Dorsey v. Stuyvesant Town Corporation Appendix to Brief of Respondents in Opposition to Petition for Writ of Certiorari

    Ronald BRADLEY

MILLIKEN, et alWilliam



W A L L A C E  D.  R I L E Y  

G E O R G E  T. R O U M E L L ,  J R .  

D O R O T H Y  C O M S T O C K  R I L E Y  

J A N E  K E L L E R  S O U R I S  

L O U  I S  D.  B E E R  

K.  P A U L  Z O S E L

*  *

R i ley and Roumell
A T T O R N E Y S  A N D  C O U N S E L O R S  A T  L A W  

7  T_M F L O O R  F O R D  B U I L D I N G  

D E T R O I T ,  M I C H I G A N  A 6 2 2 6

March 22, 1972

T E L E P H O N E  

( 3 1 3 )  9 6 2 - 8 2 5 5

The Honorable Stephen J. Roth 
United States District Court 
Federal Building 
Detroit, Michigan 48226

Re: Bradley v. Milliken - Case No.
35257 '

Dear Judge Roth:
We hereby submit to the Court an original 

and two copies of the following:
(1) Detroit School Board's Brief On 

Law In Support Of Metropolitan 
Plan Presented By Defendants 
School Board For the City of 
Detroit and Other Defendants;

(2) Detroit School Board's Brief
In Support of Metropolitan Plan 
based on Testimony Elicited at 
Hearing On Detroit-Only Plan.

Very truly yours,
RILEY AND ROUMELL

GTR: L 
Ends .
cc: Counsel of Record



UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

)RONALD BRADLEY, et al, )
)Plaintiffs, )

v. )
)WILLIAM G. MILLIKEN, et al, )
)Defendants, )

and )
)DETROIT FEDERATION OF TEACHERS, LOCAL ) 

#231, AMERICAN FEDERATION OF TEACHERS, ) 
AFL-CIO, )

Defendant-Intervenor, )and )
)DENISE MAGDOWSKI, et al, )
)Defendants-Intervenor. )

_________________________________________________)

Civil Action 
No. 35257

BRIEF
ON LAW IN SUPPORT OF METROPOLITAN PLAN PRESENTED 
BY DEFENDANTS SCHOOL BOARD FOR THE CITY OF DETROIT 

AND OTHER DEFENDANTS

PREFACE
The Brief that follows is directed primarily to the legal 

basis for a Metropolitan Plan. There is submitted to the Court 
simultaneously with this Brief a Brief directed to the evidence 
elicited at March 14, 1972, et al, hearings which through evidence 
supports the law submitted in this Brief.

I.

If there is a right to any remedy in this case, it is 
because the State of Michigan, through its various agencies and 
subdivisions, has segregated black school children from white 
school children. It is an essential element of the Plaintiffs’ 
cause of action that state action be proven. Deal v. Cincinnati
Board of Education, 369 F.2d 55 (6th Cir.1966) cert.denied, 389



#

U.S. 847(19__); Bell v. School City of Gary, 213 F .Supp.819,aff'd,
324 F.2d 209 (7th Cir.1963) cert.denied,377 U.S.924 (1964); Downs 
v. Board of Education of Kansas City, 336 F.2d 988 (10th Cir.1964), 
cert.denied, 380 U.S.914 (1965). Relief in the instant case is not
sought solely upon claims that the Detroit Board of Education has 
acted to separate pupils on the basis of race. Plaintiffs' claim 
is based in major part upon the intervention of the State of Michi­
gan, acting through its most authoritative bodies, the legislature 
and the chief executive. Because of that authoritative intervention, 
it is impossible to divorce any part of the State of Michigan from 
the grievance asserted by the Plaintiffs and because of that inter­
vention, the State is obliged to come forward with a plan for the 
achievement of a unitary school system that "promises realistically 
to work and promises realistically to work now." Green v. County 
School Bd. of New Kent County, 391 U.S.430, 88 S.Ct.1689 (1968);
Swann v. Charlotte-Mecklenburg Bd. of Eauc.,402 U.S. 1,91 S.Ct.
1267 (1971); Davis V. Board of School Comm'rs of Mobile County,
402,U.S.33,91 S.Ct.1289 (1971).

