Milliken v. Bradley Brief for Petitioners
Public Court Documents
January 2, 1974
Cite this item
-
Brief Collection, LDF Court Filings. Milliken v. Bradley Brief for Petitioners, 1974. aab40dbe-bd9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/9b88b00e-8b89-4388-98b1-7d45601f0e43/milliken-v-bradley-brief-for-petitioners. Accessed May 14, 2025.
Copied!
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1973.
No. 73-434
WILLIAM G. MILLIKEN, et al.,
Petitioners,
v.
RONALD G. BRADLEY, et al.
On Writ Of Certiorari T o T he United States C ourt O f
Appeals F or T he S ixth C ircuit.
BRIEF FOR PETITIONERS
FRANK J. KELLEY
Attorney General
Robert A. Derengoski
Solicitor General
Eugene Krasicky
Gerald F. Young
George L. McCargar
Thomas F. Schimpf
Assistant Attorneys General
Attorneys for Petitioners
750 Law Building
525 West Ottawa Street
Lansing, Michigan 48913
TABLE OF CONTENTS
Page
OPINIONS AND ORDERS BELOW ...................................... 1
JURISDICTION ...................................................................... 2
CONSTITUTIONAL AND STATUTORY PROVISIONS IN
VOLVED ............................................................................. 3
QUESTIONS PRESENTED ...................................................... 4
STATEMENT OF THE CASE ........................... 5
I. The Complaint ........................................................ 6
II. The Detroit Board of Education ............................ 8
III. The State Board of Education and the Super
intendent of Public Instruction .......................... 9
IV. Population — Detroit and the Detroit Board of
Education ............................................................ 9
V. The Tri-County Area of Wayne, Oakland and
Macomb Counties ............................................... 10
VI. Proceedings Through Trial . ..................................... 11
VII. Proceedings After Trial ........................................... 14
SUMMARY OF ARGUMENT ........................................ 18
ARGUMENT
I. THE RULING OF THE COURT OF APPEALS
AFFIRMING THE DISTRICT COURT’S HOLD
ING THAT DEFENDANTS MILLIKEN, ET AL,
HAVE COMMITTED ACTS RESULTING IN DE
JURE SEGREGATION OF PUPILS, BOTH
WITHIN THE SCHOOL DISTRICT OF THE CITY
OF DETROIT AND BETWEEN DETROIT AND
OTHER SCHOOL DISTRICTS IN A TRI-COUNTY
AREA, IS WITHOUT BASIS IN FACT OR LAW . . 24
11
A. Ruling (5) — transportation of Carver School
Page
District’s high school students ....................... 25
B. Ruling (4) - allocation of transportation funds. 27
C. Ruling (3) — school construction ................... 33
D. Ruling (2) — the effect of section 12 of 1970
PA 4 8 ................................................................ 38
E. Ruling (1) — Detroit Board of Education an
agency of the State of Michigan ..................... 41
II. THE RULING OF THE COURT OF APPEALS
THAT A DETROIT-ONLY DESEGREGATION
PLAN COULD NOT REMEDY THE UNCONSTI
TUTIONAL SEGREGATION FOUND IN THE
DETROIT SCHOOL SYSTEM IS NOT SUP
PORTED BY THE RECORD AND IS CLEARLY
ERRONEOUS AS A MATTER OF LAW. . ........... 46
A. The lower courts rejected the constitutional
concept of a unitary school system within
Detroit for the sociological concept of racial
balance throughout a three-county area.......... 46
B. The teachings of Green, Alexander and Swann
exam ined......................................................... 53
C. The teachings of Green, Alexander and Swann
were unheeded and ignored.............................. 57
D. This Court has consistently required majority
black school systems to convert to unitary
school systems without regard to achieving
racial balance among such majority black
school systems and larger geographical areas . . 58
III. THE DECISION OF THE LOWER COURTS THAT
A MULTI-SCHOOL DISTRICT REMEDY IS CON
STITUTIONALLY PERMISSIBLE HEREIN IS
MANIFESTLY ERRONEOUS.................................. 63
A. Scope of multi-district remedy decreed below
and sought on remand by plaintiffs’ amended
complaint.......................................................... 63
I l l
B. This massive multi-school district relief is not
based upon any constitutional violation in
volving the manipulation of school district
boundaries for purposes of de jure segregation
of pupils between Detroit and the other 85
school districts in the tri-county area............... 64
C. This massive multi-school district remedy is
not supported by any de jure conduct of any
of the school districts to be affected. ........... 67
D. This massive multi-school district remedy is
not supported by any conduct of defendants
Milliken, et al, with the purpose and present
causal effect of segregating children by race as
between Detroit and the other school districts
in the tri-county area. ........................ .............. 68
E. The multi-district relief decreed below is for
the sole purpose of racial balance within a tri
county area....................................... .. 71
F. The attempt by the appellate majority to dis
tinguish Bradley v. Richmond is patently erro
neous. ..................... 78
G. This Court has consistently recognized both
the importance of local control over public
education and the integrity of local political
subdivisions. ........................ 82
H. The multi-district remedy herein will require
excessive expenditures for acquiring, housing,
maintaining and operating school buses to
effectuate racial balance throughout the tri
county area.............................. 85
I. The lower courts denied fundamental due
process to the affected school districts other
than Detroit .................................................... 87
Page
IV. CONCLUSION 89
IV
TABLE OF CITATIONS
CASES P^e
A & N Club v. Great American Insurance Co, 404 F2d 100,
(CA 6, 1968) ...................................................................... .. 13
Airport Community Schools v. State Board o f Education, 17
Mich App 574; 170 NW 2d 193 (1969) .............................. 80
Alexander v. Holmes County Board o f Education, 396 US
19; 90 S Ct 29; 24 L Ed 2d 19 (1 9 6 9 )........ 20 ,21 ,47 ,51 ,53 ,
55, 57, 62, 68
Allen v. Mississippi Commission o f Law Enforcement, 424
F2d 285 (CA 5, 1970).......................................................... 39
Attorney General, ex rel Kies v. Lowrey, 131 Mich 639; 92
NW 289 (1902), a ff’d 199 US 233, 26 S Ct 27; 50 L Ed
167 (1905) .......................................................................... 43
Baker v. Carr, 369 US 186; 82 S Ct 691; 7 L Ed 2d 663
(1962) ............................... 36
Beech Grove Investment Company v. Civil Rights Commis
sion, 380, Mich 405; 157 NW 2d 213 (1968)...................... 46
Blissfield Community Schools District v. Strech, 346 Mich
186; 77 NW 2d 785 (1956) ................................................. 34
Board o f Education o f City o f Detroit v. Lacroix, 239 Mich
46; 214 NW 239 (1927) ..................................................... 34
Bradley v. Milliken, 338 F Supp 582 (ED Mich 1971)........... 1
Bradley Milliken, 345 F Supp 914 (ED Mich 1 9 7 2 )........... 2
Bradley v. Milliken, 433 F2d 897 (CA 6, 1970) 2, 1 1, 38, 39, 40,
41, 69
Bradley v. Milliken, 438 F2d 945 (CA 6, 1971) .............2, 12, 41
Bradley v. Milliken, 468 F2d 902 (CA 6, 1972), cert den 409
US 844 (1972) .....................................................................2,14
Bradley v. Milliken, 484 F 2d 215 (1973)................................ 1
Bradley v. School Board o f Richmond, Virginia, 462 F2d
1058 (CA 4, 1972), aff’d by equally divided Court in
___US___; 94 SCt 31; 38 L Ed 2d 132 (1973) ___ 22,23,61
78, 80, 81,82
V
Brown v. Board o f Education, 347 US 483; 74 S Ct 686; 98
LEd 873 (1954) .............................................................. 25, 89
Cleaver v Board o f Education o f City o f Detroit, 263 Mich
301; 248 NW 629 (1933) ................................................... 34
Cotton v Scotland Neck City Board o f Education, 407 US
484; 92 S Ct 2214; 33 L Ed 2 75 (1 9 7 2 )......................... 22, 59
Ford Motor Co v Department o f Treasury o f Indiana, 323 US
459; 65 S Ct 347; 89 L Ed 389 (1945) .......................... 42, 45
Gentry v Howard, 288 F Supp 495 (ED Tenn, 1969) ........... 36
Gomillion v Lightfoot, 364 US 339; 81 S Ct 125; 5 L Ed 2d
110(1960) .............................. ............................................ 66
Goss v Board o f Education o f City o f Knoxville, 340 F Supp
711 (ED Tenn, 1972) ....................... ................................. 62
Goss v Board o f Education o f City o f Knoxville, 482 F2d
1044 (CA 6, 1973) ............................................................ 62
Green v School Board o f New Kent County, 391 US 430; 88
SCt 1689; 20 LEd 2d 716 (1968) . 20 ,21 ,46 ,47 ,51 ,53 ,54 ,
55 ,57 ,60 ,62 ,68
Griffin v County School Board o f Prince Edward County,
377 US 218; 84 SCt 1226; 12 L Ed 2d 256 (1964) ___ 42,55
Hadley v Junior College District o f Metropolitan Kansas City,
397 US 50; 90 SCt 791; 25 LEd 2d 45 (1970) ............... 40
Hiers v Detroit Superintendent o f Schools, 376 Mich 225;
136 NW 2d 10 (1965) ........................................... 34,39,43,81
Higgins v Board o f Education o f the City o f Grand Rapids,
Michigan, (WD, Mich. CA 6386), Slip Opinion, July 18,
1973 ............................................................................... 31,82
In re State o f New York, 256 US 490; 41 S Ct 588; 65 L Ed
1057 (1921) ...................................... 19,42,45
Jones v Grand Ledge Public Schools, 349 Mich 1; 84 NW 2d
327 (1957) ......................................................................... 25,80
Keyes v School District No. 1, Denver Colorado,____US
______ ; 93 S Ct 2686; 37 L Ed 2d 548, (1973) . . 19, 22, 23, 26,
27, 31, 32, 33, 35, 38, 41, 43, 44, 48, 55, 67, 69, 83, 84, 85, 89
Mason v Board o f Education o f the School District o f the
City o f Flint, 6 Mich App 364; 149 NW 2d 239 (1967) . . 82
Page
VI
Munro v Elk Rapids Schools, 383 Mich 661; 178 NW 2d 450
(1970), on reh 385 Mich 618, 189 NW 2d 224 (1971) . . 81
Northcross v Board o f Education o f Memphis, 420 F2d 546
(CA 6, 1969), a ff’d in part and remanded in 397 US 232;
90 S Ct 891; 25 L Ed 2d 246 (1 9 7 0 ).............................. 22,61
Northcross v Board o f Education o f Memphis,___F2d___ ,
No. 73-1667, 73-1954, Slip Op, (1973) . ........................ .. . 61
Barden v Terminal Railway Co, 377 US 184; 84 S Ct 1207;
12 L Ed 2d 233 (1964)................................................... . 42,45
Penn School District No. 7 v Lewis Cass Intermediate School
District Board o f Education, 14 Mich App 109; 165 NW 2d
464,(1968) ............. ............ ...................................... 80,81
Pierce v Society o f Sisters, 268 US 510; 45 S Ct 571; 69 L Ed
1070(1925).................................................................... .. 88
Plessy v Ferguson, 163 US 537; 16 S Ct 1138; 41 L Ed 256
(1896) ................................................................................... 82
Ranjel v City o f Lansing, 417 F2d 321 (CA 6, 1969), cert
den 397 US 980; 90 S Ct 1105; 25 L Ed 2d 390 (1970),
reh den 397 US 1059; 90 S Ct 1352; 25 L Ed 2d 680
(1970) .................................................................... 36
Raney v Board o f Education o f the Gould School District,
391 US443; 88 S Ct 1697; 20 L Ed 2d 727 (1968)___ 22, 60
San Antonio Independent School District v Rodriguez, 411
US 1; 93 SCt 1278; 36 L Ed 2d 16 (1973) . 19, 23, 30, 31, 38,
40, 45, 69,71,83,84, 85
School District o f the City o f Lansing v State Board o f Edu
cation, 367 Mich 591; 116 NW2d 866, (1962)............. 8, 43, 80
Senghas v L ’Anse Creuse Public Schools, 368 Mich 557; 118
NW 2d 975, (1962) .......... 43,81
Smith v North Carolina State Board o f Education, 444 F2d 6
(CA 4, 1971) .............................. 35
Sparrow v Gill, 304 F Supp 86 (MD NC 1969)....................... 31
Spencer v Kugler, 326 F Supp 1235 (D NJ, 1971), a ff’d on
appeal, 404 US 1027; 92 S Ct 707; 30 L Ed 2d 723 (1972). 20,
23, 36, 58, 65, 66
Page
Sterling v Constantin, 287 US 378; 53 S Ct 190; 77 L Ed 375
(1932) ...................................... ....................... .. .................. 19
Swann v Chariotte-Mecklenburg Board o f Education, 402 US
1; 91 SCt 1267; 28 L Ed 2d 554 (1971) .. . 20 ,21 ,22 ,23 ,46 ,
47, 48, 51, 53, 55, 56, 57, 60, 62, 67, 68, 69, 70, 71, 78, 90
The People, ex rel Workman v Board o f Education o f Detroit,
18 Mich 399 (1 8 6 9 )...............................................................5,82
Tinker v Des Moines Independent School District, 393 US
503; 89 S Ct 733; 21 L Ed 2d 731 (1 9 6 9 )............ .......... .. 44
Wisconsin v Yoder, 406 US 205; 92 S Ct 1526; 32 L Ed 2d
15 (1972) ......................... 88
Wright v Council o f the City o f Emporia, 407 US 451; 92 S
Ct 2196; 33 LEd 2d 51 (1 9 7 2 )___ 22, 23, 40, 59, 71, 72, 82,
83, 85, 88
Wright v Rockefeller, 376 US 52; 84 S Ct 603; 11 L Ed 2d
512(1964) .................................................................. . . . .4 0 ,6 6
Yahr v Resor, 431 F2d 690 (CA 4, 1970) cert den 401 US
982; 91 SCt 1192; 28 L Ed 2d 334 (1971) . . . . . . . . . . . . 39
CONSTITUTIONS AND STATUTES
Constitution of United States
Amendments, Article V ........................................................ 2
Amendments, Article X ............................ .. 3
Amendments, Article XI, ................................................... 3, 19
Amendments, Article XIV, Section 1 ................... .. 3
Federal Statutes
28 USC 1254(1)............................................. 2
FR Civ. P 19 . . . ......................................................................... 64
FR Civ. P 41(b)........................................................................... 13
Michigan Constitution of 1908:
art 1 1, § 2 4, 9
Page
viii
Micliigan Constitution of 1963:
art 4, § 33 . ........................
art 5, § 1 9 .........................
art 5, § 2 9 ..........................
art 5, § 31 ..........................
art 8, § 2 ............................
art 8, § 3 ............................
art 9, § 6 ............................
art 9, § 11 ..........................
art 9, § 1 7 ..........................
art 11, § 2 .........................
. ............. 4, 40, 42
......................4 ,40
..................... 46
...................... 4
. .4, 80, 81, 82, 84
.............4, 6,9, 36
...............4, 30, 87
..................... 4, 30
..................... 4, 42
............... .. . .4, 35
Michigan Public Acts:
1842 PA 70
1937 PA 306 ___
1943 PA 88 ........
1947 PA 336
1949 PA 231 . . . .
1955 PA 269 ___
1957 PA 312 ___
1962 PA 175
1964 PA 289 ___
1965 PA 379
1967 PA 239
1968 PA 112 ___
1968 PA 239 ___
1968 PA 316 ___
1969 PA 2 2 ........
1969 PA 244 ___
........................... 4, 8, 65, 69
........... 4, 34
....................................... 36
....................... .......... .. . 4, 78
........................................4,34
. . .4, 8, 9, 29, 33, 37, 38, 67
78 ,79 ,80 ,81 ,82 ,83 ,84 , 87
................... 4,31,32
........................................ 4, 34
........................................4,81
.............. 4
....................................... 4, 81
...................................... 46
....................................... 4
...................................... 29
........................................ 31
.....................4, 38, 39, 40, 69
IX
Page
1969 PA 306
1970 PA 48
1971 PA 23
1971 PA 171
1972 PA 258
1973 PA 101
............... ................ 4, 36
4, 6, 7, 11, 38, 39, 40, 69
............................ 29,86
................................ 41
................... 4, 30, 32, 86
..........................4, 30, 86
Miscellaneous
Bulletin 1012, Michigan Department of Education,
December, 1970 ............................................................ 26, 28
Michigan Statistical Abstract 1972 (9th Ed.) ...................... 10
Statistical Abstract of United States 1972 (93rd Ed.) . . . . 10
A Description and Evaluation of Section 3 Programs in
Michigan 1969-1970, Michigan D epartm ent of
Education, 1970, Appendix B .................... 31
1
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1973.
No. 73-434.
WILLIAM G. MILLIKEN, et al„
vs.
RONALD G. BRADLEY, et al.
Petitioners,
O n Writ of C ertiorari to the U nited S tates C ourt of
A ppeals for the S ixth C ircuit
BRIEF FOR PETITIONERS
OPINIONS AND ORDERS BELOW
The opinions of the Court of Appeals for the Sixth Circuit
are reported at 484 F2d 215 and are reprinted in the Appendix to
Petitions for Writ of Certiorari at pp 110a-240a, HI
Other opinions delivered in the Courts below are:
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).
t i 1 Hereafter, references to appendices, records and exhibits will be enclos
ed in parentheses and indicated as follows:
Single joint appendix: (Ial et seq.)
Appendix of constitutional and statutory provisions: (laa et seq.)
Appendix to petitions for writ of certiorari: (la et seq.)
Record of trial: (R 1 et seq.)
Record of proceedings before or after trial: (Date of proceeding
).
Exhibits: Plaintiffs’ (PX ), defendant Detroit Board of Education’s
(DX ), defendant-intervenor Detroit Federation of Teachers’ (TX
)■
2
March 24, 1972, Ruling on Propriety of Considering a Metro
politan Remedy to Accomplish Desegregation of 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 Conclusions of
Law in Support of Ruling on Desegregation Area and Develop
ment of Plan, 345 F Supp 914. (59a-105a).
July 11, 1972, Order for Acquisition of Transportation, not
reported. (106a-l 07a).
September 6, 1973, Order [granting plaintiffs’ motion to join
all school districts in Wayne, Oakland and Macomb Counties, ex
cept the Pontiac school district], not reported. (Ia 300-1 a 301).
United States Court of Appeals for the Sixth Circuit
July 20, 1972, Order [granting leave to appeal], not report
ed. (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).
JURISDICTION
The judgment of the Court of Appeals was entered on June
12, 1973. (241a, 244a-245a). The petition for certiorari was filed
on September 6, 1973, and was granted on November 19, 1973.
The jurisdiction of this Court rests on 28 USC 1254 (1).
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 present
ment or indictment of a Grand Jury, except in cases arising in the
3
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.”
A m endm ents, Article XI — “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 Citizens or Subjects of
any Foreign State.”
Amendments, Article XIV, Section 1 — “All persons bom 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 immunities of citizens of the United
States; nor shall any State deprive any person or life, liberty, or
property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.”
Due to the voluminous number of Michigan constitutional
provisions and statutes cited in their brief, defendants, Milliken, et
al, have compiled an appendix to their brief, pursuant to Rule
40.1(c), containing virtually all the Michigan constitutional and
statutory provisions which are cited in their brief. This appendix,
which is referred to herein as (laa et seq.), has been separately
bound since combining the brief and appendix in one volume
would have resulted in too bulky a document for the reader.
Where such appendix has the headings “article,” “part,” “chapter”
or “public act,” it does not necessarily mean that every provision
of that unit appears in the appendix; only those provisions rele
vant to the brief are set forth, including the appropriate section
numbers. The citations to the Michigan constitutional and statu
tory provisions are as follows:
4
Michigan Constitutions
Constitution of 1908, art 1 1, § 2
Constitution of 1963: art 4, § 33; art 5, § § 19 and 31; art 8,
§ § 2 and 3; art 9, I § 6, 11 and 17; art 11, § 2.
Michigan Statutes
1955 PA 269, as amended, (the School Code of 1955); 1842
PA 70; 1969 PA 244; 1970 PA 48; 1964 PA 289; 1967 PA 239;
1937 PA 306, § 1; 1949 PA 231, § 1; 1962 PA 175, § 1; 1968
PA 239, § 1; 1957 PA 312, § 34; 1972 PA 258, § § 18, 21 and
51; 1973 PA 101, §§ 21(1) and 51; 1947PA336, § 15,as added
by 1965 PA 379; 1969 PA 306, § 46, as amended by 1971 PA
171.
When a statute is cited for the first time in this brief, parallel
citations will be given.
