6, 1970).

From and after October 13, 1970, Section 12 has been 
legally ineffective. 433 F2d 897, supra. The lack of im­
plementation of the April 7, 1970 plan, since that date, 
has been the result of the unwillingness of the Detroit 
Board of Education to implement such plan and the 
refusal of the District Court, subsequently affirmed on 
appeal, to order its implementation. 438 F2d 945 (CA 6, 
1971) Thus, Section 12 has long since ceased to have any 
causal nexus to the racial composition of the 12 Detroit 
high schools included in the April 7, 1970 plan. Keyes, 
supra, 2698, 2699. Moreover the April 7, 1970 plan, affect­
ing only 12 of 21 Detroit high schools, had no causal con­
nection with the distribution of pupils by race between 
Detroit and any other Michigan school districts.5

This review of the purported findings below against the 
state defendants conclusively demonstrates that, in the judi­
cial quest for the social goal of racial balance among school 
districts, the state officer defendants have become the legal 
scapegoat for reasons far removed from their actual con­
duct in office. Obviously, neither the Governor nor the 
Attorney General are involved in the operation of school

5
The postponement of the April 7, 1970 racial balance plan for one 

semester by § 12 of 1970 P A  48, affected at most, approximately 
3,000 to 4,000 tenth grade students in a school district with 289,743 
students. See 433 F2d 897, 898-901, supra, and (20a).



■26—

districts which explains the lack of any de jure findings 
against these two state officers. The rulings against the 
State Board of Education and the Superintendent of Public 
Instruction, relating to transportation by the Detroit Board 
of Education in the late 1950’s and school construction in 
Detroit during the 1960’s on sites selected and acquired 
locally, with locally established attendance areas, cannot 
constitute purposeful segregatory conduct with a present 
causal effect of segregation as required by Keyes, supra.

In summary, the lower courts herein clearly erred in 
relying upon alleged inter-district financial disparities as 
a predicate for finding constitutional violations by the state 
officer defendants. Rodriguez, supra. Further, the require­
ment that purposeful affirmative action with the present 
causal effect of segregation is necessary in order to find 
de jure segregation, as enunciated by this Court in Keyes, 
supra, was not followed by the lower courts herein in find­
ing de jure conduct by the state officer defendants.

As to defendants Governor, Attorney General and State 
Treasurer, there are simply no findings of conduct result­
ing in de jure segregation. The purported de jure findings 
against the State Board of Education and/or Superinten­
dent of Public Instruction lack the requisite segregatory 
purpose and present causal segregatory effect basis re­
quired by Keyes, supra. To the significant extent the Sixth 
Circuit majority neglected the question of the lack of au­
thority, under state law, of either of these two defendants 
to veto school site selections by defendant Detroit Board 
of Education, it is squarely in conflict with the en banc 
Fourth Circuit opinion in Smith, supra. In view of the 
patent conflicts between the lower courts opinions herein 
and the opinions of this Court in Rodriguez, supra, and 
Keyes, supra, and the Fourth Circuit opinion in Smith, 
supra, review of this cause should be granted.



-27—

II.

THE RULING OF THE COURT OF APPEALS THAT A  
“DETROIT-ONLY” DESEGREGATION PLAN COULD 
NOT REMEDY THE UNCONSTITUTIONAL SEGRE­
GATION FOUND IN THE DETROIT SCHOOL DIS­
TRICT IS NOT SUPPORTED BY THE RECORD, IS 
CLEARLY ERRONEOUS AND IN CONFLICT W ITH  
THE DECISIONS OF THIS COURT AND OTHER 
COURTS OF APPEALS.

The majority of the Court of Appeals affirmed the order 
of the District Court rejecting the plaintiffs’ Detroit-only 
plan to desegregate the Detroit School District. In dissent 
Judge Weick and Judge Kent stated that the majority was 
attempting to overcome demographic racial imbalance as 
between Detroit and surrounding school districts rather 
than correcting constitutional violations limited to the De- 
triot School District. (191a-193a, 224a-225a).

The plaintiffs in their complaint asked specifically for 
the “ elimination of the racial identity o f every school 
in the (Detroit) system and to maintain now and hereafter 
a unitary nonracial school system.”  (15a). This prayer 
of plaintiffs is in accord with the settled cases of this 
Court that if a school district is found to be de jure 
segregated Federal courts must order its dismantling 
so that the system should then be unitary as required 
by Green v School Board of New Kent County, 391 US 
430 (1968); Alexander v Holmes County Board of Edu­
cation, 396 US 19 (1969), and Swann v Charlotte-Mechlen- 
burg Board of Education, 402 US 1 (1971).

It is clear from the record that the District Court con­
ceived its role of dismantling a legally segregated school



— 2 8 -

district in a manner diametrically opposed to the teachings 
of this Court in Swann, Green and Alexander.

During the trial on the merits the District Court made 
the following observations that are pertinent to the matter 
at hand:

“ THE COURT: In other words, if the projection, 
and I will be surprised if it doesn’t follow the course 
which history has shown since 1940, if the projection 
is in that direction then this occurs to me, how do you 
integrate a school district where the student popula­
tion is, let’s make a guess, 85 to 95 percent black? 
How do you integrate it? (Emphasis added).