At least three elements must be present for a plan to 
"work." (1) Every school, or almost every school, should contain 
a mixture of the races that roughly approximates the make-up of 
the student community as a whole. Swann v. Charlotte-Mecklenburg 
Bd. of Educ., 402 U.S. 1,91 S.Ct.1267,1280-81 (1971); Davis v.
Board of School Comm'rs of Mobile County, 402 U.S.33,91 S.Ct.1289 
at 1292 (1971). (2) The plan should be educationally sound. See
Swann, supra, 91 S.Ct. at 1283. (3) The plan should avoid resegre­
gation. Lemon v. Bossier Parish School Board, 446 F.2d 911 (5th 
Cir.1971). Each of these elements of a workable plan deserves 
to be examined more closely.

The racial mix: As Swann and the companion Davis
case make clear, the pupil racial mixture of each school under

-2-



#

a desegregation plan is a crucial test of the sufficiency of 
the plan. "The measure of any desegregation plan is its effec­
tiveness." Davis, supra, 91 S.Ct. at 1292.

Until recently, courts have assumed that the relevant 
community by which to measure the effectiveness of the racial 
mixture was the school district itself. That assumption has 
been readily abandoned in a variety of cases in which boundaries 
of the district were alleged to be a major factor contributing 
to segregation or preventing its elimination. See Haney v.
County Bd. of Educ. of Sevier County, 410 F.2d 920 (8th Cir.
1969); United States v. Texas, 447 F.2d 551 (5th Cir.1971); Lee 
v. Macon County Bd. of Educ.,448 F .2d 746 (5th Cir.1971); Turner 
v. Littleton-Lake Gaston School Dist.,442 F.2d 584 (4th Cir.1971);
Bradley v. School Board of the City of Richmond,___F.Supp.___(E.D.
Va.,Jan.5,1972). Once the handy but manipulable equation of 
"community" with "school district" is abandoned, the next task 
is to identify the community from other evidence. Obviously that 
is a task of approximation, of judgment, rather than of exact 
measurement, the sort of task familiar to the court of equity.

Two sorts of standards are available to a court looking 
for a guide to the extent of a given community, objective and 
subjective standards. Neither is exact. Each is "fuzzy" at the 
edges. Yet normally one would expect the two types of standards 
to have a high degree of coincidence. The subjective indications 
of the extent of a community are the perceptions of its members. 
Obviously not all perceptions will be the same, but there should 
normally be a high degree of agreement. It is the perception 
of the black child in a segregated school system that he is part 
of a larger community that brings home to him the disadvantageous 
position to which the larger community has consigned him (see 
testimony of Plaintiffs' expert, Dr. Green, Tr.865).̂ - The objective

^Also see the testimony of Dr. James Guthrie on Friday, March 17, 
1972 at transcript 455-59.

- 3



indicia of the extent of the community are normally taken into 
account by a person forming a subjective perception of its 
extent. The sorts of objective data that indicate the existence 
of a community are numerous. Transportation networks, commuting 
patterns, shopping patterns, distribution areas, absence of geo­
graphic barriers, and regional governmental cooperation are some 
of the most obvious indicia of a natural community. The State 
of Michigan has recognized the existence of a larger community-in­
fact in a variety of ways, such as the establishment of inter­
mediate school districts and special authorities to conduct public 
affairs on an area-wide basis. While political boundaries in 
small towns outside metropolitan areas may coincide with the
objective community, metropolitan population movements have been

2far more fluid than have been political boundaries.
In determining that three school systems should be merged 

into one, the United States District Court in Richmond, Virginia, 
relied heavily upon both subjective and objective indications that 
all three were part of a natural community. Bradley v. School Board
of the City of Richmond, ___F.Supp.___(Jan.5,1972). As the state
had used a variety of means to separate the community on the basis 
of race and political boundaries, the Court determined that a full 
remedy could only be one involving the entire community rather than 
each school district separately.

Educational soundness: No desegregation plan can
"work" unless it is educationally sound. The educational soundness 
of an integration plan is to a large extent dependent upon how 
effectively it gives children an opportunity to have stable multi­
racial experiences in groups composed substantially like the 
surrounding community. Such experiences, especially if begun 
as early as possible, give children of both major races accurate

2 See the testimony of Dr. Roger Marz on March 15, 1972, transcript 
200-7. 4



perceptions of their own abilities and those of the members of 
the opposite race. These informed self-perceptions in turn lead 
to more self-confidence and better scholastic performance. Multi­
racial education is essential preparation for life in a multi­
racial society. For this reason, if no other, schools should 
reflect the racial composition of the entire community that they 
are in. See Bradley v. School Board of the City of Richmond,
___F.Supp.__ (E.D.Va.,Jan.5,1972) (slip op.p.249-50) . The testimony
of Plaintiffs' expert witness, Dr. Green, is substantially in 
agreement with this view of what constitutes a sound educational 
plan. (Tr.863-69; 1049-51).