The Michigan constitutional provisions and statutes contain
ed in the appendix to this brief have been photocopied from the
two official texts of Michigan laws: The Compiled Laws of 1970
and the Public Acts of the year specified for the law. The sole
exception is 1973 PA 101, which has been copied from the ad
vance sheets to the Michigan Statutes Annotated (MSA), since the
official Public Acts of 1973 have not been published as of this
time. The bold face captions to the constitutional and statutory
provisions are not part of the law of Michigan, but have been sup
plied by the editors of the respective texts for easier reference by
the reader.
QUESTIONS PRESENTED
I .
Whether, based upon the controlling precedents of this
Court, petitioners, defendants Milliken, et al, have committed acts
of de jure segregation with the purpose and present causal effect
of separating school children by race either within the School Dis
trict of the City of Detroit or between Detroit and other school
districts in the 1,952 square mile tri-county area of Wayne, Oak
land and Macomb?
5
Whether the Detroit School District, a 63.8% black school
district, could operate a unitary system under a Detroit-only dese
gregation plan, thus meeting the remedial requirements of the
Constitution and the decisions of this Court?
II.
III.
Absent any pleaded allegations, any proofs or any findings
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 established 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?
STATEMENT OF THE CASE
In this case, the lower courts have used a ruling that the Det
roit school system is de jure segregated as the basis for a remedy
that involves 84 additional school districts in a geographical area
covering approximately 1,952 square miles, and almost Vi of the
public school children in the State, f2 3’ The circumstances and pro
ceedings by which this has come to pass are set forth hereafter.
The separation of the races in the public schools of Michigan
has been prohibited by Michigan law since at least 1869. t4l
[21 Defendants Milliken, et al, realize that while no multi-district desegrega
tion order is in effect at the present time, the District Court’s Ruling on
Desegregation Area and Order for Development of Desegregation Plan (97a)
and the Court of Appeals affirmance thereof in principle (110a) make such a
remedy inevitable unless this Court reaffirms the constitutional principles dis
regarded by the lower Courts in their zeal to achieve a racial balance among
almost 1/2 of the public school children in the State.
[3] petitioners Milliken, Kelley, State Board of Education, Porter and
Green, collectively, will be called “defendants Milliken, et al.” Individual ref
erences will be to that petitioner’s name or office.
[4! The People, ex rel Workman v Board o f Education o f Detroit, 18 Mich
399 (1869).
6
I.
The Complaint
Plaintiffs commenced this class action by filing a complaint
on August 18, 1970. (2a-16a). The complaint was not amended or
supplemented until plaintiffs filed an “Amended Complaint to
Conform to Evidence and Prayer for Relief” on or about Septem
ber 4, 1973. [5] (la 291).
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. (1 la-12a). Further, plain
tiffs’ prayer for relief was limited to the establishment of a unitary
system of schools within the School District of the City of Det
roit. (13a-15a). In addition, plaintiffs challenged the constitution
ality 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 involving alterations in attendance areas for 12 of the
21 Detroit high schools to increase racial balance in those 12
schools. (13a-15a).
The defendants named in the complaint were William G.
Milliken, Governor of the State of Michigan and ex officio
member (without vote) of the Michigan State Board of Education;
Frank J. Kelley, Attorney General of the State of Michigan; Michi
gan State Board of Education, a constitutional body created by
Mich Const 1963, art 8, § 3; John W. Porter, Superintendent of
Public Instruction of the State of Michigan, ex officio chairman of
the State Board of Education (without vote) and principal execu
tive officer of the Michigan State Department 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 (nor any
officer or employee thereof) other than the School District of the
City of Detroit was named as a defendant.
15] The majority opinion of the Court of Appeals suggested and authorized
the amended complaint. (178a). Plaintiffs made no effort to amend their
complaint prior to the Court of Appeals suggestion.
7
In their original complaint, plaintiffs made three basic claims:
1) that assignment of pupils within the Detroit public schools was
based upon race; 2) that the assignment of personnel within the
Detroit public schools to some extent was based upon race, and 3)
that Section 12 of 1970 PA 48 was unconstitutional because it
interfered with the implementation of the Detroit Board of Educa
tion’s April 7, 1970 plan involving alterations in attendance areas
for 12 of the 21 Detroit high schools to increase racial balance
over a 3 year period in those 12 schools. (2a-13a). The relief sought
was the temporary and permanent enjoining of the effect of Sec
tion 12 of 1970 PA 48 and the requiring that the April 7, 1970
plan be implemented in full in the 1970-71 school year, and
requiring defendants to create and maintain a unitary, nonracial
school system in the Detroit public schools. (13a-15a).
In their pretrial statement (la 75), plaintiffs advanced the fol
lowing claims:
1. That the Detroit public schools were operated in a
manner violating the Thirteenth and Fourteenth Amendments to
the Constitution of the United States.
2. That the Detroit school system operated racially identifi
able “Negro” and “White” schools, which schools are inherently
unequal and which deny plaintiffs equal educational opportuni
ties.
3. That such a school system has an affirmative duty “ to
remove the racial identifiability of the schools in its system by de
segregating the student body of the individual schools and by as
signing and/or reassigning faculty members to each school in ac
cordance with the system-wide ratio of black and white faculty
members and by planning and making faculty additions in a man
ner which will promote and maintain racially non-identifiable
schools.”
Plaintiffs’ claims in the joint pretrial statement (la 103-la
104) were identical.
In summary, plaintiffs alleged that the Detroit Board of Edu
cation operated a de jure segregated school system and they
prayed as their relief that the Detroit public schools be compelled
8
to operate as a unitary school system. Further, plaintiffs’ prayer
for relief was directed entirely to relief in the Detroit school
system and they made no claim for relief against any other school
system.
II.
The Detroit Board of Education
Michigan school districts are organized and classified as pri
mary, fourth class, third class, second class and first class, depen
ding, essentially, upon the number of children between the ages of
5 and 20 within the district. The School Code of 1955, 1955 PA
269, as amended, §§2, 21, 53, 102, 142 and 182; MCLA 340.2,
340.21, 340.53, 340.102, 340.142 and 340.182; MSA 15.3002,
15.3021, 15.3102, 15.3142 and 15.3182. (6aa, 8aa, 20aa). Detroit
is the only first class school district in the state. The other school
districts involved here are third and fourth class school districts.
The City of Detroit was organized as one school district, as a
body corporate by the name and style of “The board of education
of the City of Detroit” in 1842, f6J and remains a single school
district and a body corporate under the same name today. In other
words, the Detroit Board of Education has existed as an inde
pendent body corporate governmental unit with its geographical
boundaries coterminous with those of the City of Detroit since
1842.
The best way to capsulate the function and powers of the
Detroit Board of Education, or any other school district in the
state, is to say, in the words of the Michigan Supreme Court, that
they are “local state agencies organized with plenary powers to
carry out the delegated functions given it by the legislature.” t7l
With regard to plaintiffs’ claims that the Detroit public
schools are a de jure segregated system, the plenary power to
^ 1 842 Laws of Michigan, No. 70, § §1 and 5. (55aa).
I7! School District o f the City o f Lansing v State Board o f Education, 367
Mich 591, 595; 116 NW2d 866, 868 (1962).
9
locate school sites and construct school buildings, to condemn
land therefor, to hire and assign teachers, and to establish attend
ance areas and assign students thereto has been delegated by the
legislature to the Detroit Board of Education. See the School Code
of 1955, supra, §§192 (condemnation) and 215 (buildings and
sites), § §204, 269 and 569 (teacher hiring and assignment) and
§589 (attendance areas and assignment of students). (32aa, 46aa,
49aa).
III.
The State Board of Education and the
Superintendent of Public Instruction
The State Board of Education and the office of the Superin
tendent of Public Instruction were created anew by the Michigan
Constitution of 1963 (Const 1963), art 8, §3. (3aa). In general,
“ [leadership and general supervision over all public education” is
vested in the State Board of Education. Prior thereto the power of
general supervision was vested in the Superintendent of Public In
struction. Const 1908, art 11, §2. (laa). The present Superinten
dent of Public Instruction is appointed by the State Board of Edu
cation, is the chairman of the board without the right to vote and
is responsible for the execution of its policies. Also, he is the prin
cipal executive officer of a state department of education. Const
1963, art 8, § 3. (4aa).
The testimony of Dr. Porter demonstrates the fact that de
fendants Milliken, Kelley, the State Board of Education, and the
Superintendent of Public Instruction, do not exercise supervisory
authority over the Detroit Board of Education in the hiring or as
signment of teachers, in the establishment of attendance areas, in
the establishment of feeder patterns or in the transportation of
children within the Detroit public schools. (Ilia 35 - Ilia 37).
IV.
Population — Detroit and the Detroit
Board of Education
In 1940, the black population of the City of Detroit was
9.2% (of a total population of 1,623,452). (21a). By 1970, the
10
black population had risen to 43.9% (of a total population of
1,513,601). (21a). As the black population increased, it displaced
the white population. (R367-369). As in the case of all large cities
in the United States, blacks and whites in Detroit tend to live in
separate areas of the city so that residential areas are either pre
dominantly black or predominantly white. (R350-35 1).
In the school year 1960-61, the Detroit Board of Education
enrolled 45.8% black pupils. (21a). By the school year 1970-71,
the entrollment of black pupils in the schools was 63.8%. (21a).
In the school year 1960-61, the Detroit Board of Education
operated 266 schools, eight of which had no white children in at
tendance, 73 of which had no black children in attendance, and
the remainder had both white and black children in varying pro
portions. (22a). In 1970, the Detroit Board of Education operated
319 schools of which 30 had no white pupils in attendance and 11
had no black children in attendance, and the remainder had vary
ing percentages of both black and white children. (22a).
V.
The Tri-County Area of Wayne, Oakland
and Macomb Counties
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 Ma
comb Counties abut Wayne County to the north and Oakland
County abuts Macomb County to the west. These counties cover
1,952 square miles. The population of Wayne, Oakland and
Macomb counties is 2,666,751, 907,871 and 625,309, respec
tively. Detroit, the state’s largest city, 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 child
ren were black and 84.8% were white. There are 86 independent,
legally distinct school districts within the tri-county area, having a
l8i Michigan Statistical Abstract, 1972 (9th ed.). This area is approximately
the size of the state of Delaware (2,057 square 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 Columbia (67 square miles). Statistical Abstract of
United States, 1972 (93rd ed.).
11
total enrollment of approximately 1,000,000 children, approxi
mately 20% of whom are black. (66a).
VI.
Proceedings Through Trial
On September 3, 1970, Denise Magdowski, et al, were per
mitted 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 representative of the Detroit Board of Educa
tion’s teachers, was permitted to intervene as a party defendant.
(Ia2).
Plaintiffs moved for interlocutory injunctive relief to, inter
alia, require the Detroit Board of Education to put into effect its
April 7, 1970 plan to increase racial balance in 12 high schools and
to enjoin the implementation of 1970 PA 48 insofar as it might
interfere with the effectuation of the April 7 plan. Defendants
Milliken and Kelley moved for the dismissal of the suit as to them.
On September 3, 1970, the District Court denied plaintiffs’ re
quest for interlocutory relief and dismissed the action as to de
fendants Milliken and Kelley. (Ia59, Ia62). In denying inter
locutory relief, the District Court did not rule on the constitution
ality of 1970 PA 48. (Id.)
Plaintiffs appealed to the Court of Appeals for the Sixth Cir
cuit. The Court of Appeals declared 1970 PA 48, § 12 to be un
constitutional and ordered reinstatement of defendants Milliken
and Kelley as parties, “at least at the present stage of the proceed
ings,” but affirmed the denial of interlocutory relief. 433 F2d
897. Defendants Milliken, et al, did not seek a review of the deci
sion of the Court of Appeals.
Upon remand to the District Court, plaintiffs moved for an
order requiring the immediate implementation of the April 7,
1970 plan. In response to plaintiffs’ motion, the District Court or
dered the Detroit Board of Education to submit a high school at
tendance area plan to the Court consisting of that portion of the
action taken by the Detroit Board of Education on April 7, 1970
1 2
with regard to changing the attendance areas of the 12 high
schools, or an updated version thereof achieving “no less pupil in
tegration.” (Ia69). The Detroit Board of Education submitted two
alternate plans known as “The Campbell Plan” and “The Mac
Donald Plan.” In a ruling dated December 3, 1970, the Court
ruled that the “The MacDonald Plan” was superior and ordered
that it be implemented beginning September, 1971. (Ia88, Ia96).
P la in tiffs , claiming that the alternative plan was con
stitutionally insufficient, sought emergency relief in the Court of
Appeals. Relief was denied and the Court of Appeals ordered the
District Court to set a hearing on the merits forthwith. 438 F2d
945. Because the lower courts declined to order that it be done,
the April 7 plan was never implemented.
Trial on the merits, limited to the issue of segregation within
the Detroit public schools, began on April 6, 1971, and concluded
on July 22, 1971, consuming 41 trial days. ^ Early in the trial,
plaintiffs offered testimony as to housing discrimination within
the City of Detroit (IIa9) and later in the trial with respect to
areas in the counties of Wayne, Oakland and Macomb outside of
the City of Detroit. (IIa69). When such testimony was first offered
it was objected to by the defendants Milliken, et al, and by the
Detroit Board of Education for the reason that such testimony in
volved the acts of other persons not parties to the suit. All testi
mony with regard to discrimination in housing was admitted over
[9 J From time to time during the course of the trial attempts were made by
the plaintiffs and by the defendant-intervenor, Denise Magdowski, et al, to
broaden the scope of the trial to affect, as to possible remedy, school districts
not parties in this cause, located outside of the boundaries of the Detroit
school system. From the remarks of the District Court, it is clear that he also
understood what is patent in the pleadings, that the issue was whether the
Detroit School District was a segregated system qua the Detroit public
schools and not with respect to any other school district within the State of
Michigan. Illustrative comments by the District Court follow:
“Well, 1 don’t know whether fortunately or unfortunately this lawsuit
is limited to the City of Detroit and the school system, so that we’re
only concerned with the city itself and we are not talking about the
metropolitan area.” (Ila41).
“ I hope, Mr. Flannery, that is not a threat because I am having enough
to do with my limited jurisdiction in this case, and 1 am not one for
expanding it.” (Ila44).
However, as the trial progressed, the perception of the District Court changed
in pursuit of a multi-district remedy. (R3537, 4003, 4004; 20a)
13
the continuing objection of the defendants Milliken, et al, and the
Detroit Board of Education. (IIa9-IIalO). There was no testimony
regarding acts of housing discrimination on the part of defendants
Milliken, et al, or of the Detroit Board of Education.
At the close of plaintiffs’ case in chief, defendants Milliken,
et al, moved to dismiss pursuant to FR Civ P 41(b). (lal 17-Ial 18).
The District Court took the motion under advisement and the de
fendants Milliken, et al, elected to rest on their motions to dismiss
and did not participate further in the trial on the merits on the
issues of whether the Detroit School District was a segregated
school system.t10l (IIIa86-IIIa87). The District Court at a later
date denied these motions. (242a).
On June 17, 1971, intervenors Denise Magdowski, et al, filed
a motion to join as defendants all of the school districts ip Wayne,
Oakland and Macomb Counties. (Ial 19-Ia 129). The motion was
heard on July 26, 1971 (R4682), and taken under advisement by
the District Court. (R4709). The motion was never acted upon by
the District Court and later the intervenor withdrew the motion.
On September 27, 1971, the District Court rendered its
ruling on the issue of segregation in which it found that “both the
State o f Michigan and the Detroit Board of Education have com
mitted acts which have been causal factors in the segregated condi
tion of the public schools of the City of Detroit.” (Emphasis ad
ded.) (33a). The de jure segregation found to exist was among the
school buildings within the City of Detroit and not between the
Detroit School District and any other school distri ct in the State
of Michigan. (17a-34a). The Court also found that “ [t] he princi
pal causes undeniably have been population movement and hous
ing patterns, . . .” (33a).
[10] rationale for this position is found in A & N Club v Great
American Insurance Company, 404 F2d 100, 103-104 (CA 6, 1968). If a de
fendant proceeds in the case after making a FR Civ P 41(b) motion, he waives
his right to allege error on the motion’s disposition only in light of the evi
dence introduced up to the point of the motion.
14
VII.
Proceedings After Trial
At a hearing on October 4, 1971, the Court orally ordered
the Detroit Board of Education to submit its plan for deseg
regation of its schools within 60 days and ordered the defendants
Milliken, et al, 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).
An appeal by defendants Milliken, et al, of the District
Court’s ruling on issue of segregation and the order of November
5, 1971 was dismissed for the stated reason that the ruling and
order were not final. 468 F2d 902. Their petition for certiorari for
a review of this dismissal was denied. 409 US 844.
As directed by the Court, plans for desegregation were filed
by the parties, including plaintiff, on or before February 4, 1 972.
Between February 9 and 17, 1972, 43 school districts within the
counties of Wayne, Oakland and Macomb filed motions to inter
vene for the purpose of representing their interests and those of
the parents and children residing in the respective school districts.
(Ia 185, la 190, la 193, la 196). Under date of March 6, 1972, the
District Court notified all counsel that hearings on intra-city plans
would begin at 10 a.m. on March 14, 1972; that recommendations
for “conditions” of intervention be submitted not later than
March 14, 1972; that briefs on propriety of metropolitan remedy
by submitted not later than March 22, 1972, and that, tentatively,
hearings on a metropolitan remedy would commence on March
28, 1972. (Ia 203). The hearings on the intra-district plans
commenced on March 14, 1972. On March 15, 1972 the District
Court allowed the 43 school districts to intervene, but imposed 8
conditions upon the intervention that severely limited their parti
cipation in the proceedings. (Ia 204-la 206). Among the condi
tions imposed were the following:
“ 1. No intervenor will be permitted to assert any claim or
defense previously adjudicated by the court.
“2. No intervenor shall reopen any question or issue which
has previously been decided by the court.” (Ia 206).
15
Although the order allowing intervention stated that the interven
tion was allowed for two principle purposes: “(a) To advise the
Court, by brief, of the legal propriety or impropriety of consider
ing a metropolitan plan” and “(b) To review any plan or plans for
the desegregation of the so-called larger Detroit Metropolitan
Area . . . ” , the Court’s notice to counsel of March 6, 1972 direct
ing that briefs on the propriety of the metropolitan remedy be
submitted not latter than March 22, 1972, was not modified to
provide any additional time for the intervenors to file their briefs
or make their objections. The District Court filed its ruling that a
metropolitan desegregation plan was appropriate on March 24,
1972. (48a).
Hearings on the intra-district plans commenced on March 14,
1972 and concluded on March 21, 1972. Plaintiffs’ expert witness,
Dr. Gordon Foster, testified as follows with regard to the intra
district plan that he prepared for plaintiffs (PX C2, R303, 304,
316):
“Q. I believe you testified you prepared an intra-district de
segregation plan for the City of Richmond?
“A. That’s correct.
“Q. Did the plan that you projected in your opinion meet
the constitutional requirements of the Fourteenth
Amendment?
** *
“A. As I remember the situation, yes, I though that the plan
met the requirements of what we then called a unitary
school system.
“Q. Do you think that the plan that you prepared for the
plaintiffs that is under consideration today, do you think
that meets the constitutional requirements of the Four
teenth Amendment?
“A. I believe that it would in terms of at least the factor of
pupil assignment which is what the plan is primarily
about.”
(IVa 95-IVa 96).
* * *
16
“Q. Dr. Foster, in your opinion, your proposed plan to de
segregate the Detroit School District is a sound educa
tional plan, is that correct?
“A. Yes.
* * *
“Q. Yes, I am going to try to lead you in steps. Secondly, it
would provide for equal treatment of children, would it
not?
I think so, yes. I perceive it as nondiscriminatory in that
regard.
In your opinion this would improve the educational
opportunity of Detroit of the children of Detroit?
Yes.”
(IVa 97-IVa 98).
In accordance with the March 6 notice and its ruling that a
metropolitan desegregation plan was appropriate, the District
Court commenced taking testimony on such plans 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). In essence, the Court’s ruling was that no Detroit-only plan
would result in desegregation because of its majority black student
body.
On June 14, 1962, the District Court filed its ruling on deseg
regation area and order for development of plan of desegregation
(97a) and its finding of fact and conclusions 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, involved 780,000 school children and required that at least
310,000 of them be transported. (72a). Although the District
Court had expressly found no de jure segregation in the faculty in
the Detroit public schools (23a-33a), the Order required faculty
and staff reassignment among the 53 districts. (102a-l 03a).
“A.
“Q.
“A.
17
The findings of fact and conclusions of law in support of the
ruling contained the following initial finding:
“It should be noted that the Court has taken no proofs with
respect to the establishment of the boundaries of the 86 pub
lic 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).
18 of the districts included in the “desegregation area” were not
parties to the litigation when the ruling was made. (59a-60a).
The ruling on desegregation area also appointed a panel of 9
persons, la te r increased to 1 1, and charged it with the
responsibility of preparing and submitting a desegregation plan in
accordance with the provisions of the ruling. (99a).
