Federal Judge Warns Tennessee School Boards on Desegregation Stalling Tactics
Press Release
September 10, 1959

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Brief Collection, LDF Court Filings. Milliken v Bradley Vol. 1 Brief Collection, 1973. 921cfd5f-ca9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/524fcc0e-566b-456c-bcc4-ee597fb239ee/milliken-v-bradley-vol-1-brief-collection. Accessed July 01, 2025.
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? :v !'■ WsilgS-̂ W&l ■ IN THE SUPREME COURT OF THE UNITED STATES WILLIAM J. MILLIKEN, Governor of the State of Michigan; FRANK J. KELLEY, Attorney General of the State of Michigan; MICHIGAN STATE BOARD OF EDUCATION, a constitutional body corporate; JOHN W. PORTER, Superintendent of Public Instruction of the State of Michigan, and ALLISON GREEN, Treasurer of the State of Michigan, Petitioners, -vs- RONALD BRADLEY and RICHARD BRADLEY, by their Mother and Next Friend, VERDA BRADLEY; JEANNE GOINGS, by her Mother and Next Friend, BLANCH GOINGS; BEVERLY LOVE, JIMMY LOVE and DARRELL LOVE, by their Mother and Next Friend, CLARISSA LOVE; CAMILLE BURDEN, PIERRE BURDEN, AVA BURDEN, MYRA BURDEN, MARC BURDEN and STEVEN BURDEN, by their Father and Next Friend, MARCUS BURDEN; KAREN WILLIAMS and KRISTY WILLIAMS, by their Father and Next Friend, C. WIL LIAMS; RAY LITT and MRS. WILBUR BLAKE, parents; all parents PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT October Term 1973 (Continued, on Inside Front Cover) FRANK J. KELLEY Attorney General Robert A. Derengoski Solicitor General Eugene Krasicky Gerald F. Young George L. McCargar L. Grabam Ward Assistant Attorneys General Attorneys for Petitioners 720 Law Building 525 West Ottawa Street Lansing, Michigan 48913 Dated; September 6, 1973. P R IN T E D B Y S F E A K E R -H IN E S A N D T H O M A S , IN C ., L A N S IN G , M IC H IG A N ----- 1 9 7 3 having children attending the public schools of the City of Detroit, Michigan, on their own behalf and on behalf of their minor children, all on behalf of any person similarly situated; and NATIONAL ASSO CIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, DE TROIT BRANCH; DETROIT FEDERATION OF TEACHERS, LOCAL 231, AMERICAN FEDERATION OF TEACHERS, AFL-CIO; BOARD OF EDUCATION OF THE CITV OF DETROIT, a school district of the first class; PATRICK McDONALD, JAMES HATHAWAY and CORNELIUS GOLIGHTLY, members of the Board of Education of the City of Detroit; and NORMAN DRACHLER, Superintendent of the Detroit Public Schools; ALLEN PARK PUBLIC SCHOOLS, SCHOOL DISTRICT OF THE CITY OF BERKLEY, BRANDON SCHOOLS, CENTERLINE PUBLIC SCHOOLS, CHERRY HILL SCHOOL DISTRICT, CHIPPEWA VALLEY PUBLIC SCHOOLS, SCHOOL DISTRICT OF THE CITY OF CLAWSON, CRESTWOOD SCHOOL DISTRICT, DEARBORN PUBLIC SCHOOLS, DEARBORN HEIGHTS SCHOOL DISTRICT NO. 7, EAST DETROIT PUB LIC SCHOOLS, SCHOOL DISTRICT OF THE CITY OF FERNDALE. FLAT ROCK COMMUNITY SCHOOLS, GARDEN CITY PUBLIC SCHOOLS, GILBRALTAR SCHOOL DISTRICT, SCHOOL DISTRICT OF THE CITY OF HARPER WOODS, SCHOOL DISTRICT OF THE CITY OF HAZEL PARK, INTERMEDIATE SCHOOL DISTRICT OF THE COUNTY OF MACOMB, LAKE SHORE PUBLIC SCHOOLS, LAKE VIEW PUBLIC SCHOOLS, THE LAMPHERE SCHOOLS, LIN COLN PARK PUBLIC SCHOOLS, MADISON DISTRICT PUBLIC SCHOOLS, MELVINDALE-NORTH ALLEN PARK SCHOOL DIS TRICT, SCHOOL DISTRICT OF NORTH DEARBORN HEIGHTS, NOVI COMMUNITY SCHOOL DISTRICT, OAK PARK SCHOOL DIS TRICT, OXFORD AREA COMMUNITY SCHOOLS, BEDFORD UNION SCHOOL DISTRICT NO. 1, RICHMOND COMMUNITY SCHOOLS, SCHOOL DISTRICT OF THE CITY OF RIVER ROUGE, RIVER- VIEW COMMUNITY SCHOOL DISTRICT. ROSEVILLE PUBLIC SCHOOLS, SOUTH LAKE SCHOOLS, TAYLOR SCHOOL DISTRICT, WARREN CONSOLIDATED SCHOOLS, WARREN WOODS PUBLIC SCHOOLS, WAYNE-WESTLAND COMMUNITY SCHOOLS, WOOD- HAVEN SCHOOL DISTRICT and WYANDOTTE PUBLIC SCHOOLS, KERRY and COLLEEN GREEN, by their Father and Next Friend, DONALD G. GREEN, JAMES, JACK and KATHLEEN ROSEMARY, by their Mother and Next Friend, EVELYN G. ROSEMARY, TERRI DORAN, by her Mother and Next Friend, BEVERLY DORAN, SHER RILL, KEITH, JEFFREY and GREGORY COULS, by their Mother and Next Friend, SHARON COULS, EDWARD and MICHAEL ROMES- BURG, by their Father and Next Friend, EDWARD M. ROMESBURG, JR., TRACEY and GREGORY ARLEDGE, by their Mother and Next Friend, AILEEN ARLEDGE, SHERYL and RUSSELL PAUL, by their Mother and Next Friend, MARY LOU PAUL, TRACY QUIGLEY, by her Mother and Next Friend, JANICE QUIGLEY, IAN, STEPHANIE, KARL and JAAKO SUNT, by their Mother and Next Friend, SHIRLEY SUM , and TRI-COUNTY CITIZENS FOR INTERVENTION IN FED ERAL SCHOOL ACTION NO. 35257; DENISE MAGDOWSKI and DAVID MAGDOWSKI, by their Mother and Next Friend, JOYCE MAGDOWSKI; DAVID VIETTI by his Mother and Next Friend, VIOLET VIETTI, and the CITIZENS COMMITTEE FOR BETTER EDUCATION OF THE DETROIT METROPOLITAN AREA, a Mich igan non-Profit Corporation, SCHOOL DISTRICT OF THE CITY OF ROYAL OAK, SOUTHFIELD PUBLIC SCHOOLS, GROSSE POINTE PUBLIC SCHOOLS, MICHIGAN EDUCATION ASSOCIA TION and PROFESSIONAL PERSONNEL OF VAN DYKE, INDEX Page Opinions and Orders Below___________________ _____ 1 Jurisdiction _____________ .________________________ _ 3 Questions Presented _____________ ------------------------ ,v 3 Constitutional and Statutory Provisions Involved ___ 4 Statement of the Case -____________________________ 5 Reasons For Granting the Writ I. THE RULING OF THE SIXTH CIRCUIT COURT OF APPEALS THAT THE STATE OFFICER DEFENDANTS HAVE COMMIT TED ACTS RESULTING IN DE JURE SEGREGATION OF PUPILS, BOTH WITH IN THE, SCHOOL DISTRICT OF THE CITY OF DETROIT AND BETWEEN DETROIT AND OTHER SCHOOL DISTRICTS IN THE TRI-COUNTY AREA, IS WITHOUT BASIS IN LAW OR FACT AND IN CONFLICT WITH THE DECISIONS OF BOTH OTHER COURTS OF APPEALS AND THIS COURT 12 II. THE RULING OF THE COURT OF AP PEALS THAT A “ DETROIT-ONLY” DE SEGREGATION PLAN COULD NOT REM EDY THE UNCONSTITUTIONAL SEG REGATION FOUND IN THE DETROIT SCHOOL DISTRICT IS NOT SUPPORTED BY THE RECORD, IS CLEARLY ERRO NEOUS AND IN CONFLICT WITH THE 11 Page DECISIONS OF THIS COURT AND OTHER COURTS OF APPEALS __________________ 27 III. THE DECISION OF THE COURT OF APPEALS THAT A MULTI-SCHOOL DIS TRICT REMEDY IS CONSTITUTIONALLY PERMISSIBLE HEREIN, IS ERRONEOUS AND IN CONFLICT WITH THE- DECI SIONS OF OTHER COURTS OF APPEALS AND THIS COURT______________ _________ 38 IY. THE QUESTION OF WHETHER A MULTI SCHOOL DISTRICT REMEDY IS CONSTI TUTIONALLY PERMISSIBLE IN THIS CAUSE IS AN IMPORTANT QUESTION OF FEDERAL LAW WHICH SHOULD BE DEFINITIVELY SETTLED BY THIS COURT 49 Conclusion ________________________________________ 53 CITATIONS Page Alexander v Holmes County Board of Education, 396 US 19 (1969) ___i __________ ___ .... 27, 28, 32, 33, 37 Attorney General, ex rel Kies v Lowrey, 131 Mich 639 (1902), a ff ’d 199 US 233 (1905)______________ 15 Bradley v Milliken, 433 F2d 897 (CA 6, 1970); 438 F2d 945 (CA 6, 1971) _________jf*?_______25 Bradley v School Board of Richmond, Virginia, 462 F2d 1058 (CA 4, 1972), a ff ’d ____U S ___ A, 93 S Cl 1952 (1973) ______________________ 37, 38,42, 43, 44, 48, 50, 51 Brown v Board of Education, 347 US 483 (1954) 14 Brown v Board of Education, 349 US 294 (1955) —- 33 Goss v Board of Education of the City of Knoxville, ____F 2 d ____ , decided July 18, 1973 _______ A.___ 30 Green v School Board of New Kent County, 391 US 430 (1968) _________________ 27, 28, 32, 33, 35, 37 Hiers v Detroit Superintendent of Schools, 376 Mich 225 (1965) _____________________ ...____ 23 Higgins v Board of Education of the City of Grand Rapids, Michigan, (V D Mich CA 6386), Slip Opinion, July 1, 1973, p 77 ___ _l_______ ____ 18,19 Keyes v School District No. 1, Denver, Colorado, | i U S ____, 93 S Ct 2686, (1973) _____16,19, 20, 21, 23, 24, 25, 26, 33, 42, 44, 48, 50, 51 Northcross v Board of Education of Memphis, 420 F2d 546 (1969) _____________ ......______ ______ 35 Pierce v Society of Sisters, 268 US 510 (1925) ______ 47 IV Raney v Board of Education of Gould School District, 391 US 443 (1968) _______ I.______ ...____ 35, 38 San Antonio Independent School District v Rodriguez, ------ US ------, 93 S Ct 1278 (1973) _______ 17,19, 24, 26, 45, 46 School District of the City of Lansing v State Board of Education, 367 Mich 591 (1962) ____ I__i f j ___ 15 Senghas v L ’Anse Creuse Public Schools, 368 Mich 557 (1962) __________ __________ ________________ 15 Smith v North Carolina State Board of Education, 444 F2d 6 (CA 4, 1971) ___________ _____ ________23,26 Spencer v Kugler, 326 F Supp 1235 (D NJ, 1971), a ff ’d 404 US 1027 (1972) ...____ jr_____ 34,41,42, 48 Sparrow v Gill, 304 F Supp 86 (MD NC 1969) _____ 19 Swann v Charlotte-Meeklenburg Board of Education, 402 US 1 (1971) -------------------------------- 27,28,32,33,34, 35, 37,40, 41 United States v Board of School Commissioners, Indianapolis, Indiana, 332 F Supp 655 (1971) ____ 50 United States, et al v Board of School Commissioners of the City of Indianapolis, Indiana, et al (SD Ind), No. IP 68-C-225, Slip Opinion, July 20,1973 ____32, 51, 52 United States v Scotland Neck Board of Education, 407 US 484 (1972) g i ___ ....._________ ..._____35,38 Wisconsin v Yoder, 406 US 205 (1972) ____________ 47 Wright v Council of the City of Emporia, 407 US 451 (1972) -------------------------- .....35, 38, 45, 47 Wright v Rockefeller, 376 US 52 (1964) __________ 45 US Const, Amendments, art Y _________ __________ 4 Page y US Const, Amendments, art X ---------------------- ----- US Const, Amendments, art XT 4 4 TTSJ (Inn st Amondm an tx. art yCTV. ̂ 1 5 Micb Const 1963, a.rt 8, & 2 ..... 46 Mi oh Hon»sT 1963, art 8, & 3 6 Mieli Const 1963, a.rt 9, ̂ 6 and ̂ 11 _ 17,18 28USCA 1254 (1) ______________ 3 ] 849. P A 70 _____ ..... 41 1937 PA 306, as amended, MCLA 388.851 et seq. MSA 15,1961 el seq > ..... 22 1949 PA 231___________________________________ __ 22 1955 PA 269, as amended, MCLA 340.1 et seq.; MSA 15.3001 et seq. _________________ 15,22,24,44,46 1962 PA 175 _____________________________________ 22 1969 PA 244, as amended by 1970 PA 48, MCLA 388.171 et seq.; MSA 15.2298(1) et seq--------------7, 24, 25 FR Civ P, 19 ____________________- ____________ -— 40 Michigan Statistical Abstract, 1972 (9th ed.) --------- 5 Statistical Abstract of United States, 1972 (93rd ed.) 5 1971 HEW Enrollment Survey, 118 Cong. Rec. S 144-148 „ 50 :r { \ il : - . ' ■ ■ ... - . - . ■ ■ , - IN THE SUPREME COURT OF THE UNITED STATES No_______ WILLIAM G. MILLIKEN, et al, RONALD BRADLEY, et al, Petitioners, Respondents. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Petitioners William (Sr. Milliken, Governor of the State of Michigan; Frank J. Kelley, Attorney General of the State of Michigan; Michigan State Board of Education, a con stitutional body corporate ; John W. Porter, Superintendent of Public Instruction of the State of Michigan, and Allison Green, Treasurer of the State of Michigan, pray that a writ of certiorari be issued to review the judgment and opinion of the United States Court of Appeals for the Sixth Circuit entered in this proceeding on June 12, 1973. OPINIONS AND ORDERS BELOW The opinion of the Court of Appeals, not yet reported, appears in the Joint Appendix, pp 110a-240aJ Other opinions delivered in the Courts below are: 1 Hereafter references to the Joint Appendix filed herewith will be indicated by page numbers enclosed in parentheses. — 2 — United States District Court for the Eastern District of Michigan, Southern Division September 27, 1971, Ruling on Issue of Segregation, 338 F Supp 582. (17a-39a). November 5, 1971, Order [for submission of Detroit-only and metropolitan desegregation plans], not reported. (46a- 47a). March 24, 1972, Ruling on Propriety of Considering a Metropolitan Remedy to Accomplish Desegregation 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 Conclu sions of Law in Support of Ruling on Desegregation Area and Development of Plan, 345 F Supp 914. (59a-105a). July 11, 1972, Order for Acquisition of Transportation, not reported. (106a-107a). United States Court of Appeals for the Sixth Circuit July 20, 1972, Order [granting leave to appeal], not re ported. (108a-109a). Other opinions of the Court of Appeals rendered at prior stages of the present proceedings are reported in 433 F2d 897, 438 F2d 945 and 468 F2d 902, cert den, 409 US 844 (1972). — 3— JURISDICTION The judgment of the Court of Appeals for the Sixth Circuit was entered on June 12, 1973. This petition for certiorari was filed within 90 days of that date. This Court’s jurisdiction is invoked under 28 USC 1254(1). QUESTIONS PRESENTED I. Whether, based upon the controlling precedents of this Court, the state officer defendants have committed acts of de jure segregation with the purpose and present causal effect of separating school children by race either within the School District of the City of Detroit or between Detroit and other school districts in the 1,952 square mile tri county area of Wayne, Oakland and Macomb? II. Whether the Detroit School District, a 63.8% black school district, could operate a unitary system under a Detroit-only desegregation plan, thus meeting the re medial requirements of the Constitution and the decisions of this Court! III. Absent any pleaded allegations, any proofs or any find ings either that the boundaries of any of the 86 independent school districts within the 1,952 square mile tri-county area of Wayne, Oakland and Macomb have ever been estab- 4 listed 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? CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED United States Constitution: Amendments, Article V—“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any Criminal Case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” Amendments, Article X—“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Amendments, Article 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 Citi zens or Subjects of any Foreign State.” — 5— Amendments, Article XIV, Section 1—“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or im munities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdic tion the equal protection of the laws.” STATEMENT OF THE CASE Introduction According to the 1970 census, the population of Michigan is 8,875,083, almost half of which, 4,199,931, resides in the tri-county area of Wayne, Oakland and Macomb. Oakland and Macomb Counties abut Wayne County to the north and Oakland County abuts Macomb County to the west. These counties cover 1,952 square miles.2 The population of Wayne, Oakland and Macomb counties is 2,666,751, 907,871 and 625,309, respectively. The State’s largest city, Detroit, with a population of 1,513,601 is located in Wayne County. In the 1970-71 school year, there were 2,157,449 children enrolled in the school districts in Michigan. 13.4% of these children were black and 84.8% were white. There are 86 independent, legally distinct school districts within such tri-county area, having a total enrollment of approxi 2 Michigan Statistical Abstract, 1972 (9th ed.). This area is ap proximately the size of the state of Delaware (2,057 square miles), more than half again the size of the state of Khode Island (1,214 square miles) and almost 30 times the size of the District of Colum bia (67 square miles). Statistical Abstract of United States, 1972 (93rd ed.). mately 1,000,000 children, approximately 20% of whom are black. (66a). The largest is the School District of the City of Detroit with an enrollment (1970-71 school year) of 289,743 children (20a). In racial composition, 63.8% of these children were black and 34.8% were white. (21a-22a). The boundaries of the School District of the City of Detroit are coterminous with the boundaries of the City of Detroit and have been coterminous for more than 100 years. The positive law of Michigan has prohibited dual school systems since at least 1869. (157a-158a). Plaintiffs commenced this class action by filing a com plaint on August 18, 1970, (2a-16a). The complaint has not been amended or supplemented in any regard as of the date hereof. The allegations in plaintiffs’ complaint were limited to claims of de jure segregation against the defendants solely within the School District of the City of Detroit. Further, plaintiffs’ prayer for relief was limited to the establish ment of a unitary system of schools within the School Dis trict of the City of Detroit. (13a-.15a). In addition, plaintiffs challenged the constitutionality of § 12 of 1970 PA 48 on the grounds that it interfered with the implementation of the Detroit Board of Education’s April 7, 1970 plan in volving alterations in attendance areas for 12 of the 21 Detroit high schools to increase racial balance in those 12 schools. (13a-15a). The named defendants were William G. Milliken, Gover nor of the State of Michigan and ex officio member (with out vote) of the Michigan State Board of Education; Frank J. Kelley, Attorney General of the State of Michigan; Mich igan State Board of Education, a constitutional body created by Const 1963, art 8, § 3; John W. Porter, Superintendent -7— of Public Instruction of the State of Michigan, ex officio chairman of the State Board of Education (without vote) and principal executive officer of the Michigan State De partment of Education; Board of Education of the School District of the City of Detroit, a body corporate under the laws of the State of Michigan; the individual members of said Board of Education, and the Superintendent of Schools of said Board of Education. No school district other than the School District of the City of Detroit was named as a defendant. On September 3, 1970, Denise Magdowski, et al, were permitted to intervene as defendants, as parents and representatives of parents of children attending the Detroit Public Schools. On November 4, 1970, Detroit Federation of Teachers, Local 231, the collective bargaining representa tive of the Detroit teachers, was permitted to intervene as a party defendant. At the conclusion of a hearing upon plaintiffs’ applica tion for preliminary injunctive relief, the District Court denied all relief on the grounds that the existence of racial segregation in the School District of the City of Detroit had not been established, and the Court dismissed the action as to the Governor and the Attorney General. In denying in terlocutory relief, the District Court did not rule on the constitutionality of 1970 PA 48. Plaintiffs appealed to the Court of Appeals for the' Sixth Circuit. The Court of Appeals declared 1970 PA 48, § 12 to be unconstitutional and ordered reinstatement of the Governor and the Attorney General as parties, “at least at the present stage of the proceedings,” but affirmed the denial of interlocutory relief. 433 F2d 897. Defendants did not seek a review of this decision of the Court of Appeals. Upon remand, plaintiffs moved in the District Court for an order requiring immediate implementation of the April 7,1970 racial balance plan. After receiving additional plans — 8— from the Board of Education of the City of Detroit and conducting a hearing thereon, the District Court entered an order approving an alternative plan. Plaintiffs, claim ing the alternative plan to be constitutionally insufficient, sought emergency relief in the Court of Appeals. The Court of Appeals denied plaintiffs’ claim for relief and ordered the District Court to set a hearing on the merits forthwith. 438 F2d 945. Trial on the merits, limited to the issue of segregation within the School District of the' City of Detroit, began on April 6, 1971 and concluded on July 22, 1971, consuming 41 trial days. On September 27, 1971, the District Court rendered its ruling on issue of segregation in which it found that “both the State of Michigan and the Detroit Board of Education have committed acts which have been causal factors in the segregated condition of the public schools of the City of Detroit,” [Emphasis added.] (33a). The acts, which the District Court found to result in de jure segregation, related to pupil assignment solely within the School District of the City of Detroit. At a hearing held on October 4, 1971, the Court orally ordered the Detroit Board of Education to submit its plan for desegregation of its schools within 60 days and ordered the “State defendants” to submit “a metropolitan plan of desegregation” within 120 days. (43a). A written order to the same effect was entered on November 5,1971. (46a-47a). The state officer defendants sought to appeal the Ruling on Issue of Segregation and the Order of November 5, 1971, requiring them to submit a metropolitan plan of desegrega tion. The appeal was dismissed for the stated reason that the decision and order sought to be appealed were not final. 468 F2d 902. The state officer defendants sought to review the dismissal of the appeal by petitioning for certiorari in this Court. The petition was denied. 409 US 844. — 9 The plans for desegregation were filed within the time limits imposed by the Court, that is, not later than February 4,1972. Between February 9 and 17,1972, 43 school districts within the counties of Wayne*, Oakland and Macomb filed motions to intervene for the purpose of representing their interests and those of the parents and children residing in the respective school districts. On March 15, 1972, the District Court issued its order granting the school districts’ motions to intervene as a matter of right, but imposing- conditions designed to limit their participation in the pro ceedings. (208a-209a). The intervenor school districts were afforded one week, to March 22, 1972, to file their briefs on the legal propriety of a metropolitan plan of desegregation. (209a-210a). The District Court filed its ruling that such a plan was appropriate on March 24, 1972. (48a). Having concluded that consideration of a metropolitan remedy was appropriate, the District Court commenced taking testimony on such a plan on March 28, 1972. Later that day, the District Court filed its Findings of Fact and Conclusions of Law on Detroit-Only Plans of Desegregation. (53a). The essence of the Court’s ruling was that no Detroit- only plan could result in the desegregation of the School District of the City of Detroit, because it has a majority black student body. On June 14, 1972, the District Court filed its Ruling on Desegregation Area and Order for Development of Plan of Desegregation (97a) and its Findings of Fact and Conclu sions of Law in Support of Ruling on Desegregation Area and Development of Plan. (59a). The judicially decreed “ desegregation area” included 53 school districts covering approximately 700 square miles within a three county area. The District Court’s remedial decree involved 780,000 school children of which at least 310,000 were required to be transported. (72a). The June 14, 1972 order of the District — 1 0 — Court requiring pupil reassignment and cross-district trans portation of pupils for racial balance purposes constitutes the most massive remedial decree entered heretofore in a school desegregation case. Further, although the District Court had expressly found no de jure segregation as to faculty within Detroit, this order required faculty and staff reassignment among school districts. (Compare 28a-33a with 102a-103a.) In entering this order, the District Court expressly noted that it had taken no proof with respect to the establishment of the boundaries of the 86 public school districts in the counties of Wayne, Oakland and Macomb, nor on the issue of whether, with the exclusion of the Detroit School District, such school districts have committed any acts of de jure segregation. (59a-60a). Further, 18 of the school districts included in the “desegregation area” had never been made parties to this litigation. The Ruling on Desegregation Area also appointed a panel of nine persons, later increased to eleven, and charged it with the responsibility of preparing and submitting a de segregation plan in accordance with the provisions of the ruling. (99a). On July 5,1972, the panel recommended to the Court “ the use of state funds for the immediate purchase of at least 295 additional vehicles to be used in the implementation of the interim plan.” On July 11, 1972, the District Court en tered an order directing the Board of Education of the City of Detroit to acquire 295 buses, the contracts for such acquisition to be entered into not later than July 13, 1972. (106a-107a). The “state defendants” including added “ state defendant state treasurer Allison Green” were ordered to bear the cost thereof. By a contemporaneous order, the 11- Court on its own motion ordered Allison Green, Treasurer of the State of Michigan, to be made a party defendant in the action. On July 20, 1972, the District Court, pursuant to oral motions made on July 19, 1972, and under the provisions of 28 DSC 1292(b) certified the issues presented by the 5 controlling orders or rulings, to-wit, (1) Ruling on Issue of Segregation, September 27, 1971, (2) Ruling on Propriety of Considering Metropolitan Remedy, March 24, 1972, (3) Findings of Fact and Conclusions of Law on Detroit- Only Plans of Desegregation, March 28, 1972, (4) Ruling on Desegregation Area and Order for Development of Plan, and Findings of Fact and Conclusions of Law in Support thereof, July 14, 1972, and (5) Order for Acquisition of Transportation, July 11, 1972. The state officer defendants, and others, petitioned the Court of Appeals for permission to appeal the controlling orders, which permission was granted by the Court of Appeals. (108a). In granting per mission, the Court of Appeals said: “This court concludes that among the substantial questions presented there is at least one difficult issue of first impression which has never been decided by this court or the Supreme Court.” (108a). In said order, the Court of Appeals stayed the order for acquisition of transportation, July 11,1972, and all proceed ings with regard to the assignment of children and faculty within the desegregation area, except planning. (109a). On August 21, 1972, the Court of Appeals granted inter vention in this cause to the Michigan Education Association, and on July 21,1973, the Court of Appeals granted interven tion herein to the Professional Personnel of Van Dyke. — 12— A panel of the Court of Appeals filed its opinion on December 8, 1972. Thereafter, defendants moved for a re hearing in banc which was granted. Following rehearing, in a 6 to 3 decision the Court of Appeals (in banc) in substance affirmed the District Court’s ruling on the issue of segregation and its ruling on Detroit-only plan of desegre gation. Although vacating or partially vacating the Ruling on Propriety of Metropolitan Remedy, Ruling on Desegrega tion Area, and Order for Acquisition of Transportation, the Court of Appeals affirmed the power of the District Court to enter such orders herein. The sole infirmity found on appeal was the failure to add as parties the 18 school dis tricts within the “ desegregation area” that had never been joined as parties in this cause. In substance, the Court of Appeals held that a multi-district remedy was not only constitutionally permitted, but mandated in this cause. On August 6, 1973 plaintiffs filed a motion in the District Court, seeking to join as parties in this cause all of the school districts in the counties of Wayne, Oakland and Macomb that have not already been made parties herein, with the exception of the Pontiac School District. REASONS FOR GRANTING THE WRIT I. THE RULING OF THE SIXTH CIRCUIT COURT OF APPEALS THAT THE STATE OFFICER DEFEND ANTS HAVE COMMITTED ACTS RESULTING IN DE JURE SEGREGATION OF PUPILS, BOTH WITH IN THE SCHOOL DISTRICT OF THE CITY OF DE TROIT AND BETWEEN DETROIT AND OTHER SCHOOL DISTRICTS IN THE TRI-COUNTY AREA, IS WITHOUT BASIS IN LAW OR FACT AND IN CONFLICT WITH THE DECISIONS OF BOTH OTHER COURTS OF APPEALS AND THIS COURT. 13— At the outset it is emphasized that the decisions of the lower courts herein represent, not a faithful adherence to the Constitution and the binding precedents of this Court, but rather an attempt to use the law as a lever in attaining what the lower courts decided is the desirable social goal of multi-school district racial balance throughout a huge three county area. This is vividly demonstrated by the trial court’s statement in a subsequent remedy pre-trial con ference, “ [i]n reality, our courts are called upon, in these school cases, to attain a social goal, through the educa tional system, by using law as a lever.” (41a). Moving to the appellate level, the sound dissent of the late Circuit Judge Kent sets forth the overriding concern of the Sixth Circuit majority for racial balance among school districts as follows: “Through the majority’s opinion runs the thread which holds it together. That thread is the unwilling ness apparent in the minds of the majority to sanction a black school district within a city which it concludes will be surrounded by white suburbs. While the major ity does not now state that such a demographic pattern is inherently unconstitutional, nevertheless, I am per suaded that those who subscribe to the majority opinion are convinced, as stated in the slip opinion of the origi nal panel, ‘big city school systems for blacks surrounded by suburban school systems for whites cannot represent equal protection of the law.’ While that statement has been removed from the opinion of the majority, yet the premise upon which the statement was obviously based must necessarily form the foundation for the conclusions reached in the majority opinion. It may be that such will become the law, but such a conclusion should not receive our approval on a record such as exists in this case.” (224a). — 14— Thus, the underlying premise of both lower courts is the achievement of what they perceived as the desirable social goal of racial balance among school districts, rather than the vindication of constitutional rights to attend a school free from racial discrimination by public school authorities. Brown v Board of Education, 347 US 483 (1954). Viewed against this background, the state officer defendants sub mit that the de jure findings against them are mere make weights designed to provide the legal window dressing for the achievement of multi-school district racial balance. The constitutional violations found to have been com mitted by the state officer defendants are set forth under the caption of “ State of Michigan” . The majority opinion elsewhere declares that the State of Michigan is not a party to this cause and that references thereto are to be read as references to the state and local offi cials through whom the state allegedly acted, thus com pelling the conclusion that the findings are directed against the state officer defendants. (115a, 151a-152a). The following review of these findings, focusing on patent con flicts with decisions of both other circuits and this Court, demonstrates the compelling need for immediate review by this Court. Finding (1) — Detroit Board of Education an Agency of the State of Michigan If finding (1) means only that the actions of defendant Detroit Board of Education constitute state action within the scope of the Equal Protection Clause, then it merely confirms the obvious and adds nothing to the opinion. (151a). If, on the other hand, this finding constitutes a determination of vicarious liability against the state officer defendants, based on the conduct of the Detroit Board of Education, then such finding is erroneous. — 15- To the extent finding (1) is based upon an agency theory of vicarious liability, it must be stressed that, under settled Michigan law, school districts are local state agencies of legislative creation exercising plenary discretionary power over student assignment within their respective school districts. Attorney General, ex rel Kies v Lowrey, 131 Mich 639, 644 (1902), a ff ’d 199 US 233 (1905). School District of the City of Lansing v State Board of Education, 367 Mich 591, 595 (1962), Senghas v L ’Anse Creuse Public Schools, 368 Mich 557, 560 (1962), 1955 PA 269, as amended, MCLA 340.1 et seq; MSA 15.3001 et seq, hereinafter re ferred to as the school code of 1955. Thus, assuming argu endo any vitality to an agency theory of vicarious liability, it is clear that the School District of the City of Detroit is not an agent, under Michigan law, of any of the state officer defendants herein.3 Indeed, the Court of Appeals’ _ __ The position of tlie state officer defendants is that the existing racial imbalance in the Detroit public schools is the product of popu lation movement and housing patterns, as emphasized by trial court that “ [1] he principal causes undeniably have been population move ment and housing patterns. . . .” Further, the district court ruled that there was no de jure faculty segregation in Detroit. In ad dition, it is significant by way of illustration that, as to the optional attendance zones, all but one had been eliminated prior to trial, and the remaining optional zone was in the process of being eliminated in a manner that increased integration. (33a, 28a, 25a). The Detroit Board of Education has voted not to file a petition for certiorari. The election of the Detroit Board of Education to accept, without challenge, the findings of de jure conduct against it, in its desire to embrace and achieve a multi-school district remedy, is its decision alone to make under Michigan law. This development is proof positive that, under Michigan law, the Detroit Board of Educa tion governs and controls the conduct of the Schoool District of the City of Detroit. The state officer defendants are no more able to represent the interests of the Detroit Board of Education, with its own locally selected legal counsel, than they are the other school districts in Wayne, Oakland and Macomb counties, with their own locally chosen legal counsel. (238a-284a). — 1 6 - majority opinion expressly rejects any agency theory, as between the state officer defendants and local school dis tricts in its holding that any “ affected district first must be made a party to this litigation and afforded an oppor tunity to be heard.” (177a). Neither lower court made any findings against either the Governor or the Attorney General of conduct resulting in de jure segregation. Thus, absent the erroneous notion of vicarious liability, there is simply no basis for either a finding of acts having been committed by these state defendants which resulted in de jure segregation, or the granting of relief as against these two defendants and the case as to them must be dismissed. This is the sound result reached initially by the District Court herein, 433 F2d 897, 905 (CA 6, 1970), and on appeal by Circuit Judge Weick. (216a). The reliance of the lower courts on the “ inaction” of the state officer defendants squarely conflicts with this Court’s ruling in Keyes v. School Dis trict No. 1, Denver, Colorado,____U S ____ , 93 S Ct 2686, 2696 (1973), that, “ intentional state action” is an essential element of a finding of de jure segregation. (173a). The defendant, State Treasurer, was added after the violation hearings so that the District Court could order the State Treasurer to pay funds from the state treasury to purchase 295 buses for the multi-district remedy. As to him also, the case must be dismissed since there is no claim or finding of unconstitutional conduct by him and the settled case law of this Court under the Eleventh Amendment precludes compelling payment of funds out of the State Treasury where, as here, the State of Mich igan has never consented to this suit in Federal Court. (See the sound discussion of this point in the dissenting opinion of Circuit Judge Weick.) (213a-215a). —17 Finding (4) — Allocation of Transportation Funds The District Court’s opinion contained the following language which was quoted on appeal by the majority opinion: “ . . 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 neighbor ing, mostly white, suburban districts the full range of state supported transportation. This and other finan cial limitations, such as those on bonding- and the working of the state aid formula whereby suburban districts were able to make far larger per pupil ex penditures despite less tax effort, have created and perpetuated systematic educational inequalities.'’ ” (Emphasis added.) (152a). This language, which constitutes a major part of the Dis trict Court’s holding against the state officer defendants on the initial question of de jure segregation in Detroit goes, not to the question of pupil assignment in Detroit, but to the markedly different question of inter-district disparities in school finance. This question has subsequent ly been definitively adjudicated by this Court in San An tonio Independent School District v. Rodrigues, ....... ITS ------, 93 S Ct 1278 (1973), and the conclusion is compelled that both lower courts erred in relying on alleged inter- district financial disparities. The financial disparities among school districts in Michigan, as in Texas, are the result of local variations in both taxable property per pupil and school tax rates that are not violative of the Equal Protection Clause under the applicable rational basis test. Rodrigues, supra, 1302-1304. See, also, Mich Const 1963, art 9, § 6 and § 11 for the constitutional outline of Mich igan’s system of school finance. The majority opinion in the Sixth Circuit, while quoting this language, appears to expressly adopt as its own find ing only the language dealing with transportation funds. This reluctance to embrace and approve the general operat ing and bonding portions of the trial court’s finance lan guage is understandable since such findings are contrary to the facts in this cause. The trial court’s ruling as to state aid transportation funding, which was independently adopted and set forth as finding (4) on appeal, warrants scrutiny. (151a). This urban rural statutory distinction was recently found to be both reasonable and non-racial by another Federal District Court in Michigan as follows: “ There was proof that rural school districts received up to 75% reimbursement for student transportation expense where none was, until recently, received by the Grand Rapids Board or other districts for students residing within the city limits. While plaintiffs do not press any claim that the law is unconstitutional, they urge that the fact of the distinction is discriminatory as part of overall state action claimed violative of plaintiffs’ rights. It is an urban-rural classification distinction based upon known differences usually char acteristic of urban and rural areas: absence of public transportation, sidewalks, lesser density of student population and genarally longer distances. It is in no part related to racial difference.” Higgins v Board of Education of the City of Grand Rapids, Michigan, (WD, Mich, CA 6386), Slip — 18- ■ 1 9 - Opinion of Judge Albert J. Engel, July 18, 1973, p 77J Further, applying the correct reasonable basis test enun ciated in Rodrigues, supra, a three judge federal court held this very type of urban-rural classification for purposes of state school aid transportation funding “ plainly con stitutional.” Sparrow v Gill, 304 F Supp 86, 90-91, (Ml) NC 1969). As recognized in the opinion of Mr. Justice Powell in Keyes, supra, 2714, the need for pupil transpor tation is obviously greater in rural than in urban areas. In Keyes, supra, 2697, this Court emphasized that the difference between de jure and de facto segregation is a finding of purposeful intent to segregate. In the instant cause, neither lower court made any finding of purposeful segregation in connection with the statutory urban-rural classification employed for allocating categorical state school aid transportation funds to school districts. Clearly, this urban-rural geographical statutory classification is not based on race but on whether children reside within or without incorporated cities, irrespective of race. 4 4 In H iggins, supra, plaintiffs sought a multi-district desegregation remedy involving Grand Eapids, 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 state officer defendants 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 amended, as to the Grand Rapids Board of Education or as to any other de fendants in the case.” Slip opinion, p. 103. Thus, in H iggins, supra, plaintiffs’ claims of de jure conduct against the state officer de fendants, not unlike those made herein, were found wholly lacking in merit. — 2 0 — Moreover, in Keyes, supra, 2698, 2699, this Court held that another finding esisential in determining de jure segre gation is that the acts in question must have a present causal effect of segregation. In this regard, the District Court’s finding on transportation reimbursement made no reference to any finding of segregative effect within De troit. (27a). The Court of Appeals’ majority opinion er roneously conveys the impression that the trial court made a finding that the lack of state aid transportation reim bursement “ contributed to pupil segregation.” (154a). However, the trial court made no such finding as, indeed, it logically could not in light of its de jure findings con cerning the conduct of the Detroit Board of Education in transporting children to relieve overcrowding. (129a-139a). The Court of Appeals’ majority opinion is manifestly inconsistent in its dual ruling that, while Detroit trans ported children in a manner furthering segregation, the lack of state school aid transportation funds in Detroit also contributed to pupil segregation in some inexplicable way. Finally, as to finding (4), neither lower court made any finding that the urban-rural statutory classification em ployed for state school aid transportation reimbursement to school districts to transport their own pupils had any effect on the distribution of pupils by race as between Detroit and the other 85 school districts in Wayne, Oak land and Macomb counties. Finding (5) — Transportation of Carver School District’s High School Students Finding (5) relates to the transportation, by the Detroit Board of Education, of high school students from the ■ - 21- Carver School District, which did not have a high school, to Northern High School within Detroit during the late 1950’s. The majority opinion states that such transporta tion “ could not have taken place without the approval, tacit or express, of the State Board of Education.” (Em phasis added) (137a-139a, 152a). The trial court’s finding on this point contains no refer ence to the State Board of Education. (96a). The ambiguous phrase “ tacit or express” is employed for the reason that the record is barren of any proof that the State Board of Edu cation possessed any actual knowledge of the transporta tion in question, let alone approving same. The reference to the State Board of Education by the Sixth Circuit ma jority is simply its own embellishment cut from whole cloth without any evidentiary support. The requirement of a finding of segregative purpose enunciated in Keyes, supra, 2697, is totally lacking as to finding (5). The majority opinion of the Sixth Circuit correctly states that, in 1960, the Carver School District lost its identity and became a part of the Oak Park School District under Michigan law. (169a). This Court has adopted the sound rule that, to establish a constitutional violation, there must be a causal relationship between the act complained of and a present condition of segregation. Keyes, supra, 2698, 2699. Obviously, the reliance of the majority herein on the transportation of Carver students in the late 1950’s to a Detroit high school fails to meet this controlling test of present causal nexus in light of subsequent developments since 1960 involving the attachment of the Carver School District to Oak Park, a basically all white school district, and the attendance of students now residing in the former Carver area in the Oak Park schools since that time. -22— Finding (3) — School Construction Finding (3) relates to the matter of school construction. This finding is premised on the alleged statutory control of defendant State Board of Education over site selection by local school boards for new school construction. (151a, 157a). This finding of de jure segregation must be care fully examined in light of Michigan’s statutory provisions relating to site selection and school construction. Under Michigan law, defendant Detroit Board of Educa tion is empowered with plenary discretionary authority to acquire school sites. See sections 192 and 220a of the School Code of 1955, supra. The basic Michigan statute dealing with the construction of school buildings is 1937 PA 306, as amended, MCLA 388.851 et seq; MSA 15.1961 et seq. In 1949, by 1949 PA 231, the legislature amended section 1 of this act to provide, for the first time, that in the ap proval of construction plans by the Superintendent of Public Instruction, not the State Board of Education, he was to consider, as one of several factors, “ [t]he adequacy and location of the site.” In 1962, by virtue of 1962 PA 175, the legislature amended section 1 of this statute again, thereby removing any power on the part of the Superin tendent of Public Instruction to consider site location as a factor in approving or disapproving school construction plans. This statute, since 1962 and presently, deals only with approval of school construction plans in terms of fire, health and safety requirements. Thus, under Michigan law, the legal authority of de fendant, Superintendent of Public Instruction in site selec tion was, prior to 1949 and after 1962, nonexistent. During the intervening period, this limited role related, not to the time at which the site was purchased by the local board of education but, to a subsequent point in time relating to -23— the submission of construction plans for approval â to health, fire and safety, at which point he could consider, as one of several factors, the adequacy and location of the site. It is the Detroit Board of Education, acting alone, that establishes the attendance areas for each school under its jurisdiction. Hiers v Detroit Superintendent of Schools, 376 Mich 225, 235 (1965). Virtually all the construction relied upon by the lower courts in finding de jure segregation occurred after 1962. (144a-151a). Clearly, a failure on the part of the Super intendent of Public Instruction to exercise a nonexistent power under state law cannot constitute purposeful de jure segregation as required by Keyes, supra, 2697. This portion of the Court of Appeals’ majority opinion is in direct con flict with the en banc opinion of the Fourth Circuit in Smith v North Carolina State Board of Education, 444 P2d 6 (CA 4, 1971), vacating portions of the District Court’s order directed at the state defendants therein for the reason that, under state law, such defendants lacked any lawful authority to prescribe school attendance plans for local school districts. As the North Carolina State Board of Education lacked authority, under state law, to prescribe school attendance plans for local school districts, so here the Superintendent of Public Instruction lacked any authority under Michigan law, to veto thei school site selections of defendant Detroit Board of Education. Although all the construction relied upon relates solely to school construction within Detroit, the Court of Appeals ’ majority opinion transforms such evidence into a con clusion that such construction “ fostered segregation throughout the Detroit metropolitan area.” (Compare 144a-151a and 157a). It is impossible to conceive how the location and construction of school buildings in Detroit, by the Detroit Board of Education to serve the children — 24— residing therein, constitutes multi-school district de jure segregation by the Superintendent of Public Instruction in approving construction plans a,s to health, fire and safety. Further, such conclusion on appeal is impossible to recon cile with the trial court’s express statement that no proofs were taken as to whether any school district, other than Detroit, committed any acts of de jure segregation. (59a- 60a). Detroit and the other 85 school districts within the coun ties of Walyne, 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, 115, 158, 220a and 356 of the School Code of 1955, as amended, supra. Unless this entire statutory scheme of local governance and finance, involv ing separate, identifiable and unrelated school districts, Keyes, supra, 2695, is unconstitutional for failure to guar antee racial balance within a, three county area., the Court of Appeals’ majority clearly erred in its purported finding of a multi-school district construction violation. A;s stated in Rodriguez, supra, 1307, footnote 110, “ [t] his Court has never doubted the propriety of maintaining political sub divisions within the States and has never found in the Equal Protection Clause any ‘ per se’ rule of ‘ territorial uniformity.’ . . . ” Finding (2) — The Effect of 1970 PA 48 Finding (2) relates to Section 12 of 1969 PA 244, as amended by 1970 PA 48, MCLA 388.182; MSA 15.2298(12), which section delayed implementation of defendant Detroit - 2 5 - Board of Education's April 7, 1970 racial balance plan affecting 12 of its 21 high schools over a three year period. (114a-116a, 151a). Section 12 of 1969 PA 244, as amended by 1970 PA 48, supra, was held invalid by the Court of Appeals on October 13, 1970, and the trial court was ex pressly directed to give no effect to such section at the trial of this cause. However, the Court of Appeals refused to order implementation of the April 7, 1970 plan prior to a trial on the merits. 433 F2d 897, 904-905 (CA 6, 1970). From and after October 13, 1970, Section 12 has been legally ineffective. 433 F2d 897, supra. The lack of im plementation of the April 7, 1970 plan, since that date, has been the result of the unwillingness of the Detroit Board of Education to implement such plan and the refusal of the District Court, subsequently affirmed on appeal, to order its implementation. 438 F2d 945 (CA 6, 1971) Thus, Section 12 has long since ceased to have any causal nexus to the racial composition of the 12 Detroit high schools included in the April 7, 1970 plan. Keyes, supra, 2698, 2699. Moreover the April 7, 1970 plan, affect ing only 12 of 21 Detroit high schools, had no causal con nection with the distribution of pupils by race between Detroit and any other Michigan school districts.5 This review of the purported findings below against the state defendants conclusively demonstrates that, in the judi cial quest for the social goal of racial balance among school districts, the state officer defendants have become the legal scapegoat for reasons far removed from their actual con duct in office. Obviously, neither the Governor nor the Attorney General are involved in the operation of school 5~ The postponement of the April 7, 1970 racial balance plan for one semester by § 12 of 1970 P A 18, affected at most, approximately 3,000 to 4,000 tenth grade students in a school district with 289,743 students. See 433 F2d 897, 898-901, supra, and (20a). — 26— districts which explains the lack of any de jure findings against these two state officers. The rulings against the State Board of Education and the Superintendent of Public Instruction, relating to transportation by the Detroit Board of Education in the late 1950’s and school construction in Detroit during the 1960’s on sites selected and acquired locally, with locally established attendance areas, cannot constitute purposeful segregatory conduct with a present causal effect of segregation as required by Keyes, supra. In summary, the lower courts herein clearly erred in relying upon alleged inter-district financial disparities as a predicate for finding constitutional violations by the state officer defendants. Rodriguez, supra. Further, the require ment that purposeful affirmative action with the present causal effect of segregation is necessary in order to find de jure segregation, as enunciated by this Court in Keyes, supra, was not followed by the lower courts herein in find ing de jure conduct by the state officer defendants. As to defendants Governor, Attorney General and State Treasurer, there are simply no findings of conduct result ing in de jure segregation. The purported de jure findings against the State Board of Education and/or Superinten dent of Public Instruction lack the requisite segregatory purpose and present causal segregatory effect basis re quired by Keyes, supra. To the significant extent the Sixth Circuit majority neglected the question of the lack of au thority, under state law, of either of these two defendants to veto school site selections by defendant Detroit Board of Education, it is squarely in conflict with the en banc Fourth Circuit opinion in Smith, supra. In view of the patent conflicts between the lower courts opinions herein and the opinions of this Court in Rodriguez, supra, and Keyes, supra, and the Fourth Circuit opinion in Smith, supra, review of this cause should be granted. ■27- II. THE RULING OF THE COURT OF APPEALS THAT A “DETROIT-ONLY” DESEGREGATION PLAN COULD NOT REMEDY THE UNCONSTITUTIONAL SEGRE GATION FOUND IN THE DETROIT SCHOOL DIS TRICT IS NOT SUPPORTED BY THE RECORD, IS CLEARLY ERRONEOUS AND IN CONFLICT WITH THE DECISIONS OF THIS COURT AND OTHER COURTS OF APPEALS. The majority of the Court of Appeals affirmed the order of the District Court rejecting the plaintiffs’ Detroit-only plan to desegregate the Detroit School District. In dissent Judge Weick and Judge Kent stated that the majority was attempting to overcome demographic racial imbalance as between Detroit and surrounding school districts rather than correcting constitutional violations limited to the De- triot School District. (191a-193a, 224a-225a). The plaintiffs in their complaint asked specifically for the elimination of the racial identity of every school in the (Detroit) system and to maintain now and hereafter a unitary nonraeial school system.” (15a). This prayer of plaintiffs is in accord with the settled oases of this Court that if a school district is found to be de jure segregated Federal courts must order its dismantling so that the system should then he unitary as required by Green v School Board of New Kent County, 391 US 430 (1968); Alexander v Holmes County Board of Edu cation, 396 US 19 (1969), and Swann v Charlotte-MecJclen- hurg Board of Education, 402 US 1 (1971). It is clear from the record that the District Court con ceived its role of dismantling a legally segregated school -28— district in a manner diametrically opposed to the teachings of this Court in Swann, Green and Alexander. During the trial on the merits the District Court made the following observations that are pertinent to the matter at hand: “ THE COURT: In other words, if the projection, and I will be surprised if it doesn’t follow the course which history has shown since 1940, if the projection is in that direction then this occurs to me, how do you integrate a school district where the student popula tion is, let’s make a guess, 85 to 95 percent black? How do yon integrate it I (Emphasis added). Trial Transcript, p 3537, June 18, 1971. ‘ ‘ THE COURT: Mr. Ritchie has made some points along that line, and I have, and to repeat mine as I have said to several witnesses in this case: ‘How do you desegregate a black city, or a black school system;’ That is why I was interested in the projections of the student population of the city. We end up with student population of Detroit of 80 to 85 percent black. How do you integrate, or, if I find segregation, to put it another way, how do I desegregate. . . . ” Trial Transcript, p 4003, 4004, June 24, 1971. The preoccupation of the District Court with the specu lative black student population of the Detroit School Dis trict in 1975 and 1980 is underscored by the following find ing of the District Court contained in the ruling on issue of segregation rendered on September 27, 1971: “ . . . The percentage of black students in the Detroit Public Schools in 1975-76 will be 72.0%, in 1980-81 will — 29— be 80.7% and in 1992 it will be virtually 100% if the present trends eontinue. . . . ” (20 a). Seven days later at the pretrial of all counsel in the case the District Court said: “ As the Court indicated during the course of tak ing proofs it entertains serious reservations about a plan of integration, which encompasses no more than the public schools of the city of Detroit. . . . “ . . . "We must bear in mind that the task that we are called upon to perform is a social one which society has been unable to accomplish. In reality our courts are called upon, in these school oases, to attain a social goal through the education system, by using law as a lever.” (40a-41a). The District Court simultaneously ordered the Detroit Board of Education to submit a plan for the desegrega tion of its schools within 60 days, and ordered the state defendants to submit a multi-district plan of desegregation within 120 days. (43a, 46a-47a). The attention of the Court is invited to the District Court’s findings of fact and conclusion of law relating to plaintiffs’ Detroit-only plan: “ 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. * # # — 30— “ 6. The plan does not lend itself as a building block for a metropolitan plan. (Emphasis added). # # “ 7. The plan, would make the Detroit school system more identifiably Black, and leave many of its schools 70 to 90 per cent Black.6 ££8. It would change a school system which is now Black and White to one that would he perceived as Black, thereby increasing the flight of Whites from the city and the system, thereby increasing the Black student population. * * # CONCLUSIONS OF LAW # # #= ££4. Plaintiffs’ Plan, while it would provide a racial mix more in keeping with the Black-White propor tions of the student population than under either of the Board’s plans or as the system now stands, would accentuate the racial identifiability of the district as a Black school slystem, and would not accomplish de segregation. ’ ’ (54a-56a). 6 This finding affirmed by the majority of the Sixth Circuit Court of Appeals is opposite to the recent holding of that Court, sitting en banc, in G oss v B oard o f E ducation o f the C ity o f K noxville , . . . . F2d . . . . , decided July 18, 1973, approving a Knoxville-only plan which provided that “some schoools in the Knoxville system will remain identifiably black or white on the basis of pupil en rollments. . . . ” p 3 of slip opinion. — 31— The plaintiffs’ Detroit-only plan was submitted by Dr. Gordon Foster, a widely utilized expert in tbe area of school desegregation, who testified that the plaintiffs’ plan would meet the requirements of a unitary system, would meet the constitutional requirements of the Fourteenth Amendment, would eliminate discriminatory racially iden tifiable schools, and would improve educational opportu nities of Detroit school children. It is also worthy of attention that the District Court rendered its Ruling on Propriety of Considering a Metro politan Plan on March 24, 1972, and ordered hearings on metropolitan plans to commence four days later on March 28, 1972, even though it did not render its decision on the Detroit-only Plan of Desegregation until noon on March 28, 1972, after the hearings on the multi-district plans were in progress. Finally, this Court is asked to examine the following portion of the ruling on desegregation area and order for development of plan of desegregation entered June 14,1972: “ Within the limitations of reasonable travel time and distance factors, pupil reassignment s shall be effected within the clusters described in Exhibit P.M. 12 so as to achieve the greatest degree of actual de segregation to the end that, upon implementation, no school, grade or classroom b[e\ substantially dis proportionate to the overall pupil racial composition. The panel may, upon notice to the parties, recommend reorganization of clusters within the desegregation area in order to minimize administrative inconvenience, or time and/or numbers of pupils requiring transpor tation.” (Emphasis added). (101a-102a). It is abundantly clear that approval of plaintiffs’ De — 32 troit-only plan would frustrate the District Court in attain ing the social goal of balancing the races between the Detroit and other tri-county school districts. In affirming the ruling of the District Court on the Detroit-only plan the majority of the Sixth Circuit Court of Appeals compounded the error of the District Court that the constitutional violations found could not be rem edied within the boundaries of the Detroit school system.7 Apparently no plan to convert the Detroit system to a uni tary system, as required by Green, Alexander and Swann, would do, since in the view of the Court of Appeals any Detroit-only plan would not overcome the racial demo graphic imbalance between the Detroit and other tri-county school districts, arising not from any action of public school authorities but from changes in housing patterns. In Green, supra, a school district 57% black, 43% white, was found by this Court to be maintaining a separate school for blacks and a separate school for whites. It sought to dismantle such system by way of a freedom-of-choice plan. This Court laid down the controlling standard for disman tling a segregated school district in that a school board op erating a dual school system was obligated to convert to a unitary system in which racial discrimination would be eliminated root and branch. “ . . . The Board must be required to formulate a new plan and, in light of other courses which appear 1 This type of erroneous result was recently further expanded by the decision that no “Indianapolis Only Plan” of desegregation would meet the requirements of the Equal Protection Clause in a school district with only a 41.1% Negro student body. U nited S ta tes v B oard o f S chool Com m issioners o f the C ity o f Ind ianapolis, Indiana, ----- F Supp ------ (SD Ind), No. IP 68-C-225, Slip opinion issued July 20,1973, pp 6-9. — 3 3 - open to the Board, snch as zoning, fashion steps which promise realistically to convert promptly to a system without a ‘white’ school and a ‘Negro’ school, but just schools.” 391 US at 442. In Keyes, supra, 2693, 2694, footnote 11, the Court reiterated that Green, supra, relying upon Brown II (349 US 294 [1955]), remains the governing principle. The rul ing in Green, supra, was confirmed in Alexander, supra, and reviewed and approved in Swann, supra. Alexander restated the standards for the desegregation of several Mississippi school districts: “ . . . to operate as unitary school systems within which no person is to be effectively excluded from any school because of race or color.” 396 US, at 20. In Swann, the Court distilled its holdings in Green and Alexander and unanimously reaffirmed the standard to be followed: “ Our objective in dealing with the issues presented by these oases is to see that school authorities exclude no pupil of a racial minority from any school, directly or indirectly, on account of race; it does not and can not embrace all the problems of racial prejudice, even when those problems contribute to disproportionate racial concentrations in some schools.” 402 US, at 23. The Court then gave fair warning that its ruling should not be misapplied: “ . . . If we were to read the holding of the District Court to require, as a matter of substantive constitu tional right, any particular degree of racial balance or mixing, that approach would be disapproved and we —3^~ would be obliged to reverse. The constitutional com mand to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole.” 402 US, at 24. Finally, the Court in Swann said: “ It does not follow that the communities served by such systems will remain demographically stable, for in a growing, mobile society, few will do so. Neither school authorities nor district courts are constitution ally required to make year-by-year adjustments of the racial composition of student bodies once the affirma tive duty to desegregate has been accomplished and racial discrimination through official action is elimi nated from the system. . . . ” 402 US, at 31-32. It is clear that neither the District Court nor the Court of Appeals applied and followed these standards. Neither lower court made a finding that any pupil of a racial minor ity would be excluded from any school, directly or in directly, in the Detroit School District, on account of race under plaintiffs ’ Detroit-only plan. There can be no ques tion but that both the District Court and the Court of Appeals were attempting to provide for more than a cor rection of the adjudged constitutional violation, but instead sought to overcome demographic racial imbalance between Detroit and suburban communities, as opposed to correct ing alleged racial segregation inside the Detroit School District. Racial imbalance as a result of demographic residential patterns, as contrasted with state enforced segregation within a school district, is not offensive to the Constitution. Spencer v Kugler, 326 F Supp 1235 (D NJ, 1971), affirmed on appeal, 404 US 1027 (1972). Clearly, the rulings of the District Court and the Court of Appeals - 3 5 - are in direct conflict with the controlling authorities of this Court, and this Court is “ obliged to reverse.” Swann, supra, p 24 of the opinion. The effect of the Court of Appeals’ decision must he that a unitary system may not be constitutionally established in a majority black school district. The Court of Appeals uses the adjective “ overwhelmingly” black in conjunction with its attempt to look into the foreseeable future. No doubt this is based upon the District Court’s speculation as to the school population of the Detroit School District in 1975, 1980 and 1990. Since Swann proscribes year by year judicial adjustments in pupil assignments because of changing demo graphic patterns within a school district, and Green re quires desegregation of a segregated school district now, the purely speculative student population of the Detroit School District in 1975, 1980 and 1990 cannot form the basis for the conclusion of the District Court that a unitary system cannot be established within the majority black Detroit School District. To the contrary, this Court has held that a unitary school system, in which no pupil of a racial minority is excluded from any school on account of race, must be established in a school district that is majority black. Wright v. Council of the City of Emporia, 407 US 451 (1972); United States v Scotland Neck Board of Educa tion, 407 US 484 (1972); Raney v Board of Education of Gould School District, 391 US 443 (1968). The decision of the Sixth Circuit Court of Appeals in Northcross v Board of Education of Memphis, 420 F2d 546, 548 (1969), required a unitary system within a segregated school district 57% black and 43% white. In that case, the Court of Appeals asked counsel for plaintiffs, who — 36— is also chief trial counsel for plaintiffs here, to advice what would be a unitary system in Memphis: “ He replied that such a system would require that in every public school in Memphis there would have to be 55% Negroes and 45% white. A departure of 5% to 10% from such rule would be tolerated. . . .” These cases unequivocally demonstrate that there is no constitutional requirement that the conversion of a majority black school district to a unitary system be effectuated by involving surrounding school districts. To the contrary, these cases stand for the proposition that unitary systems may be, indeed, must be, achieved within majority black school systems. The District Court’s notion, affirmed on appeal, that Detroit could not be integrated because it would be perceived as black, is plainly erroneous. Almost every school district in the country is either major ity white or majority black and thus is susceptible of being perceived as such. This numerical fact of life obviously gives rise to no constitutional infirmity, whether the pupil majority be white or black. Moreover, the ruling below that the broad remedial equit able power of a Federal District Court is insufficient to create a unitary school system within Detroit compels the conclusion that both lower courts have ruled, in effect, that the racial demographic pattern both within Detroit and between Detroit and other tri-county school districts is inherently unconstitutional. Such result is both unsup ported by precedent and directly in conflict with the prior decisions of this Court cited above. The holding of the Court of Appeals that it is constitu tionally impermissible to establish a unitary system within the Detroit School System squarely conflicts with the de -37— cision of the Fourth Circuit Court of Appeals in Bradley v School Board of Richmond, Virginia, 462 F2d 1058 (OA 4, 1972), affirmed by an equally divided court in ------U S -------, 93 S Ct 1952 (1973). In Bradley v Richmond, supra, the District Court approved a plan of desegregation of a seg regated school district composed of 64% black and 36% white. Shortly after the desegregation plan was imple mented the Richmond Board of Education moved to add two adjoining majority white school districts to provide a “ better” racial mix. The Fourth Circuit Court of Appeals held that there is no federally protected right to racial balance within even a single school district but only a Tight to attend a unitary school system. Once a unitary school system was achieved within the school district 64% black and 36% white, the authority of the District Court to further intervene by racially balancing with white suburban school districts was neither necessary nor justifiable. Bradley v Richmond, supra, must clearly stand for the proposition that a unitary school system can be achieved within a school district that is 64% black and 36% white, notwithstanding that adjoining school districts are major ity white. Thus, if the decisions of the lower courts are allowed to stand, a unitary system may be achieved in a 64% black school district in the Fourth Circuit but is unachievable in a 63.8% black school district in the Sixth Circuit. A nation committed to rule of law cannot abide one rule of law for the Fourth Circuit and another rule of law for the Sixth Circuit. The decision of the Court of Appeals affirming the de cision of the District Court rejecting plaintiffs’ Detroit- only plan is clearly erroneous and in open conflict with the clear standards enunciated by this Court in Green, Alexander and Swann. The state of the law so carefully developed and delineated by this Court in these cases to guide district courts in school desegregation cases will be — 38— thrown into disarray, uncertainty and confusion unless this Court grants certiorari and reverses such holding. Rejection of plaintiffs’ Detroit-only plan by the District Court and approved by the majority of the Sixth Circuit Court of Appeals because it was not a building block for a multi-district racial balance plan is opposite to the hold ing of this Court in Scotland Neck, Emporia and Raney. The decision is also in direct conflict with the decision of the Fourth Circuit Court of Appeals in Bradley v Richmond, supra. Because of the importance of this case to the juris prudence of this nation, the conflict between the two Circuit Courts of Appeals must be resolved without delay. III. THE DECISION OF THE COURT OF APPEALS, THAT A MULTI-SCHOOL DISTRICT REMEDY IS CONSTI TUTIONALLY PERMISSIBLE HEREIN, IS ERRO NEOUS AND IN CONFLICT WITH THE DECISIONS OF OTHER COURTS OF APPEALS AND THIS COURT. Plaintiffs’ complaint herein alleged de jure segregation only within the confines of the School District of the City of Detroit and prayed for relief limited to establishing a unitary system of schools therein. (5a, 14a, 15a). After a lengthy trial on the merits, at which no school district other than Detroit was present as a party in the cause, the District Court ruled that the Detroit school system was being operated as a de jure segregated school system. Subsequently, in enunciating the scope of the multi-school district remedy, the District Court candidly stated the following: — 39— . . It should he noted that the court has taken no proofs with respect to the establishment of the bound aries of the 86 public school districts in the counties of Wayne, Oakland and Macomb, nor on the issue of whether, with the exclusion of the city of Detroit school district, such school districts have committed acts of de jure segregation.” (59a-60a). Nevertheless, the trial court proceeded to enter the most sweeping remedial decree ever entered in a school desegrega tion case, judicially creating a 53 school district desegrega tion area involving 780,000 or 1/3 of Michigan’s public school pupils.8 This remedial decree mandates the re assignment of pupils across school district boundaries and compels massive transportation of 310,000 pupils through out an area covering approximately 700 square miles for the sole purpose of achieving racial balance. (72a, 101a- 102a). Thereafter, the trial court commanded the state officer defendants to pay for the acquisition of at least 295 buses for use in a partial, interim, multi-district desegregation plan during the 1972-73 school year. The approximate cost of this initial order to acquire transportation would have been approximately $3,000,000.00 since one school bus meet ing Michigan standards costs approximately $10,500.00. (106a-107a). The Court of Appeals, while affirming the propriety of a multi-school district remedy, partially vacated the multi 8 Eighteen of these 53 school districts have never heen parties to this proceeding at any time and except for Detroit, the remaining 34 school districts were granted limited intervention on March 15, 1972 only for the purposes of filing a brief on the propriety of a multi-district remedy and reviewing multi-district plans. — 4 0 - district remedial decrees for the sole reason that 18 affected school districts within the desegregation area had never been made parties to this cause, contrary to Rule 19, FR Civ P. (176a~179a). However, it is clear that upon remand all school districts made parties to the cause may be in cluded in the multi-district remedy. The ruling of the Sixth Circuit majority, affirming the propriety of a massive multi-district remedy herein, must be tested against the controlling federal appellate prece dents. When so tested, these defendants submit that the conflict between such ruling and the decisions of both other courts of appeals and this Court becomes manifest. In Swann, supra, this Court unanimously enunciated the following principles concerning school desegregation rem edies: “ . . . The task is to correct, by a balancing of the individual and collective interests, the condition that offends the Constitution. “In seeking to define even in broad and general terms how far this remedial power extends it is im portant to remember that judicial powers may be ex ercised only on the basis of a constitutional viola tion . . . “ . . . As with any equity case, the nature of the viola tion determines the scope of the remedy . . . ” 402 US, at 16. Here, the violation or condition found to offend the Consti tution is expressly limited to de jure segregation within the Detroit school system, which condition may be remedied as set forth in Part II herein in accordance with Swann, supra. — 41: The courts below, contrary to the controlling principles of Swann, supra, have expanded the remedy to include scores of other school districts without the support of any claims, proofs or findings concerning either the establishment of school district boundaries or any conduct resulting in de jure segregation by any school district other than Detroit. This is not surprising in light of the history of Michigan law establishing the coterminous nature of the school dis trict and city boundaries of Detroit over 100 years ago in 1842 as follows: “ That the city of Detroit shall be considered as one school district, and hereafter all schools organized therein, in pursuance of this act, shall, under the direc tion and regulations of the board of education, be public and free to all children residing within the limits thereof, between the ages of five and seventeen years, inclusive.” See Section 1 of 1842 PA 70. Moreover, some 98 years later, in 1940, the population of the City of Detroit was approximately 90% white, thus negating any possible inference that the city and school district boundaries were made coterminous for the purpose of separating people or school children on the basis of race. (21a). In Spencer v Kugler, supra, plaintiffs challenged the ra cial imbalance existing among New Jersey’s school districts. The lower court, in rejecting plaintiffs’ challenge, noted that under New Jersey law school district boundaries con form to municipal boundaries, p 1240, and held the follow ing: “ A continuing trend toward racial imbalance caused by housing patterns within the various school districts is not susceptible to federal judicial intervention. The New Jersey Legislature has by intent maintained a unitary system of public education, albeit that system has degenerated to extreme racial imbalance in some school districts; nevertheless the statutes in question as they are presently constituted are constitutional.” 326 F Supp, at 1243. On appeal, this Court affirmed. Obviously the Court of Appeals ’ decision in this cause is in derogation of Spencer v Kugler, supra. Turning to Bradley v Richmond, supra, a case in which historically, under Virginia law, unlike Michigan, every school district operated a dual school system, the Fourth Circuit, having, at p 1064, “ searched the 325-page opinion of the district court in vain for the slightest scintilla of evidence that the boundary lines of the three local govern mental units have been maintained either long ago or recently for the purpose of perpetuating racial discrimina tion in the public schools” found none and accordingly reversed. In reversing the order of the lower court com pelling the restructuring of three school districts for racial balance purposes as being prohibited by the Tenth Amend ment, in the absence of purposeful discrimination as to the establishment and maintenance of school district bound ary lines, the Fourth Circuit correctly followed the purpose test subsequently enunciated by this Court in Keyes, supra. Here, as in Bradley v Richmond, supra, the record is barren of proof of purposeful segregation concerning the estab lishment and maintenance of the school district boundaries in question. (See the dissenting opinion of Circuit Judge Kent, 222a-225a.) Thus, the decision of the Fourth Circuit in Bradley v Richmond, supra, and the Sixth Circuit major — 43— ity herein, constitute an irreconcilable conflict which may- only be resolved by this Court. The Sixth Circuit Court’s attempt to distinguish Bradley v Richmond, supra, on the basis that the instant case does not involve a restructuring of school districts, only the cross-district reassignment of pupils, is manifestly un tenable. (175a). The District Court’s order of June 14, 1972 commands, inter alia, the following: “The State Superintendent of Public Instruction, with the assistance of the other state defendants, shall examine, and make recommendations, consistent with the principles established above, for appropriate in terim and final arrangements for the (1) financial, (2) administrative and school governance, and (3) con tractual arrangements for the operation of the schools within the desegregation area, including steps for unifying, or otherwise making uniform the personnel policies, procedures, contracts, and property arrange ments of the various school districts. * * # “ . . . In particular, the Superintendent shall examine and choose one appropriate interim arrangement to oversee the immediate implementation of a plan of desegregation.” (104a-105a.) Further, the Court of Appeals majority itself states later in the opinion that “ the Legislature of Michigan has an op portunity to determine the organizational and governmental structure of an enlarged desegregation area” for remedial purposes. (188a-189a). This language conclusively lays to rest any pretense that the multi-district remedy herein may be implemented among scores of legally, geographically 44r and politically independent Michigan school districts, eacli having its own locally elected board of education with legal authority over matters of taxation, bonding, personnel and curriculum, without a traumatic restructuring of the exist ing organizational and governmental structure of scores of school districts in Wayne, Oakland and Macomb counties, See, e.g., Part 1, Chapter 4 and Part 2, Chapter 9 of the School Code of 1955, as amended, supra. Moreover, by the above quoted language the Court of Appeals has correctly recognized that, in Michigan, as in Virginia, the power over school district boundaries is re posed in the Legislature, not the State Board of Education, Bradley v Richond, supra, p 1067. Thus the analogy the Sixth Circuit makes (175a) between the powers of the Virginia State Board of Education and the State of Michi gan, including its legislative branch of government, is un sound. In essence, the Fourth Circuit ruled that, absent proof of purposeful segregation in the establishment and main tenance of school district boundaries, a multi-district remedy was beyond the scope of federal judicial power under the Constitution. The Sixth Circuit ruled that, not withstanding the absence of any pleaded allegations, proofs or findings of purposeful segregation in the establishment and maintenance of school district boundaries, nevertheless a multi-district remedy is constitutionally permissible for the sole purpose of achieving racial balance within a three county area. This conflict between the circuits is clear and, we respectfully submit, merits the granting of certiorari herein. In the language of Keyes, supra, 2695, the school districts involved herein are legally, politically and geographically “ separate, identifiable and unrelated units” within the State 45 of Michigan. As demonstrated above, both lower courts herein have recognized the need for restructuring these governmental units if a multi-district remedy is to be effectuated in this cause. Otherwise, parents would be voting on school board candidates and school tax rate pro posals in the district where they reside, while their school age children would be educated in another school district where the parents would be denied any effective control over school board members, school tax rates, and decisions affecting educational personnel and curriculum. The cross district reassignment of pupils for purposes of racial balance, without more, would completely vitiate any concept of local parental control over the education of their children. This Court lias recently recognized in both Emporia, supra, 469 and 478, and Rodriguez, supra, 1305, the con tinuing importance of local participation and control in educational decision making. This rational state interest, which is sufficient to justify large inter-district financial disparities, is served by the existing boundaries and govern mental structure of the school districts involved herein covering a densely populated three county area. The coterminous nature of the boundaries of the city and school district of Detroit is rational, racially neutral and of historic origin. As noted in Rodriguez, supra, 1307, footnote 110, “ [t]his. Court has never doubted the propriety of maintain ing political subdivisions within the States and has never found in the Equal Protection Clause any per se rule of ‘ territorial uniformity.’ ” Thus, in the absence of any finding below that the school district boundary lines in volved herein are “ the product of a state contrivance to segregate on the basis of race or place of origin, ’ ’ the multi district remedy decreed below must fall. Wright v Rocke feller, 376 US 52, 58 (1964). 