Resegregation: No plan can "work" if it offers
a ready avenue for resegregation. "Time and again courts have 
rejected half measures as insufficient. . . well aware that other­
wise the achievement will only be temporary." Bradley v. School 
Bd. of the City of Richmond, slip.op. at p.66. Even policies 
pursued by school board officials in good faith do not relieve 
them of their duty fully to eradicate the vestiges of segregation. 
Clark v. Board of Educ.of Little Rock School Dist.,426 F.2d 1035 
(8th Cir.1970). It follows then that the courts should require 
school authorities to take steps to prevent resegregation by 
various means. Lemon v. Bossier Parish School Bd., 446 F.2d 911 
(5th Cir.1971). Similarly, in protecting Fourteenth and Fifteenth 
Amendment rights, the Supreme Court has spoken of a "need to 
eradicate past evil effects and to prevent the continuation or 
repetition in the future of discriminatory practices. . . . "  
Louisiana v. United States, 380 U.S. 145,156 (1965). Were a less 
rigorous standard insisted upon by the courts, the constitutional 
obligation to eradicate segregation "root and branch" would be 
reduced to a pruning that would let the old evil grow back, more 
vigorous and more intractable than ever. In the present case,

-5-



this court has held that "school districts are accountable for 
the natural, probable and foreseeable consequences of their 
policies and practices." Prior judicial approval of the methods 
to be used leaves them no less accountable for the results 
attained. See Swann v. Charlotte-Mecklenburg Bd.of Educ., 402 
U.S. 1,91 S.Ct. 1267 at 1271-72 (1971). Neither the court nor 
the school authorities would be true to their duty were they to 
adopt a plan that foreseeably will create more, rather than less, 
segregation.

II.

It is abundantly clear to the Detroit Board of Education 
that no Detroit-only plan can be constitutional. A tri-county 
plan is the only one that will provide the remedy constitutionally 
required.

Complete relief within Detroit is impossible. Detroit 
is the hub of a highly interrelated metropolitan area which con­
tains a public school population that is approximately 80% white 
and 20% black. Yet the student population within the Detroit 
school system is 65% black. There are no steps the Detroit Board 
can take within its boundaries which will integrate the city 
schools in any meaningful sense. If the Detroit Board should 
implement the Plaintiffs' plan, it would assure that all schools 
in the city and therefore the Detroit system itself will be 
racially identifiable. The inevitable white and middle-class 
flight which would result from adopting the Plaintiffs' plan 
even on an interim basis would both make the system more strongly 
identifiable as a black system and make real integration more 
difficult and costly. It would intensify the housing segregation 
this court has found to exist in the metropolitan area.3

Implementing the Plaintiffs' plan would "integrate"

~̂ See Bradley v. School Board of the City of Richmond____, F 2 Supp__
(E.D. VA. Jan. 5, 1972 ( where Judge Mehrige found at page 66 that a 
Richmond only integration plan resulted in 39% white flight in two 
years. 6



less than one-third of the real community, leaving more than 
two-thirds unaffected. In point of fact, the Plaintiffs' plan 
would leave nearly every child in metropolitan Detroit in a 
racially identifiable school, the city children in black schools 
and the suburban children in white schools. Such a result is 
highly suspect in light of the Swann statement that schools of 
one race "will require the closest scrutiny" and that there is 
a "presumption against schools that are substantially dispropor­
tionate in their racial composition." Swann v. Charlotte-Mecklen- 
burg Bd. of Edu., 91 S.Ct. at 1281. Indeed the result of the 
Plaintiffs' plan would be a system closely analogous to that 
described by Plaintiffs' counsel in another case:

In the Richmond metropolitan school community, 
having a racial composition of 66 per cent white ' 
and 34 per cent black, the present desegregation 
plan confined solely to the boundaries of the City 
of Richmond, has done nothing to eliminate the 
racial identity of those Richmond schools which 
have historically been black schools. In the 
Baker Elementary School, 80 per cent of the students 
are black. Prior to the present school year, Baker 
was an all-black school and since its construction, 
it has been a black school....In the Richmond metro­
politan community, the Baker Elementary School is 
clearly identifiable as a black school.