On July 11, 1972, the District Court, following a recommen
dation of the panel, ordered the Detroit Board of Education to
acquire 295 buses, the contracts for such acquisition to be entered
in to not later than July 13, 1972. (106a-107a). Defendants
Milliken, et al, were Ordered to bear the cost of the acquisition
(106a) and by contemporaneous order, the Court on its own mo
tion ordered Allison Green, Treasurer of the State of Michigan, to
be made a party defendant. (Ia 263).
On July 20, 1972, the District Court, pursuant to oral mo
tions made on July 19, 1972, certified to the Court of Appeals the
issues presented by the five controlling orders or rulings made in
the case to date. (Ia 265-la 266). Defendants Milliken, et al, 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 said order, the Court of Appeals stayed the
order for acquisition of transportation, July 11, 1972, and all pro
ceedings with regard to the assignement of children and faculty
within the desegregation area, except planning. (109a).
Permission to intervene was granted by the Court of Appeals
to the Michigan Education Association on August 21, 1972, and
to the Professional Personnel of Van Dyke on July 21, 1973.
18
A panel of the Court of Appeals filed its opinion on Decem
ber 8, 1972. Thereafter, defendants moved for rehearing en banc,
which was granted. Following rehearing, in a 6 to 3 decision, the
Court of Appeals (en banc) in substance affirmed the District
Court’s orders and rulings. (189a-190a).
On August 6, 1973, plaintiffs filed a motion in the District
Court for the joinder of all of the school districts in the counties
of Wayne, Oakland and Macomb that had not already been made
parties herein, with the exception of the Pontiac School District
which is under a U.S. District Court desegregation order in another
proceeding. (la 287).
On September 6, 1973, the District Court ordered the joinder
of all of the school districts in Wayne, Oakland and Macomb
Counties that were not parties to the suit, except the Pontiac
School District. (la 300).
On or about September 4, 1973, plaintiffs filed an amended
complaint to conform to evidence and prayer for relief. (la 291 -
la 299). The thrust of this complaint, as contrasted with the ori
ginal complaint, is that the Detroit School System is a de jure seg
regated system not only within the Detroit public schools but as
between the Detroit public schools and other school districts in
the counties of Wayne, Oakland and Macomb. Plaintiffs are plead
ing a new cause of action for a multi-district remedy but do not
allege that school district boundaries have been created or altered
for segregatory purposes nor do they allege that any of the school
districts other than Detroit have committed acts of de jure segrega
tion. (Ia 294).
Although not stated in so many words in the amended com
plaint, from the listing of the school districts in paragraphs 1 5 and
16 thereof it is apparent that plaintiffs are seeking substantially
the same relief as was ordered by the Court in its ruling on dese
gregation area and order for development of plan.
SUMMARY OF ARGUMENT
I Defendants Milliken, et al, have not committed acts of de
jure segregation with the purpose and present causal effect of
separating school children by race either within the Detroit
19
school district or between Detroit and the other 85 school
districts in the tri-county area. Keyes v School District No. 1,
Denver: Colorado, _____ US ___93 S Ct 2686,
2697-2699; 37 L Ed 2d 548, 562-566 (1973).
A. The rulings against the defendants Milliken, et al, are
based, not upon their actual conduct in office, but upon
the judicial goal of achieving racial balance throughout a
large, densely populated area convering three counties.
(41a, 224a)
B. It is the Detroit Board of Education, pursuant to Michi
gan law, and not any of the defendants Milliken, et al,
herein, that selects and acquires school sites, constructs
schools, establishes attendance areas and transports and
assigns pupils to the public schools under its operational
control.
C. The State of Michigan is not a party in this cause. De
fendants Milliken, et al, are not vicariously liable for the
alleged de jure conduct of defendant Detroit Board of
Education. US Const, Am XI. Sterling v Constantin, 287
US 378; 53 S Ct 190; 77 L Ed 375 (1932). reState o f
New York, 256 US 490; 41 S Ct 588; 65 L Ed 1057
(1921). The shifting burden of proof principle set forth
in Keyes, supra, 93 S Ct, at 2697, 2698, is carefully
lim ited to situations involving the same defendant
against whom a finding of de jure segregation is made as
to a substantial portion of the school district in ques
tion.
D. The Carver School District has been a part of the Oak
Park School District since 1960, thus, manifestly negat
ing any present segregatory effect. (169a) Keyes, supra,
93 S Ct, at 2698, 2699.
E. Alleged inter-district disparities in financial resources,
among school districts, including funds for intra-district
transportation, give rise to no constitutional violation.
San Antonio Independent School District v Rodriguez,
411 US 1; 93 SCt 1278; 36 L Ed 2d 16 (1973).
20
F. From and after October 13, 1970, the lack of imple
mentation of the April 7, 1970 racial balance plan af
fecting some of the students in 12 of 21 Detroit high
schools has been the result of the unwillingness of the
Detroit Board of Education and the lower courts herein
to implement such plan.
G. There can be no multi-school district school construc
tion violation by defendants Milliken, et al, for the
reason, inter alia, that in each affected school district
herein, it is the local board of education that selects and
acquires school sites and constructs schools under Michi
gan law, and the trial court expressly stated that it took
no proofs as to whether any school district, other than
Detroit, has committed any acts of de jure segregation.
(59a-60a)
II. A dual school system within a school district must be dis
mantled and converted into a unitary school system within
the school district, so that no pupil is excluded from any
school, directly or indirectly, because of race. Green v School
Board o f New Kent County, 391 US 430; 88 S Ct 1689; 20 L
Ed 2d 716 (1968). Alexander v Holmes County Board of
Education, 396 US 19; 90 S Ct 29; 24 L Ed 2d 19 (1969).
Swann v Charlotte-Mecklenburg Board o f Education, 402 US
1; 91 SCt 1267; 28 L Ed 2d 554 (1971).
A. The Detroit School District is not a racially imbalanced
system because of any purposeful action to segregate by
defendants Milliken, et al, or the defendant Detroit
Board of Education. Racial imbalance in the Detroit
school system was caused by housing patterns. The Con
stitution imposes no duty upon school officials to over
come racially imbalanced housing patterns by racially
balancing the schools. Spencer v Kugler, 326 F Supp
1235 (DNJ, 1971), affd on appeal, 404 US 1027; 92 S
Ct 707; 30 L Ed 2d 723 (1972).
B. The racial composition of the pupils of the Detroit
School District is 63.8% black children and 34.8% white
children. (21a).
21
C. Assuming, arguendo, that the Detroit School District is a
dual school system, plaintiffs’ Detroit-Only plan to dis
mantle such dual system would establish a unitary sys
tem as required by Green, supra, 391 US, at 442;
Alexander, supra, 396 US, at 20, and Swann, supra, 402
US, at 23. Plaintiffs’ Detroit-Only plan would eliminate
racially identifiable schools, no child would be excluded
from any school, directly or indirectly because of race
or color, and the plan is educationally sound, as testified
to by Plaintiffs’ expert witness. (IVa95-98).
D. Plaintiffs’ Detroit-Only plan, even though it would ac
complish more desegregation than now obtains in the
school district, was disapproved by the District Court
only because it did not lend itself as a building block for
a multi-district plan spanning a tri-county area, and
would make the Detroit school system more identifiably
black. This action of the Court was error. Green, supra,
391 US, at 442; Alexander, supra, 396 US, at 20; and
Swann, supra, 402 US, at 23.
E. The erroneous decision of the District Court, .affirmed
by the majority of the Court of Appeals, is predicated
upon an unwarranted overriding emphasis on the future
black pupil population of the Detroit School District in
1975, 1980 and 1992, based entirely upon conjecture,
so as to justify the exercise of judicial power to attain
the social goal of racially balancing the public schools
within a 1,952 square mile geographical area.
F. The majority of the Court of Appeals affirmed the deci
sion rejecting plaintiffs’ Detroit-Only plan on the erro
neous premise that anything less than a multi-district
plan encompassing a vast geographical area over three
counties would result in the Detroit School District be
ing an all black school district surrounded by all white
school districts.
G. The decisions of this Court command the dismantling of
dual school systems now in majority black school sys
tems and the establishment of unitary systems within
such districts. Unitary systems have been established
22
within a 66% black, 34% white school district in Wright
v Council o f City o f Emporia, 407 US 451;92SC t
2196; 33 L Ed 2d 51 (1972); within a 77% black, 22%
white and 1% American Indian school district in Cotton
v Scotland Neck City Board o f Education, 407 US 484;
92 S Ct 2214; 33 L Ed 2d 75 (1972); within a 60%
black school district in Raney v Board o f Education o f
the Gould School District, 391 US 443; 88 S Ct 1697;
20 L Ed 2d 727 (1968); and within a 64% black, 36%
white school district in Bradley v School Board o f Rich
mond, Virginia, 462 F2d 1058 (CA 4, 1972), affd by
equally divided Court in __US___ ; 94 S Ct 31; 38 L Ed
2d 132 (1973). A unitary system is capable of being es
tablished within a 57% black, 43% white school district
in Northcrossv Board o f Education, 420 F2d 546 (CA 6,
1969), affd in part and remanded in 397 US 232; 90 S
Ct 891; 25 L Ed 2d 246 (1970).
H. A unitary school system having a racial composition of
63.8% black children and 34.8% white children is not
unconstitutional.
III. The lower courts committed manifest error in decreeing a
multi-school district remedy.
A. Federal judicial power may not be substituted for the
legitimate authority of state and local governments in
public education except on the basis of an unconstitu
tional violation. Swann, supra, 402 US, at 16.
B. Here, there is no unconstitutional violation to serve as a
predicate for judicially imposed multi-district relief. The
record is barren of allegations, proofs and findings either
that school district boundaries were manipulated for un
lawful segregatory ends or that any school district, other
than Detroit, committed any acts of de jure segregation.
(59a-60a) Bradley v Richmond, supra, 462 F 2d, at
1060. Further, there is no causal nexus between any
alleged conduct of the defendants Milliken, et al, and
the distribution of pupils by race between Detroit and
the other 85 school districts in the tri-county area.
23
Keyes, supra, 93 S Ct, at 2698-2699.
C. The Constitution does not require racial balance among
school districts over a three county area. Swann, supra,
402 US, at 24. Emporia, supra, 407 US, at 464, 473.
Further, the historical, rational and racially neutral
coterminous boundaries of the city and school district
of Detroit do not constitute a constitutional violation.
Spencer v Kugler, supra, 326 F Supp, at 1240, 1243, In
addition, there has been no showing in this cause “that
either the school authorities or some other agency of
the State has deliberately attempted to fix or alter
demographic patterns to affect the racial composition of
the schools,” . Swann, supra, 402 US, at 32.
D. The traumatic governmental restructuring of scores of
legally , geographically and politically independent
school districts, implicit in the multi-district relief ap
proved by the lower courts, (104a-105a, 188a-189a) is
directly contrary to the result reached in Bradley v
Richmond, supra.
E. The affected school districts are legally, politically and
geographically separate, identifiable and unrelated units
that facilitate local control and participation in public
education through locally elected boards of education.
Thus, based on its past precedents, this Court should
respect the integrity of these local political subdivisions.
Keyes, supra, 93 S Ct, at 2695; Emporia, supra, 407 US,
at 469 and 478; Rodriguez, supra, 411 US, at 49-50, 54.
F. The multi-million dollar transportation costs involved in
multi-school district relief are excessive and will impose
an additional burden on educational resources.
G. The school districts to be affected herein, other than
Detroit, were denied due process by the lower courts.
(See dissenting opinions of Judge Weick, 205a-212a;
Judge Kent, 230a-238a; and Judge Miller, 239a-240a).
24
ARGUMENT
I.
THE RULING OF THE COURT OF APPEALS AFFIRMING
THE DISTRICT COURT’S HOLDING THAT DEFEN
DANTS MILLIKEN,ET AL,HAVE COMMITTED ACTS RE
SULTING IN DE JURE SEGREGATION OF PUPILS, BOTH
WITHIN THE SCHOOL DISTRICT OF THE CITY OF DET
ROIT AND BETWEEN DETROIT AND OTHER SCHOOL
DISTRICTS IN A TRI-COUNTY AREA, IS WITHOUT
BASIS IN FACT OR LAW.
The decisions of the lower courts herein represent, not a faith
ful adherence to the Constitution and the binding precedents of
this Court, but rather an attempt to use the law as a lever in attain
ing what the lower courts decided is the desirable social goal of
multi-school district racial balance throughout a vast three county
area. This is vividly demonstrated by the trial court’s statement in
a subsequent remedy pre-trial conference, “ [i]n reality, our courts
are called upon, in these school cases, to attain a social goal,
through the educational system, by using law as a lever.” (41a)
The sound dissent of the late Circuit Judge Kent sets forth
the overriding concern of the appellate 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 unwillingness 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 majority does not now state that such a
demographic pattern is inherently unconstitutional, neverthe
less, I am persuaded that those who subscribe to the majority
opinion are convinced, as stated in the slip opinion of the
original panel, ‘big city school systems for blacks surrounded
by suburban school systems for whites cannot represent
equal protection of law.’ While that statement has been re
moved from the opinion of the majority, yet the premise
upon which the statement was obviously based must neces
sarily form the foundation for the conclusions reached in the
majority opinion. It may be that such will become the law,
25
but such a conclusion should not recieve our approval on a
record such as exists in this case.” (224a)
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 dis
crimination by public school authorities. Brown v Board o f Educa
tion, 347 US 483; 74 S Ct 686; 98 L Ed 873 (1954). Viewed
against this background, the defendants Milliken, et al, submit
that the rulings that they had committed acts resulting in de jure
segregation are mere makeweights designed to provide the legal
window dressing for the achievement of multi-school district racial
balance.
The constitutional violations allegedly committed by the de
fendants Milliken, et al, are set forth under the caption of “State
of Michigan.” (15la-152a) The majority opinion of the Court of
Appeals elsewhere acknowledges that the State of Michigan is not
a party to this cause. Thus, these rulings are directed against the
defendants Milliken, et al. (115a). The following review of these
rulings will conclusively demonstrate that the courts below, as to
the defendants Milliken, et al, have erected an edifice of unconsti
tutionality upon a foundation of sand in attempting to further
their paramount goal of multi-school district racial balance.
A. R uling (5 ) — tran sp o rta tio n o f Carver Schoo l D is tric t’s
high schoo l s tu d en ts .
Ruling (5) relates to the transportation, by the Detroit Board
of Education, of high school students from the Carver School Dis
trict, which did not have a high school, to Northern High School
within Detroit during the 195Q’s. (152a, 137a-138a). Here, it must
be observed that under Michigan law no school district has any
legal duty to educate non-resident pupils on a tuition basis. Jones
v Grand Ledge Public Schools, 349 Mich 1; 84 NW 2d 327(1957).
However, the Carver area was adjacent to Detroit and the Detroit
school district voluntarily chose to accept these non-resident
pupils (Va 14). The reason that the student were bussed past
Mumford to Northern was that “Mumford was must more
crowded.” (Va 186).
26
The majority opinion states that such transportation “could
not have taken place without the approval, tacit or express, of the
State Board of Education.” (Emphasis added) (152a) The trial
court’s ruling on this point contains no reference to the State
Board of Education. (96a). The record is barren of any proof that
the State Board of Education possessed any actual knowledge of
the transportation in question, let alone approving same. To the
contrary, the record is clear that when the then Superintendent of
the Detroit Schools “became aware of it” such transportation of
Carver students was discontinued. (Va 186). Since not even the
Superintendent of Schools in Detroit was initially aware of this
bus route affecting his own shcool district, what possible basis can
there be for imputing knowledge of this bus route or the racial
compositions of Mumford and Northern high schools to the State
Board of Education in Lansing, Michigan? The Michigan Depart
ment of Education never collected any racial counts of pupils until
after April, 1966. (See next to last paragraph at PX 174, Va 13).
The reference to the State Board of Education by the Court of
Appeals majority is without any evidentiary support. The require
ment of a finding of segregative purpose enunciated in Keyes,
supra, 93 S Ct, at 2697, cannot be met as to ruling (5) for the
reason that purpose presupposes knowledge of the event in
question, an element which is totally lacking in this cause as to
defendant State Board of Education.
In 1960, the Carver School District, an independent school
district, became disorganized and lost its identity and became a
part of the Oak Park School District by attachment of the County
Board of Education, pursuant to Section 3 of 1955 PA 269, as
amended, being MCLA 340.1 et seq; MSA 15.3001 et seq;herein
after referred to as the School Code of 1955. (169a, 6aa). The Oak
Park school district has a 10.1% black student body and, according
to plaintiffs’ expert witness, the black students currently residing
in the former Carver area attending Oak Park schools are thriving
academically. (PX P.M. 12, Va 113, R 939-R 940, R 996-R 997).
Further, in the 1969-70 school fiscal year, Oak Park had the
highest per pupil expenditures of any Michigan school district.
Bulletin 1012, Michigan Department of Education, December,
1970, pp 26-27.
27
This Court has adopted the sound rule that to establish a con
stitutional violation, there must be a causal relationship between
the act complained of and a present condition of segregation.
Keyes, supra, 93 S Ct, at 2698, 2699. Obviously, the reliance of
the majority herein on the transportation of Carver students, not
parties to this action, prior to 1960 to a Detroit high school fails
to meet this controlling test of present causal nexus in light of the
developments since 1960 involving the attachment of Carver to
Oak Park, the attendance of students residing in the former Carver
area in the largely white Oak Park school district and their good
academic performance as testified to by plaintiffs’ expert witness.
B. Ruling (4 ) — allocation of transportation funds
The District Court’s Ruling on Issue of Segregation in Detroit
contained the following language which was quoted in the
majority opinion of the Court of Appeals.
“ ‘ . . . The State refused, until this session of the legislature,
to provide authorization or funds for the transportation of
pupils within Detroit regardless of their poverty or distance
from the school to which they were assigned, while providing
in many neighboring, mostly white, suburban districts the
full range of state supported transportation. This and other
financial limitations, such as those on bonding and the work
ing of the state aid formula whereby suburban districts were
able to make far larger per pupil expenditures despite less tax
effort, have created and perpetuated systematic educational
inequalities' ” (Emphasis added.) (152a).
This language, which constitutes a major part of the District
Court’s holding against the defendants Milliken, et al, on the
initial question of de jure segregation in Detroit goes, not to the
question of pupil assignment in Detroit, but to the markedly dif
ferent question of inter-district disparities in school finance.
Here, it is instructive to note that the trial court made no
conclusions of discriminatory allocation of funds between pre
dominantly black and predominantly white schools within Detroit
although plaintiffs presented evidence directed at the point and
submitted proposed Findings of Fact on the issue which were not
28
adopted by the trial court. The use of alleged inter-district dis
parities in school resources as a predicate for finding de jure segre
gation as to only black students within Detroit, can only be ex
plained by the trial court’s preoccupation with using law as a lever
to obtain the judicially desired goal of multi-school district racial
balance.
Although quoting the trial court in full as to finance, the ap
pellate majority apparently adopted as its own ruling only the dis
trict court language dealing with transportation funds. (151a,
152a). This reluctance to expressly embrace the state school aid
formula and bonding portions of the trial court’s finance language
is readily understandable since such findings are contrary to the
facts in this cause as demonstrated below:
A. In 1969-70, the last school fiscal year for which data
was available prior to trial herein, of the 84 school dis
tricts operating high schools in the tri-county area
(Wayne, Oakland and Macomb counties), only 33 had a
greater revenue producing ability than Detroit in terms
of state equalized valuation of taxable property per
pupil within their boundaries. Bulletin 1012, Michigan
Department of Education, December, 1970, pp 20-23,
26-27,32-35.
B. In 1969-70, 76 of the 84 school districts in the tri
county area made a greater tax effort than Detroit in
terms of operating tax rates. Bulletin 1012, Michigan
Department of Education, December, 1970, pp 20-23,
26-27, 32-35.
C. In 1969-70, only 38 of the 84 school districts in the tri
county area had higher general fund expenditures per
pupil than Detroit. Bulletin 1012, Michigan Department
of Education, December, 1970, pp 20-23, 26-27, 32-35.
D. In 1969-70, only 13 of the 84 school districts in the tri
county area had higher average teacher salaries than
Detroit. Bulletin 1012, Michigan Department of Educa
tion, December, 1970, pp 20-23, 26-27, 32-35.
29
Thus, when compared to the other 83 school districts operating
high schools in the tri-county area, Detroit was above average in
state equalized valuation per pupil and general fund expenditures
per pupil while it was way below average in terms of tax effort, as
measured by operating tax rates, and way above average in terms
of average teacher salaries. Further, it should be noted that for
1969-70, Detroit paid its teachers with a B.A. degree the average
of the top 10 salaries of the school districts in Wayne, Oakland
and Macomb counties, and paid its teachers with an M.A. degree
the average of the top 12 salaries of the school districts in Wayne,
Oakland and Macomb counties. (Detroit Teachers Contract, Va 1,
Va 2). Consequently, it must be concluded that, contrary to the
trial court’s finding, (152a), very few suburban districts made “less
tax effort” than Detroit and Detroit’s general fund expenditures
per pupil were higher than a substantial number of school districts
making a greater tax effort.