Trial Transcript, p 3537, June 18, 1971.

‘ ‘ THE COURT: Mr. Ritchie has made some points 
along that line, and I have, and to repeat mine as I 
have said to several witnesses in this case: ‘ How do 
you desegregate a black city, or a black school system; ’ 
That is why I was interested in the projections of the 
student population of the city. We end up with student 
population of Detroit of 80 to 85 percent black. How 
do you integrate, or, if I find segregation, to put it 
another way, how do I desegregate. . . . ”

Trial Transcript, p 4003, 4004, June 24, 1971.

The preoccupation of the District Court with the specu­
lative black student population of the Detroit School Dis­
trict in 1975 and 1980 is underscored by the following find­
ing of the District Court contained in the ruling on issue 
of segregation rendered on September 27, 1971:

“ . . . The percentage of black students in the Detroit 
Public Schools in 1975-76 will be 72.0%, in 1980-81 will



—29—

be 80.7% and in 1992 it will be virtually 100% if the 
present trends continue. . . . ”  (20a).

Seven days later at the pretrial of all counsel in the case 
the District Court said:

“ As the Court indicated during the course of tak­
ing proofs it entertains serious reservations about a 
plan of integration, which encompasses no more than 
the public schools of the city of Detroit. . . .

“ . . . We must bear in mind that the task that we 
are called upon to perform is a social one which 
society has been unable to accomplish. In reality our 
courts are called upon, in these school cases, to attain 
a social goal through the education system, by using 
law as a lever.”  (40a-41a).

The District Court simultaneously ordered the Detroit 
Board of Education to submit a plan for the desegrega­
tion of its schools within 60 days, and ordered the state 
defendants to submit a multi-district plan of desegregation 
within 120 days. (43a, 46a-47a).

The attention of the Court is invited to the District 
Court’s findings of fact and conclusion of law relating to 
plaintiffs’ Detroit-only plan:

“ PL A IN T IFFS ’ PLAN

“ 1. The court finds that Plaintiffs’ Plan would 
accomplish more desegregation than now obtains in 
the system, or would be achieved under Plan A  or 
Plan C.

* * *



— 30—

‘ ‘ 6. The plan does not lend itself as a building 
block for a metropolitan plan. (Emphasis added).

# # #

“ 7. The plan would make the Detroit school system 
more identifiably Black, and leave many of its schools 
70 to 90 per cent Black.6

“ 8. It would change a school system which is now 
Black and White to one that would he perceived as 
Black, thereby increasing the flight of Whites from 
the city and the system, thereby increasing the Black 
student population.

# # #

CONCLUSIONS OF LAW  

• # *

“ 4. Plaintiffs’ Plan, while it would provide a racial 
mix more in keeping with the Black-WThite propor­
tions of the student population 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 de­
segregation. ’ ’ (54a-56a).

6
This finding affirmed by the majority of the Sixth Circuit Court 

of Appeals is opposite to the recent holding of that Court, sitting 
en banc, in Goss v Board of Education of the City of Knoxville,
___  F2d ___ , decided July 18, 1973, approving a Knoxville-only
plan which provided that “some schoools in the Knoxville system 
will remain identifiably black or white on the basis of pupil en­
rollments. . . . ” p 3 of slip opinion.



31—

The plaintiffs’ Detroit-only plan was submitted by Dr. 
Gordon Foster, a widely utilized expert in the area of 
school desegregation, who testified that the plaintiffs ’ plan 
would meet the requirements of a unitary system, would 
meet the constitutional requirements of the Fourteenth 
Amendment, would eliminate discriminatory racially iden­
tifiable schools, and would improve educational opportu­
nities of Detroit school children.

It is also worthy of attention that the District Court 
rendered its Ruling on Propriety of Considering a Metro­
politan Plan on March 24, 1972, and ordered hearings on 
metropolitan plans to commence four days later on March 
28, 1972, even though it did not render its decision on the 
Detroit-only Plan of Desegregation until noon on March 28, 
1972, after the hearings on the multi-district plans were 
in progress.

Finally, this Court is asked to examine the following 
portion o f the ruling on desegregation area and order for 
development of plan of desegregation entered June 14,1972:

“ Within the limitations of reasonable travel time 
and distance factors, pupil reassignments shall be 
effected within the clusters described in Exhibit P.M. 
12 so as to achieve the greatest degree of actual de­
segregation to the end that, upon implementation, 
no school, grade or classroom b[e] substantially dis­
proportionate to the overall pupil racial composition. 
The panel may, upon notice to the parties, recommend 
reorganization of clusters within the desegregation 
area in order to minimize administrative inconvenience, 
or time and/or numbers of pupils requiring transpor­
tation.”  (Emphasis added). (101a-102a).

It is abundantly clear that approval of plaintiffs’ De-



—*32

troit-only plan would frustrate the District Court in attain­
ing the social goal of balancing the races between the 
Detroit and other tri-county school districts.

In affirming the ruling of the District Court on the 
Detroit-only plan the majority of the Sixth Circuit Court 
of Appeals compounded the error of the District Court 
that the constitutional violations found could not be rem­
edied within the boundaries of the Detroit school system.’3' 
Apparently no plan to convert the Detroit system to a uni­
tary system, as required by Green, Alexander and Swann, 
would do, since in the view of the Court o f Appeals any 
Detroit-only plan would not overcome the racial demo­
graphic imbalance between the Detroit and other tri-county 
school districts, arising not from any action of public 
school authorities but from changes in housing patterns.