*  *  *

In the Richmond metropolitan community, wherein 
all of the elementary schools surrounding the City 
of Richmond are virtually all-white, and located 
in very close proximity to the elementary schools 
of the City of Richmond, approximately two dozen 
Richmond elementary schools remain clearly identi­
fiable as black schools with the reliable prediction 
that they will continue to be black schools.

No desegregation plan confined solely to the 
City of Richmond can eliminate the vestiges of the 
former dual school system which has existed and is 
currently still existing in the jurisdictions of 
Henrico, Richmond and Chesterfield.

The desegregation plan for the Richmond school 
community prepared by the Richmond school board... 
demonstrates the lack of educational validity or 
compelling state interest which would justify 
retention of the artificial political boundaries 
as barriers to pupil and teacher assignment.

* * *

7-



Richmond, Henrico and Chesterfield have a 
common heritage, common interests and the same 
basic economy. The boundary lines between the 
three jurisdictions are so irregular and complex 
that a resident cannot tell when he enters one 
jurisdiction and leaves another.

"Plaintiffs Proposed Findings of Fact and Conclusions of Law,"
PP• 34-37, Bradley v. School Board of the City of Richmond,
Civil Action No. 3353-R (E.D.,Va.) (emphasis added),̂

This Court, in its September 27, 1971 ruling found that 
"The Board, in the operation of its transportation to relieve 
overcrowding policy, has admittedly bused black pupils past or 
away from closer white schools with available space to black 
schools." Ruling Of Issue Of Segregation, pp.11-12. A Detroit- 
only plan would have the same effect in some instances, particu­
larly where predominately black Detroit neighborhoods border on 
white suburbs. There are white schools within reasonable walking 
distance of black children in Detroit, who nevertheless are 
proposed to be transported elsewhere in the city to attend 55-75% 
black schools. If such a result is unconstitutional when relieving 
overcrowding as the Court held on p. 24 of its September 27 ruling, 
it is outrageously unconstitutional when done in the name of inte­
gration .

Similarly this Court has found, at pp.8-9 of its September 
27 ruling, that "Residential segregation within the city and 
throughout the larger metropolitan area is substantial, pervasive 
and of long standing . . . .  [T]his pattern of residential segre­
gation...is, in the main, the result of past and present practices 
and customs of racial discrimination, both public and private, 
which have and do restrict the housing opportunities of black 
people." On p. 24 this Court ruled that "The Board's building 
upon housing segregation violates the Fourteenth Amendment." If 
those rulings are correct, quite clearly the State of Michigan 
could not constitutionally draw boundaries today for the Detroit
^Louis Lucas is the author of the above argument and he or members 
of his firm have been present in this case at all hearings includ­
ing the remedial hearings as representing plaintiffs.

8



public schools which would have the effect of containing 85% 
of the community's black pupils in a separate but equal school 
district along with 14% of the area's white pupils. A Detroit- 
only plan as surely builds upon a pattern of segregated housing 
as any attendance zone ever utilized by the Detroit Board of 
Education could possibly have done. This unconstitutional effect 
is in no way mitigated by the fact that the boundary of the new 
ghetto is to be a school district line rather than an attendance 
zone line. See Gomillion v. Lightfoot, 364 U.S. 339 (1960 (muni­
cipal lines altered on basis of housing patterns);Haney v. County 
School Board of Sevier County, 410 F.2d 920 (8th Cir.1969).

The simple fact is that the only relevant community is 
much larger than the City of Detroit. Whether the index is sub­
jective perceptions or objective indicia, the community that is 
centered in Detroit includes at least the tri-county area of Wayne, 
Oakland and Macomb. The objective data alone should be conclusive. 
The tri-county area has been labeled by the Bureau of the Census 
as a Standard Metropolitan Statistical Area largely on the basis 
of the high degree of interaction among the populace of the three 
counties. The State of Michigan has recognized the interdependence 
of the citizens of the whole area in establishing the Metropolitan 
Detroit Water System, the Southeastern Michigan Transportation 
Authority (SEMTA), and the Huron-Clinton Metropolitan Valley 
Authority. The local governments have recognized their inter­
dependence in creating the Southeastern Michigan Council of 
Governments (SEMCOG) . (Testimony of Dr. Roger Marz)5 The various 
highway planners have recognized it in developing the network 
of interstate highways that lead into Detroit from all directions. 
The school authorities of the state have recognized it, at least 
in part, by creating Intermediate School Districts in each county.