46- Education is not among the rights afforded their explicit or implicit protection under the Federal Con stitution. Rodrigues, supra, 1297. Thus, while not dis paraging the undisputed importance of public education, it is wise to remember that education is a function en trusted to the states under our federal system of gov ernment. The Michigan legislature, in response to the state constitutional command to establish and maintain a system of free public elementary and secondary education (Const 1963, art 8, § 2), has enacted the provisions of the School Code of 1955, as amended, supra. Pursuant to this statutory enactment, local participation and control over public education is encouraged and facilitated through local school districts and locally elected school boards with broad discretionary authority. As stated by this Court in Rod rigues, supra, 1305, “ [a]n analogy to the Nation-State relationship in our federal system seems uniquely ap propriate.” However, the rulings of the lower courts herein concern ing a multi-district remedy deny due process to the affected school districts outside Detroit in the judicial quest for racial balance. (See dissenting opinions of Judge Weich, 2C5a-212a; Judge Kent, 230a-238a; Judge Miller, 239a-340a) Under Michigan law, Michigan school districts may sue and be sued. Further, each board of education has the right to hire local counsel of its own choosing. See §■§ 352 and 609 of the School Code of 1955, as amended, supra. More over, it has been the consistent position and conduct of the state officer defendants throughout this litigation that they do not represent any of the school districts involved in this cause. The false notion that the interests of the state officer defendants and local school districts are as one, and thus may be effectively represented by just the state de fendants, is surely put to rest by the decision of defendant — 47- Detroit Board of Education to accept the de jure findings against it and support a multi-district remedy. On this point, the majority opinion of the Court of Appeals is manifestly inconsistent and illogical. Such opinion recognizes the independent legal status of Michigan school districts for purposes of remedial housekeeping, but on the crucial issues of remedy within Detroit and the legal pro priety of a multi-district remedy, this independent legal status is completely ignored. (176a-178a). The holding that each “affected district first must be made a party to this litigation and afforded an opportunity to be heard” (177a), is without substance since the opportunity to be- heard is available only after the decisive issues have already been adversely determined. For the school districts affected herein and their boards of education, the interest at stake is their continued exist ence as viable governmental entities. To paraphrase the language of the dissenting opinion in Emporia, supra, 478, to bar these school districts from operating their own school systems for the children within their respective geograph ical boundaries is to strip them of their only governmental responsibility and to deny them any existence as independ ent governmental entities, all without their day in court. Further, unlike Emporia, supra, this case involves existing school districts outside the geographical area of the school system previously found to be de jure segregated. For the parents of school age children within these school districts, the interest at stake is the parental right to direct the upbringing and education of children under their responsibility and control. Pierce v Society of Sisters, 268 US 510 (1925). Wisconsin v Yoder, 406 US 205 (1972). This paramount parental interest, which limits the scope of state power over public education, is also clearly entitled — 48- to recognition in terms of the power of federal courts over public education for purposes of racial balance. At a minimum, such parents are entitled to be heard, through their locally elected boards of education, at a meaningful stage in the proceedings. After all, as cogently noted by Mr. Justice Powell in Keyes, supra, 2717, 2718, the com pulsory transportation of any child to a distant school solely for racial balance purposes impinges upon the liberty of that child and it is the parents and children who shoulder the full burden of affirmative remedial action in these cases, although they did not participate in any constitutional viola tion. In summary, the decision of the Court of Appeals that a multi-school district remedy is constitutionally permissible herein squarely conflicts with this Court’s affirmance in Spencer v Kugler, supra. Further, there is an irreconcilable conflict between the Fourth Circuit’s decision in Bradley v Richmond, supra, and the Sixth Circuit’s decision herein on the question of a multi-school district remedy. Both cases involve the judicial restructuring of independent local school districts for racial balance purposes. Where, as here, the record is barren as to any multi-school district constitu tional violation concerning either school district boundary lines or the conduct of any school district, other than Detroit, the granting of certiorari is clearly in order to review this unprecedented expansion of federal judicial power over public education. The affected local school districts, their boards of education and, most importantly, the hundreds of thousands of parents and school age children residing therein, upon whom the burden of af firmative remedial action will fall, deserve no less than full review by this Court of the unprecedented decision of the Court of Appeals. — 49 IV. THE QUESTION OF WHETHER A MULTI-SCHOOL DISTRICT REMEDY IS CONSTITUTIONALLY PER MISSIBLE IN THIS CAUSE IS AN IMPORTANT QUESTION OF FEDERAL LAW WHICH SHOULD BE DEFINITIVELY SETTLED BY THIS COURT. In its July 20,1972 order herein, granting an interlocutory appeal and staying the proceedings below, except for remedial planning, the Court of Appeals stated: “ [TJhere is at least one difficult issue of first im pression that never has been decided by this court or the Supreme Court.” (108a). This question is obviously the question of under what circumstances a multi-school district remedy, expressly re quiring the cross-district reassignment and transportation of pupils and contemplating, if not yet requiring, the even tual merger of separate, identifiable and unrelated school districts, is constitutionally permissible. Based on the prior decisions of this Court, as applied to this cause, the lower courts committed manifest error in de creeing a multi-district remedy in the absence of any pleaded allegations, proofs or findings that the school district bound aries were established and maintained with the purpose and present causal effect of separating school children solely by race. However, assuming arguendo that the prior precedents of this Court are not controlling herein, it is beyond dispute that this is an important question of federal law which this Court should resolve. The “familiar phenomenon” of racial residential con centration within large urban areas is, indeed, a hard reality — 50— of American life on a national scale. Further, the fact of majority black, big city school districts is also a national phenomenon which includes not only Detroit and Eichmond but also, for example, Atlanta, Cleveland, Baltimore City, Birmingham, Chicago, Memphis, New Orleans, Philadelphia, Washington, D.C., Gary, Kansas City, Newark, Oakland, St. Louis. Swann, supra, p 25; Keyes, supra, 2702, 2704; 1971 HEW Enrollment Survey, 118 Cong. Bee. S 144-148, January 20, 1972; United States v Board of School Com missioners, Indianapolis, Indiana, 332 F Supp 655, 677 (1971). As noted in the dissenting opinion of Circuit Judge Kent, it is the underlying racial demographic pattern within a 3 county area that forms the now inarticulated first premise for the majority opinion of the Court of Appeals requiring a multi-district remedy. (224a). This type of demographic pattern, itself a national phenomenon, is clearly a recurring theme in present and future school desegregation cases in the Federal courts with which this Court must come to grips. The people of Michigan are aware that, notwithstanding a long history of dual school systems in every school district by mandate of state law never found in Mich igan, the proposed multi-district remedy in Bradley v Richmond, supra, was ultimately rejected by the Court of Appeals for the Fourth Circuit and affirmed by equally divided action of this Court. The concern expressed by Mr. Justice Powell’s opinion in Keyes, supra, 2702, 2703, 2707-2711, for uniform national standards in school de segregation litigation is relevant here. If, unlike, Brad ley v Richmond, supra, there is to be a multi-district remedy here, the hundreds of thousands of parents of Michi gan school children who will be reassigned out of their neighborhood schools and transported across school district -51 and county lines solely for racial balance purposes should first be told, by this Court, why the result in this cause must be different than the result in Bradley v Richmond, supra, i.e., why the rule in Michigan must be different than the rule in Virginia.9 Within Michigan, the judicially created “desegregation area” originally ordered by the District Court involved 53 legally independent school districts and included 780,000 school children and their parents. Further, the proposed multi-district remedy will have a traumatic impact on Michigan’s statutory arrangements for local governance and control of public education, not to mention a multi-million dollar impact on limited public funds otherwise available to educate, not transport, school children. Before this un precedented exercise of federal judicial power becomes a reality, in the name of racial balance as the single judicial goal before which all else must fall, we respectfully submit that this Court should carefully review and decide this important cause on the merits. As alluded to in the opinion of Mr. Justice Powell in Keyes, supra, 2718, currently the major issue in public edu cation is the “perennially d[i]visive debate over who is to 9 In contrast to both decisions in B rad ley v Richm ond, supra, and the instant cause, the recent district court decision in United S tates v Board o f School C om m issioners o f the C ity o f Indianapolis, I n diana, supra, has further confused the law in this area by compelling a multi-school district remedy limited to the one way transfer and transportation of black students from Indianapolis to surround ing school districts for the reason that “ [t]he Court is of the opinion that it would be without jurisdiction to order the exchange of pupils between IPS (Indianapolis) and added defendants at this time. — 5 2 — be transported where.” 10 This hotly disputed issue in fluences local, state and national elections and, as this Court is aware, has spawned serious attempts to amend the Con stitution. Without guidance from this Court, this conflict will only become more exacerbated as the focus shifts from intra-district litigation to inter-district litigation involving cross-district reassignment and transportation of children for racial balance purposes. This question should, indeed, must be definitively settled by this Court in the interests of returning public education to its primary goal of quality education for all children rather than protracted nation wide litigation over school district restructuring for the sole purpose of racial balance. It is Negro children of IPS (Indianapolis) and not suburban chil dren who are being deprived of a constitutional right, and so long as the various school corporations remain separate the Court be lieves that it would have no basis to direct that a suburban child be transported out of its own school corporation.” Slip opinion issued July 20,1973, p 27. 10 A s noted above in the STATEM EN T OF TH E CASE plaintiffs filed a motion on August 6,1973 in the District Court to compel the joinder of additional school districts as parties. I f such motion is granted, the school district defendants herein will include 85 in dependent school districts having approximately 1,000,000 pupils and covering approximately 1,952 square miles. — 53- CONCLUSION For the foregoing reasons, a writ of certiorari should issue to review the decision of the Sixth Circuit rendered herein on June 12, 1973. Respectfully submitted, FRANK J. KELLEY Attorney General Robert A. Derengoski Solicitor General Eugene Krasicky Gerald F. Young George L. McCargar L. Graham Ward Assistant Attorneys General Attorneys for Petitioners 720 Law Building 525 West Ottawa Street Lansing, Michigan 48913 Dated: September 6, 1973. IN THE SUPREME COURT OF THE UNITED STATES October Term 1973 // LEN PARK PUBLIC SCHOOLS, SCHOOL DISTRICT OF THE CITY OF BERK LEY, BRANDON SCHOOLS, CENTERLINE PUBLIC SCHOOLS, CHERRY HILL SCHOOL DISTRICT, CHIPPEWA VALLEY PUBLIC SCHOOLS, SCHOOL DIS TRICT OF THE CITY OF CLAWSON, CRESTWOOD SCHOOL DISTRICT, DEAR- !ORN PUBLIC SCHOOLS, DEARBORN HEIGHTS SCHOOL DISTRICT NO. 7, “AST DETROIT PUBLIC SCHOOLS, SCHOOL DISTRICT OF THE CITY OF ERNDALE, FLAT ROCK COMMUNITY SCHOOLS, GARDEN CITY PUBLIC CHOOLS, GIBRALTAR SCHOOL DISTRICT, SCHOOL DISTRICT OF THE TTY OF HARPER WOODS, SCHOOL DISTRICT OF THE CITY OF HAZEL ARK, INTERMEDIATE SCHOOL DISTRICT OF THE COUNTY OF MACOMB, AKE SHORE PUBLIC SCHOOLS, LAKEVIEW PUBLIC SCHOOLS, THE LAMP- (ERE SCHOOLS, LINCOLN PARK PUBLIC SCHOOLS, MADISON DISTRICT UBLIC SCHOOLS, MELVINDALE-NORTH ALLEN PARK SCHOOL DISTRICT, CHOOL DISTRICT OF NORTH DEARBORN HEIGHTS, NOVI COMMUNITY CHOOL DISTRICT, OAK PARK SCHOOL DISTRICT, OXFORD AREA COM- fUNITY SCHOOLS, REDFORD UNION SCHOOL DISTRICT NO. 1, RICHMOND O M M U N ITY SCHOOLS, SCHOOL DISTRICT OF THE CITY OF RIVER OUGH, RIVERVIEW COMMUNITY SCHOOL DISTRICT, ROSEVILLE PUBLIC CHOOLS, SOUTH LAKE SCHOOLS, TAYLOR SCHOOL DISTRICT, WARREN ONSOLIDATED SCHOOLS, WARREN WOODS PUBLIC SCHOOLS, WAYNE- fESTLAND COMMUNITY SCHOOLS, WOODHAVEN SCHOOL DISTRICT, and 'Y A N D O T T E PUBLIC SCHOOLS; SOUTHFIELD PUBLIC SCHOOLS; and CHOOL DISTRICT OF THE CITY OF ROYAL OAK, NALD BRADLEY and RICHARD BRADLEY, by their Mother and Next Friend, ERDA BRADLEY; JEANNE GOINGS, by her Mother and Next Friend, BLANCH OINGS; BEVERLY LOVE, JIMMY LOVE and DARRELL LOVE, by their Mother (Continued on Inside Front Cover) PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT TZEL, LONG, GUST, KLEIN VAN ZILE, | O f Counsel.I*!, a pe •JDIT AND MC GARRY, P C. lard P. Condit, I O f Counsel ITMAN, BEIER, HOWLETT, CCONNELL & GOOGASIAN, neth B. McConnell, O f Counsel WILLIAM M. SAXTON JOHN B. WEAVER ROBERT M. VERCRUYSSE XHAFER ORHAN 1881 First National Building Detroit, Michigan 48226 Counsel for Petitioners Allen Park Public Schools, et al, Southfield Public Schools and School District of the City of Royal Oak and Next Friend, CLARISSA LOVE; CAMILLE BURDEN, PIERRE BUR AVA BURDEN, MYRA BURDEN, MARC BURDEN and STEVEN BURDF their Father and Next Friend, MARCUS BURDEN; KAREN WILLIAM KRISTY WILLIAMS, by their Father and Next Friend, C. WILLIAMS; RAJ and MRS. WILBUR BLAKE, parents; all parents having children attending th lie schools of the City of Detroit, Michigan, on their own behalf and on bell their minor children, all on behalf of any person similarly situated; and NATK ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, DEI BRANCH; WILLIAM G. MILLIKEN, Governor of the State of Michigan and ficio member of the Michigan State Board of Education; FRANK J. KEl Attorney General of the State of Michigan; MICHIGAN STATE BOARD OF CATION, a constitutional body corporate, and JOHN W. PORTER, Superintei of Public Instruction, Department of Education of the State of Michigan; ALL GREEN, Treasurer of the State of Michigan;BOARD OF EDUCATION OF THE OF DETROIT, a school district of the first class; PATRICK McDONALD, J) HATHAWAY and CORNELIUS GOLIGHTLY, members of the Board of Edui of the City of Detroit; and NORMAN DRACHLER, Superintendent of theD Public Schools, DETROIT FEDERATION OF TEACHERS, LOCAL 231, A! CAN FEDERATION OF TEACHERS, AFL-CIO; DENISE MAGDOWSK DAVID MAGDOWSKI, by their Mother and Next Friend, JOYCE MAGDO- DAVID VIETTI, by his Mother and Next Friend, VIOLET VIETTI, and the ZENS COMMITTEE FOR BETTER EDUCATION OF THE DETROIT Mi POLITAN AREA, a Michigan non-profit Corporation; KERRY GREEF COLLEEN GREEN, by their Father and Next Friend, DONALD G. GI JAMES,JACK and KATHLEEN ROSEMARY, by their Mother and Next! EVELYN G. ROSEMARY, TERRI DORAN, by her Mother and Next F BEVERLY DORAN, SHERRILL, KEITH, JEFFREY and GREGORY COUI their Mother and Next Friend, SHARON COULS, EDWARD and MIC ROMESBURG, by their Father and Next Friend, EDWARD M. ROMESBUR TRACEY and GREGORY ARLEDGE, by their Mother and Next Friend, All ARLEDGE, SHERYL and RUSSELL PAUL by their Mother and Next F MARY LOU PAUL, TRACY QUIGLEY, by her Mother and Next Friend, JA QUIGLEY, IAN, STEPHANIE, KARL AND JAKOO SUNI, by their Moth. Next Friend, SHIRLEY SUNI; and TRI-COUNTY CITIZENS FOR INTER TION IN FEDERAL SCHOOL ACTION NO. 35257; MICHIGAN EDUCATE) SOCIATION; PROFESSIONAL PERSONNEL OF VAN DYKE, and THE GRi POINTE PUBLIC SCHOOLS, R e spoilt 1 INDEX Introduction........................................................................... 1 Opinions and Orders Below ...................................................... 2 Jurisdiction ............................................................................... 3 Questions Presented ................................................................. 3 Constitutional Provisions, Statutes and Rules Involved ........... 4 Statement of the Case ............................................................... 5 Reasons For Granting The W rit........ ....................................... 11 1. The Decision Below Presents Issues of Imperative Public Importance That Have Never Been Decided By This Court.......................................................................... 11 2. The Decision Below Conflicts In Principle With Deci sions Of This Court And Other Courts of Appeals........ 15 3. Petitioners Have Been And Will Continue To Be Denied Due Process of Law Under The Decision Below ............ 20 Conclusion .............................................................................. 22 Appendix ................................................... laa Page 11 TABLE OF AUTHORITIES Federal Cases: Alexander v. Holmes County Board o f Education, 396 U.S. 19(1969) .......................................................................... 18 Armstrong v. Manzo, 380 U.S. 545 (1965) ............................ 20 Bradley et al. v. Milliken et al., 338 F. Supp 582 (E.D. Mich-1971) ...................................................................... 2 Bradley et al v. Milliken et al., 345 F. Supp. 914 (E.D. Mich.- 1972) 2 Bradley et al. v. Milliken et al., 433 F2d 897 (6th Cir., 1970)3,5,0 Bradley et al v.Milliken etal., 438 F2d 945 (6th Cir., 1971) . 3 Bradley et al v. Milliken et al, 468 F2d 902 (6th Cir., 1972), cert denied 409 U.S. 874 (1972) ....................................... 3 Bradley et al v. Milliken et al, ___ F2d___ (6th Cir., June 12,1973) .......................................................................... 2,7 Bradley v. School Board o f the City o f Richmond, 338 F. Supp. 67 (1972), rev’d 462 F2d 1058 (4th Cir., 1972), A ffd by equally divided Court., —U.S.—, 93 S.Ct. 1952 (1973) ......................................................................... 8,18,19 Brown v. Board o f Education o f Topeka, 347 U.S. 483 (1954) ....................................................... 13,19,20 Brown v. Board o f Education o f Topeka, 349 U.S. 294 (1955) .............................................................................. 19,20 Brunson v. Board o f Trustees o f School District No. 1 o f Clarendon County, South Carolina, 429 F2d 820 (4th Cir., 1970).................................................................................. 14 Dred Scott v. Sanford, 60 U.S. (19How) 393 (1856) 14 Railroad Commission o f California v. Pacific Gas & Electric Co., 302 U.S. 388 (1938) ................................................. 20 San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973) .................................................................... n Spencer v. Kugler, 326 F. Supp 1235 (D.NJ 1971), Aff’d 404 U.S. 1027(1972) Page 17 Page iii Swann v. Charlotte-Mecklenburg Board o f Education, 402 U.S. 1 (1970) ....................................................... 15,16,17,18 United States v. Scotland Neck Board o f Education, 407 U.S. 484(1972) ........................................................................ 18 Wright v. Council o f the City o f Emporia, 407 U.S. 451 (1972) ............................................................................... 18 State Cases: Ex Rel Workman, 18 Mich. 399 (1 8 6 9 )................ ................ 12 Constitutional Provisions: U.S. Const. Amend V........................................................ 4,20, laa U.S. Const., Amend. XIV, Sec. 1 .....................................4,18,laa Mich. Const, art VIII, Sec. 2 ........................................... 4,12,laa United States Statutes: Judicial Code, 28 U.S.C. § 1254(1) ........................... 3,4,2aa Judicial Code, 28 U.S.C. § 1292(b) .............................4,9,2aa Michigan Statutes: Act 34, Sec. 28, Mich. Pub. Acts of 1867 ....................... 4,1 l,3aa Act 319, Part II, Ch. 2, Sec. 9, Mich. Public Acts of 1927 4,12,4aa Act 48 Sec. 12, Mich. Pub. Acts of 1970 ........................... 4,5,3aa Mich. Comp. Laws § 340.352 ............................................ 4,5,2aa Federal Rules of Civil Procedure: Fed. R. Civ. P. 19 ........................................................... 4,10,4aa Fed. R. Civ. P. 54(b) ........................................................... 4,9,5aa Other: Official Record, Michigan Constitutional Convention; Vol. II, P. 3395 12 1 IN THE SUPREME COURT FOR THE UNITED STATES October Term 1973 No__________________ ALLEN PARK PUBLIC SCHOOLS, et al, -vs- RONALD BRADLEY, et al, Petitioners, Respondents PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Petitioners Allen Park Public Schools, et al, Southfield Publit Schools and School District for the City of Royal Oak respectfully pray that a Writ of Certiorari issue to review the decision rendered in this cause on June 12, 1973, by the United States Court ol Appeals for the Sixth Circuit. The United States Court of Appeals for the Sixth Circuit decreed that a finding of de jure segregation with respect to the internal operation of a single school district permits a United States District Court to use other geographically and politically separate, identifiable and unrelated school districts, with regard to which there is no claim or finding of segregative actions, for the purpose of fashioning a desegregation remedy designed to effectuate a majority white-minority black racial balance. 2 OPINIONS AND ORDERS BELOW The Ruling On Issue of Segregation entered September 27, 1971, appears in the Appendix at 17a* and is reported at 338 F. Supp 582 (E.D. Mich-1971). The Ruling and Order On Petitions for Intervention setting forth conditions on intervention entered March 15, 1972, is unreported but appears in the decision of the United States Court of Appeals for the Sixth Circuit herein appealed from in the Appendix at 232a. The Ruling On Propriety of Considering A Metropolitan Remedy to Accomplish the Desegregation of the Public Schools of the City of Detroit, entered March 24, 1972, is unreported and appears in the Appendix at 48a. The Findings of Fact and Conclusions of Law On Detroit-Only Plans of Desegregation entered March 28, 1972, is unreported and appears in the Appendix at 53a. The Findings of Fact and Conclusions of Law In Support of Ruling On Desegregation Area and Development of Plans and Ruling on Desegregation Area and Order for Development of Plan of Desegregation entered June 14, 1972, appear in the Appendix at 59a and 97a respectively and are reported at 345 F. Supp. 914 (E.D. Mich-1972). The Opinion of the United States Court of Appeals for the Sixth Circuit decided and filed on June 12, 1973, ---- F2d----- (1973), appears in the Appendix at 110a. The Judgment of the United States Court of Appeals for the Sixth Circuit entered June 12, 1973, is unreported and appears in the Appendix at 244a. Appendix references followed by the letter “ a” refer to the separate Appendix filed herewith. Appendix references followed by the letters “aa” refer to the Appendix to this Petition commencing at page laa hereof.. 3 Opinions of the United States Court of Appeals for the Sixth Circuit rendered at prior stages of the present proceedings are reported at 433 F2d 897; 438 F2d 945; 468 F2d 902, cert denied 409 U.S. 874 (1972). JURISDICTION The Judgment of the United States Court of Appeals for the Sixth Circuit was entered on June 12, 1973. This petition for certiorari was filed within ninety (90) days of that date. This Court’s jurisdiction is invoked under 28 USC § 1254(1). STATEMENT OF QUESTIONS PRESENTED I. ASSUMING, ARGUENDO, A DE JURE SEGREGATED PUBLIC SCHOOL SYSTEM IN OPERATION IN DETROIT, CAN THE VESTIGES OF SUCH SEGREGATION BE ELIMINATED AND THE DETROIT PUBLIC SCHOOL SYSTEM BE CONVERTED TO A UNITARY SYSTEM UNDER A DESEGREGATION PLAN LIMITED TO SAID SCHOOL DISTRICT? II. WHERE A DEJURE SEGREGATED PUBLIC SCHOOL SYSTEM IS FOUND IN OPERATION IN THE CITY OF DETROIT SCHOOL DISTRICT, DOES THE UNITED STATES CONSTI TUTION REQUIRE OR PERMIT A UNITED STATES DISTRICT COURT TO ISSUE A DESEGREGATION ORDER EMBRACING UP TO EIGHTY-FIVE (85) OTHER GEOGRAPHICALLY AND POLITICALLY SEPARATE, IDENTIFIABLE AND UN RELATED SCHOOL DISTRICTS AND REQUIRING THE FORCED REASSIGNMENT AND CROSS-DISTRICT TRANS PORTATION OF HUNDREDS OF THOUSANDS OF CHIL DREN, ABSENT (i) ANY CLAIM OR FINDING THAT SUCH OTHER SCHOOL DISTRICTS HAVE FAILED TO OPERATE UNITARY SCHOOL SYSTEMS, AND (ii) ABSENT ANY CLAIM OR FINDING THAT THE BOUNDARY LINES OF ANY SCHOOL DISTRICTS WERE ESTABLISHED WITH THE PUR POSE OF CREATING OR FOSTERING RACIAL SEGREGA TION IN THE PUBLIC SCHOOLS? 4 DOES THE FAILURE TO ACCORD PETITIONERS’ SCHOOL DISTRICTS, AGAINST WHOM RELIEF IS IMPOSED, A MEAN INGFUL OPPORTUNITY TO PRESENT EVIDENCE AND BE HEARD ON ALL CONTROLLING ISSUES, INCLUDING THE ISSUE OF SEGREGATION, A “ DETROIT-ONLY” PLAN OF DESEGREGATION AND THE PROPRIETY OF A SO-CALLED METROPOLITAN REMEDY TO DESEGREGATE THE DETROIT PUBLIC SCHOOL SYSTEM, DENY PETITIONERS DUE PROCESS OF LAW? III. CONSTITUTIONAL PROVISIONS, STATUTES AND RULES INVOLVED The constitutional provisions, statutes and rules relevant to the issues in this case are: U.S. Constitution, Amendment V; U.S. Constitution, Amendment XIV, Section 1; Michigan Constitution, Art VII, Sec 2; Judicial Code, 28 U.S.C., Section 1254(1) and Sec tion 1292(b); Fed. R. Civ. P. 19 and 54(b); Michigan Compiled Laws, Section 340.352; Act 34, Section 28, Michigan Public Acts of 1867; Act 319, Part II, Chapter 2, Section 9, Michigan Public Acts of 1927; Act 48, Section 12, Michigan Public Acts of 1970, which are set forth in relevant part in the Appendix to this Peti tion For Writ Of Certiorari. 5 STATEMENT OF THE CASE Petitioners are forty-two (42) separate, unrelated and identi fiable school districts in Wayne, Oakland and Macomb Counties within varying degrees of geographical proximity to the city of Detroit. Each of Petitioners’ school districts is a body corporate organized and existing pursuant to the Constitution and laws of the State of Michigan. 111 Each of said school districts is governed by its respective duly elected Board of Education. There is no claim or finding that any of the Petitioners has failed to operate a unitary school system or that any of the Petitioners’ school dis trict boundaries were established for the purpose of fostering ra cial segregation in the public schools. The complaint in this cause asserts no claim respecting Petitioners and makes no claim for re lief against Petitioners. Petitioners are before this Court because the United States District Court and the United States Court of Appeals for the Sixth Circuit have decreed that simply because Pe titioners have a predominantly white student population they can be used for the purpose of changing the racial composition of the Detroit public school system from predominantly black to pre dominantly white. This action was commenced by the filing of a complaint by the plaintiffs on August 18, 1970. The defendants named in the complaint are the Governor of the State of Michigan, the Attorney General of the State of Michigan, the Michigan State Board of Education, the Superintendent of Public Instruction for the State of Michigan, the Board of Education of the City of Detroit, and its then members, and the Superintendent of the Detroit Public Schools. The complaint is directed solely at the Detroit public school system and alleges that as a result of actions and policies of the Detroit Board of Education and a section of Act No. 48 of the Public Acts of Michigan, 1970,f“ J said school system is not being 111 Michigan Complied Laws, Section 340.352. Appendix 2aa. [2] Said Act applied only to so-called First Class school districts in the State of Michigan. The City of Detroit School District is the only First Class school district in the State, Bradley et al. v. Milliken et al., 433 F2d 897, 900 (CA6, 1970). The effect of one section of the Act was to delay implementation of a proposed plan to effect a more balanced distribution of black and white students in certain Detroit senior high schools (Appendix, 110a-l 1 la). 6 operated on a unitary basis. No claim is made with regard to any other school district, nor is any claim made that the establishment or operation of any other school district has any causal connection with the alleged failure to operate a unitary school system within the Detroit school district. No relief is sought against any school district other than Detroit. As of August 30, 1973, the complaint has never been amended. Before trial on the issues framed by the complaint ever com menced plaintiffs appealed from denial of plaintiffs’ request for a preliminary injunction to the United States Court of Appeals for the Sixth Circuit seeking to require implementation of the Detroit Board of Education’s proposed plan to effect a more balanced ratio of black and white students in certain senior high schools. The Court of Appeals sua sponte declared that Section 12 of Act 48 was unconstitutional because it delayed implementation of the Detroit Board of Education plan. Bradley et al. v. Milliken et al, 433 F2d 897 (CA6, 1970). Trial on the merits limited to the issue of segregation in the Detroit public school system^] commenced on April 6, 1971, and concluded on July 22, 1971. During the course of said trial, Intervenors Denise Magdowski, et al, moved to join eighty-four (84) school districts in Wayne, Oakland and Macomb Counties, in cluding Petitioners herein, as parties. The District Court never granted or denied such motion. On September 27, 1971, the District Court issued a “ Ruling On Issue of Segregation” (Appendix, 17a) finding “a de jure segre gated school system in operation in the City o f Detroit ” [4] (Ap pendix, 38a). The District Court stated that the principal causes for the seg regation found to exist in Detroit were population movement and housing patterns — “ . . . A current condition of segregation exists . . The principal causes undeniably have been population movement and housing patterns, but state and local governmental ac- [31 “ Ruling On Issue of Segregation” (Appendix, 18a) 141 Emphasis added. 7 tions, including school board actions, have played a substan tial role in promoting segregation. . (Appendix, 33a). On November 5, 1971, the District Court issued an ordei which foreshadowed a dramatic change in the nature of the pro ceedings. Despite having conducted a trial limited to the issue ol unlawful segregation in the Detroit school system and having madt findings limited to such issue, the District Court ordered the State Defendants to submit a so-called metropolitan plan ol desegregation. By judicial fiat eighty-five (85) geographically and politically independent school districts, located in three (3) counties and encompassing an area of approximately 1,000 square miles, were suddenly faced with the prospect of being subjected to a judicial order without any claim or finding that they had engaged in any unconstitutional acts, or that their establishment or existence was the product of unconstitutional acts, and without any opportunity for hearing. Pursuant to the aforementioned order, on or about February 4, 1972, a so-called metropolitan plan of desegregation was filed with the District Court. On February 9, 16 and 17, 1972, respectively, Petitionee filed motions to intervene for the purpose of representing their in- terests and those of the parents and children situate in said school districts. Hearing on said motions to intervene was held on Feb ruary 22, 1972. On March 15, 1972, after hearing on a Detroit only plan of desegregation had commenced, the District Court granted Petitioners’ motions to intervene as a matter of right but imposed conditions thereon which denied Petitioners any mean ingful opportunity to be heard on the controlling issues, Nr such conditions had been imposed on prior intervenors. Petitionee filed written objections to the imposition of such conditions which have not been ruled upon by either the District Court or the Court of Appeals. Upon being granted right to intervene on March 15, 1971 the District Court advised Petitioners that they had one week, un til March 22, 1972, to file briefs with respect to the legal propriett of a metropolitan plan for desegregation of the Detroit pubis [5] Bradley et al v. Milliken e t al,_____F2d_____ (CA6, June 12, 19731 Appendix at 208a-209a and 232a-233a. 8 school system. On March 24, 1972, two days after the submission of briefs, the District Court issued a “ Ruling On Propriety of Con sidering A Metropolitan Remedy to Accomplish Desegregation of the Public Schools of the City of Detroit” (Appendix, 48a). The District Court commenced taking testimony on a metro politan plan to desegregate the Detroit school system at 10:10 a.m. on March 28, 1972. Two (2) hours after Petitioners had first appeared in the District Court and before completion of testimony of a single witness, the District Court announced that all counsel could stop by the Court’s chambers and pick up its “ Findings of Fact and Conclusions of Law On Detroit-Only Plans of Desegre gation” (Appendix, 53a). The District Court—relying principally on Bradley v. Richmond, 338 F. Supp. 67 (1972), reversed 462 F2d 1058 (4th Cir., 1972), aff’d. by equally divided Court — U.S. — (May 21, 1973)-declared that without regard to their status as independent and unitary school systems, Petitioners and other school districts could be used to counterbalance the racial mix ex tant within the Detroit school district. On June 14, 1972, the District Court issued “Findings of Fact And Conclusions of Law In Support of Ruling On Desegre gation Area and Development of Plans” (Appendix, 59a) and “Ruling On Desegregation Area and Order for Development of Plan of Desegregation” (Appendix, 97a). The District Court fashioned a desegregation remedy embrac ing the City of Detroit school district and fifty-three (53) other separate, unrelated and identifiable school districts within a 700 square mile area, without regard to its finding that — “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.” (Appendix, 59a-60a). The scope of the remedy was not predicated upon the nature of the violation found but had as its central purpose the restructuring of the student population among the various school districts in or der to achieve a racial balance substantially proportionate to the 9 black-white ratio of students within the geographical area selected by the District Court. Such purpose is patently expressed by the District Court, as follows: “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 b[e] substan tially disproportionate to the overall composition. ” (Appen dix, 101 a-102a). Emphasis added. On July 11, 1972, the District Court ordered the Detroit Board of Education to enter into a contract for the purchase of at least 295 school buses within two (2) days with the financial obli gation for said purchase to be borne by the State Defendants (Ap pendix, 106a-107a)J6J Said purchase was to be made for the pur pose of providing transportation under an interim plan not yet in esse (Appendix, 106a). On July 19, 1972, the District Court certified that the orders listed below involve controlling questions of law, as provided by 28 U.S.C. 1292 (b), and made a determination of finality under Rule 54 (b), Fed. R. Civ. P.: (1) Ruling on Issue of Segregation, dated September 27, 1971 (Appendix, 17a). (2) Findings of Fact and Conclusions of Law On Detroit- Only Plans of Desegregation (Appendix, 53a). (3) Ruling On Propriety of Considering A Metropolitan Remedy to Accomplish Desegregation of the Public Schools of the City of Detroit (Appendix, 48a). (4) Ruling On Desegregation Area and Development of Plans and Findings and Conclusions of Law In Support There of (Appendix 59a and 97a). [6] This order was stayed by the Court of Appeals for the Sixth Circuit on July 20, 1972 (Appendix 112a; 113a-l 14a). 10 (5) Order directing purchase of at least 295 school buses (Appendix, 106a). Appeal was taken from the aforementioned orders and on December 8, 1972, the United States Court of Appeals for the Sixth Circuit rendered an opinion, by a panel of three judges, af firming the Ruling On Issue of Segregation (Appendix, 17a) and Findings of Fact and Conclusions of Law On “ Detroit-Only” Plans of Desegregation (Appendix, 53a). The decision of the panel vacat ed the remaining orders appealed from, but affirmed in principle the ruling of the District Court that Petitioners and other school districts could be used to alter the racial balance in the Detroit school district (Appendix, 11 la-112a). On January 16, 1973, the Court of Appeals for the Sixth Cir cuit granted rehearing in banc which had the effect of vacating the previous opinion and judgment of the court (Appendix, 112a). Oral arguments before the court in banc were heard on February 8, 1973. and the decision of the court issued on June 12, 1973, Petitioners seek a Writ of Certiorari to review said decision. By majority decision the Court of Appeals for the Sixth Cir cuit affirmed the Ruling On Issue of Segregation, dated September 27, 1971, (Appendix, 17a) and the Findings of Fact and Con clusions of Law On “Detroit-Only” Plans of Desegregation (Ap pendix, 53a). The Court of Appeals further affirmed in principle the ruling of the District Court that Petitioners and other school districts may be included in a remedy for the desegregation of the Detroit public school system. A substantial number of the fifty-three (53) school districts covered under the District Court’s order (Appendix, 101a) have never been parties to these proceedings. The Court of Appeals de clared that any school district to be affected by the decree of the District Court is a necessary party under Rule 19, Fed. R. Civ. P. (Appendix, 177a) and as a pre-requisite to implementation of a multi-school district remedy, school districts to be affected must be made a party to the litigation and afforded an opportunity to be heard (Appendix, 177a). 11 The Court of Appeals, while stating that affected school districts^] must be afforded an opportunity to be heard, so circumscribes such right as to render it meaningless. The Court of Appeals states that - . . the District Court will not be required to receive any additional evidence as to the matters contained in its Ruling on the Issue of Segregation, dated September 21 1971, and reported at 338 F. Supp. 582, or its Findings of Fact and Conclusions of Law on the ‘Detroit-only’ plans of desegregation, dated March 28, 1972.” (Appendix, 178a). The net result is that Petitioners and other school districts are foreclosed from any hearing whatever with respect to the control ling issues. The final remedy is, in fact, already ordained by the Court of Appeals. REASONS FOR GRANTING THE WRIT The Decision Below Presents Issues o f Imperative Public Importance That Have N ever Been Decided B y This Court This case is without precedent in terms of the scope of the judicial remedy involved, the failure to accord Petitioners funda mental due process, the imposition of a judicial remedy against unitary school districts absent a finding of constitutional violation and its impact upon the public school systems in the United States. There are upwards of 600 geographically and politically unre lated, separate and identifiable school districts in the State of Michigan. Over 100 years ago the Michigan legislature in Public Act No. 34 of 1867, provided that - “All residents of any district shall have an equal right to attend any school therein.” The Michigan Supreme Court construed this statute to mean that [7] A motion which would make eighty-four (84) school districts in Wayne. Oakland and Macomb Counties parties to the litigation is now pending before the District Court. 12 under Michigan law black children were placed on the same footing with white children and were admissible on the same terms to the public schools. Ex Rel Workman, 18 Mich. 399 (1869). In 1927 the Michigan legislature enacted Act No. 319, Part II, Chapter 2, Section 9 of which provided as follows: “All persons residents of any school district and five years of age, shall have an equal right to attend any school therein; and no separate school or department shall be kept for any person or persons on account of race or color.” This long established policy against racial segregation in the public schools is re-affirmed in the Michigan Constitution, as follows: “ . . . Every school district shall provide for the educa tion of its pupils without discrimination as to religion, creed, race, color or national origin.” Mich. Const. 1963, art VIII, sec 2.f8J The complaint filed in this case alleges that one of the 600 Michigan school districts, the City of Detroit, has failed to operate a unitary school system. The trial on the merits was confined to the issue of de jure segregation with respect to the operation of the Detroit public school system. The gravamen of the findings and conclusions of the District Court, and the decision of the Court of Appeals, is that the Detroit Board of Education, by the use of various techniques such as the manipulation of student at tendance zones within the Detroit school district, school site selec tion and creation of optional attendance areas, deliberately fostered and maintained racially segregated schools within the Detroit school district, aided or abetted by the action or inaction of the State Defendants. Neither the District Court nor the Court of Appeals made any findings that any of the Petitioners, or any other school dis trict save Detroit, have defaulted in their constitutional obligation to maintain a unitary school system. The District Court stated ex plicitly that - [ 8 ] The anti-discrimination clause is placed in this section as a declaration which leaves no doubt as to where Michigan stands on this question.” State of Michigan Constitutional Convention, 1961, Official Record, Volume II, page 13 “ 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.” (Appendix, 59a-60a). The Court of Appeals for the Sixth Circuit has decreed that, contrary to controlling decisions of this Court, the scope of judi cial remedy in a school desegregation case is not dependent upon any constitutional violation, but can be predicated on the exist ence of racial imbalance between separate, unrelated and identi fiable school districts. Admittedly, the City of Detroit school district is predomi nantly black and Petitioners and some other school districts are predominantly white. However, there is no claim or finding that the de jure segregated operation of the Detroit school system is in any way causally connected with the establishment or operation of any other school district. There is likewise no claim or finding that the creation or establishment of any other school district is causally connected with the de jure segregated operation of the Detroit school district. An obvious and simple fact ignored by the District Court and the Court of Appeals is that there is absolutely no evidence that the racial make-up of the Detroit school district vis-a-vis other school districts would be any different had none of the acts of de jure segregation here found occurred. In other words, had Detroit been operated as a unitary school system its total school popula tion would still be predominantly black due to population move ments and housing patterns. Only the racial mix in schools within the City o f Detroit might be different but for the manipulative actions found by the District Court. The evil intended to be eradicated by the decision of the Court in Brown v. Board o f Education o f Topeka, 347 U.S. 483 (1954), and its descendants, was the label of inferiority which ac companied the segregation of black children in the schools by “sanction o f law”. It is not the mere presence of too many or too few black children in a school that gives rise to a constitutional 14 violation, but the use of governmental action to deny black children entrance to a school or classroom solely because of their race. Such evil is given rebirth by a decision such as the Court of Ap peals herein that black children must not be permitted to predomi nate in any school system. In Brunson v. Board o f Trustees o f School District No. 1 o f Clarendon County, South Carolina, 429 F2d 820, 826 (CA4, 1970), Judge Sobeloff appropriately de scribed the actual effect of such a holding, as follows: “ This idea, then, is no more than a resurrection of the axiom of black inferiority as justification for separation of the races, and no less than a return to the spirit of Dred Scott. ” 19] Both the District Court and the Court of Appeals acknowl edge the lack of controlling decision by this Court with respect to the remedy decreed herein. “The main thrust of the objections to the consideration of a metropolitan remedy advanced by intervening school dis tricts is that, absent a finding of acts of segregation on their part, individually, they may not be considered in fashioning a remedy for relief to the plaintiffs. It must be conceded that the Supreme Court has not yet ruled directly on this is sue. . .” United States District Court, Eastern District of Michigan, Southern Division (Appendix, 50a). Emphasis added. * * * “ [Ajmong the substantial questions presented there is at least one difficult issue of first impression that has never been decided by this court or the Supreme Court.” United States Court of Appeals for the Sixth Circuit (Appendix, 113a). The decision of the Court of Appeals portends the cross school district assignment and transportation of hundreds of thousands of children in the Detroit metropolitan area. The initial desegregation plan contemplated by the District Court embraces [9] Dred Scott v. Sanford, 60 U.S. (19 How) 393 (1856). 