In Green, supra, a school district 57% black, 43% white, 
was found by this Court to be maintaining a separate school 
for blacks and a separate school for whites. It sought to 
dismantle such system by way of a freedom-of-choioe plan. 
This Court laid down the controlling standard for disman­
tling a segregated school district in that a school board op­
erating a dual school system was obligated to convert to 
a unitary system in which racial discrimination would be 
eliminated root and branch.

“ . . . The Board must be required to formulate a
new plan and, in light of other courses which appear 7

7
This type of erroneous result was recently further expanded by 

the decision that no “Indianapolis Only Plan” of desegregation would 
meet the requirements of the Equal Protection Clause in a school 
district with only a 41.1% Negro student body. United States v 
Board of School Commissioners of the City of Indianapolis, Indiana,
___  F  Supp ___  (SD Ind), No. IP 68-C-225, Slip opinion issued
July 20, 1973, pp 6-9.



‘3 3 -

open to the Board, such as zoning, fashion steps which 
promise realistically to convert promptly to a system 
without a ‘ white’ school and a ‘ Negro’ school, but just 
schools.”  391 US at 442.

In Keyes, supra, 2693, 2694, footnote 11, the Court 
reiterated that Green, supra, relying upon Brown 11 (349 
US 294 [1955]), remains the governing principle. The rul­
ing in Green, supra, was confirmed in Alexander, supra, 
and reviewed and approved in Swann, supra.

Alexander restated the standards for the desegregation 
of several Mississippi school districts:

“ . . . to operate as unitary school systems within 
which no person is to be effectively excluded from any 
school because of race or color.”  396 US, at 20.

In Swann, the Court distilled its holdings in Green and 
Alexander and unanimously reaffirmed the standard to be 
followed:

“ 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 can­
not embrace all the problems of racial prejudice, even 
when those problems contribute to disproportionate 
racial concentrations in some schools.”  402 US, at 23.

The Court then gave fair warning that its ruling should 
not be misapplied:

“ . . . I f we were to read the holding of the District 
Court to require, as a matter of substantive constitu­
tional right, any particular degree of racial balance or 
mixing, that approach would be disapproved and we



-34—-

would be obliged to reverse. The constitutional com­
mand 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.”  
402 US, at 24.

Finally, the Court in Swann said:

“ It does not follow that the communities served by 
such systems will remain demographically stable, for 
in a growing, mobile society, few will do so. Neither 
school authorities nor district courts are constitution­
ally required to make year-by-year adjustments of the 
racial composition of student bodies once the affirma­
tive duty to desegregate has been accomplished and 
racial discrimination through official action is elimi­
nated from the system. . . . ”  402 US, at 31-32.

It is clear that neither the District Court nor the Court 
of Appeals applied and followed these standards. Neither 
lower court made a finding that any pupil of a racial minor­
ity would be excluded from any school, directly or in­
directly, in the Detroit School District, on account of race 
under plaintiffs’ Detroit-only plan. There can be no ques­
tion but that both the District Court and the Court of 
Appeals were attempting to provide for more than a cor­
rection of the adjudged constitutional violation, but instead 
sought to overcome demographic racial imbalance between 
Detroit and suburban communities, as opposed to correct­
ing alleged racial segregation inside the Detroit School 
District. Racial imbalance as a result of demographic 
residential patterns, as contrasted with state enforced 
segregation within a school district, is not offensive to the 
Constitution. Spencer v Kugler, 326 F Supp 1235 (D NJ, 
1971), affirmed on appeal, 404 US 1027 (1972). Clearly, 
the rulings of the District Court and the Court of Appeals



- 3 5 -

are in direct conflict with the controlling authorities of 
this Court, and this Court is ‘ ‘ obliged to reverse. ’ ’ Swann, 
supra, p 24 of the opinion.

The effect of the Court of Appeals’ decision must be 
that a unitary system may not be constitutionally established 
in a majority black school district. The Court of Appeals 
uses the adjective “ overwhelmingly”  black in conjunction 
with its attempt to look into the foreseeable future. No doubt 
this is based upon the District Court’s speculation as to the 
school population of the Detroit School District in 1975, 
1980 and 1990. Since Swann proscribes year by year judicial 
adjustments in pupil assignments because of changing demo­
graphic patterns within a school district, and Green re­
quires desegregation of a segregated school district now, 
the purely speculative student population of the Detroit 
School District in 1975, 1980 and 1990 cannot form the 
basis for the conclusion of the District Court that a unitary 
system cannot be established within the majority black 
Detroit School District.

To the contrary, this Court has held that a unitary 
school system, in which no pupil of a racial minority is 
excluded from any school on account of race, must be 
established in a school district that is majority black. 
Wright v. Council of the City of Emporia, 407 US 451 
(1972); United States v Scotland Neck Board of Educa­
tion, 407 US 484 (1972); Raney v Board of Education of 
Gould School District, 391 US 443 (1968).