Subjective perceptions coincide with the objective data,

^Transcript 200-207

9



as one would expect with so gross a phenomenon. Local residents 
cross political lines casually in shopping, commuting to work, 
seeking recreation and seeking private or collegiate educations.
Dr. Green, the Plaintiffs' expert witness, gave perhaps unwitting, 
testimony to that perception when he referred to the stream of 
whites driving down the freeway from Southfield to Detroit in the 
morning rush and when he described how Detroit-educated whites 
have fled to Oak Park, Livonia and Bloomfield Hills. (Tr.965-66) 
Just as black children in a 90% black school still perceive their 
school as identifiably black even though all children in the 
attendance zone go to the same school (Dr. Green, Tr. 1023-25), 
children in a 75% black Detroit school will continue to perceive 
their school as identifiably black even though it is no different 
than any other school in Detroit--precisely because they know 
there are suburbs full of white youngsters receiving educations 
in all-white schools. It would be a most unusual third grader 
of any race who could stand on Tireman Street, a boundary line 
between Dearborn and Detroit, and explain that a political boundary 
rather than race was the reason the white children south of Tireman 
attended a white school and the black children north of Tireman 
attended a black school. As Plaintiffs' counsel has argued in a 
similar case recently, "the boundary line between the city and 
[the suburbs 1 would not change the perception of these children 
that they were assigned to schools which were either white or 
black schools." Plaintiffs' Proposed Findings of Fact and Con­
clusions of Law, pp.56-57, Bradley v. School Board of the City 
of Richmond, Civil Action No. 3353-R (E.D.,Va.). Teachers, 
evaluating the learning ability of their black students in a 
75% black Detroit school will not suddenly raise their expectations 
because all schools in the system have a similar percentage of 
black students. They will not "perceive that those children 
will learn as readily as children in Oak Park or children in

-10-



Livonia, or children in Grosse Pointe." (Dr. Green, Tr.988)
Nor will parents or the general community have better expectations 
for financial support, discipline or achievement because blacks 
and whites are divided by city lines rather than by attendance 
zones. (Compare Dr. Green Tr.868-71) After all, the State of 
Michigan.already discriminates against the Detroit school system. 
Ruling on Issue of Segregation, P.14 (September 27, 1971).

A metropolitan plan would be educationally sound, and 
a Detroit-only plan unsound, by the standards suggested by Dr. 
Green. Nearly all the children of the community would be guaran­
teed lasting interracial experiences under a Metropolitan Plan 
and denied them under a Detroit plan. Consequently, a Detroit 
plan would, and a Metropolitan Plan would not, depress career 
aspirations of black youths (Tr.866-68), cause black students to 
undervalue their own abilities (Tr.863) and reinforce white 
students' false feelings of superiority (Tr.1049-51). Neither 
whites nor blacks would learn to live in a multi-racial society 
in a Detroit plan, while both would under a Metropolitan Plan 
(Tr. 9 58-,67) .6 Even if one could success fullly argue that 65% black 
schools in an 80% white community are not racially identifiable, 
the vast number of 100% or 90% white schools which would be left 
in the suburbs by a Detroit plan would be racially identifiable 
from the beginning. Almost immediately, however, a Detroit plan 
will be converted into a more rigidly separated system of black 
city schools and white suburban schools. The obvious reason 
is that a Detroit-only plan leaves handy refuges for whites who 
do not wish to send their children to identifiably black schools.
See Bradley v. School Board of the____ City of Richmond, slip
op. at p.257. The instability thus created by a Detroit-only plan 
is inimical to sound education.

Precisely because there is no ready avenue for resegre­
gation, a Metropolitan Plan is the only plan that can "work"— now

^Also see transcript 1058-59 (Dr. Green).
-11-



or ultimately. A Metropolitan Plan would encompass the entire 
territory that is currently a part of Metropolitan Detroit or 
whose land values are significantly affected by investors' 
expectations that Detroit's population will shortly expand a bit 
more. When there is realistically no place left to run, the 
white adults of greater Detroit will permit their children to 
enjoy truly interracial education.