15 fifty-three (53) separate school districts and the reassignment and transportation of over 300,000 children (Appendix, 72a; 101a). The imperative public importance of this case is readily apparent when one conceives the possibility of millions of school children in school districts throughout the United States being reassigned and transported in order to effect majority white-minority black racial balance. The disruptive consequences of such occurrences are so obvious as to warrant no comment. The Court of Appeals has remanded this case to the District Court for the purpose of implementing a plan of desegregation which could potentially involve in excess of eighty (80) school dis tricts and approximately 1,000,000 children. At this juncture the scope of the remedy and the desegregation area is limited only by the dictates of the District Court (Appendix, 177a). Plaintiffs have already filed a motion which, if granted, would make eighty-four (84) school districts parties to these proceedings. Obedience to the rule of law is the keystone of our republic. But what is the rule of law in cases such as the instant case? Only a decision by this Court can resolve the confusion and conflict en gendered by divergent judicial commands emanating from lower courts. The issues posed in this case have substantial impact upon the lives of nearly one million children in the Detroit metropolitan area and millions of children and parents throughout the United States. This Court has stated that delay in effecting the desegrega tion of public school systems found to be in violation of the Con stitution will not be countenanced. It is submitted that this Court should likewise not countenance delay in providing definitive and controlling guidance in connection with the immensely important public issues here presented. The Decision Below Conflicts In Principle With Decisions O f This Court and Other Courts O f Appeals In Swann v. Charlotte-Mecklenburg Board o f Education, 402 U.S. 1, 15-16, (1970), this Court stated: . . a school desegregation case does not differ funda mentally from other cases involving the framing of equitable 16 remedies to repair the denial o f a constitutional right. The task is to correct, by a balancing of the individual and collec tive interests, the condition that offends the Constitution. “ In seeking to define even in broad and general terms how far this remedial power extends it is important to re member that judicial powers may be exercised only on the basis o f a constitutional violation. . . . “ School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities; absent a finding of a constitutional vio lation, however, that would not be within the authority of a federal court. As with any equity case, the nature o f the violation determines the scope o f the remedy. . .” Emphasis added. Assuming, arguendo, the validity of the findings of the Dis trict Court on the issue of segregation and the Court of Appeals affirmance thereof, the only constitutional violation in this case is the operation of the Detroit public school system on a de jure segregated basis which denies black children access to certain schools within the Detroit School system on account of their race. There is no claim or finding that black children have been denied such access in any other school district because of their race. The condition that offends the constitution is the internal operation of the Detroit public school system. The nature of the constitutional violation is the manipulative techniques used in con nection with the assignment of children to schools within the Detroit school system. The scope of the remedy should thus be limited to prohibiting the denial of access to schools within the Detroit school system on account of race and elimination of the vestiges of segregation by reassigning Detroit school children to schools on a basis which is reflective of the condition which would prevail had the Detroit system been operated as a unitary school system. 17 There is no claim or finding that the racial composition of the Detroit public school system vis-a-vis other school districts throughout the Detroit metropolitan area is causally connected with the actions found to constitute de jure segregation. With or without the acts of commission and omission by the Detroit Board of Education and the State defendants found to constitute de jure segregation, the Detroit school system would be predominantly black and other school districts in the Detroit metropolitan area would be predominantly white. Applying the teachings of Swann, supra, there is no basis upon which Petitioners and other unitary school districts can be subjected to a judicial remedy for the purpose of changing the racial mix in the Detroit public school system. Judge Kent in his dissenting opinion put it succinctly, as follows: “ I know of no authority which would permit a Court to announce a conclusion, based upon a violation of the Consti tution, absent the taking of proofs to establish such constitu tional violation, which proofs the District Judge stated he did not take in this case.” (Appendix, 225a). The Court of Appeals for the Sixth Circuit has, in reality, de creed that the existence of a big city school system which is predo minantly black due to residential patterns, surrounded by school districts which are predominantly white due to residential patterns, constitutes a denial of equal protection of the law. This holding is in direct and irreconcilable conflict with the pronounce ments in Spencer v. Kugler, 326 F. Supp. 1235 (1971), aff’d 404 U.S. 1027 (1972), as follows: . . Racially balanced municipalities are beyond the pale of either judicial or legislative intervention.” 326 F. Supp. 1235 at 1240. * * * “ A continuing trend toward racial imbalance caused by housing patterns within the various school districts is not sus ceptible to judicial intervention. . .” 326 F. Supp 1235 at 1242. Moreover, this Court recently stated in San Antonio Independent School District v. Rodriquez, 411 U.S. 1,54 (1973) that — “This Court has never doubted the propriety of main taining political subdivisions within the States and has never 1 8 found in the Equal Protection Clause any per se rule of territorial uniformity [citations omitted] The holding of the Sixth Circuit Court of Appeals that relief from segregation in the Detroit public school system cannot be ac complished within said school district is patently erroneous. Con trary to the majority opinion of the Sixth Circuit, a unitary school system is not a minority-black system but is a school system with in which no person is effectively excluded from any school or classroom because of race or color. Alexander v. Holmes County Board of Education, 396 U.S. 19 (1969). Relief of segregation can be accomplished by converting Detroit to a unitary school system. As stated by the Fourth Circuit Court of Appeals in Bradley v. School Board o f the City o f Richmond, 462 F2d 1058, 1069 (CA4, 1972), aff’d by an equally divided Court, 93 S. Ct. 1952 (1973). “ . . . there is no right to a racial balance within even a single school district, Swann v. Charlotte-Mecklenburg Board of Education, supra at 24, but only a right to attend a uni tary school system.” The objective of the so-called metropolitan remedy required by the holdings of the courts below is racial balancing, pure and simple. This Court in Swann, supra, unequivocally rejected the no tion that desegregation requires racial balancing, saying: . . . 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.” Swann, supra, at page 24. The conclusion of the Sixth Circuit Court of Appeals that desegre gation requires reducing the black student population of the of fending school district to a minority ratio is further negated by United States v. Scotland Neck Board o f Education, 407 U.S. 484 (1972), where the enrollment under the desegregation plan was 78% black and by Wright v. Council o f the City o f Emporia. 407 U.S. 451 (1972) where the enrollment under the desegregation plan was 66% black. In Bradley v. School Board o f the City o f Richmond, supra, the Court of Appeals for the Fourth Circuit rejected adoption of a so-called metropolitan remedy aimed at using predominantly 19 white school districts to effect a more desirable racial balance vis- a-vis a predominantly black school district. The Court of Appeals for the Fourth Circuit noted as follows: . the forces influencing demographic patterns in New York, Chicago, Detroit, Los Angeles, Atlanta and other metropolitan areas have operated in the same way in the Richmond area to produce the same result. Typical of all these cities is a growing black population in the central city and a growing white population in the surrounding suburban and rural areas. Whatever the basic causes, it has not been school assignments, and school assignments cannot reverse the trend. That there has been housing discrimination in all three units is deplorable, but a school case, like a vehicle, can carry only a limited amount of baggage. Swann v. Char- lotte-Mecklenburg Board o f Education, supra at 24.” 462 F2d 1058, 1066 (CA4, 1972). The decisions of the District Court and the Court of Appeals in this case are founded upon the erroneous premise that the judi cial remedy in a school desegregation case need not be confined to the scope of constitutional violations but may be used as a vehicle of unlimited capacity for the purpose of effecting social goals. The District Court stated as much, saying: “ We need not recite the many serious problems such a plan entails, suffice it to say that a plan of such dimensions can hardly be conceived in a day, to say nothing of the time it will require for implementation. A large metropolitan area such as we have in our case can not be made the subject of instant integration. We must bear in mind that the task we are called upon to perform is a social one, which society has been unable to accomplish. In reality, our courts are called upon, in these school cases, to attain a social goal, through the educational system, by using the law as a lever. ” (Ap pendix, 40a-41a). Emphasis added. The mandate of Brown I, supra, and Brown II, 349 U.S. 294 (1955), is to dismantle dual school systems and eliminate the ves tiges of segregation where the actions of school authorities have denied children access to public schools solely on account of their 20 race or color. Brown and its progeny have all addressed themselves to this objective. The Sixth Circuit Court of Appeals has mis apprehended the controlling principles enunciated by this Court and has gone far beyond correcting the condition that offends the Constitutiont in decreeing that children attending the public schools may be reassigned and transported for purposes of racial balancing to counteract residential patterns. The irreconcilable conflict between the decision of the Sixth Circuit Court of Ap peals and prior decisions of this Court not only warrants but calls for immediate review of this case by Writ of Certiorari. Petitioners Have Been A n d Will Continue To B e Denied Due Process o f Law Under The Decision Below It is impossible to equate the proceedings below with the minimal requirements of due process of law.I^] This Court has set forth such requirements, as follows: “A fundamental requirement of due process is ‘the opportunity to be heard’ . . . It is an opportunity which must be granted at a meaningful time and in a meaningful man ner.” Armstrong v. Manzo, 380 U.S. 545, 552 (1965). * * * “The right to a fair and open hearing is one of the rudiments of fair play assured to every litigant by the Federal Constitution as a minimal requirement,” Railroad Com mission o f California v. Pacific Gas & Electric Co., 302 U.S. 388, 393 (1938). The decision of the Sixth Circuit holds that Petitioners and other school districts to be affected by judicial decree are “neces sary parties” , yet denies to such necessary parties any opportunity for hearing with respect to the controlling issues here involved. As noted hereinabove in the Statement of the Case, decisions of the courts below foreclose Petitioners from an opportunity to ̂ See dissenting opinion of Judge Kent, Appendix, 223a. 1 United States Constitution, Amendment V. 21 be heard on the issue of segregation and the issue of a “ Detroit- Only” plan of desegregation and subject Petitioners to judicial sanction without any finding that they have committed, or are causally connected with, any constitutional violation. The Sixth Circuit decision commands the District Court to fashion a so-called metropolitan remedy to alter the racial balance vis-a-vis the Detroit school district and geographically and politi cally independent school districts in the geographical area proxi mate to the Detroit school district. Thus the ultimate remedy has been determined and the hearing to be accorded Petitioners is il lusory. As stated by Judge Miller, in dissenting from the majority opinion of the Sixth Circuit— “ Parties to be affected and against whom relief is sought should be accorded, in compliance with basic prin ciples of due process, an opportunity to be heard at a mean ingful time and in a meaningful manner not only with respect to the ultimate scope of the remedy to be fashioned, but also with respect to important, significant and perhaps even con trolling issues, including the issue of segregation, a ‘Detroit on ly ’ school plan and the propriety of a metropolitan remedy. If any one of these issues is resolved in favor of parties outside the Detroit School District, the nature and scope of a remedy embracing outlying districts would not be reached. Hence the outlying districts have a vital interest in each issue separately and should be heard on each in a true adversary sense. Until this is done our expression of view on the merits of the several questions is uncalled for and ill- advised. To permit these additional parties to be heard only in the restricted sense set forth in the majority opinion is to deny them basic rights guaranteed not only by Rule 19, Federal Rules of Civil Procedure, but by the Constitution itself. "(Appendix, 239a-240a). Emphasis added. The unprecedented decision of the Sixth Circuit warrants immediate review by this Court in order to determine and protect fundamental constitutional rights to due process of law. 22 CONCLUSION The unprecedented decision of the Sixth Circuit Court of Appeals and its tremendous public impact on parents and children in Michigan and throughout the United States make this case one of imperative public importance warranting the issuance of a Writ of Certiorari. Respectfully submitted, BUTZEL, LONG, GUST, KLEIN & VAN ZILE, WILLIAM M. SAXTON JOHN B. WEAVER ROBERT M. VERCRUYSSE Of Counsel. XHAFER ORHAN 1881 First National Building Detroit, Michigan 48226 CONDIT AND MC GARRY, P.C. Richard P. Condit, Counsel for Petitioners Allen Park Public Schools, et al, Southfield Public Schools and School District of the City of Royal Oak Of Counsel HARTMAN, BEIER, HOWLETT, MC CONNELL & GOOGASIAN, Kenneth B. McConnell, Of Counsel Dated: September 6, 1973. laa APPENDIX CONSTITUTIONAL PROVISIONS United States Constitution, Amendment V provides: AMENDMENT V - CAPITAL CRIMES; DOUBLE JEOP ARDY; SELF - INCRIMINATION; DUE PROCESS; JUST COMPENSATION FOR PROPERTY No person shall be held to answer for a capital, or other wise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against him self, 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. United States Constitution, Amendment XIV, Section 1, provides: Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Michigan Constitution of 1963, Art. 8, §2 provides: Free public elementary and secondary schools; discrimina tion. SEC. 2. The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law. Every school district shall provide for the education of its pupils without discrimination as to religion, creed, race, color or national origin. 2aa UNITED STATES STATUTES Judicial Code, 28 U.S.C. § 1254(1) provides: 1254. Courts of appeals; certiorari; appeal, certified ques tions Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods; (1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree; Judicial Code, 28 U.S.C. § 1292(b) provides: §1292. Interlocutory decisions (b) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Ap peals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceed ings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order. MICHIGAN STATUTES Michigan Compiled Laws Annotated, §340.352 provides: 340.352 Body corporate; powers, rights, liabilities; pre sumptions SEC. 352. Every school district shall be a body corporate under the name provided in this act, and may sue and be sued 111 name> may acquire and take property, both real and Personal, for educational purposes within or without its cor- 3aa porate limits, by purchase, gifts, grant, devide or bequest, and hold and use the same for such purposes, and may sell and convey the same as the interests of such district may require, subject to the conditions of this act contained. As such body corporate, every school district shall be the successor of any school district previously existing within the same territorial limits and shall be vested with all rights of action, with the title of all property, real and personal, of the district of which it is the successor, and the indebtedness and obliga tions of the district superseded shall become and be the indebtedness and obligations of the succeeding district, ex cept as otherwise provided in chapters 3, 4 and 5, part 2 of this act. Every school district shall in all cases be presumed to have been legally organized when it shall have exercised the franchises and privileges of a district for the term of 2 years; and such school district and its officers shall be entitled to all the rights, privileges and immunities, and be subject to all the duties and liabilities conferred upon school districts by law. Act 34, Sec. 28, Mich. Pub. Acts of 1867 provides: (2271) Sec. 28. All residents of any district shall have an equal right to attend any school therein: Provided, That this shall not prevent the grading of schools according to the in tellectual progress of the pupils, to be taught in separate places when deemed expedient. Act 48, Sec. 12, Mich. Pub. Act of 1970 provides: 3 88.182 Attendance provisions, implementation; condi tions. [M.S.A. 15.2298(12)] Sec. 12. The implementation of any attendance provi sions for the 1970-71 school year determined by any first class school district board shall be delayed pending the date of commencement of functions by the first class school dis trict boards established under the provisions of this amenda tory act but such provision shall not impair the right of any such board to determine and implement prior to such date such changes in attendance provisions as are mandated by practical necessity. In reviewing, confirming, establishing of modifying attendance provisions the first class school district 4aa boards established under the provisions of this amendatory act shall have a policy of open enrollment and shall enable students to attend a school of preference but providing prior ity acceptance, insofar as practicable, in cases of insufficient school capacity, to those students residing nearest the school and to those students desiring to attend the school for parti cipation in vocationally oriented courses or other specialized curriculum. Act 319, Part II, Ch. 2, Sec. 9, Mich. Pub. Acts of 1927, provides: SEC. 9. All persons residents of any school district, and five years of age, shall have an equal right to attend any school therein; and no separate school or department shall be kept for any person or persons on account of race or color: Provided, That this shall not be construed to prevent the grading of schools according to the intellectual progress of the pupil, to be taught in separate places as may be deemed expedient. FEDERAL RULES OF CIVIL PROCEDURE Fed. R. Civ. P. 19 provides: Rule 19. Joinder of Persons Needed for Just Adjudication (a) Persons to be Joined if Feasible. A person who is sub ject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already par ties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff. If 5aa the joined party objects to venue and his joinder would ren der the venue of the action improper, lie shall be dismissed from the action. (b) Determination by Court Whenever Joinder not Feas ible. If a person as described in subdivision (a) (1)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent per son being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judg ment rendered in the person’s absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of re lief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for non joinder. (c) Pleading Reasons for Nonjoinder. A pleading asserting a claim for relief shall state the names, if known to the plead er, of any persons as described in subdivision (a) (l)-(2) here of who are not joined, and the reasons why they are not joined. (d) Exception of Class Actions. This rule is subject to the provisions of Rule 23. Fed. R. Civ. P. 54(b) provides: Rule 54. Judgments; Costs (b) Judgment upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counter-claim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order 6aa or other form of decision, however designated, which adjudi cates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabili ties of all the parties. IN THE SUPREME COURT OF THE UNITED STATES October Term 1973 No. THEGROSSE POINTE PUBLIC SCHOOL SYSTEM, Petitioner, vs. RONALD BRADLEY and RICHARD BRADLEY, by their Mother and Next Friend, VERDA BRADLEY; JEANNE GOINGS, by her Mother and Next Friend, BLANCH GOINGS; BEVERLY LOVE, JIMMY LOVE and DARRELL LOVE, by their Mother and Next Friend, CLARISSA LOVE; CAMILLE BURDEN, PIERRE BURDEN, AVA BURDEN, MYRA BUR DEN, MARC BURDEN and STEVEN BURDEN, by their Father and Next Friend, MARCUS BURDEN; KAREN WILLIAMS and KRISTY WIL LIAMS, by their Father and Next Friend, C. WILLIAMS; RAY LITT and I MRS. WILBUR BLAKE, parents; all parents having children attending the public schools of the City of Detroit, Michigan, on their own behalf and on behalf of their minor children, all on behalf of any person similarly situ ated; and NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, DETROIT BRANCH; DETROIT FEDERATION OF TEACHERS, LOCAL 231, AMERICAN FEDERATION OF TEACHERS, AFL-CIO, BOARD OF EDUCATION OF THE CITY OF DETROIT, a school district of the first class; PATRICK McDONALD, JAMES HATHA WAY and CORNELIUS GOLIGHTLY, members of the Board of Educa tion of the City of Detroit; and NORMAN DRACHLER, Superintendent of the Detroit Public Schools; WILLIAM G. MILLIKEN, Governor of the State of Michigan and ex-officio member of the Michigan State Board of Education; FRANK J. KELLY, Attorney General of the State of Michigan; MICHIGAN STATE BOARD OF EDUCATION, a constitutional body corporate, and JOHN W. PORTER, Superintendent of Public Instruction, Department of Education of the State of Michigan, ALLISON GREEN, State Treasurer; ALLEN PARK PUBLIC SCHOOLS, SCHOOL DISTRICT (Continued on Reverse Side) PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT DOUGLAS H. WEST 3700 Penobscot Building Detroit, Michigan 48226 Counsel fo r Petitioner THOMAS E. COULTER and HILL, LEWIS, ADAMS, GOODRICH & TAIT 3700 Penobscot Building Detroit, Michigan 48226 O f Counsel for Petitioner OF THE CITY OF BERKLEY, BRANDON SCHOOLS, CENTERLINE PUBLIC SCHOOLS, CHERRY HILL SCHOOL DISTRICT, CHIPPEWA VALLEY PUBLIC SCHOOLS, SCHOOL DISTRICT OF THE CITY OF CLAWSON, CRESTWOOD SCHOOL DISTRICT, DEARBORN PUBLIC SCHOOLS, DEARBORN HEIGHTS SCHOOL DISTRICT NO. 7, EAST DETROIT PUBLIC SCHOOLS. SCHOOL DISTRICT OF THE CITY OF FERNDALE, FLAT ROCK COMMUNITY SCHOOLS, GARDEN CITY PUBLIC SC H O O LS, G IBRALTAR SCHOOL DISTRICT, SCHOOL DISTRICT OF THE CITY OF HARPER WOODS, SCHOOL DISTRICT OF THE CITY OF HAZEL PARK, INTERMEDIATE SCHOOL DISTRICT OF THE COUNTY OF MACOMB, LAKE SHORE PUBLIC SCHOOLS, LAKEVIEW PUBLIC SCHOOLS, THE LAMPHERE SCHOOLS, LINCOLN PARK PUBLIC SCHOOLS. MADISON DISTRICT PUBLIC SCHOOLS, MELVINDALE-NORTH ALLEN PARK SCHOOL DISTRICT, SCHOOL DISTRICT OF NORTH DEARBORN HEIGHTS, NOVI COMMUNITY SCHOOL DISTRICT, OAK PARK SCHOOL DISTRICT, OXFORD AREA COMMUNITY SCHOOLS, REDFORD UNION SCHOOL DISTRICT NO, 1, RICHMOND COMMUNITY SCHOOLS, SCHOOL DISTRICT OF THE C IT Y OF R IV E R R O U G E , RIVERVIEW COMMUNITY SCHOOL DISTRICT, ROSEVILLE PUBLIC SCHOOLS, SOUTH LAKE SCHOOLS, TAYLOR SCHOOL DISTRICT, WARREN CONSOLIDATED SCHOOLS, W A R R E N WOODS PUBLIC SCHOOLS, WAYNE-WESTLAND COM MUNITY SCHOOLS, WOODHAVEN SCHOOL DISTRICT and WYAN DOTTE PUBLIC SCHOOLS; KERRY and COLLEEN GREEN, by their Father and Next Friend, DONALD G. GREEN; JAMES, JACK and KATH LEEN ROSEMARY, by their Mother and Next Friend, EVELYN G. ROSEMARY; TERRI DORAN, Mother and Next Friend, BEVERLY DORAN; SHERRILL, KEITH, JEFFREY and GREGORY COULS, by their Mother and Next Friend, SHARON COULS; EDWARD and MICHAEL ROMESBURG, by their Father and Next Friend, EDWARD M. ROMESBURG, JR.; TRACEY and GREGORY ARLEDGE, by their Mother and Next Friend, AILEEN ARLEDGE; SHERYL and RUSSELL PAUL, by their Mother and Next Friend, MARY LOU PAUL; TRACY QUIGLEY, by her Mother and Next Friend, JANICE QUIGLEY; IAN, STEPHANIE, KARL and JAAKO SUNI, by their Mother and Next Friend, SHIRLEY SUNI; and TRI-COUNTY CITIZENS FOR INTERVENTION IN FEDERAL SCHOOL ACTION NO. 35257; DENISE MAGDOWSKI and DAVID MAGDOWSKI, by their Mother and Next Friend, JOYCE MAGDOWSKI; DAVID VIETTI, by his Mother and Next Friend, VIOLET VIETTI; and the CITIZENS COMMITTEE FOR BETTER EDUCATION OF THE DETROIT METROPOLITAN AREA, a Michigan non-Profit Corporation; SCHOOL DISTRICT OF THE CITY OF ROYAL OAK; SOUTHFIELD PUBLIC SCHOOLS, MICHIGAN EDUCATION ASS0 = CIATICN; PROFESSION.:-L Respondents. PERSONNEL OF VAN DYKSj,... .. 1 INDEX Page Introductory Prayer .............................................................. 1 Opinions and Orders Below .............................. 1 Jurisdiction ............................................................................ 2 Questions Presented .............................................................. 2 Constitutional Provisions, Statutes and Rules Involved ........ 3 Statement of the Case ............................................................ 3 Reasons For Granting The Writ ............................................. 7 1. The Decisions Below Are in Direct And Irreconcilable Conflict With Decisions Of Other United States Courts Of Appeal, As Well As Decisions Of The United States Supreme Court .............................................................. 8 2. The Decisions Below Involve Issues Of Immense Public Importance Because Of: (A) The Far-Reaching Pre cedent Established Thereby, And, (B) The Impact Of The Lower Courts’ Proposed Remedy Upon The Resi dents Of Every School District In The Detroit Metro politan Area .................................................................. 14 3. The Refusal Of The Lower Courts To Accord Funda mental Due Process Of Law To Forty-Three (43) Politi cally Autonomous And Geographically Independent School Districts, Who Are Admitted By The Lower Courts To Be Necessary Parties To This Action, Re quires The Exercise By This Court Of Its Supervisory Powers............................................................................ 17 Conclusion ............................................................................ 22 Appendix .............................................................................. 23aa TABLE OF AUTHORITIES Federal Cases: Armstrong v. Manzo, 380 U.S. 545 (1965) ........................... 20 Bell v. School City o f Gary, Indiana, 324 F.2d 209 (7th Cir. 1963), aff’g, 213 F. Supp. 819 (N.D. Ind. 1963) .............. II Bradley v. Milliken, C.A.6, 72-1809-1814 (6th Cir., Dec. 8, 1972) ................................................................................ 1 Bradley v, School Board o f the City o f Richmond, 462 F.2d 1058 (4th Cir. 1972), aff’d by an equally divided court, 93 Page S.Ct. 1952 (1973) .............................................................. 10 Deal v. Cincinnati Board o f Education, 419 F.2d 1387 (6th Cir. 1969), cert, denied, 402 U.S. 962 (1971) .................. 9 Goss v. Board o f Education o f the City o f Knoxville, C.A.6, 72-1766-1767 (6th Cir., July 18, 1973) ........................... 9 Higgins v. Board o f Education o f City o f Grand Rapids, Civ. No. 6386 (W.D. Mich., July 18, 1973) ............................. 20 Jenkins v. McKeithen, 395 U.S. 411 (1969) ......................... 20 Keyes v. School District No. 1, Denver, Colorado, 445 F.2d 990 (10th Cir. 1971) .......................................................... H Keyes v. School District No. 1, Denver, Colorado, 93 S.Ct. 2686 (1973) .............. .......................................................11,U Spencer v. Kugler, 326 F.Supp. 1235 (D.N.J. 1971), aff’d, 404 U.S. 1027 (1972) ........................................................ 12,13 Swann v. Charlotte-Mecklenburg Board o f Education, 402 U.S. 1 (1971) .................................................................... 13,14 United States v. Board o f School Commissioners o f the City o f Indianapolis, Indiana, 474 F.2d 81 (7th Cir. 1973) . . . . ^ United States v. Indianapolis, Civ. No. 68c-225 (S.D. Ind., July 20, 1973)................................................................... United States v. Texas Education Agency, 467 F.2d 848 (5th Cir. 1972) ............ ................................................... Wright v. Council o f the City o f Emporia, 407 U.S. 451 (1972) ................................................................................ Ill State Cases: People, ex rel. Workman v. Board o f Education o f Detroit, 18 Mich. 399 (1869) .............................................................. 10 Constitutional Provisions: U.S. Const. Amend. V ............................................................3,23aa Mich. Const. Art. 8, §2 ......................................................3,10,23aa United States Statutes: Judicial Code, 28 U.S.C. § 1254(1) ............................. 2,3,23aa,24aa Judicial Code, 28 U.S.C. § 1292(b) ................................... l,3,6,24aa Michigan Statutes: Mich. Comp. Laws Ann. §340.352 ........ ..................3,19,24aa,25aa Act 34, Sec. 28, Mich. Pub. Acts of 1867 ...................... 3,10,25aa Act 48, Sec. 12, Mich. Pub. Acts of 1970 ........................ 3,4,25aa Federal Rules Of Civil Procedure: Fed. R. Civ. P. 19 ................................................... 3,21,26aa,27aa Fed. R. Civ. P. 54(b) ........................................................l,3,6,27aa Page 1 IN THE SUPREME COURT OF THE UNITED STATES October Term 1973 No. THE GROSSE POINTE PUBLIC SCHOOL SYSTEM, Petitioner, vs. RONALD BRADLEY, et al„ Respondents. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Petitioner, THE GROSSE POINTE PUBLIC SCHOOL SYSTEM, Wayne County, Michigan (Grosse Pointe Schools), respectfully prays that a writ of certiorari issue to review the judgment and opinion of the United States Court of Appeals for the Sixth Circuit entered in these proceedings on June 12, 1973. OPINIONS AND ORDERS BELOW The judgment of the United States Court of Appeals for the Sixth Circuit is not as yet reported and is contained in the separate Joint Appendix filed herewith. This judgment was issued upon a rehearing by the Court of Appeals sitting in banc, and was decided and filed on June 12, 1973. (Joint Appendix, at 110a) A prior judgment of the Court of Appeals, decided and filed on December 8, 1972, was vacated by the granting of the rehearing in banc. The judgment of December 8, 1972 is reported in Bradley v. Milliken, C-A.6, 72-1809-1814 (6th Cir. Dec. 8, 1972). The judgment of the Court of Appeals reviewed the following Rulings and Orders of the District Court, under the provisions of 28 U.S.C. § 1292(b) and Rule 54(b) Fed. R. Civ. P.: 2 1. Ruling on Issue of Segregation, dated September 27, 1971 (Joint Appendix, at 17a).HI 2. Ruling on Propriety of Considering a Metropolitan Remedy to Accomplish Desegregation of the Public Schools of the City of Detroit, dated March 24, 1972 (Joint Appendix, at 48a). 3. Findings of Fact and Conclusions of Law on Detroit-Only Plans of Desegregation, dated March 28, 1972 (Joint Appendix, at 53a). 4. Ruling on Desegregation Area and Development of Plan, and Findings of Fact and Conclusions of Law in Support thereof, dated June 14, 1972, reported at 345 F.Supp. 914 (Joint Appendix, at 97a and 59a, respectively). 5. Order for Acquisition of Transportation, dated July 11, 1972 (Joint Appendix, at 106a). JURISDICTION The judgment of the Court of Appeals for the Sixth Circuit was entered on June 12, 1973 upon a rehearing by the Court sitting in banc. This Petition for Writ of Certiorari was filed within 90 days of that date. This Court’s jurisdiction is invoked under 28 U.S.C. §1254(1). QUESTIONS PRESENTED 1. Is a Plan of Desegregation limited to the boundaries of the School District of the City of Detroit constitutionally insuf ficient as a result of a finding that it has a predominantly black student enrollment and therefore it may be perceived as a black school district? 2. Is a “Metropolitan” Plan of Desegregation, intended to achieve a certain pupil racial balance in all schools in the Detroit School District and other school districts outlying therefrom, [ 1 ] The parenthetical page references followed by the letter “ a” refer to the page number o f the separate Joint Appendix filed herewith. The paren thetical page references followed by the letters “ aa’ refer to the page number of the Appendix to this Petition commencing at page 2jaa hereof. 3 which are independent municipal bodies corporate, legally proper in the absence of any finding of intentional discriminatory acts by such outlying school districts or in the establishment of their boundary lines, and in the absence of any finding of a causal con nection between alleged discriminatory acts of State defendants and the predominance of black or white students in Detroit or the outlying school districts? 3. Have all school districts other than Detroit, potentially the object of a “ Metropolitan” Plan of Desegregation, been denied due process of law: (1) by their exclusion from any effective participation in the District Court proceedings culminating in its Rulings on De Jure Segregation in Detroit, sufficiency of a Detroit-Only Plan, and legal propriety of a Metropolitan Plan, and (2) by the ruling of the Court of Appeals that in a “ Metropolitan” desegregation case, outlying school districts have a right to partici pate only in the remedy stage of the proceedings? CONSTITUTIONAL PROVISIONS, STATUTES AND RULES INVOLVED The relevant constitutional provisions, statutes and rules to the issues in this case are: U.S. Const. Amend. V; Mich. Const. Art. 8, §2; Judicial Code, 28 U.S.C. §1254(1) and § 1292(b); Fed. R. Civ. P. 19 and 54(b); Mich. Comp. Laws Ann., §340.352; Act 34, Sec. 28, Mich. Pub. Acts of 1867; and Act 48, Sec. 12, Mich. Pub. Acts of 1970, which are set forth in relevant part in the Appendix to this Brief. STATEMENT OF THE CASE Petitioner is one of 85 independent school districts located in the Michigan counties of Wayne, Oakland and Macomb, consti tuting what was defined by the District Judge to be the “ Detroit metropolitan area”'. [2] Of these 85 school districts, 43 are defendant-intervenors in this action. Of the 43 intervening districts, 34 are included within the “desegregation area” original ly established by the District Court in its Order of June 14, 197213] (Joint Appendix, at 97a), which “ desegregation area” [2] Ruling on Propriety o f Considering a Metropolitan Plan, Joint Appen dix, at 49a. 13 13] Vacated by the June 12, 1973 judgment o f the Court o f Appeals. As to its continued significance, See p. 16, Infra. 4 includes a total of 53 districts, encompassing 34 intervenors, an additional 18 school districts which did not intervene and are not parties to this action, plus the School District of the City of Detroit. All of these school districts are autonomous municipal bodies corporate, being geographically and politically independent and organized and existing pursuant to the laws of the State of Michigan, and are each governed by their respective duly elected boards of education. This action was commenced in the United States District Court for the Eastern District of Michigan, Southern Division, by the Plaintiffs against the Board of Education of the City of Detroit and its Superintendent of Schools, and also against the Governor, Attorney General, State Board of Education and State Superin tendent of Public Instruction of the State of Michigan. The Detroit Federation of Teachers and Magdowski, et al., a Detroit homeowners group, were permitted intervention prior to com mencement of the trial. Plaintiffs’ Complaint claimed that as a result of official policies and practices of the originally named Defendants, a con stitutionally impermissible racially identifiable pattern of faculty and student assignments existed within the schools of the School District of the City of Detroit.[4] Plaintiffs’ Complaint, which was thus limited to the operation of the Detroit School District alone, has never been amended to include any allegations with respect to any school in any school district other than Detroit. The trial on the merits commenced on April 6, 1971, was concluded on July 22, 1971, and concerned only the question of whether or not the Detroit Public School System was operated so as to impair the constitutional rights of the Plaintiffs within that school district. During the trial, on July 17, 1971, intervenors Magdowski, et al., moved to join as parties the 84 school districts in the counties [4] Plaintiffs also claimed that Section 12, Public Act 48 o f the Mich. Pub. Acts o f 1970 was unconstitutional as interfering with the implementa tion o f a voluntary plan of partial high school pupil desegregation with in the School District o f the City o f Detroit, previously adopted by its Board of Education. By judgment o f the Court o f Appeals reported at 433 F.2d 847 this claim o f plaintiffs was disposed o f by its ruling that said Section 12, Public Act 48 was unconstitutional, although that ques tion had not yet been ruled on by the District Court. 5 of Wayne, Oakland and Macomb, outlying from the City of Detroit. That Motion was not acted upon until almost one year later, when the Court deemed it to be withdrawn. The District Court issued its “ Ruling on Issue of Segregation” on September 27, 1971 (Joint Appendix, at 17a), which found the existence of de jure segregation of students but found no segregation of faculty within the School District of the City of Detroit. Although the proceedings before the District Court had theretofore been limited to the issue of unlawful segregation in the Detroit School System, on October 4, 197115] the District Court ordered the State defendants to submit a “Metropolitan Plan of Desegregation” for the School District of the City of Detroit, which would embrace the three counties comprising the Detroit metropolitan area. Pursuant to this Order, on January 4, 1972 the State Board of Education filed a so-called Metropolitan Plan of Desegregation, which substantially affected the interests of all 84 school districts within the three counties surrounding the City of Detroit. Consequently, intervention in these proceedings was sought by Petitioner and 42 other school districts for the purpose of representing their interests as municipal bodies corporate and the interests of the parents and children resident therein. Although by Order of the District Court on March 15, 1972 these Motions to intervene were granted as a matter of right, the District Court simultaneously imposed certain very restrictive and burdensome conditions upon such intervention.[6] The intervening school districts filed written objections to these conditions, which objec tions were never acted upon by the Court. On March 24, 1972 the District Court issued its Ruling on Propriety of Considering a Metropolitan Remedy (Joint Appendix, at 48a). Only 4 days later, on March 28, 1972, the District Court issued its “ Findings of Fact and Conclusions of Law on [5] Entered November 5, 1971, as o f October 4, 1971. [6] For a list o f such conditions, see the dissenting opinion o f Judge Kent, Joint Appendix, at 232a. 6 Detroit-Only Plans of Desegregation” (Joint Appendix, at 53a). On June 14, 1972 the District Court entered its “ Ruling on Desegregation Area and Order for Development of Plan of De segregation” (Joint Appendix, at 97a) and its “ Findings of Fact and Conclusions of Law in Support of Ruling on Desegregation Area and the Development of Plan” (Joint Appendix, at 59a). In the opening paragraph of its Findings of Fact, the District Court 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.” (Joint Appendix, at 59-60a). Notwithstanding this candid admission, the District Court’s Order of June 14, 1972 directed that final details be formulated fora plan of desegregation for the School District of the City of Detroit, involving 52 other independent school districts and order ing the transportation and transfer of pupils as between said school districts . .to the end that, upon implementation, no school, grade or classroom be substantially disproportionate to the overall pupil racial composition” ^ ] of all school districts within the desegregation area established by the District Court’s Order. On July 20, 1972 the District Court entered an Order de claring its principal prior Orders as final in pursuance of the provisions of Rule 54(b), Fed.R.Civ.P., and further certifying that the said Orders contained certain controlling questions of law, in pursuance of the provisions of 28 U.S.C. § 1292(b). On December 8, 1972, the Court of Appeals for the Sixth Circuit decided and filed its first judgment, which was vacated by its grant of a rehearing in banc on January 16, 1973. On June 12, 1973 the Court of Appeals for the Sixth Circuit, sitting in banc, decided and filed its judgment, from which this [7] Joint Appendix, at 101-102a. 7 appeal is sought, affirming the District Court’s Rulings that (1) Detroit was a de jure segregated school system, (2) that a “Detroit-Only” plan was constitutionally insufficient, and (3) that a metropolitan desegregation plan was “ essential to a solution of this problem” , and would, in all events, be implemented in this case in one form or another. The Court of Appeals, however, remanded the matter to the District Court for the narrow purpose of pro viding each of the outlying school districts an opportunity to present evidence to the Court that the inclusion of the students in their district would not be necessary for the implementation of the metropolitan plan to be ordered into effect. REASONS FOR GRANTING THE WRIT The precedent established by the Courts below may be briefly stated as follows: A core school district, judicially de termined to be de jure segregated, may be “ desegregated” by the cross-district transfer and transportation of pupils from and to outlying school districts for the purpose of achieving a more ap propriate racial mix (as perceived by the Court and expressed in a fixed percentage of minorities) in each school in every school dis trict involved. This may be accomplished notwithstanding the fact that (1) no proofs were taken or findings made with respect to discriminatory establishment or maintenance of the outlying dis tricts, discriminatory acts on the part of the outlying school dis tricts, or any intention by any of them to segregate outlying districts vis-a-vis the core district, and (2) no causal connection was established between the acts of segregation in the core school district and the racial composition of the student population in outlying school districts. The Courts below would thereby extend the remedial powers of a court to the operation of any school dis trict within busing distance of a de jure segregated school district, irrespective of whether any relevant facts exist or were proved with respect to such outlying school district. This precedent: (1) is in direct conflict with decisions of other United States Courts of Appeal, as well as the decisions of this Court; (2) involves issues of great importance not only to the Petitioner and its residents, but to every school district in the United States and the residents, pupils and staff thereof; and (3) sanctions the denial of fundamental due process of law to every 8 school district which becomes part of such a desegregation plan implemented on the authority of this case. 1. THE DECISIONS BELOW ARE IN DIRECT AND IR RECONCILABLE CONFLICT WITH DECISIONS OF OTHER UNITED STATES COURTS OF APPEAL, AS WELL AS DECISIONS OF THE UNITED STATES SUPREME COURT. The philosophy underlying the unprecedented and novel holdings below is perhaps best reflected in the statement by the District Judge, during the Pre-trial conference on October 4, 1971: “ A large metropolitan area such as we have in our case can not be made the subject of instant integration. We must bear in mind that the task we are called upon to perform is a social one, which society has been unable to accomplish. In reality, our courts are called upon, in these school cases, to attain a social goal, through the educational system, by using law as a lever. ” (emphasis added) (Joint Appendix, at 40-4la) Judge Kent, in his dissenting opinion, also observed: “ ...