The decision of the Sixth Circuit Court of Appeals in 
Northcross v Board of Education of Memphis, 420 F2d 546, 
548 (1969), required a unitary system within a segregated 
school district 57% black and 43% white. In that case, 
the Court of Appeals asked counsel for plaintiffs, who



— 36—

is also chief trial counsel for plaintiffs here, to advice 
what would be a unitary system in Memphis:

“ He replied that such a system would require that 
in every public school in Memphis there would have 
to be 55% Negroes and 45% white. A  departure of 
5% to 10% from such rule would be tolerated. . . . ”

These cases unequivocally demonstrate that there is 
no constitutional requirement that the-' conversion of a 
majority black school district to a unitary system be 
effectuated by involving surrounding school districts. To 
the contrary, these cases stand for the proposition that 
unitary systems may be, indeed, must be, achieved within 
majority black school systems. The District Court’s notion, 
affirmed on appeal, that Detroit could not be integrated 
because it would be perceived as black, is plainly erroneous. 
Almost every school district in the country is either major­
ity white or majority black and thus is susceptible of being 
perceived as such. This numerical fact of life obviously 
gives rise to no constitutional infirmity, whether the pupil 
majority be white or black.

Moreover, the ruling below that the broad remedial equit­
able power of a Federal District Court is insufficient to 
create a unitary school system within Detroit compels the 
conclusion that both lower courts have ruled, in effect, 
that the racial demographic pattern both within Detroit 
and between Detroit and other tri-county school districts is 
inherently unconstitutional. Such result is both unsup­
ported by precedent and directly in conflict with the prior 
decisions of this Court cited above.

The holding of the Court of Appeals that it is constitu­
tionally impermissible to establish a unitary system within 
the Detroit School System squarely conflicts with the de-



— 37—

cision of tile Fourth Circuit Court of Appeals in Bradley v 
School Board of Richmond, Virginia, 462 F2d 1058 (CA 4,
1972), affirmed by an equally divided court in ____U S ____ ,
93 S Ct 1952 (1973). In Bradley v Richmond, supra, the 
District Court approved a plan of desegregation of a seg­
regated school district composed of 64% black and 36% 
white. Shortly after the desegregation plan was imple­
mented the Richmond Board of Education moved to add 
two adjoining majority white school districts to provide a 
“ better”  racial mix. The Fourth Circuit Court of Appeals 
held that there is no federally protected right to racial 
balance within even a single school district but only a right 
to attend a unitary school system. Once a unitary school 
system was achieved within the school district 64% black 
and 36% white, the authority of the District Court to 
further intervene by racially balancing with white suburban 
school districts was neither necessary nor justifiable. 
Bradley v Richmond, supra, must clearly stand for the 
proposition that a unitary school system can be achieved 
within a school district that is 64% black and 36% white, 
notwithstanding that adjoining school districts are major­
ity white. Thus, if the decisions of the lower courts are 
allowed to stand, a unitary system may be achieved in a 
64% black school district in the Fourth Circuit but is 
unachievable in a 63.8% black school district in the Sixth 
Circuit. A  nation committed to rule of law cannot abide 
one rule of law for the Fourth Circuit and another rule 
of law for the Sixth Circuit.

The decision of the Court of Appeals affirming the de­
cision of the District Court rejecting plaintiffs’ Detroit- 
only plan is clearly erroneous and in open conflict with 
the clear standards enunciated by this Court in Green, 
Alexander and Swann. The state of the law so carefully 
developed and delineated by this Court in these cases to 
guide district courts in school desegregation cases will be



■38

thrown into disarray, uncertainty and confusion unless 
this Court grants certiorari and reverses such holding.

Rejection of plaintiffs’ Detroit-only plan by the District 
Court and approved by the majority of the Sixth Circuit 
Court of Appeals because it was not a building block for a 
multi-district racial balance plan is opposite to the hold­
ing of this Court in Scotland Neck, Emporia and Raney.

The decision is also in direct conflict with the decision of 
the Fourth Circuit Court of Appeals in Bradley v Richmond, 
supra. Because of the importance of this case to the juris­
prudence of this nation, the conflict between the two Circuit 
Courts of Appeals must be resolved without delay.

m .

THE DECISION OF THE COURT OF APPEALS, THAT  
A MULTI-SCHOOL DISTRICT REMEDY IS CONSTI­
TUTIONALLY PERMISSIBLE HEREIN, IS ERRO­
NEOUS AND IN CONFLICT W ITH  THE DECISIONS 
OF OTHER COURTS OF APPEALS AND THIS 
COURT.

Plaintiffs’ complaint herein alleged de jure segregation 
only within the confines of the School District of the City 
of Detroit and prayed for relief limited to establishing a 
unitary system of schools therein. (5a, 14a, 15a). After a 
lengthy trial on the merits, at which no school district other 
than Detroit was present as a party in the cause, the District 
Court ruled that the Detroit school system was being 
operated as a de jure segregated school system.

Subsequently, in enunciating the scope of the multi-school 
district remedy, the District Court candidly stated the 
following:



—39—

. . It should be noted that the court has taken no 
proofs with respect to the establishment of the bound­
aries 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.” (59a-60a).