III.

This Court has the authority to order the State of 
Michigan to implement a metropolitan school integration plan.
"As with any equity case, the nature of the violation determines 
the scope of the remedy." Swann v. Charlotte-Mecklenburg Bd. of 
Educ., 402 U.S. 1,91 U.S.1267,1926 (1971). The Supreme Court 
has specifically recognized the breadth of an equity court's 
power in remedying civil rights violations. Louisiana v. United 
States, 380 U.S. 145 (1965). That equity power is to be used 
in school segregation cases to achieve a unitary school system.
Swann, supra; Davis v. Board of School Comm'rs of Mobile County,
402 U.S. 33, 91 S.Ct. 1289; Green v. County School Bd. of New 
Kent County, 391,U.S.430,88 S.Ct.1689 (1968). The desegregation 
plan to be approved by the District Court should be the one 
that promises realistically to achieve the greatest possible 
degree of actual desegregation. Davis v. Board of School Comm'rs 
of Mobile County, supra. In examining possible plans, the Court 
must keep in mind that the right to be protected is the constitutional 
right under the Equal Protection clause of the Fourteenth Amend­
ment to participate in a unitary school system that is fairly 
reflective of the racial composition of the community in which 
they live. Swann v. Charlotte-Mecklenburg Bd. of Educ.,supra;

-12-



Davis v. Board of School Comm'rs of Mobile County, supra; Haney 
v. County Bd. of Educ■ of Sevier County, 410 F.2d 920 (8th Cir.
1969); United States v. Texas, 321 F.Supp.1043 (E.D.Tex.1970), 
af£1d, 447 F.2d 551 (5th Cir.1971); Jenkins v. Township of Morris 
School Dist.,279 F.2d 619 (N.J.S.Ct.,1971).

In testing the operation of a statute or official actions 
or inactions for constitutional acceptability, a Court must be 
concerned with their results in practice. Douglas v. California,
372 U.S.353 (1963); Griffin v. Illinois, 351 U.S. 12,17 (1956);
Near v. Minnesota, 283 U.S.697,708 (1931). An apparently fair 
and neutral statute or action is not constitutionally acceptable 
if the result is the denial of the equal protection of the laws.
See, e.g., Gomillion v. Lightfoot, 364 U.S.339 (1960); Griffin 
V. Illinois, 351 U.S. 12 (1956); Wright v. City of Brighton, 441 
F .2d 447,450 (5th Cir.1971). . An integration plan limited to Detroit 
sounds at first like a non-discriminatory proposal, but upon exam­
ination proves to be a device for the more efficient segregation 
of pupils. If Metropolitan Detroit were presently a single school 
system and the state were seeking to impose the present Detroit 
boundaries, there would be little doubt as to the impropriety of 
the proposal. If the state implemented the plan, metropolitan 
relief would obviously be demanded to eliminate the dual school 
system that would have been created. See Turner v, Littleton-Lake 
Gaston School Dist.,442 F.2d 584 (4th Cir.1971); Haney v. County 
Bd. of Educ. of Sevier County, supra; Bradley v. School Board of 
the City of Richmond, supra.

It cannot be plausibly asserted that the existing boun­
daries of the Detroit Public School System or of any other school 
district in the Detroit metropolitan area are based on any compelling 
state interests. While there may be a compelling state interest 
underlying local administration of education, there is no such

-13-



.4

interest in the lines divided up local administration among 
various boards of education. If all school districts coincided 
with the limits of general purpose local governments,a somewhat 
more persuasive case might be made for the importance of the 
existing boundaries, but that is not the case. Cities and towns 
in the metropolitan area are divided into as many as five school 
districts, while some districts, in turn, include as many as five 
municipalities. Municipalities have no budgetary or other control 
over the actions of school boards. The pattern of school districts 
in the metropolitan area and the range of their sizes are in them­
selves clear indications that there are no educational justifi­
cations for the general pattern or for the boundaries of any parti­
cular system. Political subdivisions of states have never been 
considered sovereign entities. Rather, "they have been traditionally 
regarded as subordinate governmental instrumentalities created 
by the state to assist it in the carrying out of state governmental 
functions. Reynolds v. Sims, 377 U.S. 533 at 575. "School district 
lines within a state are a matter of political convenience." Lee 
v. Macon County Bd. of Educ.,448 F.2d 746,752 (5th Cir.1971). The 
state authorities with the power to create municipalities and 
municipal boundaries cannot justify deprivations of constitutional 
rights by reliance upon the boundaries the state itself has created. 
Haney v. County Bd. of Educ. of Sevier County,410 F.2d 920 (8th 
Cir.1969); Bradley v. School Board of the City of Richmond, supra, 
slip op. at 64-65. "The force of the mandate to desegregate 
requires sometimes the sacrifice of a degree of local autonomy 
in the formation and operation of governmental units; otherwise 
a state would be enabled to 'evade its constitutional responsibility 
by carveouts of small units." Bradley v. School Board of the City 
of Richmond, supra, citing Hall v. St. Helena Parish School Board,