[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 sur rounded by suburban school systems for whites cannot repre sent equal protection of the law.’ While that statement has been removed from the opinion of the majority, yet the premise upon which the statement was obviously based must necessarily form the foundation of the conclusions reached in the majority opinion.” [8] In the process of accomplishing this social goal of preventing a predominantly black school system from being surrounded by predominantly white school systems, the Courts below have placed themselves in square conflict with the Courts of Appeal for [8] Joint Appendix, at 224a. 9 other Circuits, as well as the decisions of this Court.[9] This con flict arises because the Courts below have required a metropolitan desegregation plan to be implemented so as to effect what they perceive to be a more appropriate racial balance, without any findings o f purposeful segregation as between Detroit and its out lying area and without any finding o f a causal relationship between the intra-Detroit segregative acts and the racial demo graphic patterns o f the metropolitan area. As observed by Judge Kent in his dissenting opinion: “Without proof with regard to segregatory activities within the other school districts or in regard to district boundaries any conclusion by the District Court or by this Court that school district boundaries of other districts had the effect of maintaining or creating unconstitutionally segregated schools within the City of Detroit is obviously based on irrelevant, unsubstantial evidence or totally unsupported assumptions.” Joint Appendix, at 222a. “ I know of no authority which would permit a Court to announce a conclusion, based upon a violation of the Con stitution, absent the taking of proofs to establish such con stitutional violation, which proofs the District Judge stated he did not take in this case.” Joint Appendix, at 225a. [9] It should be noted, as an additional reason for granting Certiorari, that the judgment below is also in direct conflict with other decisions o f the Sixth Circuit. Although expressly denied by the majority to be in con flict with its prior decision in Deal v. Cincinnati Bd. o f Education, 419 F.2d 1387 (6th Cir. 1969), cert, denied, 402 U.S. 962 (1971), it is in conceivable that anything but a square conflict could be acknowl edged—unless the social considerations perceived by the majority com pelled the Court to carve an exception out o f Deal to take care o f “ big city problems. Judge Weick pointed out that the majority opinion is in ' irreconcilable conflict' with Deal, “ . . . .with the unfortunate result that acts which do not violate the Constitution in Cincinnati, are held to be unconstitutional in Detroit.” Joint Appendix, at 197a. See also dis senting opinion o f Judge Kent regarding Deal, Joint Appendix, at 228a. For the most recent example o f an opinion o f the Sixth Circuit, also in conflict with the majority opinion, see Goss v. Bd. o f Education o f the City o f Knoxville, C.A.6, 72-1766-1767 (6th Cir., July 18, 1973), sit ting in banc, wherein the Court stated: “ While it is true that some schools in the Knoxville system will remain identifiably black or white on the basis o f pupil enrollment, this is largely the result o f several con centrations of blacks in the area . . . .’ 10 The opinion of the 4th Circuit in Bradley v. School Board of the City o f Richmond, 462 F.2d 1058 (4th Cir. 1972), aff’d by an equally divided Court, 93 S.Ct. 1952 (1973), represents the Court of Appeals decision most clearly in square conflict with the holding of the Circuit Court below. In Richmond, the 4th Circuit rejected the “metropolitan” approach to school desegregation, and refused to affirm the cross-district transfer of students by the consolidation of 3 independent school districts in order to “de segregate” the predominantly black school district of the City of Richmond. The Court stated, at page 1064: “ But we think the adoption of the Richmond Metropolitan Plan in toto by the district court, viewed in the light of the stated reasons for its adoption, is the equivalent, despite dis claimer, of the imposition of a fixed racial quota. The Con stitution imposes no such requirement, and imposition as a matter of substantive constitutional right of any particular degree of racial balance is beyond the power of a district court.” (emphasis added) In referring to the fact that the reason for the concentration of blacks in cities is not precisely known, the 4th Circuit stated, at 1066: “ Whatever the basic causes, it has not been school assign ments, and school assignments cannot reverse the trend.” The conflict between Bradley v. Richmond and the decisions be low is even more apparent in light of the fact that although Vir ginia was historically a dual school system state, the State of Michi gan has prohibited segregation in its public schools for in excess of 100 years.t The 5th Circuit in United States v. Texas Education Agency, 467 F.2d 848 (5th Cir. 1972), sitting in banc, held that as a [10] Act 34, Sec. 28, Mich. Pub. Acts o f 1867 (25aa);People, ex rel. Work man v. Board o f Education o f Detroit, 18 Mich. 399 (1869); Mich Const. 1963, Art 8, Sec 2. (23aa). 11 predicate to the exercise by the District Court of its remedial powers there must be a finding of purposeful discrimination, sup ported by findings of fact, identifying the particular school found to be segregated. The concurring opinion declared at 884: “The importance of such a determination will be seen in some populous school districts embracing large geographical areas. There may be segregated schools which are the result of unconstitutional statutes or of official action. There may be other one race schools which are the product o f neutral, nondiscriminatory forces. ” (emphasis added) Following the authority of the 5th Circuit, the fact that there would be some predominantly white schools existing in outlying school districts, or some predominantly black schools in the Detroit School District following the implementation of a “Detroit-Only” plan of desegregation would result in no depriva tion of constitutional rights requiring additional intervention by the Court, so long as the racial make-up of such schools is the “.. .product of neutral, nondiscriminatory forces.” As candidly admitted by the District Court [ 11 ], however, no proofs were taken on this subject, and on the basis of the record in this case it is simply impossible to determine what factors have produced the racial make-up of the schools in the Detroit metropolitan area. The opinion of United States v. Board o f School Commis sioners o f the City o f Indianapolis, Indiana, 474 F.2d 81 (7th Cir. 1973) is also in conflict with the decisions of the Courts below. In referring to the fact that there is no constitutional duty to remedy a racial imbalance, the 7th Circuit stated at pages 83, 84: “ [Ijndeed, insofar as it relates to purely de facto segregation, unaided by any state action, it is the law of this circuit, Bell v. School City o f Gary, Indiana, 324 F.2d 209 (7th cir. 1963), aff’g, 213F.Supp. 819 (N.D.Ind. 1963).” Although modified and remanded on other grounds by the recent opinion of this Court[12], that portion of the 10th Circuit opinion in Keyes v. School District No. 1, Denver, Colorado, 445 [O ] See Statement o f the Case, supra, at 6. 02] Keys v. School District No. 1, Denver Colorado, 93 S.Ct. 2686 (1973). 12 F.2d 990 (10th Cir. 1971), requiring intentional discriminatory acts causally connected to the segregated condition found to exist as an essential predicate to implementation of a plan for the de segregation of any school, remains viable. Indeed, the opinion of this Court in Keyesi 13] has established that proposition which is dispositive of the issues herein presented. In Keyes, this Court held: “ . . .[I]n the case of a school system like Denver’s, where no statutory dual system has ever existed, plaintiffs must prove not only that segregated schooling exists but also that it was brought about or maintained by intentional state action.” [14] With respect to the relationship between a finding of intentionally segregated schools in one part of a school system, and the exis tence of racially identifiable schools in other parts of the school system, this Court stated that the racially identifiable schools will not be found to be de jure segregated if based on “ . . .evidence supporting a finding that a lesser degree of segregated schooling in the core city area would not have resulted even if the Board had not acted as it did.” 115] This Court further held that even if segregative intent is found to exist, a prima facie case can be rebutted “ . . .by showing that its past segregative acts did not create or contribute to the current segregated condition of the core city schools.” [ 16! The decisions below are squarely in con flict with these requirements, for the reason that the lower courts deemed irrelevant the question of segregative intent with respect to the outlying school districts, and permitted no proofs as to whether or not the segregative acts found to have been committed in Detroit in any way created or contributed to the racial make-up of the outlying schools. The decisions below are also clearly in conflict with this Court’s summary affirmance of the three judge District Court’s opinion in Spencer v. Kugler, 326 F.Supp. 1235 (N.J. \ 91\ ),a ffd , 13 14 15 16 [13] Id. [14] Id. at 2692. [15] Id. at 2698. [16] Id. at 2699. 13 404 U.S. 1027 (1972). In referring to the State’s affirmative duty to remedy racially imbalanced schools, the District Court in Spencer stated, at page 1240: “Nowhere in the drawing of school district lines are con siderations of race, creed, color or national origin made. The setting of municipalities as local school districts is a reason able standard especially in light of the municipal taxing authority. The system as provided by the various legislative enactments is unitary in nature and intent and any purported racial imbalance within a local school district results from an imbalance in the population of that municipality-school dis trict. Racially balanced municipalities are beyond the pale of either judicial or legislative intervention.” It is further submitted that the holding of the Courts below, to the effect that a plan of desegregation limited solely to the Detroit School District would be constitutionally insufficient because Detroit would be left a predominantly black school district, is also in conflict with the result of this Court’s decision in Wright v. Council o f the City o f Emporia, 407 U.S. 451 (1972), which approved a desegregation plan for an area having a racial make-up of 34% white and 66% black—almost the same racial proportion which the Courts below held was constitutionally im permissible for a Detroit-only plan. 117] Finally, and most importantly, the entire thrust and effect of the lower courts’ holdings are in clear conflict with the following pronouncements of this Court in Swann: “As with any equity case, the nature of the violation de termines the scope of the remedy.” H8] “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 * 18 ID] The District Court found that in 1970-71 the racial make-up o f the Detroit School District was 37.2% white and 63.8% black. [18] Swann v. Charlotte-Mecklenburg Board o f Education, 402 U.S. 1 (1971), at 16. 14 account of race; it does not and cannot embrace all the problems of racial prejudice, even when those problems contribute to disproportionate racial concentrations in some schools.” [ 19] “ 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.” [20] “ One vehicle can carry only a limited amount of bag- gage .” [21] All of the cases discussed in this section involved basic and controlling issues as to the scope and extent of a Federal Court’s remedial powers with respect to racially imbalanced school districts. It is submitted that the judgments of the Courts below cannot be reconciled with any of these decisions, and that the resulting conflict can be effectively resolved only by prompt review by this Court. 2. THE DECISIONS BELOW INVOLVE ISSUES OF IM MENSE PUBLIC IMPORTANCE BECAUSE OF (A) THE FAR-REACHING PRECEDENT ESTABLISHED THERE BY, AND (B) THE IMPACT OF THE LOWER COURTS’ PROPOSED REMEDY UPON THE RESIDENTS OF EVERY SCHOOL DISTRICT IN THE DETROIT METRO POLITAN AREA. A. The far-reaching nature of the precedent established by the lower courts’ opinions is illustrated by considering its potential application to other cases. The reasoning below is not limited to big city-suburban school cases. Rather, any case against a single school district can be expanded into a “metropolitan case” at the remedy stage of the proceedings. Any school district, no matter [19] Id. at 23. [201 Id. at 24. [21] Id. at 22. 1 5 how small, which has been found guilty of de jure segregation, may now be considered the “ core” around which a desegregation remedy may be designed. The transfer of children to and from other outlying districts may be ordered to obtain a more “ap propriate” racial mix in each school in the general area. This may be decreed without any finding that the outlying districts are de jure segregated or in any way were affected by the acts of the district to be “ desegregated” , and without any participation by the outlying districts in the judicial proceedings other than in developing the specific details of the reassignment plan. Indeed, all that is necessary to include a school district within a “Metro politan” plan is that the “ non-guilty” district be within busing distance of a “guilty” district. When boiled down, the proposition established below is quite simple: Any de jure segregated school district, when combined with a racial imbalance in the schools in the surrounding geographical area, will yield a metropolitan plan at the remedy stage, limited only by considerations of distance. Petitioner is aware of other cases pending before District Courts involving proposed metropolitan desegregation orders,[22] which will be or have been directly affected by the precedent established by the Courts below.[23] in addition, any desegrega tion case is now subject to expansion into a metropolitan case. It is respectfully submitted that it is vital that the judgments below be reviewed by this Court to provide clear and authoritative guidance which will be essential for a proper and orderly disposi tion of such other school desegregation cases. [22] It is Petitioner’s information and belief that such cases are at least pres ently pending in Boston, Buffalo and Hartford. [23] In United States v. Indianapolis, Civ. No. 68c 225 (S.D.Ind., July 20, 1973), District Judge S. Hugh Dillin ruled that a metropolitan busing plan for Indianapolis and surrounding school systems in 8 counties would be necessary because any Indianapolis-only plan “ . . .would leave a large number o f schools with a minority percentage in excess of 50%, which would not only make them racially identifiable schools, but would once again accelerate white flight from those particular schools. ’ (Slip Opinion, at 8). Judge Dillin relied heavily on the judg ment of the Court o f Appeals below in support of his opinion. 1 6 B. In addition to the precedent which will be established, this case is also of immense importance warranting review by this Court simply on the basis of its impact on the people of the Detroit metropolitan area. The true impact of this case is fully illustrated by only one part of the “baggage” which the District Court would have this cause carry—the number of children involved. Although the District Court’s Ruling on Desegregation Area and Development of Plan, dated June 14, 1972, was vacated in part by the Court of Appeals [ 24 ] ; it remains fully illustrative of the magnitude of a plan which the District Court considered necessary to implement a remedy pursuant to its findings on Detroit-only plans and metropolitan plans, which were sustained by the Court of Appeals. There are approximately 1 million children in attendance in the schools of 85 autonomous and geographically independent school districts in the three counties of Wayne, Oakland and Macomb, constituting what was defined by the District Court as the Detroit Metropolitan area. Of these 85 school districts, 53 were included in the Desegregation Area defined by the District Court as being necessary to provide enough white students, when combined with the students residing in the City of Detroit, to create a racial mix within each school in the desegregation area roughly proportionate to the population of the Detroit Metro politan area. The total number of students involved in the District Court’s 53 district desegregation area, based on 1971-72 popula tion figures, was 779,000; 276,000 in Detroit and 503,000 in the 52 suburban districts. Since the effect of the decisions below is to require the cross district transfer of pupils to the end that after such transfer no [24] Although substantially vacated, the Court o f Appeals continued in existence the Desegregation Panel established in such Order. See Joint Appendix, at 99a. In addition, it is quite apparent that this action was taken only to correct what the majority o f the Court of Appeals perceived to be a technical defect in the proceedings below with re spect to those 18 school districts included in the District Court’s De segregation Order which had not sought intervention. 17 school in Detroit will be predominantly black, or perceived as black when viewed against other schools in the metropolitan area, any plan which is devised by the District Court to implement this transfer will, of necessity, require the reassignment of hundreds of thousands of students. The fact that the Court of Appeals has vacated the Order delineating the exact geographical area and the number of students to be involved does not vitiate the immense importance of this Court reviewing the decision at this time. The die has been cast, and the inevitable consequences to Petitioner and dozens of other school districts suburban to Detroit have been determined with sufficient certainty to warrant immediate review by this Court. [25] 3. THE REFUSAL OF THE LOWER COURTS TO ACCORD FUNDAMENTAL DUE PROCESS OF LAW TO FORTY- THREE (4 3 ) POLITICALLY AUTONOMOUS AND GEOGRAPHICALLY INDEPENDENT SCHOOL DIS TRICTS, WHO ARE ADMITTED BY THE LOWER COURTS TO BE NECESSARY PARTIES TO THIS ACTION, REQUIRES THE EXERCISE BY THIS COURT OF ITS SUPERVISORY POWERS. In order to adequately present to the Court the basis upon which Petitioner claims a denial of due process, further elabora tion of the proceedings in the District Court is necessary. [25] In addition to pupil reassignment and transportation, the June 14, 1972 Order o f the District Court required that employees be reas signed to work for other school districts in order to have a racial bal ance of the faculty through the metropolitan area, notwithstanding the fact that in its September 27, 1971 Ruling on Issue o f Segregation, the District Court specifically found that Detroit had not been guilty of faculty segregation. Also, governance, finance and administrative ar rangements between the several school districts were to be modified pursuant to the Court’s Order. See Joint Appendix, at 104a. Finally, the dollar cost to the educational process is also a factor which should not be overlooked. For example, in its July 11, 1972 Order for the purchase o f buses the District Court determined that $3,000,000 would be required to purchase 295 buses, necessary only for partial implementation o f its plan. The multiple millions o f dollars that would be required for the purchase of additional buses for full implementa tion, plus operating expenses o f student transportation on this magni tude, together with the in-service training of teachers ordered by the Court, etc., is inestimable. 18 During the course of the trial on the merits the District Judge stated from the bench, on June 24, 1971: . .[A]s I have said to several witnesses in this case: ‘How do you desegregate a black city, or a black school system;’ ” .[26] Soon thereafter, a Detroit homeowners group, Magdowski, et ah, (which had previously been permitted intervention, without conditions), filed a motion on July 17, 1971, requesting the District Court to join the additional 84 school districts in Wayne, Oakland and Macomb counties so that “ complete relief [can] be awarded to plaintiff” , and because without such districts there would be an “ unconstitutional burden on intervening defendant, in that the resulting school district of the City of Detroit would be and will remain as established by the proofs already submitted an inferior school district.” This motion was never ruled upon by the Court, and was deemed by the Court to be withdrawn almost one year later. Because of the District Court’s Order of October 4, 1971 requiring the State defendants to submit a “Metropolitan Plan of Desegregation” , and the filing of such a Plan by the State Depart ment of Education on January 4, 1972, Petitioner and other suburban school districts were suddenly confronted with the dilemma of either being subject to a judicial remedy without ever having had the opportunity to be heard, or of seeking inter vention. Although intervention was sought and granted by the District Court on March 15, 1972, it proved to be illusory indeed. The District Judge imposed extremely restrictive conditions on the participation of the intervenors,[27] even though intervention was granted of right. Then, the rapid succession of events which took place is as follows. On the day intervention was granted, the District Court advised the intervening school districts that the Court had previously set March 22, 1972 as the date for filing briefs on the legal propriety of a “ Metropolitan Plan of Desegregation” . Con sequently, the intervening school districts had exactly one week to prepare and present to the District Court their legal arguments in the form of written briefs with respect to such an important and [26] Joint Appendix, at 243a. [27] See footnote 6, supra. 19 complex issue. On March 24, 1972, only two days following the due date for such briefs, the District Court issued its “ Ruling on Propriety of Considering a Metropolitan Remedy to Accomplish Desegregation of the Public Schools of the City of Detroit” (Joint Appendix, at 48a). Considering the fact that 7 separate briefs totaling 112 typewritten pages were simultaneously filed on March 22,[28] it perhaps is all too apparent that the District Court was predisposed as to its Ruling, which was written and distributed within 36 hours after briefs were filed. On March 28, 1972 the District Court commenced taking testimony on a Metropolitan Plan of Desegregation, which was the first opportunity which the intervening school districts’ attorneys had to appear in the District Court to participate in the proceedings. Only 2 hours later the District Court distributed its “Findings of Fact and Conclusions of Law on Detroit-Only Plans of Desegregation” (Joint Appendix, at 53a), concluding that a Metropolitan Plan was not only proper, but necessary. Thus, by the District Court’s control over the timing of events which occurred upon intervention, Petitioner was ef fectively foreclosed from any meaningful participation in the proceedings relative to the necessity or propriety of a Metro politan Plan. Indeed, it is respectfully submitted that the District Court had determined prior to intervention that it would be necessary to desegregate the Detroit public schools by use of Petitioner’s school children, and consequently the fundamental predicates for the imposition of judicial sanction - claim, proof, finding of a wrong and causation - were either ignored by the District Judge or intentionally given minimal consideration. Under the law of the State of Michigan, Petitioner is a legally autonomous and geographically independent municipal body corporate, having the power to sue and be sued. [29] As such, Petitioner was and is entitled to fundamental rights of due process of law, including the opportunity to be heard in a meaningful way. [28] In addition, at this time the United States filed a 27 page memoran dum in connection with its Motion to Intervene. [29] Mich. Comp. Laws Ann., §340.352. (24aa). 20 “ A fundamental requirement of due process is ‘the op portunity to be heard.’ . . .It is an opportunity which must be granted at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552 (1965). “We have frequently emphasized that the right to confront and cross-examine witnesses is a fundamental aspect of procedural due process.” Jenkins v. McKeithen, 395 U.S. 411, 428 (1969). Petitioner never had an opportunity to participate in a trial of the essential basic issues concerning de jure segregation and the necessity of a Metropolitan desegregation plan for Detroit.[30] The failure to afford Petitioner an opportunity to be heard when the basic issues which so vitally affected it were being judicially determined, constitutes a blatent denial of fundamental due process of law.[31] The Court of Appeals failed to correct this wrong. Only this Court has the power to correct the wrong done to Petitioner in these proceedings. The dissenting opinions of Circuit Judges Weick and Miller [32] underscore the denial of due process to Petitioner: Judge Weick: “ All school districts whose borders were being invaded were entitled, as a matter of right and not of mere grace, to be [30] For an example o f a case where such rights were properly safeguarded, see Higgins v. Bd. o f Educ. o f City o f Grand Rapids, Civ. No. 6386 (W.D. Mich., July 18,1973), where the District Court ordered joinder as parties defendant 11 suburban school districts prior to the trial on the merits o f the de jure segregation claim. The District Judge stated: “ Thus all parties who might be affected by any judgment o f the court were given the opportunity to defend on the issues o f constitutional violations charged against them by the plaintiffs.” Slip opinion, at 3. [31] As indicated by his statement from the bench on June 24, 1971, it be came apparent to the District Judge that he might conclude it neces sary to include suburban districts in a desegregation order. A few weeks later a Motion to join all outlying school districts was filed. At this stage o f the proceedings it was still quite feasible for all outlying school districts to have had full and meaningful participation with re spect to all three principal issues ultimately ruled on by the Court. [32] Judge Weick, Joint Appendix, at 191a. Judge Miller, Joint Appendix, at 239a. 21 made parties defendant in the case and to be accorded the same rights as any other defendants. . . .These rights were denied to the intervenors. [33] * * * However, in its opinion the majority did provide for amend ment of pleadings on remand, making new party defendants, for intervention, and for offering additional testimony. These provisions are wholly illusory with respect to the issues of segregation, the ‘Detroit-Only Plan’ and the ‘Metropolitan plan’, as the opinion expressly excludes these issues from reconsideration upon remand.” Joint Appendix, at 206a. Judge Miller: “Parties to be affected and against whom relief is sought should be accorded, in compliance with basic principles of due process, an opportunity to be heard at a meaningful time and in a meaningful manner not only with respect to the ultimate scope of the remedy to be fashioned, but also with respect to important, significant and perhaps even controlling issues, including the issue of segregation, a ‘Detroit only’ school plan and the propriety of a metropolitan remedy. . . .Until this is done our expression of view on the merits of the several questions is uncalled for and ill-advised. To permit these additional parties to be heard only in the restricted sense set forth in the majority opinion is to deny the?n basic rights guaranteed not only by Rule 19, Federal Rules o f Civil Procedure, but by the Constitution itself. ” Joint Appendix, at a. (emphasis added) Insofar as the precedent thereby established, and its potential application to every other “Metropolitan” case which may arise in the future, this highly unusual treatment of the outlying school districts by the Courts below is intolerable. Consequently, the need for the exercise by this Court of its supervisory powers over the Courts below warrants the grant of Certiorari at this time. C3] In addition to Petitioner and other intervening school districts, the 18 non-intervening districts are similarly affected. As Judge Weick ob served o f the 18 districts, “ They have surely been deprived of then- property rights, not only without due process o f law, but without any process of law.” Joint Appendix, at 207a. 22 CONCLUSION For the reasons above stated, it is respectfully submitted that it is imperative that this Court issue its Writ of Certiorari to review the judgment and opinions of the Courts below. Respectfully submitted, HILL, LEWIS, ADAMS, GOODRICH & TAIT By Is/ DOUGLAS H. WEST____________ Douglas H. West By: /s/ THOMAS E. COULTER__________ Thomas E. Coulter Attorneys for the Grosse Pointe Public School System 3700 Penobscot Building Detroit, Michigan 48226 962-6485 Dated: August L, 1973 23aa APPENDIX CONSTITUTIONAL PROVISIONS United States Constitution, Amendment V provides: AMENDMENT V - CAPITAL CRIMES; DOUBLE JEOP ARDY; SELF - INCRIMINATION; DUE PROCESS; JUST COMPENSATION FOR PROPERTY No person shall be held to answer for a capital, or other wise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against him self, 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. Michigan Constitution of 1963, Art. 8, §2 provides: Free public elementary and secondary schools; discrimina tion. SEC. 2. The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law. Every school district shall provide for the education of its pupils without discrimination as to religion, creed, race, color or national origin. UNITED STATES STATUTES Judicial Code, 28 U.S.C. § 1254(1) provides: 1254. Courts of appeals; certiorari; appeal, certified ques tions Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods; 24aa (1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree; Judicial Code, 28 U.S.C. § 1292(b) provides: §1292. Interlocutory decisions (b) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Ap peals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceed ings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order. MICHIGAN STATUTES Michigan Compiled Laws Annotated, §340.352 provides: 340.352 Body corporate; powers, rights, liabilities; pre sumptions SEC. 352. Every school district shall be a body corporate under the name provided in this act, and may sue and be sued in its name, may acquire and take property, both real and personal, for educational purposes within or without its cor porate limits, by purchase, gifts, grant, devide or bequest, and hold and use the same for such purposes, and may sell and convey the same as the interests of such district may require, subject to the conditions of this act contained. As such body corporate, every school district shall be the successor of any school district previously existing within the same territorial limits and shall be vested with all rights of action, with the title of all property, real and personal, of the district of which it is the successor, and the indebtedness and obliga 25aa tions of the district superseded shall become and be the indebtedness and obligations of the succeeding district, ex cept as otherwise provided in chapters 3, 4 and 5, part 2 of this act. Every school district shall in all cases be presumed to have been legally organized when it shall have exercised the franchises and privileges of a district for the term of 2 years; and such school district and its officers shall be entitled to all the rights, privileges and immunities, and be subject to all the duties and liabilities conferred upon school districts by law. Act 34, Sec. 28, Mich. Pub. Acts of 1867 provides: (2271) Sec. 28. All residents of any district shall have an equal right to attend any school therein: Provided, That this shall not prevent the grading of schools according to the in tellectual progress of the pupils, to be taught in separate places when deemed expedient. Act 48, Sec. 12, Mich. Pub. Act of 1970 provides: 388.182 Attendance provisions, implementation; condi tions. [M.S.A. 15.2298(12)] Sec. 12. The implementation of any attendance provi sions for the 1970-71 school year determined by any first class school district board shall be delayed pending the date of commencement of functions by the first class school dis trict boards established under the provisions of this amenda tory act but such provision shall not impair the right of any such board to determine and implement prior to such date such changes in attendance provisions as are mandated by practical necessity. In reviewing, confirming, establishing or modifying attendance provisions the first class school district boards established under the provisions of this amendatory act shall have a policy of open enrollment and shall enable students to attend a school of preference but providing prior ity acceptance, insofar as practicable, in cases of insufficient school capacity, to those students residing nearest the school and to those students desiring to attend the school for parti cipation in vocationally oriented courses or other specialized curriculum. 26aa FEDERAL RULES OF CIVIL PROCEDURE Fed. R. Civ. P. 19 provides: Rule 19. Joinder of Persons Needed for Just Adjudication (a) Persons to be Joined if Feasible. A person who is sub ject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already par ties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substnatial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and his joinder would ren der the venue of the action improper, he shall be dismissed from the action. (b) Determination by Court Whenever Joinder not Feas ible. If a person as described in subdivision (a) (1 )-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent per son being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judg ment rendered in the person’s absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of re lief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for non joinder. (c) Pleading Reasons for Nonjoinder. A pleading asserting 27aa a claim for relief shall state the names, if known to the plead er, of any persons as described in subdivision (a) (l)-(2) here of who are not joined, and the reasons why they are not joined. (d) Exception of Class Actions. This rule is subject to the provisions of Rule 23. Fed. R. Civ. P. 54(b) provides: Rule 54. Judgments; Costs (b) Judgment upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counter-claim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudi cates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabili ties of all the parties. IN THE SUPREME COURT OF THE UNITED STATES October Term 1973 No. WILLIAM G. MILLIKEN, Governor of the State of Michigan; FRANK J. KELLEY, Attorney General of the State of Michigan; MICHIGAN STATE BOARD OF EDU CATION, a constitutional body corporate, and JOHN W. PORTER, Superintendent of Public Instruction, of the State of Michigan; ALLISON GREEN, Treasurer of the State of Michigan; ALLEN PARK PUBLIC SCHOOLS, SCHOOL DISTRICT OF THE CITY OF BERKLEY, BRANDON SCHOOLS, CENTERLINE PUBLIC SCHOOLS, CHERRY HILL SCHOOL DISTRICT, CHIPPEWA VALLEY PUBLIC SCHOOLS, SCHOOL DISTRICT OF THE CITY OF CLAWSON, CRESTWOOD SCHOOL DISTRICT, DEARBORN PUBLIC SCHOOLS, DEARBORN HEIGHTS SCHOOL DISTRICT NO. 7, EAST DETROIT PUBLIC SCHOOLS, SCHOOL DIS TRICT OF THE CITY OF FERNDALE, FLAT ROCK COMMUNITY SCHOOLS, (Continued on Inside Front Cover) -vs- RONALD BRADLEY and RICHARD BRADLEY, by their Mother and Next Friend, VERDA BRADLEY; JEANNE GOINGS, by her Mother and Next Friend, BLANCH (Continued on Inside Front Cover) APPENDIX FRANK J. KELLEY Attorney General BUTZEL, LONG, GUST, KLEIN & VAN ZILE O f Counsel HILL, LEWIS, AD AM S, GOODRICH & T A IT lliomas E. C oulter Of Counsel CONDIT AND MC GARRY, P.C. Richard P. C ondit, Of Counsel b e ie r , HOWLETT, MC CONNELL & GOOGASIAh ; Ke«nethB. McConnell, O f Counsel ROBERT A. DERENGOSKI Solicitor General EUGENE KRASICKY GERALD F. YOUNG GEORGE L. McCARGAR L. GRAHAM WARD Assistant Attorneys General Counsel for Petitioners 525 W. Ottawa Street Lansing, Michigan 48913 WILLIAM M. SAXTON JOHN B. WEAVER ROBERT M. VERCRUYSSE X. ORHAN 1881 First National Building Detroit, Michigan 48226 Counsel for Petitioners, Allen Park Public Schools, et al, Southfield Public Schools and School District o f the City o f Royal Oak DOUGLAS H. WEST 3700 Penobscot Building Detroit, Michigan 48226 Counsel for Respondent Grosse Pointe Public Schools GARDEN CITY PUBLIC SCHOOLS, GIBRALTAR SCHOOL DISTRICT, SCHOOL ( DISTRICT OF THE CITY OF HARPER WOODS, SCHOOL DISTRICT OF THE/ CITY OF HAZEL PARK, INTERMEDIATE SCHOOL DISTRICT OF THE C01! TY OF MACOMB, LAKE SHORE PUBLIC SCHOOLS, LAKEVIEW PUBLIC SCHOOLS, THE LAMPHERE SCHOOLS, LINCOLN PARK PUBLIC SCHOOLS MADISON DISTRICT PUBLIC SCHOOLS, MELVINDALE-NORTH ALLEN PARS SCHOOL DISTRICT, SCHOOL DISTRICT OF NORTH DEARBORN HEIGHTS NOVI COMMUNITY SCHOOL DISTRICT, OAK PARK SCHOOL DISTRICT,OX FORD AREA COMMUNITY SCHOOLS, REDFORD UNION SCHOOL DISTRICT NO. 1, RICHMOND COMMUNITY SCHOOLS, SCHOOL DISTRICT OF THE CUT OF RIVER ROUGE, RIVERVIEW COMMUNITY SCHOOL DISTRICT, ROSE VILLE PUBLIC SCHOOLS, SOUTH LAKE SCHOOLS, TAYLOR SCHOOL DIS T R IC T , WARREN CONSOLIDATED SCHOOLS, WARREN WOODS PUBLIC SC H O O LS, W A Y N E -W E ST L A N D COMMUNITY SCHOOLS, WOODHAVES SCHOOL DISTRICT, and WYANDOTTE PUBLIC SCHOOLS; GROSSE POINTI PUBLIC SCHOOLS: SOUTHFIELD PUBLIC SCHOOLS; and SCHOOL DISTRICT? OF THE CITY OF ROYAL OAK, Petitioners, GOINGS: BEVERLY LOVE, JIMMY LOVE and DARRELL LOVE, b y their Mother and Next Friend, CLARISSA LOVE: CAMILLE BURDEN, PIERRE BUR DEN, AVA BURDEN, MYRA BURDEN, MARC BURDEN and STEVEN BURDEN, by their Father and Next Friend, MARCUS BURDEN: KAREN W I L L I A M S aii KRISTY WILLIAMS, by their Father and Next Friend, C. WILLIAMS; RAY LIT! and MRS. WILBUR BLAKE, parents; all parents having children attending the put lie schools of the City of Detroit, Michigan, on their own behalf and on behalf of their minor children, all on behalf of any person similarly situated; and NATIONAl ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, DETROIT \ BRANCH; BOARD OF EDUCATION OF THE CITY OF DETROIT, a school dis trict of the first class; PATRICK McDONALD, JAMES HATHAWAY and CORNET IUS GOLIGHTLY, members of the Board of Education of the City of D etroit;am i NORMAN DRACHLER, Superintendent of the Detroit Public Schools; DETROIT: FEDERATION OF TEACHERS, LOCAL 231, AMERICAN F E D E R A T I O N Of TEACHERS, AFL-CIO; DENISE MAGDOWSKI and DAVID MAGDOWSKI,f their Mother and Next Friend, JOYCE MAGDOWSKI; DAVID VIETTI, by» Mother and Next Friend, VIOLET VIETTI, and the CITIZENS COMMITTEE FOR § BETTER EDUCATION OF THE DETROIT METROPOLITAN AREA, a Michigan r non-profit Corporation; KERRY GREEN and COLLEEN GREEN, by their Father and Next Friend, DONALD G. GREEN, JAMES, JACK and KATHLEEN ROSE MARY, by their Mother and Next Friend, EVELYN G. ROSEMARY, TER' DORAN, by her Mother and Next Friend, BEVERLY DORAN, SHERRILL KEITH, JEFFREY and GREGORY COULS, by their Mother and N e x t Friend, SHARON COULS, EDWARD and MICHAEL ROMESBURG, by their Father and Next Friend, EDWARD M. ROMESBURG, JR., TRACEY and GREGORY AK , LEDGE, by their Mother and Next Friend, AILEEN ARLEDGE, SHERYL" RUSSELL PAUL, by their Mother and Next Friend, MARY LOU PAUL, TRAY. QUIGLEY, by her Mother and Next Friend, JANICE QUIGLEY, IAN, STEPHAN . KARL and JAAKO SUNI, by their Mother and Next Friend, SHIRLEY SUNU TRI-COUNTY CITIZENS FOR INTERVENTION IN FEDERAL SCHOOL AcW NO. 3S257; MICHIGAN EDUCATION ASSOCIATION; and PROFESSIONALrt» SONNEL OF VAN DYKE, INDEX TO APPENDIX Complaint .......................................................................... 2a Ruling on Issue of Segregation, dated September 27, 1971 17a October 4, 1971, proceedings ........................................... 40a November 5, 1971, Order ............................................... 46a Ruling on Propriety of Considering a Metropolitan Remedy to Accomplish Desegregation of the Public Schools of the City of Detroit, March 24, 1972 ............ 48a Findings of Fact and Conclusions of Law on Detroit-Only Plans of Desegregation, March 28, 1972 ........................ 53a Findings of Fact and Conclusions of Law in Support of Ruling on Desegregation Area and Development of Plans, June 14, 1972 .........................r-.L..................... 59a Ruling on Desegregation Area and Order for Development of Plan of Desegregation, June 14, 1972 ...................... 97a Order for Acquisition of Transportation, July 11, 1972 . . 106a Order, United States Court of Appeals for the Sixth Circuit ............................................................................ 108a Opinion, June 12, 1973 ..................................................... 110a Notice of Judgment, June 12, 1973 ................................. 241a Excerpt from June 24, 1971 Proceedings ........................ 242a Judgment, June 12, 1973 ................................................. 