Turning to the bonding portion of the District Court’s finance
language, it is instructive to observe that in the slip opinion of the
original panel of the Sixth Circuit, December 8, 1972, pp 41,
47-49, the Court expressly adopted the trial court’s finding on
bonding, only to drop same from the majority opinion on rehear
ing in terms of the five numbered rulings against the defendants
Milliken, et al. (151 a-152a). This is understandable in light of the
fact that, as was pointed out on rehearing, Detroit’s current bond
ing authority had not yet been exhausted when it was increased to
5% of the state equalized valuation of taxable property within the
district without a vote of the people, thus bringing it in harmony
with other classes of school districts. (See pp 48-49 of the Decem
ber 8, 1972 slip opinion of the Sixth Circuit.) Prior to 1968 the
bonding authority of third, second and first class school districts
was limited to 2% without a vote of the people. See, respectively,
Sections 115, 158 and 220a of the School Code of 1955, as
amended, supra, (25aa, 31aa, 33aa). This limitation was raised to
3% in first class school districts (Detroit), and 5% in all other dis
tricts by 1968 PA 316 and increased to 5% in first class districts
by 1971 PA 23, prior to Detroit having exhausted its pre-existing
authority to bond without a vote of the people for school con
struction. (17aa-18aa, 25aa-26aa, 31aa, 33aa-34aa). Thus, any
claim of bonding discrimination must fall as it did in the Court of
30
Appeals majority opinion on rehearing. Compare pp 41, 47-49 of
the opinion of December 8, 1972 and (15la-1 57a) of the opinion
issued June 12, 1973.
In addition, the question of inter-district disparities in school
finance has been definitively adjudicated by this Court in San
Antonio Independent School District v Rodriguez, supra, and the
conclusion is compelled that both lower courts erred, as a matter
of law, 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
P ro tec tion Clause under the applicable rational basis test.
Rodriguez, supra. See also, Mich Const 1963, art 9, § 6 and § 1 1
for the constitutional outline of Michigan’s system of school finan
ce. (111 (4aa, 5aa).
The trial court’s ruling as to state aid transportation funding,
which was independently adopted and set forth on appeal, war
rants scrutiny. (151a). This urban rural statutory distinction was
recently found to be both reasonable and non-racial by another
Federal Districtt Court in Michigan, as follows:
“There was proof that rural school districts received up to
7 5% 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 distinc
tion based upon known differences usually characteristic of
urban and rural areas: absence of public transportation, side
walks, lesser density of student population and generally
longer distances. It is in no part related to racial difference.
% In Michigan’s most recent legislation dealing with state aid to school
districts, the legislature has adopted a power equalizing formula to be phased
in over a three year period, pursuant to which each school district will be
guaranteed $40.00 per pupil for each mill of operating tax effort, thus
making expenditures per pupil primarily a function of the willingness of the
voters in each school district to tax themselves for school purposes. See Sec
tion 21(1) of 1972 PA 258, as amended by 1973 PA 101, MCLA 388.1 121;
MSA 15.1919 (521). (74aa).
31
“The exercise of legislative discretion in this regard is as valid
as is that which sees the Grand Rapids School District receive
annually over $1,000,000 in compensatory aid money under
Section 3 of the State Aid Act, funds in which the suburban
school districts do not participate at all. The overall record
heavily supports the claim that no financial discrimination
has been practiced against plaintiffs and their class in the
operation of the school system at any level. . . .”
Higgins v Board o f Education o f the City o f Grand Rapids,
Michigan, (WD, Mich, CA 6386), Slip Opinion of Judge
Albert J. Engel, July 18, 1973, pp 77-78. H2]
In the 1 969-70 school fiscal year, Detroit received
$1,729,755.00 in Section 3 compensatory state aid money. See
Section 3 of 1957 PA 312, as amended by 1969 PA 22. However,
only 9 of the other school districts in the tri-county area received
any Section 3 funds in 1969-70. A Description and Evaluation of
Section 3 Programs in Michigan 1969-70, Michigan Department of
Education, March 1, 1970, Appendix B, pp 61-63.
Further, applying the correct reasonable basis test ennu-
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 constitutional.” Sparrow v
Gill, 304 F Supp 86, 90-91 (MD NC 1969). As recognized in the
opinion of Mr. Justice Powell in Keyes, supra, 93 S Ct, at 2714, the
need for pupil transportation is obviously greater in rural than in
urban areas.
In Keyes, supra, 93 S Ct, at 2697, this Court emphasized that
the difference between de jure and de facto segregation is a finding
1' 2] jn j{iggins, supra, plaintiffs sought a multi-district desegregation
remedy involving Grand Rapids, which has only a 25% 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 defendants Milliken,
et al, involved herein fully participated, the District Court ruled that, with the
sole exception of faculty assignment within Grand Rapids, “ . . . the proofs
have failed to establish the other allegations in plaintiffs’ complaint, as amen
ded, as to the Grand Rapids Board of Education or as to any other defend
ants in the case.” Slip opinion, p 103. Thus, in Higgins, supra, plaintiffs’
claims of de jure conduct against the defendants Milliken, et al, not unlike
those made herein, were found wholly lacking in merit.
32
of purposeful intent to segregate. In the instant cause, neither
lower court made any finding of purposeful segregation in connec
tion with the statutory urban-rural classification employed by the
legislature for allocating categorical state school aid transportation
funds to school districts. As noted by the trial court, this classifi
cation also applied to other “city-contained school districts,. . . in
the desegregation area. . . .” (93a). Clearly, this legislatively
imposed urban-rural geographical classification is not based on
race but on whether children reside within or without incorporat
ed cities, irrespective of race. t13l
Moreover, in Keyes, supra, 93 SCt, at 2698,2699, this Court
held that another finding essential in determining de jure segrega
tion is that the acts in question must have a present causal effect
of segregation. In this regard, the District Court’s finding on trans
portation reimbursement made no reference to any finding of
segregative effect within Detroit. (27a). The Court of Appeals’
majority opinion erroneously 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 in its Ruling
on Issue of Segregation as, indeed, it logically could not in light of
its de jure findings concerning the conduct of the Detroit Board of
Education in transporting children to relieve overcrowding. (25a).
The Court of Appeals’ majority opinion is manifestly inconsistent
in its dual ruling that, while Detroit transported children in a man
ner furthering segregation, the lack of categorical state school aid
transportation reimbursement funds in Detroit also contributed to
pupil segregation in some inexplicable way.
[13] while it is true that the categorical appropriation for transportation
reimbursement contains an urban-rural classification, it must be stressed that
Detroit, like all other school districts, may use its locally collected property
tax revenues for transportation purposes. (Ilia 32). Further, contrary to the
erroneous statement of the appellate majority that “Detroit was denied any
allocation of State funds for pupil transportation,” (151a), the Detroit
Board of Education could, in its discretion, spend its general state school aid
per pupil membership allowance funds, which comprise the great bulk of
state school aid, for transportation purposes. See Section 34 of 1957 PA 312
and, for the current legislation, see Section 18(1) of 1972 PA 258, MCLA
388.1118; MSA 15.1919(518). (72aa, 73aa)
33
Finally, as to ruling (4), neither lower court made any finding
that the urban-rural statutory classification employed for state
school aid categorical transportation reimbursement to school
districts to transport their own pupils had any causal effect on the
distribution of pupils by race as between Detroit and the other 85
school districts in Wayne, Oakland and Macomb counties. Thus, in
light of Keyes, supra, 93 S Ct, at 2698, 2699, this statutory classi
fication provides no basis for the imposition of a multi-district
remedy herein.
In summary, both as a matter of fact and law, the lower
courts committed manifest error concerning matters of alleged
inter-district disparities in school finance, including categorical
state school aid transportation reimbursement as determined by
the legislature. When carefully examined, these determinations by
the lower courts only support the conclusion that, given the ju
dicially desired goal of multi-school district racial balance, the
facts were disregarded and the law ignored to reach such goal.
C. Ruling (3) — school construction
Ruling (3) relates to the matter of school construction. This
ruling is premised on the alleged statutory control of defendant
State Board of Education over site acquisition by local school
boards for new school construction. (151a, 157a). This ruling of
de ju re segregation must be carefully examined in light of
Michigan’s statutory provisions relating to site acquisition and
school construction.
Under Michigan law, defendant Detroit Board of Education,
like other boards of education in Michigan, is empowered with
plenary discretionary authority to locate and acquire school sites.
See sections 77, 113, 165, 220a of the School Code of 1955,
MCLA 340.77, 340.113, 340.165, 340.220a; MSA 15.3077,
15.3113, 15.3165, 15.3220a. (17aa, 23aa-24aa, 32aa, 33aa-34aa).
This statutory authority includes the power to acquire school sites
by exercise of the power of eminent domain that is not subject to
review by any of the defendants Milliken, et al, herein. See section
192 of the School Code of 1955, supra, relating specifically to
Detroit as a first class school district and sections 71 1 through 724
of the same statute laying out the condemnation procedure for
34
school districts generally. (32aa, Slaa). See also Board o f Educa
tion o f the City o f Detroit v Lacroix, 239 Mich 46; 214 NW 239
(1927). Cleaver v Board o f Education o f City o f Detroit, 263 Mich
301; 248 NW 629 (1933). Blissfield Community Schools District v
Strech, 346 Mich 186; 77 NW 2d 785 (1956).
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 Act 231, the legislature
amended section 1 of this act to provide, for the first time, that in
the approval of construction plans by the Superintendent of Pub
lic Instruction, not the State Board of Education, he was to con
sider, as one of several factors, “ [t ] he adequacy and location of
the site.” In 1962, by act 175, the legislature amended section 1
of this statute again, thereby removing any power on the part of
the Superintendent of Public Instruction to consider site location
as a factor in approving school construction plans. This statute,
since 1962 and presently, deals only with approval of school con
struction plans in terms of fire, health and safety requirements.
(68aa-72aa).
Thus, under Michigan law, the legal authority of defendant
Superintendent of Public Instruction in site selection 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 ac
quired by the local board of education but, to a subsequent point
in time relating to the submission of construction plans for ap
proval as to health, fire and safety, at which point he could con
sider, as one of several factors, the adequacy and location of the
site. At no time was the Superintendent of Public Instruction em
powered to compel any local school board to acquire a particular
site for school purposes or to review its exercise of the power of
eminent domain. Further, it is the Detroit Board of Education,
acting alone, that establishes the attendance areas for each school
under its jurisdiction. Hiers v Detroit Superintendent o f Schools,
376 Mich 225,235; 136 NW 2d 10, 15 (1965). (Ilia 36).
Moreover, it was the testimony of Mr. Henrickson, an admini
strative employee of the Detroit Board of Education who testified
at length during the trial and was selected as a member of the judi-
35
dally appointed desegregation panel, (99a), that within the time
period from 1949 to 1962, the site standards adopted and utilized
by Detroit for school site selection and acquisition were developed
locally and were not directed by either the State Department of
Education or the State Superintendent of Public Instruction under
Mich Const 1908, art 11, § 2. (IIIa87-IIIa88) (laa). Further, it was
not until after the issuance of the Joint Policy Statement in 1966
that the Michigan Department of Education began to collect pupil
data by race from school districts. (See next to last paragraph of
PX 174, Val3). Thus, during the period from 1949 to 1962 there
is simply no basis for the claim that the Superintendent of Public
Instruction, through the Michigan Department of Education, com
mitted purposeful acts of de jure segregation with respect to
school site selection in Detroit by the Detroit Board of Education.
Keyes, supra, 93 S Ct, at 2697.
Virtually all the construction relied upon by the lower courts
in finding de jure segregation in Detroit occurred after 1962.
(144a-l 5 la). Clearly, a failure on the part of the Superintendent
of Public Instruction to exercise a nonexistent power under state
law cannot constitute purposeful de jure segregation as required
by Keyes, supra, 93 S Ct, at 2697. This portion of the Court of
Appeals’ majority opinion is in direct conflict with the en banc
opinion of the Fourth Circuit in Smith v North Carolina State
Board o f 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 Michigan Superin
tendent of Public Instruction lacked any authority under Michigan
law, to control the school site selections of defendant Detroit
Board of Education.
An interesting example of the efforts undertaken herein to
achieve racial balance, pure and simple, is the trial court’s refer
ence to the “statements” and “guidelines” relative to site location
contained in the Joint Policy Statement and School Plant Planning
Handbook, which are later transformed by the same court to the
36
level of “requirements” and a “directive” in subsequent rulings.
(Compare 26a-27a with 78a-79a and 103a). The 1966 Joint Policy
Statement and the School Plant Planning Handbook, Revised Edi
tion, 1970, represent an admonition to local school boards by the
State Board of Education, in the exercise of its leadership function
under Mich Const 1963, art 8, § 3, to consider racial balance as
one of the factors in selecting new school sites (PX 174, Val3).
(Vall-Val2). The Joint Policy Statement and School Plant Plan
ning Handbook admonitions on site selection were never reduced
to legally enforceable rules in the State Administrative Code for
the reason, as correctly concluded by the trial court, that, after
1962, neither the State Board of Education nor the Superin
tendent of Public Instruction possessed any power of approval
over school site selections made by local boards of education.
(36a). Moreover, as testified by the Superintendent of Public In
struction, these two documents were viewed by him as containing
recommendations. (IIIa24-IIIa26, IIIa36). We ask this Court to
take judicial notice that neither the Joint Policy Statement nor the
School Plant Planning Handbook were ever published in the State
Administrative Code as required by 1943 PA 88 and Section 46 of
its successor act, 1969 PA 306, as amended, MCLA 24.246; MSA
3.560(146), for legally binding administrative rules. (77aa). See
Ranjel v City o f Lansing, 417 F2d 321, 322-323 (CA 6, 1969),
cert den 397 US 980; 90 S Ct 1105; 25 L Ed 2d 390 (1970), reh den
397 US 1059; 90 SCt 1352; 25 L Ed 2d 680 (1970), applicable
by analogy, in which the Court held that HUD’s Low Rent Hous
ing Manual did not have the force of federal law since it was not
contained in the Federal Regulations.
The Federal Constitution does not require racial balance.
Spencer v Kugler, supra. Furthermore, the rule is settled that any
rights existing solely under state law are neither protected by the
Federal Constitution or federal statutes nor enforceable in the fed
eral courts. Baker v Carr, 369 US 186, 194-195 n. 15; 82 S Ct 691,
698; 7 L Ed 2d 663, 672 (1962). Gentry v Howard, 288 F Supp
495 (ED Tenn, 1969) Thus, assuming arguendo that the ad
monitions on racial balance in the Joint Policy Statement and
School Plant Planning Handbook impose some higher duty upon
defendants State Board of Education and Superintendent of
Public Instruction than is imposed by the Fourteenth Amend
37
ment, the enforcement of such duty is a function for Michigan
courts rather than the federal courts.
Although all the construction referred to relates solely to
school construction within Detroit, the Court of Appeals’ majority
opinion transforms such evidence into a conclusion that such con
struction “fostered segregation throughout the Detroit metro
politan 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
residing therein, constitutes multi-school district de jure segre
gation by the Superintendent of Public Instruction in approving
construction plans as to health, fire and safety. Further, such con
clusion on appeal is impossible to reconcile 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).
The whole notion of a metropolitan construction violation
by defendants Milliken, et al, or any of them, is pure fiction. As
testified by plaintiffs’ expert witness, Dr. Foster, in response to a
question from plaintiffs’ counsel, school districts, including the
other 86 school districts in the tri-county area, do not construct
school buildings and then invite parents, white or black, to move
in and fill up the new schools. Rather, school districts, including
the 85 school districts herein, are hard pressed to construct build
ings to meet the population growth within their respective boun
daries. (IVa260). Further, as testified to by the same expert wit
ness, the movement of whites from central cities to suburban com
munities “is due to a lot of factors besides desegregation.”
(IVa254).
Detroit and the other 85 school districts within the counties
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 off
such bonds. See sections 77a, 1 15, 158, 220a and 356 of the
38
School Code of 1955, as amended, supra. (17aa-19aa, 25aa-27aa,
30aa-31aa, 33aa-34aa). Unless this entire statutory scheme of local
governance and finance, involving separate, identifiable and unre
lated school districts, Keyes, supra, 93 SCt,at 2695, is unconstitu
tional for failure to guarantee 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, 411 US, at 54, footnote 110, “ [t] his Court
has never doubted the propriety of maintaining political subdivi
sions within the States and has never found in the Equal Protec
tion Clause any per se rule of ‘territorial uniformity.’ . .
To summarize, ruling 3 on school construction (151a), is in
error both as a matter of fact and of law. As to construction in
Detroit, the sites were selected and acquired locally without any
power on the part of the Superintendent of Public Instruction to
veto same. Further, as to the alleged metropolitan construction
violation by way of the defendants Milliken, et al, it is negated both
by the trial court’s statement that it took no proofs as to whether
any school district, other than Detroit, committed any acts of de
jure segregation and the uncontradicted testimony of plaintiffs’
expert witness that school districts play catch-up in the matter of
constructing schools to house their increased populations. (59a-60a,
IVa260).
D. Ruling (2) — the effect of section 12 of 1970 P A 48
Ruling (2) relates to Section 12 of 1969 PA 244, as added by
1970 PA 48, MCLA 388.171a et seq; MSA 15.2298(la) et seq,
which section delayed implementation of defendant Detroit Board
of Education’s April 7, 1970 racial balance plan affecting 12 of its
21 high schools over a three year period. (114a-l 16a, 151a).
(52aa-58aa). Section 12 of 1969 PA 244, as added by 1970 PA 48,
supra, was held invalid by the Court of Appeals on October 13,
1970, and the trial court was expressly 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).
The ruling by the Court of Appeals, that Section 12 of 1969
PA 244, as added by 1970 PA 48, supra, was unconstitutional,
39
contravenes the settled principle that, on appeal from the denial of
a preliminary injunction, the courts will confine their review to
the limited question of whether the trial court abused its discre
tion. Courts will assess the underlying merits only to determine
the plaintiff’s probability of prevailing on the merits upon remand
and trial, particularly where constitutional issues are involved.
Allen v Mississippi Commission o f Law Enforcement, 424 F2d
285, 290-291 (CA 5, 1970). Yahr v Resor, 431 F2d 690 (CA 4,
1970), cert den 401 US 982; 91 SCt 1192; 28 L Ed 2d 334(1971).
Flowever, no appeal was sought by the defendants Milliken, et al,
for the reason that, in light of the affirmance of the denial of a
preliminary injunction, the Detroit Board of Education was left in
the same practical situation it would have been in if the Court had
adopted the contention of defendents Milliken, et al, that the
second sentence of Section 12 was discretionary, not manda
tory, 1145 i.e., from and after January 1, 1971, the decision to go
forward with the April 7, 1970 racial balance would have been re
posed in the discretion of the newly constituted Detroit Board of
Education. See 433 F2d 987, 904, supra, and Sections la and 12
of 1969 PA 244, as added by 1970 PA 48, supra. 54aa, 58aa).
Based on an opinion from its counsel concerning the effect of
the first sentence of Section 12 of 1969 PA 244, as added by 1970
PA 48, supra, the Detroit Board of Education did not put into
effect the April 7, 1970 racial balance plan. It cannot be said that
Section 12 was implemented by the affirmative conduct of any of
the defendants Milliken, et al, herein. Indeed, defendant State
Board of Education endorsed the April 7 plan. 433 F2d 897,
900-901, supra.
1*4] The Court of Appeals, at 433 F2d 897, 904, supra, states that the de
fendants defended Section 12 on the merits in such Court. That is simply not
accurate. While the brief of defendants Milliken, et al, did discuss the con
stitutional question with reference to the first sentence of Section 12, it did
so only within the limited context of assessing the probabilities of plaintiffs’
success on the merits, upon remand and hearing, as a factor in evaluating the
single question of abuse of discretion by the trial judge. As to the second
sentence of Section 12, the brief of defendants Milliken, et al, did not address
itself at all to the constitutional question, since it was not operative until
January 1, 1971, but did inform the Court of Appeals that it was their posi
tion that such sentence was directory, not mandatory, when read in light of
other unrepealed statutory sections relating to the discretionary authority of
boards of education to establish attendance areas. Hiers v Detroit Superin
tendent o f Schools, supra, 376 Mich, at 235.