-14-



197 F.Supp.649 (E.D .,La.1961) aff'd. 287 F.2d 376 (5th Cir.1961) 
and 368 U.S.515 (1962).

As early as Brown II, the Supreme Court suggested that 
it might be necessary in appropriate cases to alter school district 
boundaries. 349 U.S. 294, 300 (1955). Since Green v. County 
School Bd. of New Kent County, supra, changed "all deliberate 
speed" to "integration now," federal courts have increasingly •
had to grapple with the problems created, intentionally or other- 
wxse, by school district boundaries. They have seldom hesitated 
to take decisive measures. But see Calhoun v. Cook,332 F.Supp.
804, (N.D.,Ga.1971) vacated in part, 451 F.2d 583 (5th Cir.1971).
In Bradley v. School Board of the City of Richmond a federal 
district court has ordered the merger of three previously separate 
school districts. The Court of Appeals for the Fifth Circuit 
seems to consider this a serious possibility for Atlanta. Calhoun 
v. Cook, 451 F.2d 583 (5th Cir.1971). The District Court in 
Indianapolis has ordered argument on the validity of such a step, 
meanwhile refraining from ordering more than token progress toward 
integration within the core city. United States v. Board of School 
Comm1rs of the City of Indianapolis, No. IP 68-C-225 (S.D.,Ind.) 
Memorandum of Decision, August 18, 1971, slip op. pp.50-52,55.
In Haney v. County Bd. of Educ., of Sevier County, supra, and in 
United States v. Texas, 447 F.2d 551 (5th Cir.1971) federal courts 
have ordered the merger of adjoining all-black and all-white school 
districts wiuh long histories of separate identity. Other cases 
have enjoined the division of one district into two where the 
effect would be to increase racial separation. Burleson v. County 
Bd. of Election Comm'rs, 308 F.Supp.352 (E.D.,Ark) aff'd. 432 F.2d 
1356 (8th Cir.1970); Turner v. Littleton-Lake Gaston School District, 
442 F.2d 584 (4th Cir.1971). Division into two districts has also 
been enjoined when resegregation was the purpose of the division.

-15-



Aytch v. Mitchell, 320 F.Supp.1372 (E.D.,Ark.1971); Turner v.
Littleton-Lake Gaston School District, supra. Still other cases 
have asserted the power to enjoin the division of a district but 
have found it unnecessary on the facts before the Court. Wright 
v. Council of the City of Emporia, 442 F.2d 570 (4th Cir.1971);
United States v. Scotland Neck City Board of Education, 442 F.2d 
575 (4th Cir.1971) cert.granted,925 S.Ct.47 (1971). Where coopera­
tion among or between school districts or administrative agencies 
would be sufficient to correct unconstitutional situations by 
measures short of merger, courts have required public bodies to 
cooperate with each other. Taylor v, Coahoma County School District, 
330 F.Supp.174 (N.D.,Miss.1971); United States v. Crockett County 
Board of Education, No. 1663-Civil,mem.Decis. (W.D.Tenn.,May 15,
1967) (seven independent school districts) (cited in Bradley v.
School Board of the City of Richmond, supra, slip op.p.76). The 
Fifth Circuit Court of Appeals has ordered a break-away school 
district treated for purposes of integration as if it were still 
part of a larger district. Lee v. Macon County Board of Education, 
448 F.2d 746 (5th Cir.1971).