244a la IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION R O N ALD B R A D L E Y and RICHARD ) BRAD LEY, by their Mother and Next ) Friend, VERDA BRADLEY; JEANNE GO- ) INGS, by her Mother and Next Friend, ) BLANCHE GOINGS; BEVERLY LOVE, ) JIMMY LOVE and DARRELL LOVE, by ) their Mother and Next Friend, CLARISSA ) L O V E ; C AM ILLE BURDEN, PIERRE ) BURDEN, AVA BURDEN, MYRA BUR- ) DEN, M AR C BURDEN and STEVEN ) BURDEN, by their Father and Next ) Friend, M ARCUS BURDEN; KAREN ) WILLIAMS AND KRISTY WILLIAMS, by ) their Father and Next Friend, C. WIL- ) LIAMS; RAY LITT and Mrs. WILBUR ) BLAKE, parents; all parents having chil- ) dren attending the public schools of the ) City of Detroit, Michigan, on their own be- ) half and on behalf of their minor children, ) all on behalf of any persons similarly situ- ) ated; and NATIONAL ASSOCIATION ) FOR THE ADVANCEMENT OF COLOR- ) ED PEOPLE, DETROIT BRANCH, ) Plaintiffs, ) CIVIL ACTION vs. ) NO. 35257 WILLIAM J. MILLIKEN, Governor of the ) State of Michigan and ex-officio member of ) Michigan State Board o f Education; ) FRANK J. KELLEY, Attorney General of ) the State of Michigan; MICHIGAN STATE ) BOARD OF EDUCATION, a constitutional ) body corporate; JOHN W. PORTER, Act- ) ing Superintendent of Public Instruction, ) Department of Education and ex-officio ) Chairman of Michigan State Board of Edu- ) cation; BOARD OF EDUCATION OF THE ) CITY OF DETROIT, a school district of ) 2a the first class; PATRICK McDONALD, ) JAMES HATHAWAY and CORNELIUS ) GO LIGHTLY, members of the Board of ) Education of the City of Detroit; and ) NORMAN DRACHLER, Superintendent of ) the Detroit Public Schools, ) Defendants. C O M P L A I N T I. The jurisdication of this Court is invoked under 28 U.S.C. Sections 1331(a), 1343(3) and (4), this being a suit in equity authorized by 42 U.S.C. Sections 1983, 1988 and 2000d, to re dress the deprivation under color of Michigan law, statute, custom and/or usage of rights, privileges and immunities guaranteed by the Thirteenth and Fourteenth Amendments to the Constitution of the United States. This action is also authorized by 42 U.S.C. Sec tion 1981 which provides that all persons within the jurisdiction of the United States shall have the same rights to the full and equal benefits of all laws and proceedings for the security of per sons and property as is enjoyed by white citizens. Jurisdiction is further invoked under 28 U.S.C. Sections 2201 and 2202, this be ing a suit for declaratory judgment declaring certain portions of Act No. 48 of the Michigan Public Acts of 1970 (a copy of which is attached hereto as Exhibit A) unconstitutional. This is also an action for injunctive relief against the enforcement of certain por tions of said Act No. 48 and to require the operation of the Detroit, Michigan public schools on a unitary basis. II. Plaintiffs, Ronald Bradley and Richard Bradley, by their Mother and Next Friend, Verda Bradley; Jeanne Goings, by her Mother and Next Friend, Blanche Goings; Beverly Love, Jimmy Love and Darrell Love, by their Mother and Next Friend, Clarissa Love; Camille Burden, Pierre Burden, Ava Burden, Myra Burden, Marc Burden and Steven Burden, by their Father and Next Friend, 3a Marcus Burden; Karen Williams and Kristy Williams, by their Father and Next Friend, C. Williams; Ray Litt and Mrs. Wilbur Blake, parents, are all parents or minor children thereof attending schools in the Detroit, Michigan public school system. All of the above-named plaintiffs are black except Ray Litt, who is white and who joins with them to bring this action each in their own behalf and on behalf of their minor children and all persons simi larly situated. Plaintiff, National Association for the Advancement of Colored People, Detroit Branch, is an unincorporated association with offices at 242 East Warren Avenue, Detroit, Michigan, which sues on behalf of its membership who are members of the plaintiff class. Plaintiff, N.A.A.C.P., has as one of its purposes the advance ment of equal educational opportunities through the provision of integrated student bodies, faculty and staff. III. Plaintiffs, pursuant to Rule 23 of the Federal Rules of Civil Procedure, bring this action on their own behalf and on behalf of all persons in the City of Detroit similarly situated. There are com mon questions of law and fact affecting the rights of plaintiffs and the rights of the members of the class. The members of the class are so numerous as to make it impracticable to bring them all be fore the Court. A common declaratory and injunctive relief is sought and plaintiffs adequately represent the interests of the members of the class. IV. The defendants are: 1. William J. Milliken, Governor of the State of Michigan and ex-officio member of the State Board of Education; 2. Frank J. Kelley, Attorney General of the State of Michigan, who is responsible for enforcing the public acts and laws of the State of Michigan; 4a 3. The Michigan State Board of Education, a constitutional body corporate, which is generally charged with the power and re sponsibility of administering the public school system in the State of Michigan, including the City of Detroit; 4. John W. Porter, Acting Superintendent of Public Instruc tion, Department of Education, in the State of Michigan, and ex- officio member of the State Board of Education; 5. The Board of Education of the City of Detroit, a school district of the first class, organized and existing in Wayne County, Michigan, under and pursuant to the laws of the State of Michigan and operating the public school system in the City of Detroit, Michigan; 6. Patrick McDonald, James Hathaway and Cornelius Golightly, all residents of Wayne County, Michigan, and elected members of the Board of Education of the City of Detroit; 7. The remaining board members of the Board of Education of the City of Detroit; 8. Norman Drachler, a resident of Wayne County, Michigan, and the appointed Superintendent of the Detroit Public Schools. V. Plaintiffs seek a declaratory judgment declaring the last sen tence of the first paragraph of Section 2a and the entirety of Sec tion 12 of Public Act No. 48 of the Michigan Public Acts of 1970 unconstitutional. The challenged portion of Section 2a reads as follows: Regions shall be as compact, contiguous and nearly equal as practicable. Section 12 reads as follows: The implementation of any attendance provisions for the 5a 1970-71 school year determined by any first class school dis trict board shall be delayed pending the date of commence ment of functions by the first class school district boards established under the provisions of this amendatory act but such provision shall not impair the right of any such board to determine and implement prior to such date such changes in attendance provisions as are mandated by practical necessity. In reviewing, confirming, establishing or modifying atten dance provisions the first class school district boards esta blished under the provisions of this amendatory act shall have a policy of open enrollment and shall enable students to attend a school of preference but providing priority accep tance, insofar as practicable, in cases of insufficient school capacity, to those students residing nearest the school and to those students desiring to attend the school for participation in vocationally oriented courses or other specialized curri culum. Plaintiffs also seek a temporary restraining order and pre liminary and permanent injunctions against the enforcement of said provisions of Act 48. VI. This is also a proceeding for a permanent injunction enjoining the defendant, Board of Education of the City of Detroit, its members and the Superintendent of Schools from continuing their policy, practice, custom and usage of operating the public school system in and for the City of Detroit, Michigan in a manner which has the purpose and effect of perpetuating a biracial segregated public school system, and for other relief, as hereinafter more fully appears. VII. On August 11, 1969, the Governor of the State of Michigan approved Act No. 244 of the Public Acts of 1969 (Mich. Stats. Ann. Section 15.2298), said Act being entitled, “ AN ACT to re quire first class school districts to be divided into regional districts and to provide for local district school boards and to define their 6a powers and duties and the powers and duties of the first class dis trict board.” (A copy of Act No. 244 is attached hereto as Exhibit B). Act No. 244 applies exclusively to the Board of Education of the School District of the City of Detroit, that being the only first class school district in the State of Michigan. The essence of Act No. 244 is that it provides the mandate and means for the admini strative decentralization of the Detroit school system and the ex tent thereof. On March 2, 1970, the Detroit School Board’s attorney ren dered an opinion (attached hereto as Exhibit C) advising the Board that in effectuating decentralization under Act No. 244 the law imposed three limitations: 1. The Act itself required each district to have not less than 25,000 nor more than 50,000 pupils; 2. The United States Constitution required each district to be in compliance with the “ one man, one vote” principle; 3. The United States Constitution, above all, required that the districts be established on a racially desegregated basis. VIII. In the 1969-70 school year, the Detroit Board of Education operated 21 high school constellations providing a public educa tion for 281,101 school children (excluding 12,758 students not listed in high school constellations and in adult programs). 61.9% of these students were Negro, 36.4% were white, and 1.7% were of other racial-ethnic minorities. Of the 21 high school constellations operated by the Detroit School Board in 1969-70, 14 were racially identifiable as “ white” or “Negro” constellations. The high school constellations contain within them 208 elementary schools, 53 junior high schools, and 21 senior high schools. Of the 208 ele mentary schools (enrolling 166,258 pupils), 114 (enrolling 92,225 Pupils) are identifiable as “Negro” schools and 71 (enrolling 46,448 pupils) are identifiable as “ white” schools. Of the 53 junior high schools (enrolling 63,476 pupils), 24 (enrolling 31,201 pupils) are identifiable as “ Negro” schools and 18 (enrolling 7a 21,507 pupils) are identifiable as “ white” schools. Of the 21 senior high schools (enrolling 54,394 pupils, 11 (enrolling 25,351 pupils) are identifiable as “ Negro” schools and 6 (enrolling 19,183 pupils) are identifiable as “ white” schools. IX. On April 7, 1970, the Detroit Board of Education adopted a limited plan of desegregation (Exhibit D, attached hereto) for the senior high school level, which plan was to take effect on a stair step basis over a period of four years so that by 1972, there would be substantially increased racial integration. This plan for high school desegregation comtemplated a change in high school boundary lines, thereby changing the junior high feeder patterns in twelve of Detroit’s 21 senior high schools. The plan was designed so that by the year 1972, only three (as compared to the present 17) of Detroit’s senior high schools would be racially identifiable as “ Negro” or “ white” high schools. The plan also provided that a student presently enrolled in a junior high school and who has a brother or sister presently enrolled in a senior high school would continue in senior high school at the school his brother or sister was presently attending. All those presently enrolled in senior high school would not, due to the stair-step feature of the plan, be affected and they would continue through graduation at the segre gated senior high school they were presently attending. The April 7 plan did not involve, nor did it affect, the existing racially segre gated pattern of pupil assignments in the elementary and junior high schools. X. On April 7, 1970, the Detroit Board of Education by afour- to-two vote (the seventh member, now deceased, expressing his approval by letter from his hospital bed) adopted a regional boundary plan (attached hereto as Exhibit D) for administrative decentralization consisting of seven regions. The seven regions as established by the Board on April 7, 1970 contained an average of 38,802 pupils per region with the smallest region containing 33,043 pupils and the largest region containing 46,592 pupils, ora range of deviation of 13,549 pupils with an average deviation of 8a 2,892 pupils per region. The racial complexion of the pupil enroll ment in the seven regions averaged 61.7% Negro with the lowest percent Negro region being 34.4% and the largest percent Negro region being 76.7%, or a range of deviation of 42.3% Negro with an average regional deviation of 10.5% Negro. XI. The actions of the Detroit School Board on April 7, 1970 approving a desegregation plan resulted in expressions of “community hostility” . A movement to recall the four members of the Detroit School Board who voted in favor of the April 7, 1970 action was initiated by white citizens. The recall movement was resolved by the Detroit voters (of which a majority are white) at the August 4, 1970 election, which resulted in the removal of the four board members who had voted in favor of the April 7, 1970 plan. The April 7th plan created a similar reaction in the Michigan State Legislature which culminated in the passage of Public Act 48, interposing the State and voiding the partial dese gregation plan, which Act was approved by the defendant, Governor Milliken, on July 7, 1970. XII. On July 28, 1970, the attorney for the Detroit Board of Education rendered an opinion (attached hereto as Exhibit E) that Act 48 has both the design and the effect of completely elimi nating the provisions of the April 7th plan adopted by the Board. Section 2a of the Act provides that “ [rjegions shall be as com pact, contiguous and nearly equal in population as practicable.” This provision was intended to and does eliminate the efforts of the Board on April 7, 1970 to create racially integrated regions. Section 12 of Act 48 eliminates all provisions of the Board’s April 7th plan aimed at desegregation of the Detroit public schools by, first, delaying the implementation of the attendance provisions until January 1, 1971 and, second, by mandating an open enroll ment (“ freedom of choice” ) policy qualified only by a provision providing students residing nearest a school with an attendance priority over those residing farther away. Section 12 has the fur ther effect of eliminating two policies of the Detroit Board of 9a Education: (1) prior to the adoption of Act 48, a student could transfer to a school other than the one to which he was initially assigned only if his transfer would have the effect of increasing desegregation in the Detroit school system; (2) prior to the adop tion of Act 48, whenever pupils had to be bused to relieve over crowding, they were transported to the first and nearest school where their entry would increase desegregation. XIII. Pursuant to the provisions of Section 2a of Act 48, the defen dant, Governor William G. Milliken, on July 22, 1970 appointed a three-member commission known hereafter as the Detroit Boun dary Line Commission to draw the boundary lines for the eight public school election regions mandated by Act 48. On August 4, 1970 the Detroit Boundary Line Commission adopted its plan and presented its boundary lines for the eight election regions as called for in Act 48. The Boundary Line Commission’s August 4th plan (a copy of which is attached hereto as Exhibit F) is a complete negation of the Board’s April 7th region plan. The August 4th plan creates eight regions with an average of 33,582 pupils in each region with a range of deviation of 19,942 (the largest region con tains 43,025 pupils while the smallest region contains 23,083) and an average deviation for each region of 22.9%. Under the plan adopted by the Detroit Boundary Line Commission on August 4, 1970, there will be new racially segregated school regions estab lished in the defendant school system. XIV. Section 12 of the Act was enacted with the express intent of preventing the desegregation of the defendant system. It applies to but one school district in the State and reestablishes a policy found by the United States Supreme Court to be an inadequate method for elimination of segregated school attendance patterns. It seeks to reverse a finding of the United States District Court for the Eastern District of Michigan in Sherrill School Parents Com mittee v. The Board o f Ed. o f the School District o f the City of Detroit, Michigan, No. 2 2 0 9 2 , E.D. Mich. Sept. 18, 1964, that the “ Open School” program does not appear to be achieving substan- 10a tial student integration in the Detroit School System presently or within the foreseeable future. XV. Plaintiffs allege that in the premises Public Act 48 on its face and as applied violates the Fourteenth Amendment to the Consti tution of the United States; the Act pertains solely to the Detroit Board of Education and thereby deliberately prohibits the Detroit Board of Education from making pupil assignments and estab lishing pupil attendance zones in a manner which all other school districts in the State of Michigan are free to do. Public Act 48 thereby creates an irrational, unreasonable and arbitrary classifi cation which contravenes the equal protection and due process clauses of the Fourteenth Amendment. The distinction made by Public Act 48 is further unconstitutional by the fact that it applies solely to the Detroit school district where the bulk of Negro school children in the State of Michigan are concentrated. XVE Public Act 48 further violates the Fourteenth Amendment to the United States Constitution in that the Act impedes the legally mandated integration o f the public schools; the effect of the Act is to perpetuate the segregation and racial isolation of the past and give it the stamp of legislative approval. The Act, building upon the preexisting public and private housing segregation, has the pur pose, intent and effect of intensifying the present segregation and racial isolation in the Detroit public schools. The Act further vio lates the Fourteenth Amendment in that it constitutes a reversal by the State of Michigan of action taken by the Detroit School Board which action was consistent with and mandated by the Con stitution of the United States. In addition, Public Act 48 infringes upon the Thirteenth Amendment in that its effect is to relegate egro school children in the City of Detroit to a position of inferiority and to assert the inferiority of Negroes generally, there- y creating and perpetuating badges and incidents of slavery; and, so’ ’n it denies to black persons in Detroit the same rights to e full and equal benefit of all laws and proceedings as white citizens enjoy. 11a xvn. The defendants, Board of Education of the City of Detroit and Michigan State Board of Education, are charged under Michigan law and the Constitution and laws of the United States with the responsibility of operating a unitary public school system in the City of Detroit, Michigan. xvm. Plaintiffs allege that they are being denied equal educational opportunities by the defendants because of the segregated pattern of pupil assignments and the racial identifiability of the schools in the Detroit public school system. Plaintiffs further allege that said denials of equal educational opportunities contravene and abridge their rights as secured by the Thirteenth and Fourteenth Amend ments to the Constitution of the United States. XIX. The plaintiffs allege that the defendants herein, acting under color of the laws of the State of Michigan, have pursued and are presently pursuing a policy, custom, practice and usage of oper ating, managing and controlling the said public school system in a manner that has the purpose and effect of perpetuating a segre gated public school system. This segregated public school system is based predominantly upon the race and color of the students attending said school system; attendance at the various schools is based upon race and color; and the assignment of personnel has in the past and remains to an extent based upon the race and color of the children attending the particular school and the race and color of the personnel to be assigned. XX. The plaintiffs allege that the racially discriminatory policy, custom, practice and usage described in paragraph XIX has in cluded assigning students, designing attendance zones for elemen tary junior and senior high schools, establishing feeder patterns to secondary schools, planning future public educational facilities. 12a constructing new schools, and utilizing or building upon the existing racially discriminatory patterns in both public and private housing on the basis of the race and color of the children who are eligible to attend said schools. The said discriminatory policy, cus tom, practice, and usage has resulted in a public school system composed of schools which are either attended solely or pre dominantly by black students or attended solely or predominantly by white students. XXI. The plaintiffs allege that the racially discriminatory policy, custom, practice and usage described in paragraph XIX has also included assigning faculty and staff members employed by defen dants to the various schools in the Detroit school system on the basis of the race and color of the personnel to be assigned. Conse quently, a general practice has developed whereby white faculty and staff members have been assigned on the basis of their race and color to schools attended solely or predominantly by white students and Negro faculty and staff members have been assigned on the basis of their race and color to schools attended solely or predominantly by black students. xxn. The defendants have failed and refused to take all necessary steps to correct the effects of their policy, practice, custom and usage of racial discrimination in the operation of said school system and to insure that such policy, custom, practice and usage for the 1970-71 school year, and thereafter, will conform to the requirements of the Thirteenth and Fourteenth Amendments. xxni. Plaintiffs and those similarly situated and affected on whose behalf this action is brought are suffering irreparable injury and will continue to suffer irreparable injury by reason of the pro visions of the Act complained of herein and by reason of the failure or refusal of defendants to operate a unitary school system ln *-be City of Detroit. Plaintiffs have no plain, adequate or com- 13a plete remedy to redress the wrongs complained of herein other than this action for declaratory judgment and injunctive relief. Any other remedy to which plaintiffs could be remitted would be attended by such uncertainties and delays as to deny substantial relief, would involve a multiplicity of suits and would cause fur ther irreparable injury. The aid of this Court is necessary in assuring the citizens of Detroit and particularly the black public school children of the City of Detroit that this is truly a nation of laws, not of men, and that the promises made by the Thirteenth and Fourteenth Amendments are and will be kept. WHEREFORE, plaintiffs respectfully pray that upon the filing of this complaint the Court: 1. Issue, pendente lite, a temporary restraining order and a preliminary injunction: a. Requiring defendants, their agents and other persons acting in concert with them to put into effect the partial plan of senior high school desegregation adopted by the defendant, Detroit Board of Education, on April 7, 1970, which plan called for its implementation at the start of the 1970-71 school term, provided, however: (1) that the plan shall not be effected on a stair-step basis, but shall, in accord with Alexander v. Holmes County Board, 396 U.S. 19 (1969), be come completely and fully effective at the beginning of the coming (1970-71) school year; and (2) that those provisions which exclude a pupil who has a brother or sister presently enrolled in a senior high school from being affected by the plan shall be deleted in accord with Ross v. Dyer, 312 F.2d 191 (5th Cir. 1963); b. Restraining defendants, their agents and other per sons acting in concert with them from giving any force or effect to Sec. 12 of Act No. 48 of the Michigan Public Acts of 1970 insofar as its application would impair or delay the dese gregation of the defendant system; c. Restraining defendants from taking any steps to implement the August 4, 1970 plan, or any other plan, f°r 14a new district or regional boundaries pursuant to Act 48, or from taking any action which would prevent or impair the implementation o f the regions established under the defendant Board’s earlier plan which provided for non-racially identifiable regions; d. Restraining defendants from all further school con struction until such time as a constitutional plan for operation of the Detroit public schools has been approved and new construction reevaluated as a part thereof; e. Requiring defendants to assign by the beginning of the 1970-71 school year principals, faculty, and other school personnel to each school in the system in accordance with the ratio of white and black principals, faculty and other school personnel throughout the system. 2. Advance this cause on the docket and order a speedy hearing of this action according to law and upon such hearing: a. Enter a judgment declaring the provisions of Act No. 48 complained of herein unconstitutional on their face and as applied as violative of the Thirteenth and Fourteenth Amend ments to the United States Constitution; b. Enter preliminary and permanent decrees perpetu ating the orders previously entered; c. Enter a decree enjoining defendants, their agents, employees and successors from continuing to employ policies, customs, practices and usages which, as described herein above, have the purpose and effect of leaving intact racially identifiable schools; d. Enter a decree enjoining defendants, their agents, employees and successors from assigning students and/or operating the Detroit school system in a manner which re sults in students attending racially identifiable public schools; e. Enter a decree requiring defendants, their agents, 15a employees and successors to assign teachers, principals and other school personnel to schools to eliminate the racial identity of schools by assigning such personnel to each school in accordance with the ratio of white and black personnel throughout the system. f. Enter a decree enjoining defendants, their agents, employees and successors from approving budgets, making available funds, approving employment and construction con tracts, locating schools or school additions geographically, and approving policies, curriculum and programs, which are de signed to or have the effect of maintaining, perpetuating or supporting racial segregation in the Detroit school system. g. Enter a decree directing defendants to present a com plete plan to be effective for the 1970-71 school year for the elimination of the racial identity of every school in the system and to maintain now and hereafter a unitary, nonracial school system. Such a plan should include the utilization of all methods of integration of schools including rezoning, pairing, grouping, school consolidation, use of satellite zones, and transportation. h. Plaintiffs pray that the Court enjoin all further con struction until such time as a constitutional plan has been approved and new construction reevaluated as a part thereof. i. Plaintiffs pray that this Court will award reasonable counsel fees to their attorneys for services rendered and to be rendered them in this cause and allow them all out-of-pocket expenses of this action and such other and additional relief as may appear to the Court to be equitable and just. Respectfully submitted, Nathaniel Jones, General Counsel N.A.A.C.P. 1790 Broadway New York, New York 16a Louis R. Lucas Ratner, Sugarmon & Lucas 525 Commerce Title Building Memphis, Tennessee Bruce Miller and Lucille Watts, Attorneys for Legal Redress Committee N.A.A.C.P., Detroit Branch 3426 Cadillac Towers Detroit, Michigan, and Attorneys for Plaintiffs ' 17a UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION RONALD BRADLEY, et al., Plaintiffs v. WILLIAM G. MILLIKEN, et al., Defendants DETROIT FEDERATION OF TEACH ERS, LO CAL N O . 231, AMERICAN FEDERATION OF TEACHERS, AFL-CIO, Defendant-Intervenor and DENISE MAGDOWSKI, et al., Defendants-Intervenor ) ) ) ) ) ) CIVIL ACTION ) NO: 35257 ) ) ) ) ) RULING ON ISSUE OF SEGREGATION This action was commenced August 18, 1970, by plaintiffs, the Detroit Branch of the National Association for the Advance ment of Colored People* and individual parents and students, on behalf of a class later defined by order of the Court dated February 16, 1971, to include “ all school children of the City of Detroit and all Detroit resident parents who have children of school age,” Defendants are the Board of Education of the City of Detroit, its members and its former superintendent of schools, Dr. Norman A. Drachler, the Governor, Attorney General, State Board of Educa tion and State Superintendent of Public Instruction of the State of Michigan. In their complaint, plaintiffs attacked a statute of the State of Michigan known as Act 48 of the 1970 Legislature on the ground that it put the State of Michigan in the position of uncon stitutionally interfering with the execution and operation of a voluntary plan of partial high school desegregation (known as the April 7, 1970 Plan) which had been adopted by the Detroit Board of Education to be effective beginning with the fall 1970 semester. * The standing o f the NAACP as a proper party plaintiff was not contested by the original defendants and the Court expresses no opinion on the matter. 18a Plaintiffs also alleged that the Detroit Public School System was and is segregated on the basis of race as a result of the official policies and actions of the defendants and their predecessors in office. Additional parties have intervened in the litigation since it was commenced. The Detroit Federation of Teachers (DFT) which re presents a majority of Detroit Public school teachers in collective bargaining negotiations with the defendant Board of Education, has intervened as a defendant, and a group of parents has inter vened as defendants. Initially the matter was tried on plaintiffs’ motion for pre liminary injunction to restrain the enforcement of Act 48 so as to permit the April 7 Plan to be implemented. On that issue, this Court ruled that plaintiffs were not entitled to a preliminary in junction since there had been no proof that Detroit has a segre gated school system. The Court of Appeals found that the “imple mentation of the April 7 Plan was thwarted by State action in the form of the Act of the Legislature of Michigan,” (433 F.2d 897, 902), and that such action could not be interposed to delay, obstruct or nullify steps lawfully taken for the purpose of protect ing rights guaranteed by the Fourteenth Amendment. The plaintiffs then sought to have this Court direct the de fendant Detroit Board to implement the April 7 Plan by the start of the second semester (February, 1971) in order to remedy the deprivation of constitutional rights wrought by the unconstitu tional statute. In response to an order of the Court, defendant Board suggested two other plans, along with the April 7 Plan, and noted priorities, with top priority assigned to the so-called “ Magnet Plan.” The Court acceded to the wishes of the Board and approved the Magnet Plan. Again, plaintiffs appealed but the appellate court refused to pass on the merits of the plan. Instead, the case was remanded with instructions to proceed immediately to a trial on the merits of plaintiffs’ substantive allegations about the Detroit School System. 438 F. 2d 945 (6th Cir. 1971). Trial, limited to the issue of segregation, began April 6, 1971 and concluded on July 22, 1971, consuming 41 trial days, inter- 19a spersed by several brief recesses necessitated by other demands upon the time of Court and counsel. Plaintiffs introduced sub stantial evidence in support of their contentions, including expert and factual testimony, demonstrative exhibits and school board documents. At the close of plaintiffs’ case, in chief, the Court ruled that they had presented a prima facie case of state imposed segregation in the Detroit Public Schools; accordingly, the Court enjoined (with certain exceptions) all further school construction in Detroit pending the outcome of the litigation. The State defendants urged motions to dismiss as to them. These were denied by the Court. At the close of proofs intervening parent defendants (Denise Magdowski, et al.) filed a motion to join, as parties 85 contiguous “ suburban” school districts — all within the so-called Larger Detroit Metropolitan area. This motion was taken under advise ment pending the determination of the issue of segregation. It should be noted that, in accordance with earlier rulings of the Court, proofs submitted at previous hearings in the cause, were to be and are considered as part of the proofs of the hearing on the merits. In considering the present racial complexion of the City of Detroit and its public school system we must first look to the past and view in perspective what has happened in the last half century. In 1920 Detroit was a predominantly white city — 91% - and its population younger than in more recent times. By the year 1960 the largest segment of the city’s white population was in the age range of 35 to 50 years, while its black population was younger and of childbearing age. The population of 0-15 years of age con stituted 30% of the total population of which 60% were white and 40% were black. In 1970 the white population was principally aging—45 years—while the black population was younger and of childbearing age. Childbearing blacks equaled or exceeded the total white population. As older white families without children of school age leave the city they are replaced by younger black families with school age children, resulting in a doubling of enroll ment in the local neighborhood school and a complete change in 20a student population from white to black. As black inner city re sidents move out of the core city they “ leap-frog” the residential areas nearest their former homes and move to areas recently occupied by whites. The population of the City of Detroit reached its highest point in 1950 and has been declining by approximately 169,500 per decade since then. In 1950, the city population constituted 61% of the total population of the standard metropolitan area and in 1970 it was but 36% of the metropolitan area population. The suburban population has increased by 1,978,000 since 1940. There has been a steady out-migration of the Detroit population since 1940. Detroit today is principally a conglomerate of poor black and white plus the aged. Of the aged, 80% are white. If the population trends evidenced in the federal decennial census for the years 1940 through 1970 continue, the total black population in the City of Detroit in 1980 will be approximately 840,000, or 53.6% of the total. The total population of the city in 1970 is 1,511,000 and, if past trends continue, will be 1,338,000 in 1980. In school year 1960-61, there were 285,512 students in the Detroit Public Schools of which 130,765 were black. In school year 1966-67, there were 297,035 students, of which 168,299 were black. In school year 1970-71 there were 289,743 students of which 184,194 were black. 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. In 1960, the non-white population, ages 0 years to 19 years, was as follows: 0 - 4 years 42% 5 - 9 years 36% 10 - 14 years 28% 15 - 19 years 18% In 1970 the non-white population, ages 0 years to 19 years, was as follows: 21a 0 - 4 years 48% 5 - 9 years 50% 10 - 14 years 50% 15 - 19 years 40% The black population as a percentage of the total population in the City of Detroit was: (a) 1900 1.4% (b) 1910 1.2% (c) 1920 4.1% (d) 1930 7.7% (e) 1940 9.2% (f) 1950 16.2% (g) 1960 28.9% (h) 1970 43.9% The black population as a percentage of total student population of the Detroit Public Schools was as follows: (a) 1961 45.8% (b) 1963 51.3% (c) 1964 53.0% (d) 1965 54.8% (e) 1966 56.7% (f) 1967 58.2% (g) 1968 59.4% (h) 1969 61.5% (i) 1970 63.8% For the years indicated the housing characteristics in the City of Detroit were as follows: (a) 1960 total supply of housing units was 553,000 (b) 1970 total supply of housing units was 530,770 22a The percentage decline in the white students in the Detroit Public Schools during the period 1961-1970 (53.6% in 1960; 34.8% in 1970) has been greater than the percentage decline in the white population in the City of Detroit during the same period (70.8% in 1960; 55.21% in 1970), and correlatively, the percent age increase in black students in the Detroit Public Schools during the nine-year period 1961-1970 (45.8% in 1961; 63.8% in 1970) has been greater than the percentage increase in the black popula tion of the City of Detroit during the ten-year period 1960-1970 (28.9% in 1960; 43.9% in 1970). In 1961 there were eight schools in the system without white pupils and 73 schools with no Negro pupils. In 1970 there were 30 schools with no white pupils and 11 schools with no Negro pupils, an increase in the number of schools without white pupils of 22 and a decrease in the number of schools without Negro pupils of 62 in this ten-year period. Between 1968 and 1970 Detroit experienced the largest increase in percentage of black students in the student population of any major northern school district. The percentage increase in Detroit was 4.7% as contrasted with — New York 2.0% Los Angeles 1.5% Chicago 1.9% Philadelphia 1.7% Cleveland 1.7% Milwaukee 2.6% St. Louis 2.6% Columbus 1.4% Indianapolis 2.6% Denver 1.1% Boston 3.2% San Francisco 1.5% Seattle 2.4% In 1960, there were 266 schools in the Detroit School System. In 1970, there were 319 schools in the Detroit School System. In the Western, Northwestern, Northern, Murray, North- eastern, Kettering, King and Southeastern high school service 23a areas, the following conditions exist at a level significantly higher than the city average: (a) Poverty in children (b) Family income below poverty level (c) Rate of homicides per population (d) Number of households headed by females (e) Infant mortality rate (f) Surviving infants with neurological defects (g) Tuberculosis cases per 1,000 population (h) High pupil turnover in schools The City of Detroit is a community generally divided by racial lines. Residential segregation within the city and throughout the larger metropolitan area is substantial, pervasive and of long stand ing. Black citizens are located in separate and distinct areas within the city and are not generally to be found in the suburbs. While the racially unrestricted choice of black persons and economic factors may have played some part in the development of this pattern of residential segregation, it is, in the main, the result of past and present practices and customs of racial discrimination, both public and private, which have and do restrict the housing opportunities of black people. On the record there can be no other finding. Governmental actions and inaction at all levels, federal, state and local, have combined, with those of private organizations, such as loaning institutions and real estate associations and broker age firms, to establish and to maintain the pattern of residential segregation throughout the Detroit metropolitan area. It is no answer to say that restricted practices grew gradually (as the black population in the area increased between 1920 and 1970), or that since 1948 racial restrictions on the ownership of real property have been removed. The policies pursued by both government and private persons and agencies have a continuing and present effect upon the complexion of the community — as we know, the choice of a residence is a relatively infrequent affair. For many years FHA and VA openly advised and advocated the maintenance of “ harmonious” neighborhoods, i.e., racially and economically 24a harmonious. The conditions created continue. While it would be unfair to charge the present defendants with what other gov ernmental officers or agencies have done, it can be said that the actions or the failure to act by the responsible school authorities, both city and state, were linked to that of these other govern mental units. When we speak of governmental action we should not view the different agencies as a collection of unrelated units. Perhaps the most that can be said is that all of them, including the school authorities, are, in part, responsible for the segregated con dition which exists. And we note that just as there is an inter action between residential patterns and the racial composition of the schools, so there is a corresponding effect on the residential pattern by the racial composition of the schools. Turning now to the specific and pertinent (for our purposes) history of the Detroit school system so far as it involves both the local school authorities and the state school authorities, we find the following: During the decade beginning in 1950 the Board created and maintained optional attendance zones in neighborhoods under going racial transition and between high school attendance areas of opposite predominant racial compositions. In 1959 there were eight basic optional attendance areas affecting 21 schools. Optional attendance areas provided pupils living within certain elementary areas a choice of attendance at one of two high schools. In addition there was at least one optional area either created or existing in 1960 between two junior high schools of opposite predominant racial components. All of the high school optional areas, except two, were in neighborhoods undergoing racial transition (from white to black) during the 1950s. The two exceptions were: (1) the option between Southwestern (61.6% Wack in 1960) and Western (15.3% black); (2) the option between Denby (0% black) and Southeastern (30.9% black). With the exception of the Denby - Southeastern option Gust noted) all of the options were between high schools of opposite predominant racial compositions. The Southwestern-Western and Denby-Southeastern optional areas are all white on the 1950, I960 and 1970 census maps. Both Southwestern and South eastern, however, had substantial white pupil populations, and the 25a option allowed whites to escape integration. The natural, probable, foreseeable and actual effect of these optional zones was to allow white youngsters to escape identifiably “ black” schools. There had also been an optional zone (eliminated between 1956 and 1959) created in “ an attempt. . . to separate Jews and Gentiles within the system,” the effect of which was that Jewish youngsters went to Mumford High School and Gentile youngsters went to Cooley. Although many of these optional areas had served their purpose by 1960 due to the fact that most of the areas had become predominantly black, one optional area (South- western-Western affecting Wilson Junior High graduates) con tinued until the present school year (and will continue to effect 11th and 12th grade white youngsters who elected to escape from predominantly black Southwestern to predominantly white Western High School). Mr. Henrickson, the Board’s general fact witness, who was employed in 1959 to, inter alia, eliminate optional areas, noted in 1967 that: “ In operation Western appears to be still the school to which white students escape from pre dominantly Negro surrounding schools.” The effect of eliminating this optional area (which affected only 10th graders for the 1970-71 school year) was to decrease Southwestern from 86.7% black in 1969 to 74.3% black in 1970. The Board, in the operation of its transportation to relieve overcrowding policy, has admittedly bused black pupils past or away from closer white schools with available space to black schools. This practice has continued in several instances in recent years despite the Board’s avowed policy, adopted in 1967, to utilize transportation to increase integration. With one exception (necessitated by the burning of a white school), defendant Board has never bused white children to pre dominantly black schools. The Board has not bused white pupis to black schools despite the enormous amount of space availab e in inner-city schools. There were 22,961 vacant seats inschoos 90% or more black. The Board has created and altered attendance zones, maintained and altered grade structures and created and altere feeder school patterns in a manner which has had the natura, 26a probable and actual effect of continuing black and white pupils in racially segregated schools. The Board admits at least one instance where it purposefully and intentionally built and maintained a school and its attendance zone to contain black students. Throughout the last decade (and presently) school attendance zones of opposite racial compositions have been separated by north-south boundary lines, despite the Board’s awareness (since at least 1962) that drawing boundary lines in an east-west direc tion would result in significant integration. The natural and actual effect of these acts and failures to act has been the creation and perpetuation of school segregation. There has never been a feeder pattern or zoning change which placed a predominantly white residential area into a predominantly black school zone or feeder pattern. Every school which was 90% or more black in 1960, and which is still in use today, remains 90% or more black. Whereas 65.8% of Detroit’s black students attended 90% or more black schools in 1960, 74.9% of the black students attended 90% or more black schools during the 1970-71 school year. The public schools operated by defendant Board are thus segregated on a racial basis. This racial segregation is in part the result of the discriminatory acts and omissions of defendant Board. In 1966 the defendant State Board of Education and Michigan Civil Rights Commission issued a Joint Policy Statement on Equality of Educational Opportunity, requiring that Local school boards must consider the factor of racial balance along with other educational considerations in making decisions about selection of new school sites, expansion of present facilities . . . . Each of these situations presents an opportunity for integration.” Defendant State Board’s “School Plant Planning Handbook” requires that Care in site location must be taken if a serious transportation problem exists or if housing patterns in an area would result ln a school largely segregated on racial, ethnic, or socio- 27a economic lines.” The defendant City Board has paid little heed to these statements and guidelines. The State defendants have similarly failed to take any action to effectuate these policies. Exhibit NN reflects con struction (new or additional) at 14 schools which opened for use in 1970-71; of these 14 schools, 11 opened over 90% black and one opened less than 10% black. School construction costing $9,222,000 is opening at Northwestern High School which is 99.9% black, and new construction opens at Brooks Junior High, which is 1.5% black, at a cost of $2,500,000. The construction at Brooks Junior High plays a dual segregatory role: not only is the construction segregated, it will result in a feeder pattern change which will remove the last majority white school from the already almost all-black Mackenzie High School attendance area. Since 1959 the Board has constructed at least 13 small pri mary schools with capacities of from 300 to 400 pupils. This practice negates opportunities to integrate, “ contains” the black population and perpetuates and compounds school segregation. The State and its agencies, in addition to their general re sponsibility for and supervision of public education, have acted directly to control and maintain the pattern of segregation in the Detroit schools. The State refused, until this session of the legisla ture, 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 limita tions, such as those on bonding and the working of the state aid formula whereby suburban districts were able to make far larger per pupil expenditures despite less tax effort, have created and perpetuated systematic educational inequalities. The State, exercising what Michigan courts have held to be is “ plenary power” which includes power “ to use a statutory scheme, to create, alter, reorganize or even dissolve a sch oo l district, despite any desire of the school district, its board, or the inhabitants thereof,” acted to reorganize the school district of the 28a City of Detroit. The State acted through Act 48 to impede, delay and minimize racial integration in Detroit schools. The first sentence of Sec. 12 of the Act was directly related to the April 7, 1970 desegregation plan. The remainder of the section sought to pre scribe for each school in the eight districts criterion of “ free choice” (open enrollment) and “neighborhood schools” (“ nearest school priority acceptance” ), which had as their purpose and effect the maintenance of segregation. In view of our findings of fact already noted we think it unnecessary to parse in detail the activities of the local board and the state authorities in the area of school construction and the furnishing of school facilities. It is our conclusion that these activities were in keeping, generally, with the discriminatory practices which advanced or perpetuated racial segregation in these schools. It would be unfair for us not to recognize the many fine steps the Board has taken to advance the cause of quality education for all in terms of racial integration and human relations. The most obvious of these is in the field of faculty integration. Plaintiffs urge the Court to consider alledgedly discriminatory practices of the Board with respect to the hiring, assignment and transfer of teachers and school administrators during a period reaching back more than 15 years. The short answer to that must be that black teachers and school administrative personnel were not readily available in that period. The 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 concept” — which seeks to balance faculties in each school with respect to race, sex and experience, with primary emphasis on race. More particularly, we find: 1. With the exception of affirmative policies designed to achieve racial balance in instructional staff, no teacher in the Detroit Public Schools is hired, promoted or assigned to any school by reason of his race. 29a 2. In 1956, the Detroit Board of Education adopted the rules and regulations of the Fair Employment Practices Act as its hiring and promotion policy and has adhered to this policy to date. 3. The Board has actively and affirmatively sought out and hired minority employees, particularly teachers and administra tors, during the past decade. 