40
The only defendant arguably involved with Section 12 is the
Governor, who signed into law 1970 PA 48 on July 7, 1970. How
ever, it must be stressed that 1970 PA 48 contained 14 sections
dealing with the decentralization of first class school districts to
promote the judicially recognized meritorious goal of greater local
control over public education. Wright v Council o f the City o f
Emporia, supra, 407 US, at 469, 478. Rodriguez, supra, 411 US,
at 49. (54aa-58aa). Further, under Michigan law, the Governor
does not possess an item veto except for items appropriating
money in appropriation bills. Mich Const 1963, art 4, §33 and art
5, § 19. Moreover, the language added by Section 2a of 1969 PA
244, as added by 1970 PA 48, supra, to the effect that “ [rjegions
shall be as compact, contiguous and nearly equal in population as
practicable” was a necessary addition to the decentralization legis
lation, in light of the “one-man, one-vote” principle enunciated in
Hadley v Junior College District o f Metropolitan Kansas City, 391
US 50; 90 S Ct 791; 25 L Ed 2d 45 (1970), since the regions serve,
inter alia, as election districts for 8 members of the central or first
class board of education. See Section 2a of 1969 PA 244, as added
by 1970 PA 48, supra. (54aa-55aa). Finally, these defendants are
aware of no judicial authority holding that a chief executive of
ficer, whether it be the President of the United States, governor of
a state or mayor of a city, violates the constitution by signing into
law a legislative enactment, a portion of which is later held to be
unconstitutional. See Wright v Rockefeller, 376 US 52, 55-57; 84
S Ct 603; 11 L Ed 2d 512 (1964), where the majority opinion
discussed, not the intent of the Governor, but the purpose or
motivation of the legislature in ascertaining whether the chal
lenged part of the statute was invalid. The record is barren of any
evidence of segregatory purpose on the part of defendant Milliken
in signing into law 1970 PA 48, supra.
From and after October 13, 1970, Section 12 has been legal
ly ineffective, 433 F2d 897, supra. The postponement of the April
7, 1970 racial balance plan for one semester by § 12 of 1970 PA
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). The lack of implementation of the
April 7, 1970 plan, since that date, has been the result of the un
willingness of the Detroit Board of Education to implement such
41
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, if it ever had any such effect, to the racial composition of
the 12 Detroit high schools included in the April 7, 1970 plan.
Keyes, supra, 93 S Ct, at 2698, 2699. Further, pursuant to the
McDonald Magnet Plan ordered implemented by the trial court,
which included both 8 middle schools and 19 high schools, 8,174
students enrolled in this voluntary integration program for the fall
of 1971. (Ia 90, la 94 and page 1 of the Report of the Detroit
Board of Education on the Magnet Plan).
Finally, it must be emphasized that the April 7, 1970 plan,
affecting only 12 of 21 Detroit high schools, had no causal con
nection with the distribution of pupils by race between Detroit
and any other school district within the tri-county area of Wayne,
Oakland and Macomb counties. Plaintiffs herein continually
sought implementation of such plan solely within the School Dis
trict of the City of Detroit. 433 F2d 897, supra, 438 F2d 945,
supra. Consequently, ruling (2) of the Court of Appeals majority is
manifestly erroneous as to defendants Milliken, et al, and affords
no basis for the implementation of relief intra-Detroit or among
Detroit and other school districts in the tri-county area.
E. R uling (1 ) — D e tro it B oard o f E d u ca tio n an agency o f
the S ta te o f M ichigan
If Ruling (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 either the State of Michigan or the defendants Milliken, et
al, based on the conduct of the Detroit Board of Education, then
such finding is manifestly in error.
Throughout the course of the proceedings below, plaintiffs’
counsel, the trial court and the appellate court have proceeded on
the erroneous premise that the State of Michigan is a party defend
ant herein. (See ila 44, Ila 70, 33a and the slip opinion of the
original appellate panel issued December 8, 1972 which, unlike the
42
majority opinion on rehearing, did not contain the caveat at 1 15a
to the effect that “The State of Michigan as such is not a party to
this litigation.”)- In addition to not being a party herein, the State
of Michigan has not given its consent to this suit in Federal court
as required by the Eleventh Amendment and the controlling case
law of this Court. In re State o f New York, supra, 256 US, at 497.
This premise, while not in accord with reality, was obviously per
ceived as a useful fiction in achieving the lower courts’ paramount
social goal of multi-school district racial balance within a tri
county area.
This premise was given its ultimate effectuation in the orders
adding the State Treasurer as a party defendant and compelling
the defendants Milliken, et al, to pay funds from the state treasury
to purchase 295 buses for a partial, interim multi-district remedy,
(la 263-la 264, 106a-107a). This order, compelling the payment of
approximately $3,000,000.00 from the state treasury to acquire
295 buses [a school bus costs approximately $10,000.00, (IVa
18)], is squarely in conflict with the Eleventh Amendment and
the controlling case law of this Court that a money judgment
payable from the state treasury may not be entered by the Federal
courts in the absence of the state’s consent. Parden v Terminal
Railway Co, 377 US 184, 186, 192; 84 S Ct 1207, 1210-1211,
3 213; 12 L Ed 2d 233, 236, 240 (1964) Ford Motor Co. v
Department o f Treasury o f Indiana, 323 US 459, 464; 65 S Ct
347, 350-351; 89 L Ed 389, 394 (1945). In re State o f New York,
supra, 256 US, at 500-502.
In addition, as cogently stated by Circuit Judge Weick in dis
sent, “ [ t ] his order imposed a personal liability on the State de
fendants and would require them, if they complied with it, to mis
appropriate and misapply state funds in violation of state law.”
(215a). Under Michigan law, no money may be paid out of the
state treasury except pursuant to appropriations made by law and
the power to appropriate state funds is vested in the Michigan leg
islature, not defendants Milliken, et al. Mich Const 1963, art 9,
§ 17 and art 4, §31. (5aa, laa). There is no legislative appropria
tion pursuant to which the defendants Milliken, et al, have any
lawful authority to expend approximately $3,000,000.00 from
the state treasury for school buses. By way of contrast, in Griffin v
County School Board o f Prince Edward County, 377 US 218, 233;
43
84 S Ct 1226, 1234; 12 L Ed 2d 256, 266 (1964), this Court
stated that county officials could be compelled to “exercise the
power that is theirs” to levy local taxes for public education. Here,
the power is not theirs to pay out funds for school buses as
ordered below. Although the order to pay for buses has been va
cated, it is clear that the appellate majority would approve a simi
lar or even more costly order in the future. (190a, 188a).
As noted above, on rehearing the appellate majority recog
nized that the State of Michigan is not a party to this cause and
apparently resorted, albeit cryptically, to a vicarious liability
theory. (115a, 151a). To the extent ruling (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 leg
islative creation exercising plenary discretionary power over stu
dent assignment within their respective school districts. Attorney
General, ex rel Kies v Lowrey, 131 Mich 639, 644; 92 NW 289,
290 (1902), aff’d 199 US 233; 26 S Ct 27; 50 L Ed 167 (1905).
School District o f the City o f Lansing v State Board o f Education,
367 Mich 591, 595; 116 NW 2d 866, 868 (1962). Senghas v
L ’Anse Creuse Public Schools, 368 Mich 557, 560; 118 NW 2d
975, 977 (1962). Hiers v Detroit Superintendent o f Schools,
supra, 376 Mich, at 235; 136 NW 2d, at 15. The school code of
1955, as amended, supra. (6aa-51aa). Thus, assuming arguendo
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, un
der Michigan law, of the defendants Milliken, et al.
Indeed, the Court of Appeals’ majority opinion expressly re
jects any agency theory, as between the defendants Milliken, et al,
and local school districts in its holding that any “affected district
first must be made a party to this litigation and afforded an oppor
tunity to be heard” and in its recognition that under state law,
only the legislature may reorganize the governmental structure of
the tri-county area. (177a, 188a, 189a). This vicarious liability is
also decisively put to rest in the dissent of Judge Weick.
(213a-214a),
This apparent theory of vicarious liability is also put to rest
by the majority opinion in Keyes, supra, 93 S Ct, at 2697, as fol
lows:
44
“ ■ ■ • On the contrary where, as here, the case involves one
school [sic] board, a finding of intentional segregation on its
part in one portion of a school system is highly relevant to
the issue of the board’s intent with respect to the other segre
gated schools in the system. . . . ”
This Court, in enunciating the shifting burden of proof principle
applicable to school desegregation cases, carefully limited its appli
cation to situations involving the same defendant. Since miscon
duct by one defendant, serves only to shift the burden of proof as
to that defendant, it cannot be said that misconduct by one defen
dant is a legally sufficient basis for a finding of vicarious liability as
to other defendants.
Needless to say, in passing upon the actions of defendants
Milliken, et al, it may hardly be argued that they shed any of their
federally protected constitutional rights at the state capitol door.
See Tinker v Des Moines Independent School District, 393 US
503, 506; 89 S Ct 733, 736; 21 L Ed 2d 731, 737 (1969). Like
every other citizen their purposeful actions should be judged fairly
by the record and in accordance with due process of law.
To summarize, neither lower court made any findings against
either the Governor or the Attorney General of purposeful affirm
ative conduct resulting in de jure segregation. This is not surpris
ing, in light of the uncontradicted testimony of the Superin
tendent of Public Instruction that neither the Governor nor the
Attorney General is involved in the decisions of the Detroit Board
of Education or any of the other 616 school district boards of ed
ucation in Michigan. (Ilia 35-IIIa 36, Ilia 41-Ilia 42). Thus, under
Keyes, supra, 93 S Ct, at 2696-2697, the case as to these two de
fendants must be dismissed. This is the sound result reached initi
ally by the District Court herein (la 61), and on appeal by Circuit
Judge Weick (216a).
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
45
State Treasury where, as here, the State of Michigan has never con
sented to this suit in Federal Court. Keyes, supra, 93 S Ct, at
2696-2697. Parden v Terminal Railway Co, supra, 377 US, at 186,
192. Ford Motor Co v Department o f Treasury o f Indiana, supra,
323 US, at 464. In re State o f New York, supra, 256 US, at
500-502.
Turning to defendants State Board of Education and Superin
tendent of Public Instruction, it must first be emphasized that
under the controlling case law of this Court, the elements of de
jure conduct are affirmative, purposeful state action with an intent
to segregate causally connected to a present condition of segrega
tion. Keyes, supra, 93 S Ct, at 2696-2699, Applying this control
ling legal standard, the rulings against these two defendants
must fall. The rulings against the State Board of Education and the
Superintendent of Public Instruction, relating to transportation of
Carver students by the Detroit Board of Education in the 1950’s
and school construction in Detroit during the 1960’s on sites
selected and acquired locally, with locally established attendance
areas, do not constitute purposeful segregatory conduct with a
present causal effect of segregation as required by Keyes, supra. Fur
ther, the lower courts herein clearly erred in relying upon alleged
inter-district financial disparities as a predicate for finding de jure
constitutional violations by these defendants both as a matter of
fact and law. Rodriguez, supra. Thus, as to de jure segregation in
Detroit, the lower court rulings against these two defendants must
be reversed.
On the question of whether the defendants Milliken, et al,
have committed acts with the purpose and present causal effect of
segregating school children by race as between Detroit and the
other 85 school districts in the tri-county area, the conclusion is
compelled that these defendants have not committed such de jure
acts. Keyes, supra, 93 S Ct, at 2696-2699. The question of a
metropolitan violation as to school construction by these defend
ants is spurious in light of the express statement that no proofs
were taken as to whether any school district, other than Detroit,
committed any act of de jure segregation. (59a, 60a). The lower
court language herein on this matter represents, not the record in
this cause, but the judicial goal of multi-school district racial
balance before which all else must fall. Defendants Milliken, et al,
46
should not be employed as the judicial scapegoat for racial balance
over a three-county area. Rather, these defendants deserve to be
judged by their actual conduct in office. Judged in this way, the
lower court rulings against these defendants must be reversed. f15l
II.
THE RULING OF THE COURT OF APPEALS THAT A
DETROIT-ONLY DESEGREGATION PLAN COULD NOT
REMEDY THE UNCONSTITUTIONAL SEGREGATION
FOUND IN THE DETROIT SCHOOL SYSTEM IS NOT
SUPPORTED BY THE RECORD AND IS CLEARLY ERRO
NEOUS AS A MATTER OF LAW.
A. The lower courts rejected the constitutional concept of
a unitary school system within Detroit for the socio
logical concept of racial balance throughout a three-
county area.
Plaintiffs Bradley, et al, in their complaint, specifically
prayed for the “elimination of the racial identity of every school
in the (Detroit) system and to maintain now and hereafter a uni
tary nonracial school system.” (15a). Plaintiffs’ prayer mirrored
the well-settled case law of this Court that a de jure segregated
school district be dismantled so that the system should then be
unitary, as required by Green v School Board o f New Kent
it is the position of the defendants Milliken, et al, as it has been
throughout this litigation, that evidence of alleged racial discrimination in
housing by anyone other than the named defendants is irrelevant and inad
missible in a school desegregation case. (II a 9-10) Swann v Charlotte-
Mecklenburg Board o f Education, supra, 402 US, at 22-23 (1971). Further,
while the trial court opinions contain sweeping generalizations about racial
discrimination in housing, they contain no concrete references to any alleged
acts of racial discrimination in housing by any of the defendants Milliken, et
al. (See, for example, 23a-24a). The reason is that there is nothing in the
record to support any specific findings of racial discrimination in housing as
to these defendants. Further, under Michigan law, persons allegedly discrimin
ated against in private housing may seek relief from the state Civil Rights
Commission and the state courts. See Mich Const 1963, art 5, §29, Beech
Grove Investment Company v Civil Rights Commission, 380 Mich 405; 157
NW 2d 213 (1968). 1968 PA 112, MCLA 564.101 et seq.; MSA 26.1300
(101) et seq. (2aa, 3aa).
47
County, supra, 391 US, at 436; Alexander v Holmes County Board
o f Education, supra, 396 US, at 20; and Swann v Charlotte-
Mecklen burg Board o f Education, supra, 402 US, at 15.
The District Court found the Detroit School District to be de
jure segregated. As defendants Milliken, et al, have demonstrated
in Part I of this brief, the Detroit School District is not a dual
school system because of any purposeful actions by these defend
ants. D efendants Milliken, et al, also do not believe that
the Detroit School District is a dual school system because of any
purposeful action by the defendant Detroit Board of Education.
The trial court found that “ [t] he principal causes (of segrega
tion in the Detroit public schools) undeniably have been popula
tion movement and housing patterns.” (33a). It is submitted that,
indeed, the cause of segregation in Detroit’s public schools is racial
residential concentration, not the de jure conduct of the Detroit
Board of Education. For example, on the question of faculty seg
regation the District Court concluded, based on 30 specific find
ings of fact, that “ [ t ] he Board and the intervening defendant
union have followed a most advanced and exemplary course in
adopting and carrying out what is called the ‘balanced staff con
cept’ - which seeks to balance faculties in each school with re
spect to race, sex and experience, with primary emphasis on race.”
(28a-32a). Thus, the trial court found no de jure faculty segre
gation in the Detroit public schools.
Turning to pupil segregation, the lower courts relied heavily
upon optional attendance areas in finding de jure segregation.
(24a-25a, 139a-140a). The record does not support the conclusion
that these optional attendance areas were created and maintained
with the purpose and effect of segregating pupils by race, since the
option was equally available to all students living in the area. In
any event, it is undisputed that by the 1970-71 school year all
such optional attendance areas had been eliminated with one
minor exception. Further, during the decade of the 1960’s the
elimination of such areas was done in a manner that contributed
to increased pupil integration as testified to by one of plaintiffs’
w itnesses. (R2391, R2392, R2393, R2398, R2399, R2407,
R2411). In addition, the elimination of the last optional attend
ance area in 1970 manifestly contributed to integration at South
48
western High School. (25a). Moreover, as found by the trial
court, the present effect of these optional attendance areas was
limited to 11th and 12th grade students at one high school and
disappeared at the end of the 1972-73 school year. (25a). Thus,
these optional attendance zones do not constitute conduct with
either the purpose or present causal effect of de jure segregation.
Keyes, supra, 93 S Ct, at 2697-2699.
In terms of transportation to relieve overcrowding, both
lower courts ruled that the Detroit Board had done so in a seg-
regatory manner by transporting black pupils past predominantly
white schools to predominantly black schools. (25a, 129a-130a).
However, an examination of defendant’s Exhibit JJ reveals that,
during the decade of the 1960’s, the vast majority of transpor
tation to relieve overcrowding was from sending schools with a
higher percentage of black students to receiving schools with a
lower percentage of black students, thereby increasing integration.
(DX JJ, Va 169).
Turning to school construction, both the lower courts con
cluded that the Detroit Board of Education constructed schools in
a segregatory manner, based almost exclusively on examples of
schools or additions to schools that opened with predominantly
black student bodies in the years immediately preceding the time
of trial. (27a, 144a-151a). In Swann, supra, 402 US, at 20, this
Court stated:
“The construction of new schools and the closing of old ones
are two of the most important functions of local school
authorities and also two of the most complex. They must de
cide questions of location and capacity in light of population
growth, finances, land values, site availability, through an al
most endless list of factors to be considered. . . .”
In contrast with this Court’s perceptive analysis of the multiple
factors involved in school construction, the approach of the lower
courts herein gives no attention to any of these factors in assessing
the alternatives available to the Detroit Board of Education in
light of the racially concentrated demography of the city, site
availability, land values and costs, together with population
growth and traffic patterns in a densely populated urban area plus
49
the many other factors relating to school construction decisions.
An examination of defendant’s exhibit NN reveals that, at
the time construction was authorized for a substantial number of
these schools, the per cent black was above 10% and under 90%.
However, either by the time the construction process was com
pleted and the school opened or by 1970 some of these schools
had become 90% or more black due to demographic changes over
which the Detroit school board had no control. (DX NN, Va 102).
Further, looking at the high schools on the same exhibit, it is sig
nificant that 7 of the 13 high schools listed there, drawing from
geographically larger attendance areas, are substantially integrated.
(DX NN, Va 102). In fact, the schools were built where they were
needed to house the school age children residing within the school
district. Indeed, under the rationale employed by the lower courts
for a multi-district remedy, the pattern of school construction in
Detroit is irrelevant since a unitary system may not be established
within the Detroit school district in any event.
The present Detroit Board of Education, exercising its inde
pendent legal status under Michigan law, has elected, both in the
Court of Appeals and in this Court, to acquiesce in the de jure
findings against it and, in effect, gamble that through a racially
balanced multi-district remedy a unitary system composed of ma
jority black schools in the Detroit School District will not be
necessary. (221a) Thus, the next question to be addressed is
whether the simple demographic fact of a black pupil majority
precludes the establishment of a unitary system of schools in the
Detroit School District.
The District Court ordered the defendant Detroit Board of
Education to submit plans for the desegregation of its schools.
(43a) It submitted Detroit-Only desegregation plans A and C.
Plaintiffs Bradley, et al, submitted a Detroit-Only Plan, here
after designated as plaintiffs’ plan, prepared by Dr. Gordon Foster,
an expert widely utilized by the National Association for the Ad
vancement of Colored People in school desegregation cases, and a
member of the desegregation panel designated by the District
Court. (PXC 2, R 303, 304, 316.) At the hearing on the Detroit-
Only plan, the uncontradicted testimony of Dr. Foster established
50
that plaintiffs’ plan met the constitutional requirements of the
Fourteenth Amendment (IV 95 - IV 96), that it would eliminate
racially identifiable schools in the Detroit School District (IV 96),
that plaintiffs’ plan was a sound educational plan (IV 98) and that
plaintiffs’ plan would improve the educational opportunities of
the school children of Detroit,
The District Court rejected out-of-hand defendant Detroit
Board of Education’s Detroit-Only Plans A and C and made the
following findings of fact and conclusions of law relating to plain
tiffs’ Detroit-Only plan:
“PLAINTIFFS’ 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.
“2. We find further that the racial composition of the stu
dent body is such that the plan’s implementation would
clearly make the entire Detroit public school system racially
identifiable as Black.
* * *
“4. The plan would entail an overall recasting of the Detroit
school system, when there is little assurance that it would not
have to undergo another reorganization i f a metropolitan
plan is adopted. (Emphasis added.)
* * *
“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.
“8. It would change a school system which is now Black and
White to one that would be perceived as Black, thereby in
creasing the flight of Whiles from the city and the system,
thereby increasing the Black student population.
* * *
CONCLUSIONS OF LAW
* * *
51
“2. On the basis of the court’s finding of illegal school segre
gation, the obligation of the school defendants is to adopt
and implement an educationally sound, practicable plan of
desegregation that promises realistically to achieve now and
hereafter the greatest possible degree of actual school deseg
regation. Green v. County School Board, 391 U.S. 430;
Alexander v. Holmes County Board o f Education, 396 U.S.
19; Carter v. West Feliciana Parish School Board, 396 U.S.
290; Swann v. Charlotte-Mecklenburg Board o f Education,
402 U.S. 1.
* * *
“4. Plaintiffs’ Plan, while it would provide a racial mix more
in keeping with the Black-White proportions 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 desegregation.