It should not be thought that such remedies are limited 
to school cases. Other forms of judicial re-ordering of state and 
local governments in defense of constitutional freedoms can be 
cited. Gomillion v. Lightfoot, 364 U.S.339 (1960) restored the 
former municipal boundaries of Tuskegee, Alabama, to vindicate 
the Fifteenth Amendment of black former voters of the town. Sims
v. Amos,___F.Supp.___,40 U.S. Law Week 2435 (Jan.18,1972) (M.D.
Ala.)(three judge district court), reduced the number of members 
in the Alabama House of Representatives in the course of granting 
relief in a reapportionment suit. In reapportionment cases 
generally, courts have felt free to ignore municipal, county and

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other subdistrict boundaries. See Reynolds v. Sims, 377 U.S.
533 (1964).

In dealing with disputes centering around schools, courts 
have taken equally bold steps on non-boundary issues. In Griffin 
v. County School Board of Prince Edward County, 377 U.S. 218 (1964), 
the Supreme Court held that a federal district court should order 
the reopening of a closed school district and that it "may if 
necessary to prevent further racial discrimination, require the 
Supervisors to exercise the power that is theirs to levy taxes 
to raise funds adequate to reopen, operate, and maintain without 
racial discrimination a public school system, in Prince Edward 
County like that operated in other counties in Virginia." 377 
U.S. at 233. In a series of recent cases, courts have held entire 
state school finance systems to be unconstitutional because they 
discriminated among children on the basis of the wealth of the 
district in which they lived. Serrano v. Priest, 5 Cal.3d 584,
487 P.2d 1241 (1971); Van Dusartz v. Hatfield, ___F.Supp.___(D.
Minn.,Oct.12,1971) (No.3-71,Civ.243); Rodriguez v. San Antonio
Independent School Dist.,___F.Supp.___(W.D.Tex.,1971) . (Civ.Action
No. 6 8-175-SA) .

In ordering relief for persons denied their constitutional 
rights, it is not a valid objection to the exercise of the court's 
power that no administrative body in the state has been delegated 
the power to perform the necessary act. Lee v. Macon County Board 
of Education, 267 F.Supp.458, aff1d sub nom.,Wallace v. United 
States, 389 U.S. 215 (1971). Were it otherwise, states could 
avoid fulfilling their constitutional duties by "carveouts of 
small units" of government. See Hall v. St. Helena Parish School 
Board, 197 F.Supp.649 (E.D.La.1961), aff'd.287 F.2d 376 (5th Cir. 
1961) and 368 U.S. 515 (1962). State law cannot limit a federal 
court seeking a remedy for Fourteenth Amendment violations. United

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States v. Greenwood Mun.Sep.School pist.,406 F.2d 1086,1094 (5th 
Cir.),cert. denied, 395 U.S.907 (1969). Wherever possible, of 
course, the court should utilize powers and forms of action 
existing under state law. United States v. Greenwood Mun.Sep.
School Dist.,supra. In this case, it is probable that the State 
Board of Education has the power to consolidate the schools of 
the tri-county area. See Michigan Comp.Laws,§388.1010(c) and 
authorities collected in Ruling on Issue of Segregation, pp.25-26. 
Whether or not the power is vested in a given administrative body, 
it certainly exists in the legislature and may be delegated to 
a subordinate body. Penn School Dist.No.7 v. Lewis Cass Intermediate 
School Dist.Bd. of Educ.,14 Mich.App.109,165 N.W.2d 464 (1968).
While normally the legislature's control over education is plenary 
in Michigan, "this power cannot be exercised... so as to deprive 
individuals of constitutionally protected rights." Bradley v. 
Milliken, 433 F.2d 897,903 (6th Cir.1970). Similarly, while there 
is normally no constitutional objection to legislative requirements 
that units of government may merge only upon a vote of the people, 
the case is otherwise when the vindication of constitutional rights 
rests on the outcome. "A citizen's constitutional rights can 
hardly be infringed simply because a majority of the people choose 
that it be." Lucas v. 44th Gen'1 Assembly of Colorado, 377 U.S. 
713,736-37 (1964). See Haney v. County Bd. of Educ. of Sevier 
County, 410 F.2d 920,925-26 (1969).

Respectfully submitted,

RILEY AND ROUMELL
by :''George T

A n t ^ 1- " ' ^ < ^ i

Louis D. Beer 
720 Ford Building 
Detroit, Michigan 48226 
Telephone: 962-8255

Dated: March 21, 1972.
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