4. Between 1960 and 1970, the Detroit Board of Education has increased black representation among its teachers from 23.3% to 42.1%, and among its administrators from 4.5% to 37.8%. 5. Detroit has a higher proportion of black administrators than any other city in the country. 6. Detroit ranked second to Cleveland in 1968 among the 20 largest northern city school districts in the percentage of blacks among the teaching faculty and in 1970 surpassed Cleveland by several percentage points. 7. The Detroit Board of Education currently employs black teachers in a greater percentage than the percentage of adult black persons in the City of Detroit. 8. Since 1967, more blacks than whites have been placed in high administrative posts with the Detroit Board of Education. 9. The allegation that the Board assigns black teachers to black schools is not supported by the record. 10. Teacher transfers are not granted in the Detroit Public Schools unless they conform with the balanced staff concept. 11 11. Between 1960 and 1970, the Detroit Board of Education reduced the percentage of schools without black faculty from 36.3% to 1.2%, and of the four schools currently without black faculty, three are specialized trade schools where minority faculty cannot easily be secured. 30a 12. In 1968, of the 20 largest northern city school districts, Detroit ranked fourth in the percentage of schools having one or more black teachers and third in the percentage of schools having three or more black teachers. 13. In 1970, the Board held open 240 positions in schools with less than 25% black, rejecting white applicants for these positions until qualified black applicants could be found and assigned. 14. In recent years, the Board has come underpressure from large segments of the black community to assign male black ad ministrators to predominantly black schools to serve as male role models for students, but such assignments have been made only where consistent with the balanced staff concept. 15. The numbers and percentages of black teachers in Detroit increased from 2,275 and 21.6%, respectively, in February, 1961, to 5,106 and 41.6%, respectively, in October, 1970. 16. The number of schools by percent black of staffs changed from October, 1963 to October, 1970 as follows: Number of schools without black teachers — decreased from 41, to 4. Number of schools with more than 0%, but less than 10% black teachers — decreased from 58, to 8. Total number of schools with less than 10% black teachers — decreased from 99, to 12. Number of schools with 50% or more black teachers — increased from 72, to 124. 17. The number of schools by percent black of staffs changed horn October, 1969 to October, 1970, as follows: Number of schools without black teachers — decreased from 6, to 4. 31a Number of schools with more than 0%, but less than 10% black teachers — decreased from 41, to 8. Total number of schools with less than 10% black teachers - decreased from 47, to 12. Number of schools with 50% or more black teachers - increased from 120, to 124. 18. The total number of transfers necessary to achieve a faculty racial quota in each school corresponding to the system- wide ratio, and ignoring all other elements is, as of 1970, 1,826. 19. If account is taken of other elements necessary to assure quality integrated education, including qualifications to teach the subject area and grade level, balance of experience, and balance of sex, and further account is taken of the uneven distribution of black teachers by subject taught and sex, the total number of transfers which would be necessary to achieve a faculty racial quota in each school corresponding to the system-wide ratio, if attainable at all, would be infinitely greater. 20. Balancing of staff by qualifications for subject and grade level, then by race, experience and sex, is educationally desirable and important. 21. It is important for students to have a successful role model, especially black students in certain schools, and at certain grade levels. 22. A quota of racial balance for faculty in each school which is equivalent to the system-wide ratio and without more is educa tionally undesirable and arbitrary. 23. A severe teacher shortage in the 1950s and 1960s impeded integration-of-faculty opportunities. 24. Disadvantageous teaching conditions in Detroit in the 1960s—salaries, pupil mobility and transiency, class size, bunding conditions, distance from teacher residence, shortage of teacie 32a substitutes, etc.-made teacher recruitment and placement dif ficult. 25. The Board did not segregate faculty by race, but rather attempted to fill vacancies with certified and qualified teachers who would take offered assignments. 26. Teacher seniority in the Detroit system, although measured by system-wide service, has been applied consistently to protect against involuntary transfers and “bumping” in given schools. 27. Involuntary transfers of teachers have occurred only because of unsatisfactory ratings or because of decrease of teacher services in a school, and then only in accordance with balanced staff concept. 28. There is no evidence in the record that Detroit teacher seniority rights had other than equitable purpose or effect. 29. Substantial racial integration of staff can be achieved, without disruption of seniority and stable teaching relationships, by application of the balanced staff concept to naturally occurring vacancies and increases and reductions of teacher services. 30. The Detroit Board of Education has entered into suc cessive collective bargaining contracts with the Detroit Federation of Teachers, which contracts have included provisions promoting integration of staff and students. The Detroit School Board has, in many other instances and in many other respects, undertaken to lessen the impact of the forces of segregation and attempted to advance the cause of integration. Perhaps the most obvious one was the adoption of the April 7 Plan. Among other things, it has denied the use of its facilities to groups which practice racial discrimination; it does not permit the use of its facilities for discriminatory apprentice training programs; has opposed state legislation which would have the effect of segregating the district; it has worked to place black students in craft positions in industry and the building trades; it has brought 33a about a substantial increase in the percentage of black students in manufacturing and construction trade apprenticeship classes; it became the first public agency in Michigan to adopt and implement a policy requiring affirmative act of contractors with which it deals to insure equal employment opportunities in their work forces; it has been a leader in pioneering the use of multi -ethnic instructional material, and in so doing has had an impact on publishers specializing in producing school texts and intructional materials; and it has taken other noteworthy pioneering steps to advance relations between the white and black races. In conclusion, however, we find that both the State of Michi gan and the Detroit Board of Education have committed acts which have been causal factors in the segregated condition of the public schools of the City of Detroit. As we assay the principles essential to a finding of de jure segregation, as outlined in rulings of the United States Supreme Court, they are: 1. The State, through its officers and agencies, and usually, the school administration, must have taken some action or actions with a purpose of segregation. 2. This action or these actions must have created or aggravated segregation in the schools in question. 3. A current condition of segregation exists. We find these tests to have been met in this case. We recognize that causation in the case before us is both several and comparative. The principal causes undeniably have been population movement and housing patterns, but state and local governmental actions, including school board actions, have played a substantial role in promoting segregation. It is, the Court believes, unfortunate that we cannot deal with public school segregation on a no-fault basis, for if racial segregation in our public schools is an evil, then it should make no difference whether we classify it de jure or de facto. Our objective, logically, it seems to us, should be to remedy a condition which we believe needs correction. In the most realistic sense, if fault or blame must be found it is that of the community as a whole, including, of 34a course, the black components. We need not minimize the effect of the actions of federal, state and local governmental officers and agencies, and the actions of loaning institutions and real estate firms, in the establishment and maintenance of segregated residential patterns - which lead to school segregation - to observe that blacks, like ethnic groups in the past, have tended to separate from the larger group and associate together. The ghetto is at once both a place of confinement and a refuge. There is enough blame for everyone to share. CONCLUSIONS OF LAW 1. This Court has jurisdiction of the parties and the subject matter of this action under 28 U.S.C. 1331 (a), 1343 (3) and (4), 2201 and 2202; 42 U.S.C. 1983, 1988, and 2000d. 2. In considering the evidence and in applying legal stand ards it is not necessary that the Court find that the policies and practices, which it has found to be discriminatory, have as their motivating forces any evil intent or motive. Keyes v. Sch. Dist. No. 1, Denver, 383 F. Supp. 279. Motive, ill will and bad faith have long ago been rejected as a requirement to invoke the protection of the Fourteenth Amendment against racial discrimination. Sims v. Georgia, 389 U.S. 404, 407-8. 3. School districts are accountable for the natural, probable and foreseeable consequences of their policies and practices, and where racially identifiable schools are the result of such policies, the school authorities bear the burden of showing that such policies are based on educationally required, non-racial con siderations. Keyes v. Sch. Dist., supra, and Davis v. Sch. Dist. of Pontiac, 309 F. Supp. 734, and 443 F.2d 573. 4. In determining whether a constitutional violation has occurred, proof that a pattern of racially segregated schools has existed for a considerable period of time amounts to a showing of racial classification by the state and its agencies, which must be justified by clear and convincing evidence. State o f Alabama v. Us-> 304 F.2d 583. 35a 5. The Board’s practice of shaping school attendance zones on a north-south rather than an east-west orientation, with the result that zone boundaries conformed to racial residential dividing lines, violated the Fourteenth Amendment. Northcrossv. Bd. o f Ed., Memphis, 333 F. 2d 661. 6. Pupil racial segregation in the Detroit Public School System and the re s id e n t ia l racial segregation resulting primarily from public and private racial discrimination are interde pendent phenomena. The affirmative obligation of the defendant Board has been and is to adopt and implement pupil assignment practices and policies that compensate for and avoid incorporation into the school system the effects of residential racial segregation. The Board’s building upon housing segregation violates the Fourte enth Amendment. See, Davis v. Sch. Dist. o f Pontiac, supra, and authorities there noted. 7. The Board’s policy of selective optional attendance zones, to the extent that it facilitated the separation of pupils on the basis of race, was in violation of the Fourteenth Amendment. Hobson v. Hansen, 269 F. Supp. 401, aff’d sub nom., Smuckv. Hobson, 408 F.2d 175. 8. The practice of the Board of transporting black students from overcrowded black schools to other identifiably black schools, while passing closer identifiably white schools, which could have accepted these pupils, amounted to an act of segre gation by the school authorities. Spangler v. Pasadena City Bd. of Ed., 311 F. Supp. 501. 9. The manner in which the Board formulated and modilied attendance ones for elementary schools had the natural and pre dictable effect of perpetuating racial segregation of students. Such conduct is an act of de jure discrimination in violation of the Fourteenth Amendment. U.S. v. School District 151, 286 F. Supp- 786; Brewer v. City o f Norfolk, 397 F. 2d 37. 10. A school board may not, consistent with the Fourteenth Amendment maintain segregated elementary schools or permit educational choices to be influenced by community sentiment or 36a the wishes of a majority of voters. Cooper v. Aaron, 358 U.S. 1, 12-13, 15-16. “A citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be.” Lucas v. 44th Gen’l Assembly of Colorado, 377 U.S. 713, 736-737. 11. Under the Constitution of the United States and the con stitution and laws of the State of Michigan, the responsibility for providing educational opportunity to all children on constitutional terms is ultimately that of the state. Turner v. Warren County Board of Education, 313 F. Supp. 380; Art. VIII, § § 1 and 2, Mich. Constitution; Dasiewicz v. Bd. o f Ed. o f the City o f Detroit, 3 N.W. 2d 71. 12. That a state’s form of government may delegate the power of daily administration of public schools to officials with less than state-wide jurisdiction does not dispel the obligation of those who have broader control to use the authority they have consistently with the constitution. In such instances the constitu tional obligation toward the individual school children is a shared one. Bradley v. Sch. Bd., City o f Richmond, 51 F.R.D. 139, 143. 13 * * 13. Leadership and general supervision over all public educa tion is vested in the State Board of Education. Art. VIII, § 3, Mich. Constitution of 1963. The duties of the State Board and superintendent include, but are not limited to, specifying the number of hours necessary to constitute a school day; approval until 1962 of school sites; approval of school construction plans; accreditation of schools; approval of loans based on state aid funds; review of suspensions and expulsions of individual students for misconduct [Op. Atty. Gen., July 7, 1970, No. 4705]; authority over transportation routes and disbursement of trans portation funds; teacher certification and the like. M.S.A. 15.1023(1). State law provides review procedures from actions of iocal or intermediate districts (See M.S.A. 15.3442), with author- 4y in the State Board to ratify, reject, amend or modify the actions of these inferior state agencies. See M.S.A. 15.3467; 15-191 9 (61); 15.1919(68b); 15.2299(1); 15.1961; 15.3402; 37a Bridgehampton School District No. 2 Fractional o f Carsonville, Mich. v. Supt. o f Public Instruction, 323 Mich. 615. In general, the state superintendent is given the duty “ [t] o do all things necessary to promote the welfare of the public schools and public educa tional instructions and provide proper educational facilities for the youth o f the state.” M.S.A. 1 5.3252. See also M.S.A. 15.2299(57), providing in certain instances for reorganization of school districts. 14. State officials, including all of the defendants, are charged under the Michigan constitution with the duty of providing pupils an education without discrimination with respect to race. Art, VIII, §2, Mich. Constitution of 1963. Art. I, §2, of the con stitution provides: “No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or politicial rights or be discriminated against in the exercise thereof because of religion, race, color, or national origin. The legislature shall implement this section by appropriate legisla tion.” 15. The State Department of Education has recently estab lished an Equal Educational Opportunities . section having respon sibility to identify racially imbalanced school districts and develop desegregation plans. M.S.A. 15.3355 provides that no school or department shall be kept for any person or persons on account of race or color. 16 16. The state further provides special funds to local districts for compensatory education which are administered on a per school basis under direct review of the State Board. All other state aid is subject to fiscal review and accounting by the state. M.S.A. 15.1919. See also M.S.A. 15.1919(68b), providing for special sup plements to merged districts “ for the purpose of bringing about un iformity of educational opportunity for all pupils of the district. The general consolidation law M.S.A. 15.3401 authorizes annexa tion for even noncontiguous school districts upon approval of the superintendent of public instruction and electors, as provided by law. Op. Atty. Gen., Feb. 5, 1964, No. 4193. Consolidation with 38a respect to so-called “ first class” districts, i.e., Detroit, is generally treated as an annexation with the first class district being the sur viving entity. The law provides procedures covering all necessary considerations. M.S.A. 15.3184,15.3186. 17. Where a pattern of violation of constitutional rights is established the affirmative obligation under the Fourteenth Amendment is imposed on not only individual school districts, but upon the State defendants in this case. Cooper v. Aaron, 358, U.S. 1; Griffin v. County School Board o f Prince Edward County, 337 U.S. 218; U.S. v. State o f Georgia, Civ. No. 12972 (N.D. Ga., December 17, 1970), rev’d on other grounds, 428 F.2d 377; Godwin v. Johnston County Board o f Education, 301 F. Supp. 1337; Lee v. Macon County Board o f Education, 267 F. Supp. 458 (M.D. Ala.), aff’d sub nom., Wallace v. U.S., 389 U.S. 215; Franklin v. Quitman County Board o f Education, 288 F. Supp. 509; Smith v. North Carolina State Board o f Education, No. 15,072 (4th Cir., June 14, 1971). The foregoing constitutes our findings of fact and conclusions of law on the issue of segregation in the public schools of the City of Detroit. Having found a de jure segregated public school system in operation in the City of Detroit, our first step, in considering what judicial remedial steps must be taken, is the consideration of intervening parent defendants’ motion to add as parties defendant a great number of Michigan school districts located out county in Wayne County, and in Macomb and Oakland Counties, on the principal premise or ground that effective relief cannot be achiev ed or ordered in their absence. Plaintiffs have opposed the motion to join the additional school districts, arguing that the presence °f the State defendants is sufficient and all that is required, even rfj in shaping a remedy, the affairs of these other districts will be affected. In considering the motion to add the listed school districts we Pause to note that the proposed action has to do with relief. aving determined that the circumstances of the case require Judicial intervention and equitable relief, it would be improper for 39a us to act on this motion until the other parties to the action have had an opportunity to submit their proposals for desegregation. Accordingly, we shall not rule on the motion to add parties at this time. Considered as a plan for desegregation the motion is lacking in specifity and is framed in the broadest general terms. The moving party may wish to amend its proposal and resubmit it as a comprehensive plan of desegregation. In order that the further proceedings in this cause may be conducted on a reasonble time schedule, and because the views of counsel respecting further proceedings cannot but be of assistance to them and to the Court, this cause will be set down for pre-trial conference on the matter of relief. The conference will be held in our Courtroom in the City of Detroit at ten o ’clock in the morning, October 4, 1971. DATED: September 27, 1971 M _______________________ _ Stephen J. Roth United States District Judge 40a Proceedings had in the above-entitled matter before Honorable Stephen J. Roth, United States District Judge, at Detroit, Michigan on Monday, October 4, 1971. [3] THE CLERK: Case No. 35257 Bradley versus Milliken. THE COURT: Are all the parties represented this morning? MR. LUCAS: Yes. THE COURT: I take it they are. As 1 indicated at the close of my opinion recently rendered, I thought it would be advisable for me to get together with counsel on this occasion so that we might chart our course from here on in these proceedings. The Court has made its determination of things as they are, or as it found things in the public school system of the City of Detroit. Our concern now-to take a thought from Aristotle-is of things as they might be, or ought to be. Before ordering the local and state school authorities to present desegregation plans, the Court thought it best to call this conference so that it might have the benefit of your views with respect to a timetable for further proceedings, and so that you might have the benefit of some of the thoughts of the Court. As the Court indicated during the course of [4] the taking of proofs, it entertains serious reservations about a plan of integration, which encompasses no more than the public schools of the City of Detroit. It appears to us that perhaps only a plan which embraces all or some of the greater Detroit metropolitan area can hope to succeed in giving our children the kind of education they are entitled to constitutionally. And we note here that the metropolitan area is like a giant jig-saw puzzle, with the school districts cut into irregular pieces, but with the picture quite plainly that of racial segregation. We need not recite the many serious problems such a plan entails, suffice it to say that a plan of such dimensions can hardly e conceived in a day, to say nothing of the time it will require for implementation. A large metropolitan area such as we have in our case can not be made the subject of instant integration. We must ear in mind that the task we are called upon to perform is a social 41a one, which society has been unable to accomplish. In reality, our courts are called upon, in these school cases, to attain a social goal, through the educational system, by using law as a lever. If a metropolitan plan is our best answer to the problem, its formulation and implementation with require both time and patience. As Senior Circuit Judge O’Sullivan said in the Knoxville, Tennessee school case: [5] “The hope, or dream, that one day we will have become a people without motivations born of our differing racial beginnings will have a better chance of fulfillment if patience accompanies our endeavors.” I would sum up our endeavors in developing a metropolitan plan as an embarkation on an uncharted course in strange waters in an effort to rescue disadvantaged children. It behooves us to take proper soundings and proceed with care. To use the vernacular “ Right on!” but steady as we go. My comments respecting a metropolitan plan should not be understood to mean that there should be any pause in Detroit Board’s efforts to affirmatively desegregate its schools. The Court envisions no real conflict between early desegregation or integration of its schools and the possible adoption later of a metropolitan plan. Earlier in this case the Court acceded to the wish of the Board to adopt the so-called Magnet Plan. We do not presently have before us enough information or evidence on the question of its worth or value in terms of experience. In this respect the Court wishes to be better informed. If that plan is not delivering on its promise to provide an improved integrated quality education it should be abandoned, and the Board should consider putting before [6 ] the Court an up-dated April 7 Plan, or such other plan as, in its judgment, will most effectively accomplish desegregation in its schools. If the Magnet Plan is proving itself then the Board might well consider whether features of the April 7 Plan, for example, the change to an east-west, rather than north-south orientation of attendance zones, can be incorporated in it in the interest of advancing integration. What we have said are all generalities. They have to do with 42a possible courses of action. My remarks, however, are not intended as a limitation on the Board or on the state authorities in discharging their duties to move as rapidly as possible toward the goal of desegregation. I want to make it plain I have no preconceived notions about the solutions or remedies which will be required here. Of course, the primary and basic and fundamental responsibility is that of the school authorities. As Chief Justice Burger said in the recent case of Davis v Board of School Commissioners: “—school authorities should make every effort to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation.” Because these cases arise under different local conditions and involve a variety of local problems their [7] remedies likewise will require attention to the specific case. It is for that reason that the Court has repeatedly said, the Supreme Court, that each case must be judged by itself in its own peculiar facts. As early as Brown II the court had this to say: “Full implementation of these constitutional principles may require solution of varied local school problems. School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. “In fashioning and effectuating the decrees, the courts will be guided by equitable principles.... At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis.” I might say in that regard, as you lawyers know the Supreme Court took a little over a year to implement Brown I and Brown IC So they themselves, with better minds than mine and to the number of nine, had difficulty in resolving the problems that those four cases presented. I would like to hear from counsel with respect [8] to a timetable for the formulation and presentation of a plan of segregation; first by the Board of the City of Detroit and then 43a by the state officials. *** [26] THE COURT: Within thirty days the Detroit Board of Education should submit to the Court a concise report of progress on the Magnet Plan, and along with it an evaluation of its worth in helping to bring about a better and higher quality of education. Copies of both the report and also the [27] evaluation shall be made available to the other parties litigant at the same time. Such other parties may have ten additional days in which to submit their views and evaluations of the progress under the Magnet Plan. It is further ordered that the Detroit Board of Education submit its plan for desegregation of its schools within sixty days. It is ordered that the State defendants submit a metropolitan plan of desegregation, perhaps in more or less skeletal form, within one hundred twenty (120) days. Objections to each plan, city and metropolitan, may be filed by the other parties litigant not later than thirty days after the expiration of the time set. Such objections may be accompanied by alternate plans. I want to underline something I already said and add to it a general observation to sum up. Lest there be some misunderstanding, because of the observations I made, let it be understood I had no preconceived notion about what the Board of Education should do in the way of desegregating its schools nor the outlines of a proposed metropolitan plan. The options are completely open. With respect to matters of speed in having a plan or having plans and proceeding on them, I think you should [28] know something about my manner of working. In a case, particularly like this, I feel my way to a decision and I certainly don’t propose to jump to judgment. I would remind counsel as I keep reminding myself in this case that our objective is quality education for all of our children. I am not too concerned about the parties litigant here. Depending on what we do, the winners or losers in this case will be the school children now living, as well as those yet to be born. I am reminded 44a of that by Mr. Ritchie’s observation that he considers his plan one that will reach into the future. With respect to remarks you gentlemen have made about other school districts, I am not going to make any definitive ruling at this time. We haven’t come to that pass yet. I don’t see much disagreement, Mr. Krasicky, between you and Mr. Lucas on that point. I don’t think Mr. Lucas said that they should not be heard. He is addressing himself to the matter of mechanics, how you do it, and, of course, as you well know it is overwhelming to consider joining 50, 60, or 80 other parties to this law suit, each of which is composed of superintendents and boards. On the other hand I do not propose to stop the voice of anybody who is apt to be affected by the plan. So this is a matter of mechanics. When the time comes that [29] action has to be taken in that regard we will give it further thought and make a decision that we believe will be a fair one and yet will permit us to proceed with some dispatch in achieving some remedial effects and perhaps putting into effect some plans for desegregation. The time table is understood, is it? MR. BUSHNELL: Yes, sir. MR. LUCAS: Yes. THE COURT: I am not going to-unless you gentlemen want-to prepare an order, I am not going to prepare a formal order. MR. BUSHNELL: I don’t believe it is necessary, your Honor. We understand the timetable. THE COURT: Anybody disagree with that? Anything further at this time, gentlemen, with respect to the matter before us? MR. KRASICKY: I take it if there will be further hearings we will be notified in due time? THE COURT: Yes. I have not come back to the point r°ught out by Mr. Bushnell. I don’t know what the report and Me evaluation by the Board and the criticisms that might be ° ered by other parties litigant will amount to. Should it develop at I wish to have testimony on disputed points we may schedule 45a them. That will just have to wait until I have received [30] the report and evaluations. Gentlemen, thank you for your attendance and your assistance. We will be in recess. 46a UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION RONALD BRADLEY, et al„ ) Plaintiffs ) v- ) WILLIAM G. MILLIKEN, et al„ ) Defendants ) DETROIT FEDERATION OF TEACH- ) ERS, LOCAL NO. 231, AMERICAN FED- ) CIVIL ACTION ERATION OF TEACHERS, AFL-CIO, ) NO. 35257 Defendant- ) Intervenor ) and ) DENISE MAGDOWSKI, et al„ ) Defendants- ) Intervenor ) ORDER At a session of said Court held in the Federal Building, City of Detroit, on this 4th day of OCTOBER, A.D. 1971. PRESENT: HONORABLE STEPHEN J. ROTH United States District Judge The Court having entered its findings of fact and conclusions 0 law 011 the issue of segregation on September 27, 1971; IT IS ORDERED that the Detroit Board of Education submit a report on and an evaluation of the so-called Magnet Plan within days; and that other parties litigant may within 10 days there- a ter file responses to such report and evaluation. Ed ^ - ^ FURTHER ORDERED that the Detroit Board of ucation submit a plan for the desegregation of its schools within ou days. 47a IT IS FURTHER ORDERED that the State Defendants submit a metropolitan plan of desegregation within 120 days. IT IS FURTHER ORDERED that as to both the Detroit and the State plans, other parties litigant shall have an additional 30 days in which to submit objections and/or alternate plans. I si STEPHEN J. ROTH________ UNITED STATES DISTRICT JUDGE DATE: November 5, 1971. SIGNED: 48a UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION RONALD BRADLEY, et al„ ) Plaintiffs ) v. ) WILLIAM G. MILLIKEN, et al„ ) Defendants ) DETROIT FEDERATION OF TEACH- ) ERS, LOCAL NO. 231, AMERICAN ) FEDERATION OF TEACHERS, AFL-CIO, ) Defendant- ) Intervenor ) and ) DENISE MAGDOWSKI, et al„ ) Defendants- ) Intervenor ) et al. ) CIVIL ACTION NO. 35257 RULING ON PROPRIETY OF CONSIDERING A METROPOLITAN REMEDY TO ACCOMPLISH DESEGREGATION OF THE PUBLIC SCHOOLS OF THE CITY OF DETROIT In its prior ruling, “ Ruling on Issue of Segregation” (September 27, 1971), the court has found that segregation exists in the public schools of the City of Detroit because of, among other causes, the acts of the State of Michigan and the Detroit Board of Education. In the language of Swann, f 1 ] “ a right and a violation have been s h o w n . Given the constitutional violation, judicial authority, when properly invoked, must be exercised to right the wrong. In addressing itself to this task the Supreme Court has said that the “ scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are 49a inherent in equitable remedies.” ^ ] And, it pointed out, “a school desegregation case does not differ fundamentally from other cases involving the framing of equitable remedies to repair the denial of a constitutional right.” [4] The task is to correct the condition which offends the Constitution. Illustrative of what was meant by the Supreme Court, see the legislative and congressional reapportionment cases.f^l Under the circumstances of this case,[6] the question presented is whether the court may consider relief in the form of a metropolitan plan, encompassing not only the City of Detroit, but the larger Detroit metropolitan area which, for the present purposes, we may define as comprising the three counties of Wayne, Oakland and Macomb. It should be noted that the court has just concluded its hearing on plans submitted by the plaintiffs and the Detroit Board of Education for the intra-city desegregation of the Detroit public schools. A ruling has not yet been made on these plans, but in accordance with the mandate of the Court of Appeals that a hearing on the merits be concluded at the earliest possible time, we consider it necessary to proceed apace with a resolution of the issue before us, i.e., the propriety of weighing the legal availability of a metropolitan remedy for segregation. The State defendants in this case take the position, as we understand it, that no “state action” has had a part in the segregation found to exist. This assertion disregards the findings already made by this court, and the decision of the Court of Appeals as well.[7] Additionally, they appear to view the 50a delegation of the State’s powers and duties with respect to education to local governmental bodies as vesting the latter with sovereign powers which may not be disturbed by either the State or the court. This we cannot accept. Political subdivisions of the states have never been considered sovereign entities, rather “They have been traditionally regarded as subordinate governmental instrumentalities created by the state to assist it in carrying out of state governmental functions.” Reynolds v. Sims, 377 U.S. 533, 575. Perhaps the clearest refutation of the State’s asserted lack of power to act in the field of education is Act 48 of 1970. The State cannot evade its constitutional responsibility by a delegation of powers to local units of government. The State defendants’ position is in error in two other respects: 1. The local school districts are not fully autonomous bodies, for to the extent it has seen fit the State retains control and supervision; and 2. It assumes that any metropolitan plan, if one is adopted, would, of necessity, require the dismantling of school districts included in the plan. The main thrust of the objections to the consideration of a metropolitan remedy advanced by intervening school districts is that, absent a finding of acts of segregation on their part, individually, they may not be considered in fashioning a remedy for relief of the plaintiffs. It must be conceded that the Supreme Court has not yet ruled directly on this issue; accordingly, we can only proceed by feeling our way through its past decisions with respect to the goal to be achieved in school desegregation cases. Green v. County School Board, 391 U.S. 430, teaches us that it is our obligation to assess the effectiveness of proposed plans of desegregation in the light of circumstances present and the available alternatives; and to choose the alternative or alternatives which promise realistically to work now and hereafter to produce the maximum actual desegregation. As Chief Justice Burger said in Swann, “in seeking to define the scope of remedial power of courts in an area as sensitive as we deal with here, words are poor instruments to convey the sense of basic fairness inherent in equity.” Substance, not semantics, must govern. 51a It seems to us that Brown is dispositive of the issue: ‘ 'In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.” ❖ * * “ *** courts may consider problems related to administra tion, arising from the physical condition of the school plant, the school transportation systems, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems.” We conclude that it is proper for the court to consider metropolitan plans directed toward the desegregation of the Detroit public schools as an alternative to the present intra-city desegregation plans before it and, in the event that the court finds such intra-city plans inadequate to desegregate such schools, the court is of the opinion that it is required to consider a metropolitan remedy for desegregation. 52a The schedule previously established for the hearing on metropolitan plans will go forward as noticed, beginning March 28, 1972. DATE: March 24th, 1972. h/_________________________ Stephen J. Roth United States District Judge [1] Swann v. Charlotte-Mecklenburg Bd. o f Ed., 402 U.S. 1. [2] Ibid., p. 15. [31 Ibid., p. 15. [4] Ibid., pp. 15,16. [5] Reynolds v. Sims, 377 U.S. 533. [6] See “ Ruling on Issue o f Segregation,” supra, indicating a black student projection for the school year 1980-81 of 80.7%. [7] See “ Ruling on Issue o f Segregation,” supra; Bradley v. Milliken, 433 F.2d 897. [ 8 ] Brown v. Bd. of Ed. of Topeka, 349 U.S. 294, at 300 and 301. 