Nevertheless, the trial court proceeded to enter the most 
sweeping remedial decree ever entered in a school desegrega­
tion case, judicially creating a 53 school district desegrega­
tion area involving 780,000 or 1/3 of Michigan’s public 
school pupils.8 This remedial decree mandates the re­
assignment of pupils across school district boundaries and 
compels massive transportation of 310,000 pupils through­
out an area covering approximately 700 square miles for 
the sole purpose of achieving racial balance. (72a, 101a- 
102a).

Thereafter, the trial court commanded the state officer 
defendants to pay for the acquisition of at least 295 buses 
for use in a partial, interim, multi-district desegregation 
plan during the 1972-73 school year. The approximate cost 
of this initial order to acquire transportation would have 
been approximately $3,000,000.00 since one school bus meet­
ing Michigan standards costs approximately $10,500.00. 
(106a-107a).

The Court of Appeals, while affirming the propriety of a 
multi-school district remedy, partially vacated the multi-

8
Eighteen of these 53 school districts have never been parties to 

this proceeding: at any time and except for Detroit, the remaining 34 
school districts were granted limited intervention on March 15, 
1972 only for the purposes of filing a brief on the propriety of a 
multi-district remedy and reviewing multi-district plans.



- 4 0 -

district remedial decrees for the sole reason that 18 affected 
school districts within the desegregation area had never 
been made parties to this cause, contrary to Rule 19, FR 
Civ P. (176a-179a). However, it is clear that upon remand 
all school districts made parties to the cause may be in­
cluded in the multi-district remedy.

The ruling of the Sixth Circuit majority, affirming the 
propriety of a massive multi-district remedy herein, must 
be tested against the controlling federal appellate prece­
dents. When so tested, these defendants submit that the 
conflict between such ruling and the decisions of both other 
courts of appeals and this Court becomes manifest.

In Swann, supra, this Court unanimously enunciated the 
following principles concerning school desegregation rem­
edies:

“ . . . 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 extends it is im­
portant to remember that judicial powers may be ex­
ercised only on the basis of a constitutional viola­
tion . . .

“ . . . As with any equity case, the nature of the viola­
tion determines the scope of the remedy . . . ”  402 US, 
at 16.

Here, the violation or condition found to offend the Consti­
tution is expressly limited to de jure segregation within the 
Detroit school system, which condition may be remedied as 
set forth in Part II herein in accordance with Swann, supra.



— 41

The courts below, contrary to the controlling principles of 
Swann, supra, have expanded the remedy to include scores 
of other school districts without the support of any claims, 
proofs or findings concerning either the establishment of 
school district boundaries or any conduct resulting in de 
jure segregation by any school district other than Detroit.

This is not surprising in light of the history of Michigan 
law establishing the coterminous nature of the school dis­
trict and city boundaries of Detroit over 100 years ago in 
1842 as follows:

“ That the city of Detroit shall be considered as one 
school district, and hereafter all schools organized 
therein, in pursuance of this act, shall, under the direc­
tion and regulations of the board of education, be public 
and free to all children residing within the limits 
thereof, between the ages of five and seventeen years, 
inclusive.”

See Section 1 of 1842 PA 70.

Moreover, some 98 years later, in 1940, the population of the 
City of Detroit was approximately 90% white, thus negating 
any possible inference that the city and school district 
boundaries were made coterminous for the purpose of 
separating people or school children on the basis of race. 
(21a).

In Spencer v Kugler, supra, plaintiffs challenged the ra­
cial imbalance existing among Few Jersey’s school districts. 
The lower court, in rejecting plaintiffs’ challenge, noted 
that under New Jersey law school district boundaries con­
form to municipal boundaries, p 1240, and held the follow­
ing:



— 42—

‘ ‘ A  continuing trend toward racial imbalance caused 
by bousing patterns within the various school districts 
is not susceptible to federal judicial intervention. The 
New Jersey Legislature has by intent maintained a 
unitary system of public education, albeit that system 
has degenerated to extreme racial imbalance in some 
school districts; nevertheless the statutes in question 
as they are presently constituted are constitutional.” 
326 F Supp, at 1243.

On appeal, this Court affirmed. Obviously the Court of 
Appeals’ decision in this cause is in derogation of Spencer 
v Kugler, supra.

Turning to Bradley v Richmond, supra, a case in which 
historically, under Virginia law, unlike Michigan, every 
school district operated a dual school system, the Fourth 
Circuit, having, at p 1064, “ searched the 325-page opinion 
of the district court in vain for the slightest scintilla of 
evidence that the boundary lines of the three local govern­
mental units have been maintained either long ago or 
recently for the purpose of perpetuating racial discrimina­
tion in the public schools” found none and accordingly 
reversed. In reversing the order of the lower court com­
pelling the restructuring of three school districts for racial 
balance purposes as being prohibited by the Tenth Amend­
ment, in the absence of purposeful discrimination as to 
the establishment and maintenance of school district bound­
ary lines, the Fourth Circuit correctly followed the purpose 
test subsequently enunciated by this Court in Keyes, supra. 
Here, as in Bradley v Richmond, supra, the record is barren 
of proof of purposeful segregation concerning the estab­
lishment and maintenance of the school district boundaries 
in question. (See the dissenting opinion of Circuit Judge 
Kent, 222a-225a.) Thus, the decision of the Fourth Circuit 
in Bradley v Richmond, supra, and the Sixth Circuit major-



__43__

ity herein constitute an irreconcilable conflict which may 
only be resolved by this Court.