“5. The conclusion, under the evidence in this case, is ines
capable that relief of segregation in the public schools of the
City of Detroit cannot be accomplished within the corporate
geographical limits of the city. . . .
“That the court must look beyond the limits of the Detroit
school district for a solution to the problem of segregation in
the Detroit public schools is obvious; that it has the author
ity, nay more, the duty to (under the circumstances of this
case) do so appears plainly anticipated by Brown II, seven
teen years ago. While other school cases have not had to deal
with our exact situation, the logic of their application of the
command of Brown II supports our view of our duty.” (54a,
55a, 56a, 57a).
Although the District Court expressly cited Green, supra,
Alexander, supra, and Swann, supra, as controlling precedents
for the desegregation of a de jure segregated school district
(56a), a study of the Findings of Fact and Conclusions of Law
on Detroit-Only Plans of Desegregation. March 28, 1972 (53a),
compel the conclusion that the District Court misread and mis
applied the teachings of this Court so clearly enunciated therein.
This came as no surprise to these defendants since the District
52
Court, by its observations and findings, had clearly marked the
road upon which it had embarked. The following reflect some of
the check points of that journey:
“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 population is, let’s make a guess, 85 to 95
percent black? How do you integrate it? (Emphasis added).
(R 3537).
“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 T hat 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 an
other way, how do I desegregate. . . .”
(R 4003, R 4004).
The overriding concern of the District Court with the spec
ulative black student population of the Detroit School District in
1975, 1980 and 1992 is underscored by the following statement
contained in the Ruling on Issue of Segregation rendered on Sep
tember 27, 1971:
“. . . The percentage of black students in the Detroit Public
Schools in 1975-76 will be 72.0%, in 1980-81 will 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, even be
fore Detroit-Only plans of desegregation had been ordered, let
alone prepared or hearing held, the District Court said:
“As the Court indicated during the course of taking 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 un
53
able to accomplish. In reality our courts are called upon, in
these school cases, to attain a social goal through the educa
tion system, by using law as a lever.” (40a-41a).
In affirming the decision of the District Court rejecting each
Detroit-Only desegregation plan, the majority of the Court of Ap
peals made the following comment:
. . This record presents a wholly new fact pattern in a
school segregation case so far as this Circuit is concerned.
This court never before has been confronted by a finding that
any less comprehensive a solution than a metropolitan area
plan would result in an all black school system immediately
surrounded by practically all white suburban school systems,
with an overwhelmingly white majority population in the
total metropolitan area.” (163a-l 64a).
Judge Weick and Judge Kent, dissenting, characterized, correctly,
the action of the majority of the Court of Appeals as an attempt
to overcome demographic racial imbalance as between the Detroit
School District and other school districts in the tri-county area of
Wayne, Oakland and Macomb rather than correcting constitutional
violations limited to the Detroit School District. (19 la-193a,
224a-225a).
Both the District Court and the majority of the Court of
Appeals, in their haste to use the law as a lever through the educa
tional system to achieve the social goal of racial balance in an area
covering 1,952 square miles, approximately the size of the state of
Delaware, more than half again the size of Rhode Island and al
most 30 times the size of the District of Columbia, and affecting
approximately 1,000,000 children and their parents, have lost
sight of the uncontroverted fact that the Detroit School District
enrollment is composed of 63.8% black children and 34.8% white
children, (21a, 22a) and the controlling teachings of Green,
Alexander and Swann.
B, T h e teachings o f Green, Alexander and Swann exam
ined .
Green, supra, involved a school district 57% black and 43%
white, not unlike the Detroit School District here in racial com
position but much smaller in pupil enrollment, operating a dual
54
school system by maintaining a separate school for blacks and a
separate school for whites. This Court rejected a “freedom of
choice” plan which resulted in the black school remaining black.
“The pattern of separate ‘white’ and ‘Negro’ schools in the
New Kent County school system established under com
pulsion of state laws is precisely the pattern of segregation to
which Brown I and Brown II were particularly addressed, and
which Brown I declared unconstitutionally denied Negro
school children equal protection of the laws. Racial identifi
cation of the system’s schools was complete, extending not
just to the composition of student bodies at the two schools
but to every facet of school operations—faculty, staff, trans
portation, extracurricular activities and facilities. In short,
the State, acting through the local school board and school
officials, organized and operated a dual system, part ‘white’
and part ‘Negro.’
“It was such dual systems that 14 years ago Brown I held
unconstitutional and a year later Brown II held must be abol
ished; school boards operating such school systems were re
quired by Brown II ‘to effectuate a transition to a racially
nondiscriminatory school system.’ 349 US, at 301. . . . The
transition to a unitary, nonracial system o f public education
was and is the ultimate end to be brought about; . . .” 391
US, at 435-436. (Emphasis added.)
This Court mandated that the school district convert to a uni
tary system now, in which racial discrimination would be elim
inated root and branch.
“ . . . The Board must be required to formulate a new plan
and, in light of other courses which appear open to the
Board, such as zoning, [footnote omitted] 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. (Emphasis added.)
Thus, the rule of Green, supra, requires that a dual school
system be converted now to a unitary, nonracial system, com
posed of just schools.
55
When this Court recently rendered its decision in Keyes,
supra, 93 S Ct, at 2693, 2694, at footnote 11, it confirmed that
Green, supra, remains the governing principle.
In Alexander, supra, this Court, relying on Green, supra, and
Griffin v County School Board, supra, restated the standard for
the desegregation of dual school systems and ordered 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. (Emphasis added.)
The holding in Alexander defines a unitary system as one
within which no pupil is excluded from any school because of race
or color.
In Swann, supra, the Court had before it a desegregation plan
for a dual system school district composed of a pupil population
of 71% white and 29% black. Two-thirds of the black pupils, num
bering approximately 14,000, were attending totally or more than
99% black schools. The case came before this Court at a time
when school districts and particularly the federal courts needed
the assistance and guidance of the high court in dismantling dual
school systems. See footnote 5, 402 US, at p 14.
This C ourt distilled its holdings in Green, supra, and
Alexander, supra, and unanimously reaffirmed the standard to be
followed:
“The objective today remains to eliminate from the public
schools all vestiges of state-imposed segregation. Segregation
was the evil struck down by Brown I as contrary to the equal
protection guarantees of the Constitution. That was the viola
tion sought to be corrected by the remedial measures of
Brown II. That was the basis for the holding in Green that
school authorities are ‘clearly charged with the affirmative
duty to take whatever steps might be necessary to convert to
a unitary system in which racial discrimination would be
eliminated root and branch.’ 391 US, at 437-438, 20 L Ed 2d
at 723.” 402 US, at 15.
* * *
56
“Our objective in dealing with the issues presented by these
cases is to see that school authorities exclude no pupil of a
racial minority from any school, directly or indirectly, on
account of race; it does not and cannot embrace all the prob
lems of racial prejudice, even when those problems con
tribute to disproportionate racial concentrations in some
schools.” 402 US, at 23.
The Court then gave fair warning that its ruling should not be mis
applied:
“ . . . If we were to read the holding of the District Court to
require, as a matter of substantive constitutional right, any
particular degree of racial balance or mixing, that approach
would be disapproved and we would be obliged to reverse.
The constitutional command to desegregate schools does not
mean that every school in every community must always re
flect the racial composition of the school system as a whole.”
402 US, at 24. (Emphasis added.)
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 constitutionally required to make year-
by-year adjustments of the racial composition of student
bodies once the affirmative duty to desegregate has been
accom plished and racial discrimination through official
action is eliminated from the system. . . .” 402 US, at 31-32.
The holdings in Swann, supra, are clear. A school district
operating as a dual school system must dismantle its de jure segre
gated system so that it operates a unitary system wherein no pupil
of a racial minority shall be excluded from any school, directly or
indirectly, on account of race or color. There is no constitutional
right to a particular degree of racial balance or mixing within such
school district. The Constitution does not require that every
school must always reflect the racial composition of the school
district. Nor does it mandate that federal judges make annual ad
justments in the racial compositions of schools because of demo
graphic changes.
57
C. T h e teachings of Green, Alexander and Swann, w ere
u n h ee d ed an d ignored .
The salutary purposes of the unanimous Court in Swann,
supra, to assist federal courts in the dismantling of dual school
systems through reasonably precise instructions as to the remedial
powers of such courts were unheeded and ignored by the District
Court and the majority of the Court of Appeals. Both the decision
of the District Court and the majority of the Court of Appeals
contain no finding that plaintiffs’ Detroit-Only plan would not
convert the Detroit school system into a unitary system because
pupils of a racial minority would be excluded from any school
within the Detroit school system, directly or indirectly, because of
race or color, under such plan.
Rather, the District Court was preoccupied with other tests
and standards, not enunciated by this Court, such as the failure of
the plan to be a building block for a metropolitan plan (55a) and
that the plan was inadequate because, somehow, the Detroit
School District, 63.8% black and 34.8% white, would be perceived
as a black school district rather than a black and white school dis
trict. (56a).
While the conclusions of law of the District Court on the
Detroit-Only plans expressly cite Green, supra, Alexander, supra,
and Swann, supra (56a), the District Court concluded that plain
tiffs’ plan, even though it did provide a racial mix more in keeping
with the black-white proportions of the student population, would
not accomplish desegregation because it would accentuate the
racial identifiability of the district as a black school system. (56a).
The District Court cited no legal authority for such conclusion
and, indeed, there is none. Based upon the record below, had the
district judge applied the controlling standard enunciated in
Green, supra, Alexander, supra, and Swann, supra, it would have
been compelled to find that plaintiffs’ Detroit-Only plan would
provide for the establishment of a unitary system in which no child
is excluded from any school, directly or indirectly, because of race
or color, as required by this Court in Green, supra, Alexander,
supra, and Swann, supra.
The majority of the Court of Appeals affirmed these findings
and conclusions of law. Although the total opinion contains many
references to Green, supra, and Swann, supra, the majority failed
58
to heed and ignored the lessons contained therein. It is clear that
the majority of the Court of Appeals was aware of the uncon
troverted fact that the racial pupil composition of the Detroit
School District was 63.8% black and 34.8% white (21a-22a), yet
the majority of the Court of Appeals made the observation that if
plaintiffs’ Detroit-Only plan were adopted, it would result in “an
all black school system.” (164a).
There can be no question but that both the District
Court and the majority of the Court of Appeals sought to provide
for more than a correction of the alleged constitutional violation
through establishment of a unitary system in which no pupil is
excluded from any school, directly or indirectly, because of race
or color, but instead sought to overcome the demographic racial
imbalance between Detroit and suburban communities.
Racial imbalance as a result of demographic residential pat
terns, as contrasted with state enforced segregation within a school
district, is not offensive to the Constitution. Spencer v Kugler,
supra.
“ . . . Brown never required anything more than a unitary
school system . . .” Spencer v Kugler, supra, 326 F Supp, at
1241.
* *
“The Court in Swann draws a critical distinction between
those states which have a history of dual school systems and
a separation of the races . . . and those wherein so-called ‘de
facto ’ segregation results from housing patterns and con
ventional drawing of school district zones.”
* * *
“A continuing trend toward racial imbalance caused by hous
ing patterns within the various school districts is not suscep
tible to federal judicial intervention. . . . ” Spencer v Kugler,
supra, 326 F Supp, at 1242-1243.
Clearly, the rulings of the District Court and the majority of
the Court of Appeals are in direct conflict with the controlling
authorities of this Court.
D. This C o u rt has co n sis ten tly req u ired m a jo rity b lack
schoo l system s to co n v e rt to u n ita ry sch o o l system s
w ith o u t regard to achieving racial b a lan ce am ong such
59
m ajo rity b lack school system s and larger geographical
areas.
The effect of the decision of the majority of the Court of
Appeals must be that a unitary system may not be constitutionally
established in a majority black school district. Yet, this Court, on
many occasions, has mandated that a majority black dual system
school district must operate a unitary school system within the
district. The attention of the Court is first invited to Wright v
Council o f City o f Emporia, supra, in which the Court considered
and rejected efforts to carve out a new school district from the
territory of a district that had not completed dismantling of a dual
school system, and said:
“According to figures later supplied to the District Court,
there were 3,759 children enrolled in the unitary system
contemplated by the desegregation decree, o f whom 66%
were Negro and 34% were white . . . 407 US, at 457.
(Emphasis added.)
The Court also held:
“Just as racial balance is not required in remedying a dual
system, neither are racial ratios the sole consideration to be
taken into account in devising a workable remedy.” 407 US,
at 465.
While in Wright, supra, the Court divided 5-4, it is significant that
in dissent it was found that the county school district, excluding
the -city of Emporia, would be fully unitary and nonracial even
though its composition of pupils would be 72% black and 28%
white. 407 US, at 475.
The decisions below are also contrary to Cotton v Scotland
Neck City Board o f Education, supra, where the Court disapproved
the detachment of territory from a school district found to be
operating a dual school system, an even more striking affirmation
of the proposition that desegregation can be accomplished in a
school district which is predominantly black. In Scotland Neck,
supra, the school district, formerly dual, was composed of 77%
black, 22% white and 1% American Indian. In a unanimous de
cision the court failed to allude to any constitutional infirmity in
the intra-district remedy and in fact referred to the “unitary sys
tem” which would take effect. 407 US, at 486.
60
In Raney v Board o f Education o f the Gould School District,
supra, a 60% black school district found to be a dual school sys
tem attempted to desegregate its schools by means of a “freedom
of choice plan.” As in Green, supra, three years later the Field
School remained all black. Relying upon Green, supra, the Court
found the freedom of choice plan inadequate “to convert to a uni
tary, nonracial system.” 391 US, at 447.
This Court also harbored no doubts in Green, supra, that a
unitary system could be established in a district with a 55% black
majority and even suggested means for its accomplishment.
These cases unequivocally demonstrate that there is no con
stitutional requirement that the conversion of a majority black
school district to a unitary system be effectuated by involving sur
rounding 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 decision, that Detroit could not be integrated because it
would be perceived as black, is contrary to Swann, supra, because
the District Court imposed racial balance in a large geographical
area rather than order conversion to a unitary system in which no
student is excluded from any school, directly or indirectly, be
cause of race or color. Almost every school district in the country
is either majority 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 majori
ty be white or black, unless, somehow, the law is that school sys
tems with white majorities are to be preferred as superior to
school systems with black majorities, a concept without support in
any decision of this Court.
Moreover, the ruling below that the broad remedial equitable
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 pat
tern both within Detroit and between Detroit and other tri-county
school districts is inherently unconstitutional. Such result is both
unsupported by precedent and directly in conflict with the prior
decisions of this Court cited above.
6 1
The holding of the lower courts that it is constitutionally im
permissible to operate a unitary system within the Detroit school
system because it is 63.8% black, 34.8% white, is in direct conflict
with the decision of the Fourth Circuit Court of Appeals. Bradley
v School Board o f Richmond, Virginia, supra. In Bradley v Rich
mond, supra, the District Court approved a plan of desegregation
of a segregated school district, 64% black and 36% white. The
Richmond Board of Education, shortly after the desegregation
plan was implemented, moved the District Court to join the school
district with two neighboring majority white school districts to
provide a “better” racial mix. The Fourth Circuit squarely held
that there is no federally protected right to racial balance within
even a single school district, only a right to attend a unitary school
system. Once a unitary school system was operative within the
school district, 64% black and 36% white, the authority of the Dis
trict Court to further intervene by racially balancing with majority
white school districts was neither necessary nor justifiable. It is re
spectfully submitted that the holding in Bradley v Richmond, sup
ra, is sound. It clearly stands for the proposition that a unitary
school system can be achieved and be operative within a school
district that is 63.8% black and 34.8% white.
The attention of the Court is particularly invited to the de
cision of the Sixth Circuit in Northcross v Board o f Education o f
Memphis, supra, requiring a unitary system within a segregated
school district composed of 134,000 pupils, 57% black and 43%
white. In that case, the Court of Appeals asked counsel for plain
tiffs, who is also chief trial counsel for plaintiffs here, to advise
what would be a unitary system in Memphis:
“He replied that such a system would require that every pub
lic school in Memphis there would have to be 55% Negroes
and 45% whites. Departures of 5% to 10% from such rule
would be tolerated. . . .”
On December 4, 1973, the Court of Appeals, over Plaintiffs objec
tion , affirm ed a desegregation plan for the majority black
Memphis School District that would leave substantial numbers of
black students in both all black schools and predominantly black
schools, totalling 25 schools. Northcross v Board o f Education o f
Memphis City Schools, ____ F2d____ No. 73-1667, 73-1 954,
Slip Opinion, pp 3, 5 (1973).
62
The decisions below are also inconsistent with the decision of
the Sixth Circuit, sitting en banc, in Goss v Board o f Education o f
City o f Knoxville, 482 F2d 1044 (CA 6, 1973), where the Court
found that the school authorities took affirmative action to im
prove the racial mix so that the district was operating a unitary
system. Relying upon Swann, supra, the Court declined to order
extensive busing to obtain a certain percentage of black students
in each school even though “some schools in the Knoxville system
will remain identifiably black or white on the basis of pupil enroll
ments.” 482 F2d at 1046. The Knoxville School District’s racial
composition was 16.5% black. Goss v Board o f Education, City o f
Knoxville, 340 F Supp 711,716 (ED Tenn, 1972).
It is beyond question that a 63.8% black dual system school
district can be dismantled and converted to a unitary system in
which no pupil is excluded from any school, directly or indirectly,
because of race, or color, Green, supra, and Swann, supra, and in
which there are only schools. Alexander, supra. By engaging in
sheer conjecture as to the racial composition of the Detroit School
District in 1975, 1980 and 1992 (20a) and erroneously labeling
the district as all black (163a-164a), contrary to the uncontrover
ted record (21a-22a), the lower courts sought to erect a predicate
so as to use the law as a lever, in the field of education, to achieve
the social goal of racially balancing a geographical area as large as
the State of Delaware, larger than the State of Rhode Island, and
times the size of the District of Columbia.
7ft/Ary
Since Swann, supra, proscribes year by year judicial adjust
ments in pupil assignments because of changing demographic
patterns within a school district, and Green, supra, requires dese
gregation of a dual system school district now, the purely conjec
tural student population of the Detroit School District in 1975,
1980 and 1992 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.
Plaintiffs’ Detroit-Only plan was prepared by Dr. Foster. It is
the uncontroverted testimony of Dr. Foster that the plan meets
constitutional requirements, eliminates racially identifiable schools
and is a sound educational plan. Thus, plainly, such plan would
63
result in a unitary system of schools within the Detroit School Dis
trict, in which no child would be excluded from any school,
directly or indirectly, because of race or color. That is all the Con
stitution requires.
III.
TH E D EC ISIO N O F T H E LOW ER C O U R TS T H A T A M UL
T I - S C H O O L D I S T R I C T R E M E D Y I S C O N S T I T U
T IO N A L L Y PER M ISSIB LE H E R E IN IS M A N IFE ST L Y E R
RO N EO U S.
A. S c o p e o f m u lti-d is tric t rem ed y decreed below and
so u g h t o n rem an d by p la in tiffs ’ am ended com plain t.
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 only within the City of Detroit. (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, the trial court proceeded to enter the most
sweeping remedial decree ever entered in a school desegregation
case, judicially creating a 53 school district desegregation area in
volving 780,000 or approximately 1/3 of Michigan’s puplic school
pupils. This remedial decree mandated and compelled the reassign
ment of pupils and faculty across school district boundaries and
compels massive transportation of 310,000 pupils throughout an
area covering approximately 700 square miles for the sole purpose
of achieving racial balance. (72a, 101 a-102a).
Thereafter, the trial court commanded the defendants Mil-
liken, et al, 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 cost of this initial order to acquire trans
portation would have been approximately $3,000,000.00 since
one school bus meeting Michigan standards costs approximately
$10,000.00. (106a-l07a, IVa 18).
64
The appellate majority, while affirming the propriety and
necessity of a multi-school district remedy, partially vacated the
multi-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. (173a,
176a-179a). However, it is clear that upon remand all school dis
tricts made parties to the cause may be included in the multi
district remedy.
On remand, plaintiffs filed their Amended Complaint to Con
form to Evidence and Prayer for Relief, which, at paragraph 15,
seeks pupil and staff reassignment in virtually the same desegrega
tion area previously decreed by the trial court. (Compare 101a and
la 297). Further, plaintiffs are seeking relief as to the remaining
32 school districts in the tri-county area by way of judicial moni
toring of school construction and staff hiring, indefinitely, thus
constituting a federal judicial receivership for the foreseeable
future for the tri-county area of Wayne, Oakland and Macomb. (Ia
297-la 298). Pursuant to plaintiffs’ motion and order of the trial
court, all of the school districts in the tri-county area, except
Pontiac, are now parties to this cause. (Ia 300-la 303).
B. This massive multi-school district relief is not based up
on any constitutional violation involving the manipu
lation of school district boundaries for purposes of de
jure segregation of pupils between Detroit and the other
85 school districts in the tri-county area.