The Sixth Circuit Court’s attempt to distinguish Bradley 
v Richmond, supra, on the basis that the instant case does 
not involve a restructuring of school districts, only the 
cross-district reassignment of pupils, is manifestly un­
tenable. (175a). The District Court’s order of June 14,1972 
commands, inter alia, the following:

“ The State Superintendent of Public Instruction, 
with the assistance of the other state defendants, shall 
examine, and make recommendations, consistent with 
the principles established above, for appropriate in­
terim and final arrangements for the (1) financial, 
(2) administrative and school governance, and (3) con­
tractual 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 arrange­
ments of the various school districts.

# # *

. . In particular, the Superintendent shall examine 
and choose one appropriate interim arrangement to 
oversee the immediate implementation of a plan of 
desegregation.” (104a-105a.)

Further, the Court of Appeals majority itself states later 
in the opinion that “ the Legislature of Michigan has an op­
portunity to determine the organizational and governmental 
structure of an enlarged desegregation area” for remedial 
purposes. (188a-189a). This language conclusively lays to 
rest any pretense that the multi-district remedy herein may 
be implemented among scores of legally, geographically



44

and politically independent Michigan school districts, each 
having its own locally elected board of education with legal 
authority over matters of taxation, bonding, personnel and 
curriculum, without a traumatic restructuring of the exist­
ing organizational and governmental structure of scores of 
school districts in Wayne, Oakland and Macomb counties. 
See, e.g., Part 1, Chapter 4 and Part 2, Chapter 9 of the 
School Code of 1955, as amended, supra.

Moreover, by the above quoted language the Court of 
Appeals has correctly recognized that, in Michigan, as in 
Virginia, the power over school district boundaries is re­
posed in the Legislature, not the State Board of Education. 
Bradley v Richond, supra, p 1067. Thus the analogy the 
Sixth Circuit makes (175a) between the powers of the 
Virginia State Board of Education and the State o f Michi­
gan, including its legislative branch of government, is un­
sound.

In essence, the Fourth Circuit ruled that, absent proof 
of purposeful segregation in the establishment and main­
tenance of school district boundaries, a multi-district 
remedy was beyond the scope of federal judicial power 
under the Constitution. The Sixth Circuit ruled that, not­
withstanding the absence of any pleaded allegations, proofs 
or findings of purposeful segregation in the establishment 
and maintenance of school district boundaries, nevertheless 
a multi-district remedy is constitutionally permissible for 
the sole purpose of achieving racial balance within a three 
county area. This conflict between the circuits is clear and, 
we respectfully submit, merits the granting of certiorari 
herein.

In the language of Keyes, supra, 2695, the school districts 
involved herein are legally, politically and geographically 
“ separate, identifiable and unrelated units”  within the State



*—45—

of Michigan. As demonstrated above, both lower courts 
herein have recognized the need for restructuring these 
governmental units if a multi-district remedy is to be 
effectuated in this cause. Otherwise, parents would be 
voting on school board candidates and school tax rate pro­
posals in the district where they reside, while their school 
age children would be educated in another school district 
where the parents would be denied any effective control 
over school board members, school tax rates, and decisions 
affecting educational personnel and curriculum. The cross­
district reassignment of pupils for purposes of racial 
balance, without more, would completely vitiate any concept 
of local parental control over the education of their children.

This Court has recently recognized in both Emporia, 
supra, 469 and 478, and Rodrigues, supra, 1305, the con­
tinuing importance of local participation and control in 
educational decision making. This rational state interest, 
which is sufficient to justify large inter-district financial 
disparities, is served by the existing boundaries and govern­
mental structure of the school districts involved herein 
covering a densely populated three county area. The 
coterminous nature of the boundaries of the city and school 
district of Detroit is rational, racially neutral and of historic 
origin. As noted in Rodrigues, supra, 1307, footnote 110, 
“  [t]his Court has never doubted the propriety of maintain­
ing political subdivisions within the States and has never 
found in the Equal Protection Clause any per se rule of 
‘ territorial uniformity.’ ”  Thus, in the absence of any 
finding below that the school district boundary lines in­
volved herein are “ the product of a state contrivance to 
segregate on the basis of race or place of origin, ’ ’ the multi- 
district remedy decreed below must fall. Wright v Rocke­
feller, 376 US 52, 58 (1964).



— 46—

Education is not among the rights afforded their 
explicit or implicit protection under the Federal Con­
stitution. Rodrigues, supra, 1297. Thus, while not dis­
paraging the undisputed importance of public education, 
it is wise to remember that education is a function en­
trusted to the states under our federal system of gov­
ernment. The Michigan legislature, in response to the 
state constitutional command to establish and maintain a 
system of free public elementary and secondary education 
(Const 1963, art 8, •§ 2), has enacted the' provisions of the 
School Code of 1955, as amended, supra. Pursuant to this 
statutory enactment, local participation and control over 
public education is encouraged and facilitated through local 
school districts and locally elected school boards with broad 
discretionary authority. As stated by this Court in Rod­
rigues, supra, 1305, “ [a]n analogy to the Nation-State 
relationship in our federal system seems uniquely ap­
propriate.”  i

However, the rulings of the lower courts herein concern­
ing a multi-district remedy deny due process to the affected 
school districts outside Detroit in the judicial quest for 
racial balance. (See dissenting opinions of Judge Weiek, 
205a-212a; Judge Kent, 230a-238a; Judge Miller, 239a-34:0a).

Under Michigan law, Michigan school districts may sue 
and be sued. Further, each board of education has the right 
to hire local counsel of its own choosing. See §§ 352 and 
609 of the School Code of 1955, as amended, supra. More­
over, it has been the consistent position and conduct of the 
state officer defendants throughout this litigation that they 
do not represent any of the school districts involved in 
this cause. The false notion that the interests of the state 
officer defendants and local school districts are as one, and 
thus may be effectively represented by just the state de­
fendants, is surely put to rest by the decision of defendant



—47—

Detroit Board of Education to accept the de jure findings 
against it and support a multi-district remedy.

On this point, the majority opinion of the Court of Appeals 
is manifestly inconsistent and illogical. Such opinion 
recognizes the independent legal status of Michigan school 
districts for purposes of remedial housekeeping, but on the 
crucial issues of remedy within Detroit and the legal pro­
priety of a multi-district remedy, this independent legal 
status is completely ignored. (176a-178a). The holding that 
each “ affected district first must be made a party to this 
litigation and afforded an opportunity to be heard” (177a), 
is without substance since the opportunity to be heard is 
available only after the decisive issues have already been 
adversely determined.

For the school districts affected herein and their boards 
of education, the interest at stake is their continued exist­
ence as viable governmental entities. To paraphrase the 
language of the dissenting opinion in Emporia, supra, 478, 
to bar these school districts from operating their own school 
systems for the children within their respective geograph­
ical boundaries is to strip them of their only governmental 
responsibility and to deny them any existence as independ­
ent governmental entities, all without their day in court. 
Further, unlike Emporia, supra, this case involves existing 
school districts outside the geographical area of the school 
system previously found to be de jure segregated.

For the parents of school age children within these school 
districts, the interest at stake is the parental right to direct 
the upbringing and education of children under their 
responsibility and control. Pierce v Society of Sisters, 268 
US 510 (1925). Wisconsin v Yoder, 406 US 205 (1972). 
This paramount parental interest, which limits the scope of 
state power over public education, is also clearly entitled



— 48—

to recognition in terms of the power of federal courts over 
public education for purposes of racial balance. At a 
minimum, such parents are entitled to be heard, through 
their locally elected boards of education, at a meaningful 
stage in the proceedings. After all, as cogently noted by 
Mr. Justice Powell in Keyes, supra, 2717, 2718, the com­
pulsory transportation of any child to a distant school 
solely for racial balance purposes impinges upon the liberty 
of that child and it is the parents and children who shoulder 
the full burden of affirmative remedial action in these cases, 
although they did not participate in any constitutional viola­
tion.

In summary, the decision of the Court of Appeals that 
a multi-school district remedy is constitutionally permissible 
herein squarely conflicts with this Court’s affirmance in 
Spencer v  Kugler, supra. Further, there is an irreconcilable 
conflict between the Fourth Circuit’s decision in Bradley v 
Richmond, supra, and the Sixth Circuit’s decision herein on 
the question of a multi-school district remedy. Both cases 
involve the judicial restructuring of independent local 
school districts for racial balance purposes. Where, as here, 
the record is barren as to any multi-school district constitu­
tional violation concerning either school district boundary 
lines or the conduct of any school district, other than 
Detroit, the granting of certiorari is clearly in order to 
review this unprecedented expansion of federal judicial 
power over public education. The affected local school 
districts, their boards of education and, most importantly, 
the hundreds of thousands of parents and school age 
children residing therein, upon whom the burden of af­
firmative remedial action will fall, deserve no less than 
full review by this Court of the unprecedented decision of 
the Court of Appeals.



— 49—

IV.

THE QUESTION OF W HETHER A MULTI-SCHOOL 
DISTRICT REMEDY IS CONSTITUTIONALLY PER­
MISSIBLE IN THIS CAUSE IS AN IMPORTANT 
QUESTION OF FEDERAL L A W  WHICH SHOULD BE 
DEFINITIVELY SETTLED BY THIS COURT.

In its July 20,1972 order herein, granting an interlocutory 
appeal and staying the proceedings below, except for 
remedial planning, the Court of Appeals stated:

“ [TJhere is at least one difficult issue of first im­
pression that never has been decided by this court or 
the Supreme Court.” (108a).

This question is obviously the question of under what 
circumstances a multi-school district remedy, expressly re­
quiring the cross-district reassignment and transportation 
of pupils and contemplating, if not yet requiring, the even­
tual merger of separate, identifiable and unrelated school 
districts, is constitutionally permissible.

Based on the prior decisions of this Court, as applied to 
this cause, the lower courts committed manifest error in de­
creeing a multi-district remedy in the absence of any pleaded 
allegations, proofs or findings that the school district bound­
aries were established and maintained with the purpose and 
present causal effect of separating school children solely by 
race. However, assuming arguendo that the prior precedents 
of this Court are not controlling herein, it is beyond dispute 
that this is an important question of federal law which this 
Court should resolve.