In ordering the most sweeping relief ever in a school desegre
gation case, the District Court candidly stated the following:
“ . . . It should be noted that the court has taken no proofs
with respect to the establishment of the boundaries of the 86
public school districts in the counties of Wayne, Oakland and
Macomb, nor on the issue of whether, with the exclusion of
the city of Detroit school district, such school districts have
committed acts of de jure segregation.” (59a-60a).
The appellate majority, in affirming multi-school district
relief, did not set forth any conclusion that school district boun
daries had been established or altered for unconstitutional pur
65
poses. (174a). Further, plaintiffs’ amended complaint, like their
original complaint, does not allege any constitutional violation as
to the establishment and alteration of the boundaries of Detroit or
any other school district in the tri-county area. (2a-16a, la 291-la
299).
This total lack of pleaded allegations, proofs and findings is
not surprising in light of the fact that Michigan law established the
coterminous school district 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 pur
suance of this act, shall, under the direction 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 seveenteen years, inclusive.”
See Section 1 of 1842 PA 70 (52aa).
Moreover, some 98 years later, in 1940, the population of the City
o f 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 racial im
balance existing among New Jersey’s school districts. The three-
judge court, in rejecting plaintiffs’ challenge, noted that under
New Jersey law, school district boundaries conform to municipal
boundaries, 326 F Supp, at 1240, and held the following:
“ A continuing trend toward racial imbalance caused by
housing patterns within the various school districts is not sus
ceptible to federal judicial intervention. The New Jersey
Legislature has by intent maintained a unitary system of
public education, albeit that system has degenerated to ex
treme 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, Mr. Justice Douglas dis
senting. It is impossible to reconcile this Court’s affirmance in
66
Spencer v Kugler, supra, with the lower courts’ decisions herein in
view of the historical, rational and racially neutral nature of the
coterminous boundaries of the city and school district of Detroit.
This Court has responded favorably to demands for judicial
redrawing of local government lines only where a showing was
made that such lines had been drawn with the purpose and effect
of depriving persons of constitutional rights. Compare Gomillion v
Lightfoot, 364 US 339, 341; 81 S Ct 125, 127; 5 L Ed 2d 110,
113 (1960), where the statute in question redefined the city of
Tuskegee’s boundaries from a square to a “twenty-eight-side
figure,” thereby removing “from the city all save only four or five
of its 400 Negro voters while not removing a single white voter or
resident.” In the absence of any finding below that the school dis
trict boundary lines involved 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
Rockefeller, supra, 376 US, at 58.
It must also be observed that 9 of the 52 school districts,
other than Detroit, included in the judicially created desegregation
area have student body compositions ranging from 9.5% black up
wards. (PX P.M. 3 2, Val 11-Val 15). This vividly illustrates that
school district boundaries have not been manipulated to separate
school children by race. It is simply inaccurate to perceive Detroit
as a black island surrounded by an all white sea.
In short, there is simply no school district boundary violation
herein as a predicate for multi-district relief. In the absence of any
pleaded allegations, proofs and findings as to the manipulation of
school district boundaries for the purpose of separating school
children by race between Detroit and the other school districts in
the tri-county area, multi-school district relief herein must fail.
Racial imbalance among school districts, as a result of housing pat
terns, does not violate the Equal Protection Clause. Spencer v
Kugler, supra.
67
C. This massive multi-school district remedy is not support
ed by any de jure conduct of any of the school districts
to be affected.
As observed above, in setting forth the massive scope of its
multi-school district remedy, the District Court expressly stated:
. . It should be noted that the court has taken no proofs
with respect to the establishment of the boundaries of the 86
public school districts in the counties of Wayne, Oakland and
Macomb, nor on the issue of whether, with the exclusion of
the city of Detroit school district, such school districts have
committed acts of de jure segregation.” (59a-60a).
The appellate majority, while affirming the need for a multi
school district remedy, did not set forth any constitutional vio
lations as to the conduct of the school districts, other than
Detroit, to be included in the remedy. (172a-l75a). Indeed, plain
tiffs’ amended complaint refrains from alleging de jure conduct as
to any school district other than Detroit. (Ia294, 295).
Here, it must be stressed that, in the language of Keyes,
supra, 93 S Ct, at 2695, each school district herein is a separate
identifiable and unrelated unit. Under Michigan law, each school
district is an independent body corporate with its own locally
elected board of education exercising plenary discretionary
authority over the educational system within its school district
boundaries. See Sections 352, 491 and relevant portions of Sec
tions 561 through 623 of the School Code of 1955, supra, MCLA
340.352, 340.491; MSA 15.3352, 1 5.3491. (34aa-35aa,
43aa-51aa). Thus, it is beyond dispute that, whatever the conduct
of the Detroit Board of Education, its conduct cannot be imputed
to any of the other school district defendants herein.
In the posture of this cause, the imposition of a multi-district
remedy upon the school districts, not including Detroit, within the
tri-county area constitutes the granting of a remedy in the absence
of a constitutional violation. This is contrary to the controlling
principles concerning school desegregation remedies unanimously
enunciated by this Court in Swarm, supra, as follows:
“In seeking to define even in broad and general terms how far
this remedial power extends it is important to remember that
68
judicial powers may be exercised only on the basis of a con
stitutional violation. . .
. . As with any equity case, the nature of the violation de
termines the scope of the remedy. . .” 402 US, at 16.
Here, the violation or condition found to offend the Con
stitution 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 Green, supra, A lexander,
supra and Swann, supra. The courts below, contrary to the con
trolling 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 any conduct resulting in de
jure segregation by any school district other than Detroit.
D. This massive multi-school district remedy is not sup
ported by any conduct of defendants Milliken, et al,
with the purpose and present causal effect of segregating
children by race as between Detroit and the other
school districts in the tri-county area.
The appellate majority relies heavily upon the alleged de jure
conduct of the defendants Milliken, et al, in attempting to pro
vide a legal rationale for the imposition of multi-district relief.
This is vividly illustrated by the following language from its opin
ion.
. . The power to disregard such artificial barriers is all the
more clear where, as here, the State has been guilty of dis
crimination which had the effect of creating and maintaining
racial segregation along school district lines. See Section III
B, pp. 42-48, supra. [Citations omitted] ” (172a).
However, as previously demonstrated in this brief, such language is
without any foundation in this cause. There have been no allega
tions, proofs or findings with respect to manipulating school dis
trict boundaries for segregatory purposes. There have been no alle
gations, proofs or findings with respect to de jure conduct by any
school district other than Detroit. Alleged inter-district disparities
69
in school finance among school districts give rise to no constitu
tional violation. Rodriguez, supra. The former Carver School
District area lias been a part of the Oak Park School District since
1960. (169a). The state school aid urban-rural categorical trans
portation reimbursement provisions apply to both black and white
students alike in Detroit and other school districts in the tri
county area on the basis of residence within or without city boun
daries for the purpose of intra-district transportation. (93a). Sec
tion 12 of 1969 PA 244, as added by 1970 PA 48, supra, related
to a racial balance plan limited to 12 of Detroit’s 21 high schools.
433 F2d 897, supra, at 898. Thus, it is manifest that the defendants
Milliken, et al, have not committed de jure acts with the purpose
and present causal effect of separating school children by race be
tween Detroit and the other school districts in the tri-county area.
Keyes, supra, 93 S Ct, at 2697-2699.
The one remaining aspect of these defendants’ conduct
involves site location for school construction, which has been dis
cussed above. As shown above, the record does not support any
notion of a multi-district construction violation by these defend
ants. Rather, what this case demonstrates is the “familiar phenom
enon that in metropolitan areas minority groups are often found
concentrated in one part of the city.” Swann, supra, 402 US, at
25. Or, as stated in the concurring opinion of Mr. Justice Powell in
Keyes, supra, 93 S Ct, at 2704, “ . . . the familiar root cause of seg
regated schools in all the biracial metropolitan areas of our coun
try is essentially the same: one of segregated residential and migra
tory patterns. . .”
Turning to the instant cause, it is demonstrable that in 1940,
some 98 years after the boundaries of the city and school district
of Detroit had been made coterminous by Section 1 of 1842 PA
70, the City of Detroit was approximately 10% black. By 1970,
the same city was approximately 45% black. (52aa). (21 a). Thus,
it is beyond dispute that school district boundary lines were not
manipulated and superimposed upon changing demographic pat
terns. Rather, changing racial demographic patterns have been su
perimposed upon school district boundary lines of long standing.
70
As recognized by a unanimous Court in Swann, supra, 402
US, at 31-32:
“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 constitutionally required to make year-by
year adjustments of the racial composition of student bodies
once the affirmative duty to desegregate has been accom
plished and racial discrimination through official action is eli
minated from the system. This does not mean that federal
courts are without power to deal with future problems; but
in the absence of a showing that either the school authorities
or some other agency of the State has deliberately attempted
to fix or alter demographic patterns to affect the racial com
position of the schools, further intervention by a district
court should not be necessary.”
Thus, where, as here, the record does not show that the defen
dants or any other agency of the State has purposely fixed or
altered demographic patterns to affect racial compositions in the
schools as between Detroit and the other 85 school districts in the
tri-county area, there is simply no basis for multi-school district
relief.
Finally, as set forth in Swann, supra:
“. . . The target of the cases from Brown I to the present was
the dual school system. The elimination of racial discrimina
tion in public schools is a large task and one that should not
be retarded by efforts to achieve broader purposes lying be
yond the jurisdiction of school authorities. . . .402 US, at 22.
“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 ac
count of race; it does not and cannot embrace all the prob
lems of racial prejudice, even when those problems con
tribute to disproportionate racial concentrations in some
schools.” 402 US, at 23.
Consequently, it is clear that changing racial demographic patterns
over the past 30 odd years in the tri-county area, which reflect a
71
national phenomenon not unique to Wayne, Oakland and Macomb
counties, cannot, without more, constitute a constitutional
violation. There is simply no basis in fact or law for concluding
that the conduct of the defendants Milliken, et al, herein serves as
a valid basis for imposing multi-district relief.
E. T he m u lti-d is tric t re lie f decreed below is fo r th e sole
p u rp o se o f racial balance w ith in a tri-co u n ty area.
The decisions of this Court make it unequivocally clear that
racial balance within or between school districts is not constitu
tionally required. The Equal Protection Clause, unlike other con
stitutional provisions, neither confers substantive rights nor creates
substantive liberties. Its function is limited to measuring the vali
dity of classifications created by state law. Rodriguez, supra, 411
US, at 59, concurring opinion of Mr. Justice Stewart.
Further, in Swann, supra, this Court squarely ruled:
“ . . . If we were to read the holding of the District Court to
require, as a matter of substantive constitutional right, any
particular degree of racial balance or mixing, that approach
would be disapproved and we would be obliged to reverse.
The constitutional command to desegregate schools does not
mean that every school in every community must always re
flect the racial composition of the school system as a whole.”
402 US, at 24.
Moreover, in Emporia, supra, 407 US, at 464, the majority,
in enjoining the carving out of a new school district from an exist
ing school district that had not yet finished dismantling its dual
school system, plainly stated:
“We need not and do not hold that this disparity in the racial
composition of the two systems would be a sufficient reason,
standing alone, to enjoin the creation of the separate school
district. The fact that a school board’s desegregation plan
leaves some disparity in racial balance among various schools
in the system does not alone make that plan unacceptable.
( Footnote omitted] We observed in Swann, supra, that
‘11] he constitutional command to desegregate schools does
not mean that every school in every community must always
reflect the racial composition of the school system as a
whole.’ 402 U.S., at 24.”
72
The dissent in Emporia, supra, representing the views of four
justices, registered its rejection of racial balance as a predicate for
federal judicial intervention in the following language:
“If the severance of the two systems were permitted to pro
ceed, the assignment of children to schools would depend
solely on their residence. County residents would attend
county schools, and city residents would attend city schools.
Assignment to schools would in no sense depend on race.
Such a geographic assignment pattern is prima facie con
sistent with the Equal Protection Clause. See Spencer v. Kug-
ler, 326 F. Supp. 1235 (N. J. 1971), affd, 404 U. S. 1027
(1972).” 407 US, at 471-472.
* * *
“It can be no more be said that racial balance is the norm to
be sought, than it can be said that mere racial imbalance was
the condition requiring a judicial remedy. . . . Since the goal
is to dismantle dual school systems rather than to reproduce
in each classroom a microcosmic reflection of the racial
proportions of a given geographical area, there is no basis for
saying that a plan providing a uniform racial balance is more
e ffective or constitutionally preferred. School authorities
may wish to pursue that goal as a matter of policy, but we
have made it plain that it is not constitutionally mandated.
See Swann v. Charlotte-Mecklenburg Board o f Education,
402 U. S., at 16.” 407 US, at 473-474.
Thus, the teaching of Emporia, supra, is that mere disparities in
racial ratios between school systems is not a legally sufficient
reason for enjoining the creation of a new school district. Given
this, the reassignment of pupils across school district and county
lines decreed herein for racial balance purposes cannot withstand
judicial scrutiny.
An examination of the proceedings in this cause will demon
strate that the multi-district relief mandated below is for the
purpose of racial balance, pure and simple, in contravention of the
precedents of this Court. On cross-examination, plaintiffs’ expert
witness testified concerning the formulation of plaintiffs’ pro
posed multi-district plan as follows:
73
“Q. All right. I wasn’t very good at mathematics in school, I
probably won’t be very good at them today, Doctor,
but let me ask you this:
Basically, as I understand your testimony, you came to
Detroit yesterday and you sat and got down to work
and you worked out a plan which has as its primary
predicate achieving a 25.3 percent racial balance within
the metropolitan area, consistent with what you con
sider to be reasonable travel time. Isn’t that about it?
A. Not quite, no, sir.
Q. Pardon?
A. Not quite, no, sir.
Q. All right, what other factors, then, did you take into ac
count?
A. Well, it isn’t simply a question of other factors, but I
think you misstated my premise. My intent was not to
achieve balance but to minimize disproportion from the
normative figure. And I think there is a difference and a
distinction between the two statements.
Q. All right. Well, let’s not get into an argument over se
mantics, let’s see if we can word it another way then:
[1241] What you tried to do was come as close, look
ing at your exhibit and from your previous testimony, is
to try to come as close as possible to achieving what I
believe you described as a norm of 25 percent plus or
minus 5 percent in each cluster, so that you would have
a mix of 75, roughly 75 percent white, 25 percent
black, give or take 5 percent?
A. Well, again, it’s semantics but it’s more a problem of not
straying too far from the norm, than it is trying to come
as close as possible. It’s a subtle distinction but I think a
very important one.
Q. Well, whether it’s not to stray too far or come as close,
the norm was 25.3 percent; is that right?
A. Yes.
74
Q. And then the idea of the plan was not to try to stray
from that norm, and you come up with a plan that
would permit you to do that?
A. That’s right.” (IVa249-IVa250).
Further, an examination of PX P.M. 12, plaintiffs’ proposal,
reveals that plaintiffs’ expert rigorously adhered to his norm of
25.3% black, plus or minus 5%, in that the clusters range in per
cent black from a low of 20.5% black in cluster 13 to a high of
30.8% black in cluster 7. (PX P.M. 12, Val 11-Val 15). Thus, it
may only be concluded that plaintiffs’ multi-district proposal was
formulated on a fixed normative figure of 25.3% black with only
minor deviations therefrom being tolerated.
An examination of the Ruling on Desegregation, June 14,
1972, makes the purpose and intent of the District Court crystal
clear.
“Pupil reassignment to accomplish the desegregation o f
the Detroit public schools is required within the geographical
area which may be described as encompassing the following
school districts (see Exhibit P.M. 12), and hereinafter re
ferred to as the ‘desegregation area’ (Emphasis supplied)
(53 school districts are described by name, including
Ecorse, Hamtramck, Highland Park, Inkster, River Rouge,
Westwood, among others) (101a).
“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 desegregation to the end that, upon
implementation, no school, grade or classroom be sub
stantially disproportionate to the overall pupil racial compo
sition.” (101a-102a).
PX P.M. 12 (Val 11-Val 15) shows that the racial makeup of pupils
in the “desegregation area” is approximately 75% white and 25%
black. It also indicates the following:
Ecorse
Hamtramck
Highland Park
Inkster
50.8% black pupils
28.7% black pupils
85.1% black pupils
88.0% black pupils
75
River Rouge 43.2% black pupils
Westwood 39.9% black pupils
If the true purpose and intent of the District Court’s desegre
gation area is “to accomplish the desegregation of the Detroit
public schools” , the transporting of white pupils from Highland
Park into Detroit will only leave Highland Park with propor
tionately more black students. The same can be said of Inkster,
Ecorse, River Rouge, Westwood and Hamtramck so that each dis
trict would contain much more than an average 25% black pupils
for the desegregation area. The truth is that when these districts
were made part of the “desegregation area”, there could be no in
tent to transport white pupils from any of these school districts
into Detroit. Rather, the clear purpose was to transport black
children from each of these districts into predominantly white
school districts in order to reach the 75% white and 25% black
configuration for the desegregation area. This is amply borne out
by examining the clusters in PX P.M. 12. (Val 11-Val 15).
Total Percent
Total Black Black
“District
Cluster 6
Students Students Students
Birmingham 16,912 7 .0
Hazel Park 7,868 1 .0
Highland Park 7,708 6,556 85.1
Royal Oak 18,583 5 ,0
Detroit Murray 9,564 7,042 73.6
60,635 13,611 22.4”
(Val 11-Val 15).
It is demonstrable that in order to achieve an approximate
population of 75% white and 25% black in Cluster 6, black pupils
from Highland Park and Detroit Murray will be transported to
Birmingham, Hazel Park and Royal Oak, while white pupils from
Birmingham, Hazel Park and Royal Oak will be transported to
Highland Park and Detroit Murray. There will be no movement of
pupils between Highland Park and Detroit Murray. Thus, it cannot
be said that the pupils in Highland Park, white or black, must be
reassigned “to accomplish the desegregation of the Detroit Public
Schools.” What must be said, and it is the only conclusion
76
possible, that the inclusion of Highland Park within the
“desegregation area” as a part of Cluster 6 will serve to racially
balance pupils in the Birmingham, Hazel Park, Royal Oak, and
Highland Park school districts as well as in the Detroit Murray
constellation.
Examination of the inclusion of Inkster and Westwood
within the “desegregation area” is even more conclusive.
Total
Total
Black
Percent
Black
“District Students Students Students
Cluster 12
Cherry Hill 4,627 16 .3
Inkster 4,311 3,795 88.0
Wayne 23,218 30 .1
Westwood 4,961 1,980 39.9
Detroit Chadsey 5,998 2,053
plus Cadillac JHS
1/5 Cooley 4,250 2,526 44.7
43,420 10,400 22.0”
(Val 11-Val 15).
How the inclusion of the Inkster and Westwood school
districts can help to desegregate the Detroit Chadsey and
remaining identified Detroit schools is beyond our imagination.
The Detroit school constellations are less than 50% black. Inkster
is 88% black and Westwood is 40% black. In order to achieve the
mix of 75% white and 25% black in Cluster 12, black pupils from
not only the Detroit schools but Inkster and Westwood school
districts will be transported to Cherry Hill and Wayne school
districts, and white children from Cherry Hill and Wayne school
districts will be transported not only to the Detroit schools but
to Inkster and Westwood school districts. Thus, there can be no
basis to conclude that the pupils in Inkster and Westwood are
needed to desegregate the Detroit public schools.
A study of Cluster 14, involving River Rouge, and Cluster 13,
involving Ecorse, compel the similar conclusion that neither school
district is necessary to desegregate the Detroit public schools, but
rather the District Court is applying a racial balance not only to
77
the Detroit public schools but the River Rouge and the Ecorse
school districts as well.
Finally, brief reference should be made to the inclusion of
the Hamtramck school district in the desegregation area as
necessary to accomplish the desegregation of the Detroit public
schools. Its black students represent 28.7% of its pupil population.
Thus, this district is a little above the 75% white and 25% black
pupil composition for the 53 district desegregation area. In order
to meet this formula, it will be necessary to transport a limited
number of black pupils out of Hamtramck but certainly not to the
Detroit Pershing constellation. Obviously this transportation will
be to Clawson, Lamphere, Madison Heights or Troy, thus assisting
in small part at least in the desired racial balance in these five
school districts but not the Detroit Pershing constellation.
It is recognized that the panel appointed by the District
Court has recommended some adjustments in the various clusters
but the suggested changes do not affect in one iota the inescapable
conclusion that under the guise of accomplishing the desegregation
of the Detroit public schools, the District Court has proceeded to
order the racial balancing of the white and black pupil populations
in a “desegregation area” within southeastern Michigan approxi
mately matching the total population of white and black pupils in
this large geographical area.
The point is further illustrated by the Ruling on
Desegregation Area, June 14, 1972, as follows:
“Provided, however, that if in the actual assignment of
pupils it appears necessary and feasible to achieve effective
and complete racial desegregation to reassign pupils of
another district or other districts, the desegregation panel
may, upon notice to the parties, apply to the Court for an
appropriate modification of this order.” (101a).
The panel in effect is given the prerogative to racially balance an
unlimited area, subject only to it being “feasible.”
The “social goal” to be attained “through the educational
system, by using law as a lever” had been achieved. (41a).
This social goal is to minimize the proportion of black
78
students in the public schools. Stated another way, the social
goal is racial balance, t 16^
To summarize, in the formulation and imposition of
multi-district relief herein, the goal was not a unitary system of
schools in which no pupil of a racial minority is excluded from
any school on the basis of race. Rather, the goal sought and
achieved was a particular degree of racial balance as a matter of
substantive constitutional right in contravention of Swann, supra,
402 US, at 23-24.
F. The attempt by the appellate majority to distinguish
Bradley v Richmond is patently erroneous.
The appellate majority attempts to distinguish Bradley v
Richmond, supra, on several grounds. (175a). It is respectfully
submitted that, upon careful scrutiny, each alleged ground of
distinction is manifestly untenable.
First, a distinction is set forth on the ground that here, unlike
the Richmond case, there is no order for restructuring of school
districts but merely pupil reassignment among school districts.
This erroneous statement is not in accord with the record herein.
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 interim and final
146] Although the trial court, based on 30 specific findings, found no de
jure faculty segregation within Detroit, (28a-32a), nevertheless it ordered
“ . . . assignment of no less than 10% black faculty and staff at each school,
and where there is more than one building administrator, every effort should
be made to assign a bi-racial administrative team.” (102a-103a). Thus, in the
absence of any finding of a constitutional violation as to faculty, teachers
within the desegregation area having lawful contracts with boards of educa
tion covering wages, hours and conditions of employment are now subject to
judicial reassignment in school districts governed by other boards of educa
tion with whom they have no contractual relationship. See section 569 of the
School Code of 1955, supra, MCLA 340.569; MSA 15.3569, and 1947 PA
336, as amended, MCLA 423.201 et seq.; MSA 17.455(1) et seq. (46aa,
76aa). This is patently a racial quota system to achieve racial balance.
79
arrangements for the (1) financial, (2) administrative and
school governance, and (3) contractual arrangements for the
operation of the schools within the desegregation area,
including steps for unifying, or otherwise making uniform the
personnel policies, procedures, contracts, and property
arrangements of the various school districts.
* * *
“In his examination and recommendations, the Super
intendent, consistent with the rulings and orders of this
court, may be guided, but not limited, by existing state law;
where state law provides a convenient and adequate
framework for interim or ultimate relief, it should be
followed, where state law either is silent or conflicts with
what is necessary to achieve the objectives of this order, the
Superintendent shall independently recommend what he
deems necessary. In particular, the Superintendent shall
examine and choose one appropriate interim arrangement to
oversee the immediate implementation of a plan of
desegregation.” (104a-lG5a).
Further, the appellate majority itself states later in the
opinion that “the Legislature of Michigan has an opportunity 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 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 existing
organizational, financial and governmental structure of scores of
school districts in Wayne, Oakland and Macomb counties. See,
e.g., Part 1, Chapters 3 and 4 and relevant portions of Part 2,
Chapter 9 of the School Code of 1955, supra. (8aa-30aa,
44aa-51aa).
Second, the appellate majority reasons that under the law of
Virginia its State Board of Education, acting alone, could not have
effected consolidation of the three school districts in question.
8 0
Bradley v Richmond, supra, 462 F 2d, at 1067. However, in
Michigan, like Virginia, the State Board of Education lacks any
power, acting alone, to effect school consolidations. Rather,
school consolidations must be initiated locally by either boards of
education or school electors and are subject to a vote of the
people in each affected school district. See Part 2, Chapter 3 of
the School Code of 1955, supra, dealing with consolidation of
school districts. (35aa-43aa). Further, Detroit, as a first class
school district, is not subject to the consolidation provisions of the
statute. (35aa).
In Michigan, like Virginia, the power over school district
boundaries is reposed in the legislature. Mich Const 1963, art 8,
§2. School District o f the City o f Lansing v State Board o f
Education, supra, 367 Mich, at 596; 116 NW 2d, at 869; Penn
School District No. 7 v Lewis Cass Intermediate School District
Board o f Education, 14 Mich App 109, 120; 165 NW 2d 464, 470
(1968); Airport Community Schools v State Board o f Education,
17 Mich App 574; 170 NW 2d 193 (1969); Bradley v Richmond,
supra, 462 F 2d, at 1067. This is plainly recognized by the
appellate majority herein in its statement that “the Legislature of
Michigan has an opportunity to determine the organizational and
governmental structure of an enlarged desegregation area” for
purposes of remedy. (188a-189a), Indeed, the decision as to
whether to accept nonresident tuition pupils is reposed solely in
local boards of education. Jones v Grand Ledge Public Schools,
supra.
In addition, the appellate majority correctly recognizes that,
in the alteration of school district boundaries, the State Board of
Education acts only within the Emits of statutes enacted by the
legislature. However, the appellate majority misreads such statutes
and mischaracterizes the conduct of the State Board of Education
under such statutes.
For example, the appellate majority states:
“2. Public Act 289 of 1964 (MSA § 15.2299(1) et seq.,
MCLA § 388.681 et seq.) required Michigan school districts
to operate K-12 systems. . . . ”
81
“3. Pursuant to Act 289 of 1964, supra, the State Board of
Education ordered the merger of the Brownstown No. 10,
Hand, Maple Grove and Carson school districts, all in Wayne
County___ ” (168a).
A careful reading of this statute reveals that it made the
elimination of non-high school districts contingent upon local
elections and, although the statute has expired by its own terms,
there are approximately 70 non-high school districts still
remaining in Michigan. See 1964 PA 289, § 7. (62aa-63aa).
Further, the statute by-passed the State Board of Education
altogether in the reorganization process, relying instead upon an
appointed state committee for the reorganization of school
districts with the Superintendent of Public Instruction serving as
its nonvoting chairman. See 1964 PA 289, § 2 (59aa) and Penn
School District No. 7 v Lewis Cass Intermediate School District
Board o f Education, supra, 14 Mich App, at 121, 165 NW 2d, at
470-471. Thus, contrary to the appellate majority, the State Board
of Education did not order the merger of any school districts
under 1964 PA 289, supra. (58aa-64aa).
The appellate majority also refer to actions of the State
Board of Education taken under 1967 PA 239, as amended,
MCLA 388.711 et seq; MSA 15.2299(51) et seq, concerning the
reorganization of school districts. (168a). (64aa-68aa). However,
under such statute, the reorganization process had to be initiated
locally and the State Board of Education could act only after a
finding of an emergency warranting school district reorganization
by the state committee for the reorganization of school districts.
See Sections 1, 2 and 5 of such statute. (65aa, 66aa).
Finally, contrary to the intimations of the Sixth Circuit
majority, in Michigan, like Virginia, local boards of education
possess the authority, by statute, to operate the public schools
within their respective school district boundaries. See Mich Const
1963, art 8, §2; the School Code of 1955, supra, (3aa, 6aa-51aa);
Senghas v L ’Anse Creuse Public Schools, supra, 368 Mich, at 560;
118 NW 2d, at 977. Hiers v Detroit Superintendent o f Schools,
supra, 316 Mich, at 235; 136 NW 2d, at 15. Munro v Elk Rapids
Schools, 383 Mich 661, 674; 178 NW 2d 450, 455 (1970), on reh
385 Mich 618; 189 NW 2d 224 (1971). In summary, Bradley v
82
Richmond, supra, is not distinguishable except in the result
reached.
In essence, the Fourth Circuit ruled that, absent proof of
purposeful segregation in the establishment and maintenance of
school district boundaries, a multi-district remedy was beyond the
scope of federal judicial power under the Constitution. Bradley v
Richmond, supra, 462 F 2d, at 1060. The Sixth Circuit ruled that,
notwithstanding 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, and required
herein, for the sole purpose of achieving racial balance within a
three county area.
In Michigan, there is no history of dual school systems by
mandate of state law. Since at least 1869, some 27 years before
Plessy v Ferguson, 163 US 537; 16 S Ct 1138; 41 L Ed 256
(1896), the positive law of Michigan has prohibited racially dual
school systems. The People, ex re l Workman v Board o f Education
o f Detroit, supra. Section 355 of the School Code of 1955, supra,
MCLA 340.355; MSA 15.3355, and Mich Const 1963, art 8, § 2.
(35aa, 3aa). Further, there has always been pupil integration in
fact in the public schools. (157a). The ruling of the Federal
District Court in Higgins v Board o f Education o f the City o f
Grand Rapids, Michigan, supra, against the plaintiffs on the issue
of pupil segregation also attests to this fact. Mason v Board o f
Education o f the School District o f the City o f Flint, 6 Mich App
364; 149 NW 2d 239 (1967). It is respectfully submitted that the
result in Michigan should be the same result reached in Virginia.
G. This C o u rt has co n sis ten tly recogn ized b o th th e im p o r
tance o f local c o n tro l over pub lic ed u c a tio n and th e
in teg rity o f local p o litica l subdivisions.
In Emporia, supra, the majority opinion, 407 US, at 469, and
the dissenting opinion, 407 US, at 478, recognized respectively,
the strong desire of parents for direct control over decisions vitally
affecting their children and the importance of local control from
an educational standpoint and for continuing public support of
the public schools. Further, here, unlike Emporia, supra, 407 US,
83
at 469, the citizens of the school districts to be affected outside
Detroit have heretofore always exercised such local control.
Even the dissent in Emporia stated the following:
“The discretion of a district court is further limited where, as
here, it deals with totally separate political entities. This is a
very different case from one where a school board proposes
attendance zones within a single school district or even one
where a school district is newly formed within a county unit.
Under Virginia law, Emporia is as independent from
Greensville County as one State is from another. . . .” 407
US, at 478.
Under Michigan law the school districts involved herein are legally,
politically and geographically independent from each other. See
Section 352 of the School Code of 1955, supra, and (176a-177a).
(34aa-35aa).
In Rodriguez, supra, 411 US, at 49-50, this Court reiterated
the importance of local control over public education. Indeed,
local participation and control over public education was found to
be a rational state interest sufficient to justify large inter-district
financial disparities. Rodriguez, supra, 411 US, at 55.
Moreover, in Rodriguez, supra, 411 US, at 54, this Court
recognized that “the very existence of identifiable local
governmental units — requires the establishment of jurisdictional
boundaries that are inevitably arbitrary” and stated that “ [tjhis
Court has never doubted the propriety of maintaining political
subdivisions within the States and has never found in the Equal
Protection Clause any per se rule of ‘territorial uniformity.’ . . .”
411 US, at 54, fn 110. This is directly at odds with the approach
of the appellate majority that school district boundary lines are
mere “artificial barriers” to be ignored in the judicial quest for
territorial racial balance over a three-county area. (172a). Further,
nothing is as “artificial” as the 53 school district desegregation
area decreed below which geographically does not correspond to
any other existing governmental unit but, rather, is judicially
invented for the sole purpose of racial balance.
In the language of Keyes, supra, 93 S Ct, at 2695, the school
districts involved herein are legally, politically and geographically
84
“separate, identifiable and unrelated units” within the State 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 proposals 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 critical 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 parental control
over the education of their children.
Education is not among the rights afforded either explicit or
implicit protection under the Federal Constitution. Rodriguez,
supra, 411 US, at 35. Thus, while not disparaging the importance
of public education, it is important to remember that education is
a function entrusted to the states under our federal system of
government. The Michigan legislature, in response to the state
constitutional directive to establish and maintain a system of free
public elementary and secondary education (Mich Const 1963, art
8, §2), has enacted the provisions of the School Code of 1955,
supra, (3aa, 6aa-5 laa). 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 Rodriguez, supra, 411 US, at 50, “ [a]n analogy to the
Nation-State relationship in our federal system seems uniquely
appropriate.”
In addition, as cogently expressed in the opinion of Mr.
Justice Powell in Keyes, supra:
“Neighborhood school systems, neutrally administered,
reflect the deeply felt desire of citizens for a sense of
community in their public education. Public schools have
been a traditional source of strength to our Nation, and that
strength may derive in part from the identification of many
schools with the personal features of the surrounding
neighborhood. Community support, interest and dedication
to public schools may well run higher with a neighborhood
85
attendance pattern: distance may encourage disinterest.
Many citizens sense today a decline in the intimacy of our
institutions — home, church, and school — which has caused
a concomitant decline in the unity and communal spirit of
our people. I pass no judgment on this viewpoint, but I do
believe that this Court should be wary of compelling in the
name of constitutional law what may seem to many a
dissolution in the traditional, more personal fabric of their
public schools.” 93 S Ct, at 2716.
To summarize, the school districts in the tri-county area,
with their locally elected boards of education which facilitate local
participation and control over public education, are independent
local political subdivisions that, based on the record in this case
and the controlling precedents of this Court, should be left intact
to educate their own resident children. Emporia, supra, Rodriguez,
supra.
H. T h e m u lti-d is tric t rem ed y herein will req u ire excessive
ex p e n d itu res fo r acquiring , housing , m ain ta in ing and
o p era tin g schoo l buses to e ffec tu a te racial balance
th ro u g h o u t th e tri-co u n ty area.
In the opinion of Mr. Justice Powell in Keyes, supra, 93 S Ct,
at 2717, it is noted that the costs of court ordered transportation,
running into the millions of dollars, impose severe economic
burdens at a time when the public schools are undergoing serious
financial difficulties. This sound observation is squarely applicable
to the instant cause.
The trial court stated that “at least . . . 350 buses” must be
purchased for a multi-district remedy. (74a). At a cost of
approximately $10,000.00 per bus, (IVal8), the initial capital
outlay required is, at a minimum, approximately $3,500,000.00.
In addition, the trial court ruled that 310,000 pupils will be
transported at a per pupil cost which “should be no greater than
86
50 to 60 dollars.” f173 (72a-73a). Using $55.00 as the per pupil
cost, the annual operating cost will be approximately
$17,050,000.00 for multi-district transportation. In addition, by
the time such multi-district remedy might be implemented, this
figure will have increased considerably due to salary increases
necessitated by inflation and the rapidly rising cost of gasoline due
to the energy crisis.
The additional costs of transporting pupils for a multi-district
remedy come at a time when the annual outlay for public
education in Michigan is reaching new massive proportions.
For exam ple, in 1972-73 the leg islature app ropria ted
$1,111,268,015.00 in state school aid for public elementary and
secondary education. For the 1973-74 school fiscal year, the
legislature has appropriated approximately $1,235,739,500.00 for
public elementary and secondary education, an increase of
$124,471,485.00. This increase is largely due to an increase of
$34,000,000.00 for special education programs for handicapped
children and the $56,500,000.00 increase required to guarantee
each school district, in combined local and state aid funds, $38.00
per pupil for each mill of operating tax levy up to 22 mills in the
first year of a three year program designed to make each school
district’s revenues primarily a function of local willingness to vote
operating tax levies without regard to the wealth or state equalized
valuation of taxable property per pupil within each school district.
See Section 51 of 1972 PA 258 and the same section, as amended
by 1973 PA 101, and Section 21(1) of 1972 PA 258, as amended
by 1973 PA 101, being, respectively, MCLA 388.1151; MSA
15.1919(551) and MCLA 388.1121; MSA 15.1919(521). (75aa,
76aa, 74aa). These substantial increases are based upon tax
revenues from a healthy economy which, with the energy crisis
[17] The trial court indicated that approximately 300,000 pupils in the tri
county area are transported by bus and that, within the desegregation area,
310,000 pupils will be transported for desegregation purposes. Here, it must
be emphasized that the tri-county area includes 33 school districts not in
cluded within the desegregation area. Further, these school districts, being
farther away from the more densely populated area of Detroit and environs,
have a disproportionately greater incidence of transporting pupils to school.
(72a, 60a, 101a, Va 14). Finally, it must also be remembered that substantial
numbers of additional children within the desegregation area will continue to
be transported intra-district to the school nearest their home.
87
and disruption of the automobile industry, may not materialize.
The added costs of multi-district transportation for racial balance
purposes are, indeed, unjustified.
If the increased costs of multi-district transportation are
absorbed by the local school districts through their property tax
revenues, this means either a reduction in their existing
educational programs or an increase in voted school operating
millage. See Mich Const 1963, art 9, § 6 which imposes a 15 mill
limitation for county, township and school district purposes which
may be exceeded by vote of the electors in the respective units of
government. (4aa-5aa). It is highly unlikely that the voters in the
affected school districts will approve such tax increases to send
their children to school in another school district, where they have
no vote in school board elections, while children from other
districts are transported into their districts to use the schools they
either have paid for or are still paying for in terms of the property
taxes levied to retire outstanding bonded debt. In summary, the
financial burden of multi-district transportation for the sole
purpose of racial balance over a tri-county area is clearly excessive.
The limited funds and resources available for public education are
far better spent in educating children than in transporting children
out of their school districts to other school districts for racial
balance.
I. T he low er co u rts den ied fu n d a m e n ta l due process to the
a ffec te d schoo l d is tric ts o th e r th an D e tro it.
The rulings of the lower courts herein concerning 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 Weick, 205a-212a; Judge Kent,
230a-238a; Judge Miller, 239a-240a). 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, supra,
MCLA 340.352, MCLA 340.609; MSA 15.3352, 15.3609 (34aa,
35aa, 50aa). Moreover, it has been the consistent position and
conduct of these 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 defendants and local school
88
districts are as one, and thus may be effectively represented by
just defendants Milliken, et al, is surely put to rest by the decision
of defendant Detroit Board of Education to accept the de jure
findings against it and support a multi-district remedy in an
attempt to avoid a unitary system with majority black schools.
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
violation and remedy within Detroit and the propriety 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 existence as
viable governmental entities. To paraphrase the language of the
dissenting opinion in Emporia, supra, 407 US, at 478, to bar these
school districts from operating their own school systems for the
children within their respective geographical boundaries is to strip
them of their only governmental responsibility and to deny them
any existence as independent 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 o f Sisters, 268 US 510; 45 S Ct 571;
69 L Ed 1070 (1925). Wisconsin v Yoder, 406 US 205; 92 S Ct
1526; 32 L Ed 2d 15 (1972). This paramount parental interest,
which limits the scope of state power over public education, is also
clearly entitled 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
89
locally elected boards of education, at a meaningful stage in the
proceedings. After all, as cogently noted by Mr. Justice Powell in
Keyes, supra, 93 S Ct, at 2717, 2718, the compulsory
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 violation.
IV.
CONCLUSION
The lower courts have predicated their decisions upon alleged
conduct of defendants Milliken, et al, which purportedly results in
de jure segregation of the Detroit school system. Using this
predicate the lower courts have prescribed the social goal of a
multi-school district which has a majority of white students, and is
racially balanced over a three-county area, as a remedy. Close
scrutiny of the conduct of defendants Milliken, et al, reveals no
basis for the holding that their conduct resulted in de jure
segregation either within Detroit or between Detroit and the other
85 school districts in the tri-county area.
Patently, a unitary system of schools can be achieved within
the Detroit public schools, albeit a majority black unitary school
system. Unless this Court is to abandon the principles of racial
equality it has enunciated from Brown, supra, to the present, and
hold that majority black school systems are somehow intrinsically
inferior to school systems with white majorities, it must be
concluded that a Detroit-Only plan of desegregation satisfies
constitutional requirements.
The sweeping, novel and unprecedented multi-school district
remedial decrees entered below, compelling massive reassignment
and transportation of pupils across school district and county lines
solely for racial balance purposes, are not based upon any
unconstitutional violation as a predicate for such judicially
imposed multi-school district relief. In the absence of a
constitutional violation, there is simply no basis for the judicial
restructuring of scores of legally, politically and geographically
90
independent school districts throughout the tri-county area of
Wayne, Oakland and Macomb counties. Such action is manifestly
beyond the “limits” of federal judicial power. Swann, supra, 402
US, at 28.
WHEREFORE, these petitioners respectfully request that
this Court reverse the opinion and judgment of the Sixth Circuit
Court of Appeals herein and hold that, based on the record in this
cause, the defendants, Milliken, Kelley, Porter, Green and the
Michigan State Board of Education, have not committed acts
resulting in de jure segregation, that a constitutional, unitary
system of schools may be established within the Detroit school
district, that a multi-school district remedy is constitutionally
impermissible in this cause and order this cause dismissed as to
these petitioners.
Respectfully submitted,
FRANK J. KELLEY
Attorney General
Robert A. Derengoski
Solicitor General
Eugene Rrasicky
Gerald F. Young
George L. McCargar
Thomas F. Schimpf
Assistant Attorneys General
Attorneys for Petitioners
JAN 2 1974 750 Law Building
525 West Ottawa Street
Lansing, Michigan 48913