The “ familiar phenomenon” of racial residential con­
centration within large urban areas is, indeed, a hard reality



— 50—

of American life on a national scale. Further, the fact of 
majority black, big city school districts is also a national 
phenomenon which includes not only Detroit and Richmond 
but also, for example, Atlanta, Cleveland, Baltimore City, 
Birmingham, Chicago, Memphis, New Orleans, Philadelphia, 
Washington, D.C., Gary, Kansas City, Newark, Oakland, 
St. Louis. Swann, supra, p 25; Keyes, supra, 2702, 2704; 
1971 H EW  Enrollment Survey, 118 Cong. Ree. S 144-148, 
January 20, 1972; United States v Board of School Com­
missioners, Indianapolis, Indiana, 332 F Supp 655, 677 
(1971).

As noted in the dissenting opinion of Circuit Judge Kent, 
it is the underlying racial demographic pattern within 
a 3 county area that forms the now inarticulated first 
premise for the majority opinion of the Court of Appeals 
requiring a multi-district remedy. (224a). This type of 
demographic pattern, itself a national phenomenon, is 
clearly a recurring theme in present and future school 
desegregation cases in the Federal courts with which this 
Court must come to grips.

The people o f Michigan are aware that, notwithstanding 
a long history of dual school systems in every school 
district by mandate of state law never found in Mich­
igan, the proposed multi-district remedy in Bradley v 
Richmond, supra, was ultimately rejected by the Court 
of Appeals for the Fourth Circuit and affirmed by equally 
divided action of this Court. The concern expressed by 
Mr. Justice Powell’s opinion in Keyes, supra, 2702, 2703, 
2707-2711, for uniform national standards in school de­
segregation litigation is relevant here. If, unlike, Brad­
ley v Richmond, supra, there is to be a multi-district 
remedy here, the hundreds of thousands of parents of Michi­
gan school children who will be reassigned out of their 
neighborhood schools and transported across school district



51

and county lines solely for racial balance purposes should 
first be told, by this Court, why the result in this cause must 
be different than the result in Bradley v Richmond, supra, 
i.e., why the rule in Michigan must be different than the 
rule in Virginia.9

Within Michigan, the judicially created “ desegregation 
area” originally ordered by the District Court involved 53 
legally independent school districts and included 780,000 
school children and their parents. Further, the proposed 
multi-district remedy will have a traumatic impact on 
Michigan’s statutory arrangements for local governance and 
control of public education, not to mention a multi-million 
dollar impact on limited public funds otherwise available 
to educate, not transport, school children. Before this un­
precedented exercise of federal judicial power becomes a 
reality, in the name of racial balance as the single judicial 
goal before which all else must fall, we respectfully submit 
that this Court should carefully review and decide this 
important cause on the merits.

As alluded to in the opinion of Mr. Justice Powell in 
Keyes, supra, 2718, currently the major issue in public edu­
cation is the “ perennially d[i]visive debate over who is to

9
In contrast to both decisions in Bradley v Richmond, supra, and 

the instant cause, the recent district court decision in United States 
v Board of School Commissioners of the City of Indianapolis, In­
diana, supra, has further confused the law in this area by compelling 
a multi-school district remedy limited to the one way transfer and 
transportation of black students from Indianapolis to surround­
ing school districts for the reason that “ [t]he Court is of the opinion 
that it would be without jurisdiction to order the exchange of pupils 
between IPS (Indianapolis) and added defendants at this time.



be transported where.” 10 This hotly disputed issue in­
fluences local, state and national elections and, as this Court 
is aware, has spawned serious attempts to amend the Con­
stitution. Without guidance from this Court, this conflict 
will only become more exacerbated as the focus shifts from 
intra-district litigation to inter-district litigation involving 
cross-district reassignment and transportation of children 
for racial balance purposes. This question should, indeed, 
must be definitively settled by this Court in the interests of 
returning public education to its primary goal of quality 
education for all children rather than protracted nation­
wide litigation over school district restructuring for the 
sole purpose of racial balance.

It is Negro children of IPS (Indianapolis) and not suburban chil­
dren who are being deprived of a constitutional right, and so long 
as the various school corporations remain separate the Court be­
lieves that it would have no basis to direct that a suburban child 
be transported out of its own school corporation.” Slip opinion 
issued July 20, 1973, p 27.
10

As noted above in the STATEM ENT OF TH E CASE plaintiffs 
filed a motion on August 6, 1973 in the District Court to compel the 
joinder of additional school districts as parties. I f  such motion is 
granted, the school district defendants herein will include 85 in­
dependent school districts having approximately 1,000,000 pupils and 
covering approximately 1,952 square miles.



53—

CONCLUSION

For the foregoing reasons, a writ of certiorari should 
issue to review the decision of the Sixth Circuit rendered 
herein on June 12, 1973.

Respectfully submitted,

FRANK J. KELLEY 
Attorney General

Robert A. Derengoski 
Solicitor General

Eugene Krasicky 
Gerald F. Young 
George L. McCargar 
L. Graham Ward

Assistant Attorneys General

Attorneys for Petitioners 
720 Law Building 
525 West Ottawa Street 
Lansing, Michigan 48913

Dated: September 6, 1973.



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