53a UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION RONALD BRADLEY, et al., ) Plaintiffs ) v. ) WILLIAM G. MILLIKEN, et al., ) Defendants ) DETROIT FEDERATION OF TEACH- ) CIVIL ACTION ERS, LOCAL NO. 231, AMERICAN FED- ) NO: 35257 ERATION OF TEACHERS, AFL-CIO, ) Defendant- ) Intervenor ) and ) DENISE MAGDOWSKI, et al., ) Defendants- ) Intervenor ) et al. ) FINDINGS OF FACT AND CONCLUSIONS OF LAW ON DETROIT-ONLY PLANS OF DESEGREGATION In accordance with orders of the court defendant Detroit Board of Education submitted two plans, limited to the corporate limits of the city, for desegregation of the public schools of the City of Detroit, which we will refer to as Plan A and Plan C; plain tiffs submitted a similarly limited plan, which will be referred to as the Foster Plan. Hearings were had on said plans on March 14, 15, 16, 17 and 21, 1972. In considering these plans the court does not limit itself to the proofs offered at the hearing just concluded; it considers as part of the evidence bearing on the issue ( i.e., City- Only Plans) all proofs submitted in the case to this point, and it specifically incorporates herein by reference the Findings and Con clusions contained in its “ Ruling on Issue of Segregation,” filed September 27, 1971. The court makes the following factual findings: 54a PLAN A. 1. The court finds that this plan is an elaboration and exten sion of the so-called Magnet Plan, previously authorized for imple mentation as an interim plan pending hearing and determination on the issue of segregation. 2. As proposed we find, at the high school level, that it offers a greater and wider degree of specialization, but any hope that it would be effective to desegregate the public schools of the City of Detroit at that level is virtually ruled out by the failure of the cur rent model to achieve any appreciable success. 3. We find, at the Middle School level, that the expanded model would affect, directly, about 24,000 pupils of a total of 140,000 in the grades covered; and its effect would be to set up a school system within the school system, and would intensify the segregation in schools not included in the Middle School program. In this sense, it would increase segregation. 4. As conceded by its author, Plan A is neither a desegre gation nor an integration plan. PLAN C. 1. The court finds that Plan C is a token or part-time desegre gation effort. 2. We find that this plan covers only a portion of the grades and would leave the base schools no less racially identifiable. 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 student body is such that the plan’s implementation would clearly make the entire Detroit public school system- racially identifiable as Black. 55a 3. The plan would require the development of transportation on a vast scale which, according to the evidence, could not be furnished, ready for operation, by the opening of the 1972-73 school year. The plan contemplates the transportation of 82,000 pupils and would require the acquisition of some 900 vehicles, the hiring and training of a great number of drivers, the procurement of space for storage and maintenance, the recruitment of main tenance and the not negligible task of designing a transportation system to service the schools. 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 if a metropolitan plan is adopted. 5. It would involve the expenditure of vast sums of money and effort which would be wasted or lost. 6. The plan does not lend itself as a building block for a met ropolitan plan. 7. The plan would make the Detroit school system more identifiably Black, and leave many of its schools 75 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 increasing the flight of Whites from the city and the system, thereby in creasing the Black student population. 9. It would subject the students and parents, faculty and administration, to the trauma of reassignments, with little likeli hood that such reassignments would continue for any appreciable time. In summary, we find that none of the three plans would result in the desegregation of the public schools of the Detroit school district. 56a CONCLUSIONS OF LAW 1. The court has continuing jurisdiction of this action for all purposes, including the granting of effective relief. See Ruling on Issue of Segregation, Sepember 27, 1971. 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 desegre gation that promises realistically to achieve now and hereafter the greatest possible degree of actual school desegregation. Green v. County School Board, 391 U.S. 430; Alexander v. Holmes County Board of Education, 396 U.S. 19; Carter v. West Feliciana Parish School Board, 396 U.S. 290; Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1. 3. Detroit Board of Education Plans A and C are legally insuf ficient because they do not promise to effect significant desegre gation. Green V. County School Board, supra, at 439-440. 4. Plaintiffs’ Plan, while it would provide a racial mix more in keeping with the Black-White proportions of the student popula tion 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 inescapable that relief of segregation in the public schools of the City of Detroit cannot be accomplished within the corporate geo graphical limits of the city. The State, however, cannot escape its constitutional duty to desegregate the public schools of the City of Detroit by pleading local aurhority. As Judge Merhige pointed out in Bradley v. Richmond, (slip opinion p. 64): “The power conferred by state law on central and local offi cials to determine the shape of school attendance units cannot be employed, as it has been here, for the purpose and with the effect of sealing off white conclaves of a racial composition more appealing to the local electorate and obstructing the desegregation of schools. The equal protection clause has 57a required far greater inroads on local government structure than the relief sought here, which is attainable without devi ating from state statutory forms. Compare Reynolds v. Sims, 377 U.S. 533; Gomillion v. Lightfoot, 364 U.S. 339; Serrano v. Priest, 40 U.S.L.W. 2128 (Calif. Sup. Ct. Aug. 30, 1971). “ In any case, if political boundaries amount to insuperable obstacles to desegregation because of structural reason, such obstacles are self-imposed. Political subdivision lines are crea tions of the state itself, after all.” School district lines are simply matters of political con venience and may not be used to deny constitutional rights. If the boundary lines of the school districts of the City of Detroit and the surrounding suburbs were drawn today few would doubt that they could not withstand constitutional challenge. In seeking for solutions to the problem of school segregation, other federal courts have not “ treated as immune from intervention the admini strative structure of a state’s educational system, to the extent that it affects the capacity to desegregate. Geographically or administratively independent units have heen compelled to merge or to inititate or continue cooperative operation as a single system for school desegregation purposes.” 1 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 authority, nay more, the duty to (under the circumstances of this case) do so appears plainly anticipated by Brown II,2 seventeen years ago. While other school cases have not had to deal with our exact situation, 3 the logic of their application of the command of Brown II supports our view of our duty. Date: MARCH 28th, 1972. /s /______________________ Stephen J. Roth United States District Judge 58a FOOTNOTES [11 Bradley v. Richmond, supra [slip opinion p. 68]. [21 Brown v. Bd. o f Ed. o f Topeka, 349 U.S. 294, pp. 300-301. 3 [3] Haney v. County Board o f Education of Sevier County, 410 F.2d 920 (8th Cir. 1969);Bradley v. School Board o f the City of Richmond, supra, slip opinion pp. 664-65; Hall v. St. Helena Parish School Board, 197 F. Supp. 649 (E.D. La. 1961), aff’d. 287 F.2d 376 (5th Cir. 1961) and 368 U.S. 515 (1962); Lee v. Macon County Bd. o f Educ., 448 F.2d 746, 752 (5th Cir. 1971); Gomillion v. Lightfoot, 364 U.S. 339 (1960); Turner v. Littleton-Lake Gaston School Dist., 442 F.2d 584 (4th Cir. 1971); United States v. Texas 447 F.2d 551 (5th Cir. 1971); Lemon v. Bossier Parish School Board, 446 F.2d 911 (5th Cir. 1971). 59a UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION RONALD BRADLEY, et al., Plaintiffs WILLIAM G. MILLIKEN, et al., Defendants and DETROIT FEDERATION OF TEACHERS, LOCAL 231, AMERICAN FEDERA TION OF TEACHERS, AFL-CIO, Defendant- In tervenor and DENISE MAGDOWSKI, et al., Defendants- Intervenor et al. CIVIL ACTION NO 35257 FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF RULING ON DESEGREGATION AREA AND DEVELOPMENT OF PLANS On the basis of the entire record in this action, including particularly the evidence heard by the court from March 28 through April 14, 1972, the court now makes the following Supplementary Findings of Fact and Conclusions of Law. h 60a 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 commited acts of de jure segregation. INTRODUCTION 1. On September 27, 1971, this court issued its Ruling on Issue of Segregation. On October 4, 1971, this court issued from the bench guidelines to bind the parties in the submission of plans to remedy the constitutional violation found, i.e., school segregation; and in particular this court noted that the primary objective before us was to deveop and implement a plan which attempts to “ achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation.” The same day this court reiterated these require ments by orders “ that the Detroit Board of Education submit a plan for the desegregation of its schools within 60 days” and “that the State defendants submit a metropolitan plan of de segregation within 120 days.” In response to these orders hear ings were held, and thereafter rulings issued, on Detroit-only plans (see Findings of Fact and Conclusions of Law on Detroit- Only Plans of Desegregation) and on the propriety of con sidering remedies which extend beyond the corporate geographic limits of the City of Detroit. (See Ruling on Pro priety of Considering a Metropolitan Remedy to Accomplish Desegregation of the Public Schools of the City of Detroit.) Between March 28, 1972 and April 14, 1972, hearings were held on metropolitan proposals for desegregation of the Detroit public schools. 2. From the initial ruling on September 27, 1971, to this day, the basis of the proceedings has been and remains the violation: de jure school segregation. Since Brown v. Board of Education the Supreme Court has consistently held that the remedy for such illegal segregation is desegregation. The racial history of this country is writ large by constitutional adjudica tion from Dred Scott v. Sanford to Plessy v. Ferguson to 61a Brown. The message in Brown was simple: The Fourteenth Amendment was to be applied full force in public schooling. The Court held that “ state-imposed” school segregation immeasurably taints the education received by all children in the public schools; perpetuates racial discrimination and a his tory of public action attaching a badge of inferiority to the black race in a public forum which importantly shapes the minds and hearts of succeeding generations of our young people; and amounts to an invidious racial classification. Since Brown the Supreme Court has consistently, and with increasing force, held that the remedy upon finding de jure segregation is prompt and maximum actual desegregation of the public schools by all reasonable, feasible, and practicable means avail able. This court finds that there is nothing in the law, wisdom, or facts, and the particular circumstances and arguments, presented in this case which suggest anything except the affir mance of these principles in both fact and law. 3. The task before this court, therefore, is now, and, since September 27, 1971, has always been, how to desegregate the Detroit public schools. The issue, despite efforts of the inter- venors to suggest a new rationale for a return to the discredited “ separate but equal” policy, 1 is not whether to desegregate. That question has been foreclosed by the prior and settled com mands of the Supreme Court and the Sixth Circuit. Our duty now is to “ grapple with the flinty, intractable realities” - of implementing the constitutional commands. 4. In the most recent set of hearings, several issues were addressed generally, including appropriate methods of pupils reassignment to desegregate schools; quality and capacity of school facilities; transportation needs incident to school de segregation; the effects of new school construction, and judicially established controls thereon, on any plan of de segregation; the reassignment of faculty and restructuring ot facilities incident to pupil reassignment to accomplish school desegregation; appropriate and necessary interim and final administrative and financial arrangements; appropriate com munity, parental, staff, and pupil involvement in the deseg regation process; and attention to individual, cultural, an 62a ethnic values, respect, dignity and identity. But the primary question addressed by these hearings, in the absence of submis sion of a complete desegregation plan by the state, remains the determination of the area necessary and practicable effectively to eliminate “ root and branch” the effects of state-imposed and supported segregation and to desegregate the Detroit public schools. SUPPLEMENTARY FINDINGS OF FACT A. The Desegregation Area 5. The State Board of Education filed six (6) “ plans” without recommendation or preference; intervening defendants Magdowski, et al., filed a proposal for metropolitan desegrega tion which included most of the tri-county area; the defendant Detroit Board of Education filed a proposal for metropolitan desegregation which included the entire tri-county area. 3 At the hearing plaintiffs presented a modification of the three pro posals which actually described areas within which pupil deseg regation was to be accomplished. 6. In the consideration of metropolitan plans of deseg regation of the Detroit public schools, the State defendants stand as the primary defendants. They bear the initial burden of coming forward with a proposal that promises to work. In the context of this case, they represent the “ school authorities ” 4 to whom equity courts traditionally have shown deference in these matters. 5 Yet in its submission without recommendation of six (6) “ plans” the State Board of Education has failed to meet, or even attempt to meet, that burden and none of the other State defendants has filled the void. 7. The State Board refused to make any recommenda tions to the court about the appropriate area for desegregation. In State Defendant Porter’s words, the State Board “ didn’t make a decision, period.” Defendants Milliken and Kelley merely filed objections to all six (6) plans. 8. Three of the State “ plans” merely proposed concepts alternative to maximum actual desegregation. The Racial Proportion Plan described a statistical method of determining the 63a number of transfers involved in achieving a particular racial ratio in each school once an area of desegregation had been chosen. The Equal Educational Opportunity and Quality Integration Plan was admitted to be a non-plan and described criteria for education which, in whole or part, might, or might not, be applicable to any school system. 9. Only one State “ plan,” the Metropolitan District Re organization Plan, attempted to describe an area within which desegregation should occur, called the “ initial operating zone” (sometimes referred to hereafter as the “ State Proposal” ). That “ plan,” however, was primarily concerned with discussing a new governance structure for the desegregation area. Pupil reassign ment was mentioned only in passing and no foundation was laid by State defendants for the particular area of desegregation described. Further, it suffered from the default of the State defendants by their stubborn insistence that under their self- serving, and therefore self-limiting, view of their powers they were free to ignore the clear order of this court and abdicate their responsibility vested in them by both the Michigan and Federal Constitution for supervision of public education and equal protection for all citizens. 10. From the very limited evidence in the record in sup port of the area in that state proposal, the primary foundation appears to be the particular racial ratio attained in that plan, approximately 65% black, 35% white, with the provision that the area could be expanded if “white flight” ensued. In the absence of any other persuasive foundation, such area is not based on any definable or legally sustainable criteria for either inclusion or exclusion of particular areas; and the concept of an “ initial operating zone” raises serious practical questions, which should be avoided if a more permanent solution is now possible. In short, the area described by the “ initial operating zone” does not appear to be based primarily on relevant factors, like elim inating racially identifiable schools; accomplishing maximum actual desegregation of the Detroit public schools; or avoiding, where possible, maintaining a pattern of schools substantially disproportionate to the relevant school community’s racial com position by force of deliberate action by public authority. Nor, 64a on the evidence in this record, is the “ initial operating zone” based on any practical limitation of reasonable times and dis tances for transportation of pupils. These factors seem to have played little part in the creation of the “ initial operating zone” and are reflected less in its result. 11. At the hearings, moreover, the State defendants did not purport to present evidence in support, or even in opposi tion, to the State Proposal. The State, despite prodding by the court, presented only one witness, who merely explained what appeared on the face of the various State “Plans” submitted. The State’s cross examination of witnesses was of no assistance to the court in ascertaining any preference, legal or educational. Put bluntly, State defendants in this hearing deliberately chose not to assist the court in choosing an appropriate area for effec tive desegregation of the Detroit public schools. Their resistance and abdication of responsibility throughout has been consistent with the other failures to meet their obligations noted in the court’s earlier rulings. Indeed, some of the submissions spoke as clearly in opposition to desegregation as did the legislature in Sec. 12 of Act 48 ruled unconstitutional by the Sixth Circuit. 12. In such circumstances little weight or deference can be given to the unsupported submission of the State Board of Education. In light of the available alternatives and the facts produced at the hearing bearing on the issue, the court finds that State defendants offered no basis for ruling that the “ initial operating zone” is the appropriate area within which to effec tively desegregate the Detroit public schools. 13. Similarly, the newly intervening, defendant school dis tricts did not attempt at the hearing to assist the court in determining which area was appropriate to accomplish effective desegregation. They were given the opportunity, by express written order and several admonitions during the course of the hearings, to assist the court in the task at hand but chose in their best judgment instead, in the main, to suggest their view that separate schools were preferable. The failure of the group of 40 districts to even comment that the court should exclude certain districts under any number of available rationales may in 65a part be explained by the awkward position chosen by them and their counsel of having single representation for districts on different sides of the various suggested perimeters. 14. The plans of intervening defendants Magdowski, et al, and the defendant Detroit Board of Education are similar. With slight variations they include the entire tri-county, metropolitan Detroit area, with that area divided into several regions or clusters to make the planning for accomplishing desegregation more manageable. Although both have as their main objective desegregation, their larger area arises primarily from a heavy emphasis on such factors as white flight and an appropriate socio-economic balance in each cluster and school. 6 15. The authors of the Detroit Board and Magdowski plans readily admit that the regions or clusters for pupil reas signment which involve Mt. Clemens and Pontiac are not direct ly related to desegregation of the Detroit public schools and may be disregarded without any substantial adverse effect on accomplishing our objective. No other party has expressed any disagreement with that view. And the court finds that these two regions or clusters, for purposes of pupil reassignment, need not be included at this time in the desegregation area. 16. With the elimination of these two clusters there are, then, three basic proposals to be considered for the desegrega tion area: the State Proposal; the Detroit Board Proposal, and the proposal of defendant-intervenors Magdowski, et al. In addition, as noted, plaintiffs filed a modification of these three proposals. 17. Each of these proposals starts from the same two premises: (1) the tri-county area ̂ constitutes the relevant school community which can serve as an initial benchmark in beginning the evaluation of how to effectively eliminate the racial segregation of Detroit schools; (2) but in some instances reasonable time and distance limitations for pupil transporta tion, and in other instances the actual area required to eliminate the pattern of racially identifable schools, limit the area within which pupil reassignment should occur. In terms of proof, put ting aside arguments of impotence by the State defendants, 66a there was absolutely no contradictory evidence on these two criteria. The entire tri-county area includes areas, pupils, and schools in 86 school districts; it includes approximately one million students, of whom approximately 20% are black. Based on the evidence concerning school and non-school factors, 8 and reasonable time and distance limitations for pupil transpor tation, the court finds that both premises are accurate.^ 18. The State Proposal includes the areas, pupils and school in 36 school districts, approximately 550,000 students are included of whom 36% are black. The Detroit Board Pro posal (excluding clusters 8 and 12) includes the areas, pupils, and schools in 69 school districts; approximately 850,000 stu dents are included, of whom 25% are minority. ^ The CCBE Proposal includes the areas, pupils, and schools in some 62 school districts; approximately 777,000 students are included of whom 197,000 (25.4%) are black. Plaintiffs’ Proposal includes the areas, pupils, and schools in 54 school districts; approximately 780,000 students are included, of whom 197,000 (25.3%) are black. 19. The State Proposal approaches what may be con sidered a substantial disproportion in the context of this case. It is to be remembered that within any desegregation area, the racial composition of desegregated schools will vary from the area’s racial mix. Given the variations in school plant, demo graphic and geographic factors, limiting the desegregation area to the State Proposal would result in some schools being sub stantially disproportionate in their racial composition to the tri-county area, and other schools racially identifable, all with out any justification in law or fact. This finding is supported by the lack of any apparent justification for the desegregation area described by the State Proposal except a desire to achieve an arbitrary racial ratio. 20 20. Transportation of children by school bus is a common practice throughout the nation, in the state of Michigan, and in the tri-county area. Within appropriate time limits it is a con siderably safer, more reliable, healthful and efficient means of getting children to school than either car pools or walking, and this is especially true for younger children. 67a 21. In Michigan and the tri-county area, pupils often spend upwards of one hour, and up to one and one half hours, one-way on the bus ride to school each day. Consistent with its interest in the health, welfare and safety of children and in avoiding impingement on the educational process, state educa tional authorities routinely fund such transportation for school children. Such transportation of school children is a long standing, sound practice in elementary and secondary education in this state and throughout the country. And the court finds such transportation times, used by the state and recommended here, are reasonable in the circumstances here presented and will not endanger the health or safety of the child nor impinge on the educational process. For school authorities or private citizens to now object to such transportation practices raises the inference not of hostility to pupil transportation but rather racially motivated hostility to the desegregated school at the end of the ride. 22. The Plaintiffs’ Proposal made reference to P.M.8, based on the TALUS regional transportation and travel times study. Although there was dispute over the meaning of the study, such studies are deemed sufficiently reliable that major governmental agencies customarily rely on their projection for a variety of planning functions. When used by the plaintiffs, P.M. 8, in conjunction with the Detroit Board’s survey of maximum school to school travel times, served as a rough guideline within which the plaintiffs’ modification of other proposals attempted to stay in an effort to provide maximum desegregation without any more transportation time than is required to desegregate. This court finds that the utilization of these two factors, and the lower travel time estimates which should result, is a reason able basis for the modification in the circumstances of this case. The court’s duty and objective is not to maximize transporta tion but to maximize desegregation and within that standard it will always be reasonable to minimize transportation. To that end the court has accepted the more conservative perimeter for the desegregation area suggested as a modification by plaintiffs because it provides no less effective desegregation. 23. Based on these criteria, the State Proposal is too nar rowly drawn. 68a 24. Based on these criteria, parts of the Detroit Board Proposal are too sweeping. 25. Based on these criteria, the CCBE Proposal and the Plaintiffs’ Proposal, roughly approximate the area so de scribed 11. 26. There is general agreement among the parties, and the court so finds, that on the west the areas, schools, and pupils in the Huron, Van Buren, Northville, Plymouth and Novi districts (1) are beyond the rough 40-minute travel time line; (2) are not necessary to effectively desegregate schools involved in the regions and clusters abutting those schools; and, (3) at this writing, are not otherwise necessary, insofar as pupil assignment is concerned, to provide an effective remedy now and hereafter. (See Findings 63-69 below.) 27. In the southwest the school districts of Woodhaven, Gibralter, Flat Rock, Grosse lie and Trenton are within reason able time and distance criteria set forth above. These virtually all-white districts are included in the Detroit Board Proposal but excluded from the plaintiffs’ modification. The areas, schools and pupils in such school districts are similarly not necessary to effectively desegregate. (Clusters 13, 14, and 15 in Plaintiffs’ Proposal are 20.5%, 24.4% and 22.7% black respectively.) There is nothing in the record which suggests that these districts need be included in the desegregation area in order to disestablish the racial identifiability of the Detroit public schools. From the evidence, the primary reason for the Detroit School Board’s interest in the inclusion of these school districts is not racial desegregation but to increase the average socio-economic balance of all the schools in the abutting regions and clusters. In terms of what this court views as the primary obligation estab lished by the Constitution — racial desegregation — the court deems the proper approach is to be more conservative: the court finds it appropriate to confine the desegregation area to its smallest effective limits. This court weighs more heavily the judicially recognized concern for limiting the time and distance of pupil transportation as much as possible, consistent with the constitutional requirement to eliminate racially identifiable schools, than a concern for expanding the desegregation area to 69a raise somewhat the average socio-economic balance of a rela tively few clusters of schools. 13 28. To the north and northeast, the only major disagree ment among the Detroit Board Proposal and plaintiffs’ modification relates to the areas, schools, and pupils in the Utica School District. This district is a virtually all-white, long, relatively narrow area extending several miles in a north-south direction away from the city of Detroit. Only the southern part of the district is within the rough, TALUS 40-minute travel time line. 29. The Detroit Board argues that Utica should be includ ed in order to raise the average socio-economic balance of the abutting clusters and schools. In this instance, however, the overall racial composition of the cluster, 27.0% black, may tend toward disproportionate black relative to the tri-county starting point. 30. Mr. Henrickson, the planner for the Board, also sug gested that Cluster 3 of Plaintiffs’ Proposal, because of its omission of Utica, might present some problems, which he admitted could be solved, in designing a plan of pupil reassign ment for the desegregation of schools. (See Findings 34-39 below.) 31. In light of these relevant, and competing, considera tions the question presented by the Utica situation is close; however, at this writing, the court determines that the areas, schools, and pupils in the Utica School District need not be included, and therefore, should not be included in the deseg regation area. 14 32. The court finds that the appropriate desegregation area is described by plaintiffs’ modification of the three primary proposals. Within that area the racial identifiability of schools may be disestablished by implementation of an appropriate pupil desegregation plan. The area as a whole is substantially proportionate to the tri-county starting point. Within the area it is practicable, feasible, and sound to effectively desegregate all schools without imposing any undue transportation burden on the children or on the state’s system of public schooling. The 70a time or distance children need be transported to desegregate schools in the area will impose no risk to the children’s health and will not significantly impinge on the educational process. B. Clusters 33. The Detroit Board Proposal makes use of 16 regions or clusters. These clusters range from 36,000 to 105,000 pupils and from 17.5% to 29.7% “minority.” The clusters are arranged along major surface arteries and utilize the “ skip,” or non contiguous zoning, technique to minimize the time and distance any child need spend in transit. The use of these clusters basical ly subdivides the planning for pupil reassignment within the desegregation area into a series of smaller, manageable and basically independent plans. Thus, although as the new inter- venors suggest devising a desegregation plan for a system with some 800,000 pupils has never been attempted, the practical and manageable reality is that desegregation plans for systems with from 36,000 to 100,000 pupils has been done and such plans have been implemented. 34. Plaintiffs’ Proposal uses the same cluster technique and the same clusters, modified to fit the desegregation area. The 15 clusters range from 27,000 to 93,000 pupils and from 20.5% to 30.8% black. Only three relevant objections were raised by Mr. Henrickson, to the clusters as modified. 35. First, Cluster 4 was challenged as “ concealing” a “problem,” namely effective desegregation of other schools resulting from the omission of Utica from plaintiffs’ modifica tion. On cross-examination Mr. Henrickson admitted that the “problem” of actual pupil desegregation for these other schools could be “ solved,” that all schools within Cluster 4 could be affectively desegregated, and that Cluster 4 was smaller than the Detroit Board Cluster 6. The objection was thus narrowed to the possibility that a suburban high school constellation feeder Pattern might have to be split between two Detroit high school constellation feeder patterns in order to desergregate. Several of the Detroit Board’s clusters, however, also contain two Detroit high school feeder patterns. 71a 36. This objection, splitting an existing feeder pattern, was raised directly in reference to Cluster 12. In neither instance, however, did Mr. Henrickson suggest that the time or distance of transportation involved was too long or that it would present administrative difficulty in devising a pupil assignment plan for either cluster. The objection relates solely to a matter of administrative convenience, namely the use of existing feeder patterns in preparing pupil assignments. For example, Mr. Henrickson previously admitted that in drawing a pupil assign ment plan, an alternative to use of existing feeder patterns would be to “ wipe the slate clean,” and disregard existing feeder patterns. In fact one of the State plans suggested use of census tracts as an alternative. 1 ̂ On numerous occasions in the past Mr. Henrickson himself has reassigned parts of one feeder pattern to another school in order to relieve overcrowding and/or accomplish desegregation. The objection to such practice, therefore, is admittedly insubstantial. 37. The thircTobjection relates to the exchange of Detroit Northern for Detroit Murray in Clusters 6 and 15 requiring that the students transported, if they proceed on their entire journey by way of the expressway, encounter an interchange which tends to be rather slow-moving. Such transportation time and distance, however, is well within the rough criteria for reason ableness and is shorter than or comparable to the maximum trips required in the Detroit Board’s clusters. In other instances, Mr. Henrickson admitted that pupils in the Detroit proposal might also have to travel through similar interchanges. More over, the objection to this particular increase in travel time must be weighed against the apparent general decrease in time which would be required in plaintiffs’ modified clusters as compared with the Detroit Board’s clusters. In any event the desegregation panel, based on its investigation of all aspects of pupil assign ment, remains free to suggest a modification of these clusters in order to reduce the time and number of children requiring transportation. 38. With that caveat, the court finds that plaintiffs’ modification of the Detroit Board’s clusters provides a workable, practicable, and sound framework for the design of a plan to desegregate the Detroit public schools. 72a C. Pupil Assignment and Transportation. 39. Example of various methods of pupil assignment to accomplish desegregation have been brought to the attention of the court by the parties: pairing, grouping, and clustering of schools; various strip, skip, island, and non-contiguous zoning; various lotteries based on combinations of present school assign ment, geographic location, name, or birthday. Judicious use of these techniques — coupled with reasonable staggering of school hours and maximizing use of existing transportation facilities — can lead to maximum actual desegregation with a minimum of additional transportation. 40. Quite apart from desegregation, under any circum stances, transportation for secondary pupils living more than 1 Vi miles, and elementary pupils, living more than 1 mile from school, is often demanded by parents and should be provided. Moreoever, it is essential to the effectiveness of any desegrega tion plan that transportation be provided free to all students requiring it under that criteria. (Brewer v. Norfolk Board of Education,____F. 2d_____ (April 1972) (4th Cir.) 41. In the recent past more than 300,000 pupils in the tri-county area regularly rode to school on some type of bus; this figure excludes the countless children who arrive at school in car pools, which are many, many times more dangerous than riding on the school bus. 42. Throughout the state approximately 35-40% of all stu dents arrive at school on a bus. In school districts eligible for state reimbursement of transportation costs in the three affected counties, the percent of pupils transported in 1969-70 ranged from 42 to 52%. 43. In comparison approximately 40%, or 310,000, of the 780,000 children within the desegregation area will require transportation in order to accomplish maximum actual deseg regation. 44. Hence, any increase in the numbers of pupils to be transported upon implementation of a complete desegregation plan over the number presently transported, relative to the state 73a and the tri-county area, should be minimal. Indeed, any increase may only reflect the greater numbers of pupils who would be transported in any event but for the state practice, which af fected the segregation found in this case, and which denies state reimbursement to students and districts wholly within city limits regardless of the distance of the child from the school to which assigned. ^ (Ruling on Issue of Segregation at 14.) The greatest change is the direction of the buses. 45. There is uncontradicted evidence that the actual cost of transportation for a two-way plan of desegregation should be no greater than 50 to 60 dollars per pupil trans ported, comparable to the present costs per pupil through the state. Increases in the total costs of pupil transportation in the desegregation area, therefore, will result primarily from pro viding all children requiring transportation a free ride instead of imposing the costs of transportation for many on the families in districts which are ineligible for state reimbursement and which fail to provide transportation. 46. By multiple use of buses, careful routing, and econo mies of scale resulting from a comprehensive system of pupil transportation, it may be possible to achieve savings in per pupil costs. For example in 1969-1970 many school districts in the tri-county area which used the same bus for even two loads per day lowered their per pupil costs to $40 or less. In a co ordinated, urban pupil transportation system it may be possible to raise the bus use factor to three of more. (See “ First Report” State Survey and Evaluation.) 47. In the tri-county area in the recent past there were approximely 1,800 buses (and another 100 smaller vans) used for the transportation of pupils. Assuming a rough average of 50 pupils per bus carrying three loads of students per day, this transportation fleet may prove sufficient to carry some 270,000 pupils. 48. Various public transit authorities now transport an additional 60,000 pupils on their regular public runs. 49. The degree to which these plausible bus-use factors 74a can be realized to their maximum, and whether these public transit facilities may be fully utilized in a plan of desegregation, must be answered upon careful investigation by a panel of ex perts. 50. There is no disagreement among the parties, and the court so finds, that additional transportation facilities, at least to the number of 350 buses, will have to be purchased to meet the increase in the number of students who should be provided transportation for either an interim or final plan of desegrega tion. 51. For all the reasons stated heretofore — including time, distance, and transportation factors — desegregation within the area described in physically easier and more practicable and feasible, than desegregation efforts limited to the corporate geographic limits of the city of Detroit. 52. The issue of transportation of kindergarten children, and their inclusion in part or in full in the desegregation plan, may require further study. There was general agreement among the experts who testified that kindergarten, but for “ political” considerations, should be included, if practicable, in the deseg regation plan. Kindergarten, however, is generally a half-day program. Transportation of kindergarten children for upwards of 45 minutes, one-way, does not appear unreasonable, harmful, or unsafe in any way. In the absence of some compelling justifi cation, which does not yet appear, kindergarten children should be included in the final plan of desegregation. 53. Every effort should be made to insure that transporta tion and reassignment of students to accomplish desegregation is “ two-way” and falls as fairly as possible on both races. Although the number of black and white children transported and reassigned at the outset will be roughly equal, it is inevitable that a larger proportion of black children will be transported for a greater proportion of their school years than white children, if transportation overall is to be minimized. To mitigate this disproportion, every effort should be made at the outset to randomize the location of particular grade centers. In the short term, full utilization of vastly under-capacity inner- 75a city schools may also help to mitigate the disproportion for some black children; and in the long term, new school capacity, consistent with other constitutional commands and the overall needs of the desegregation area and the surrounding area, should be added in Detroit, in relative proximity to concentrations of black student residence. D. Restructuring of Facilities and Reassignment of Teachers 54. In the reassignment of pupils to accomplish deseg regation the court finds that facilities must be substantially reallocated and faculty substantially reassigned by reason of the clustering, pairing and grouping of schools. 55. In order to make the pupil desegregation process fully effective the court finds that it is essential to integrate faculty and staff and to insure that black faculty and staff representa tion at every school is more than token. The court has pre viously found and reaffirms that “ a quota or racial balance in each school which is equivalent to the system-wide ratio and without more” is educationally unsound, and that the desid eratum is the balance of staff by qualifications for subject and grade level, and then by race, experience and sex. It is obvious, given the racial composition of the faculty and staff in the schools in the metropolitan plan area, and the adjusted racial composition of the students, that vacancies and increases and reductions in faculty and staff cannot effectively achieve the needed racial balance in this area of the school operation. Active steps must be taken to even out the distribution of black teachers and staff throughout the system. 56. In the desegration area approximately 16% of the faculty and 12% of the principals and assistant principals are black. In this context “ token” means roughly less than 10% black. Moreover, where there is more than one building adminis trator in any school, a bi-racial administrative team is required wherever possible. 57. Every effort should be made to hire and promote, and to increase such on-going efforts as there may be to hire and 76a promote, additional black faculty and staff. Because of the systematic and substantial under-employment of black administrators and teachers in the tri-county area, an affirma tive program for black employment should be developed and implemented. 58. The rated capacity of classrooms in the Detroit public schools is 32; in some of the suburban districts the average rated capacity is as low as 24 or 25. Utilization should be redeter mined on a uniform basis. 59. In respect to faculty and staff, school facilities, and the utilization of existing school capacity, normal administra tive practice in handling the substantial reallocation and reas signment incident to pupil desegregation should produce schools substantially alike. 60. In the circumstances of this case, the pairing, grouping and clustering of schools to accomplish desegregation with minimum transportation often requires use of grade arrange ments such as K-4, K-5, or even K-6. In so planning pupil reas signments, it is sometimes necessary, and often administratively practicable, to include grades K-8 or even K-9 to achieve the maximum actual desegregation with the minimum trans portation. Grade structures in most elementary schools in the desegregation area is a basic K-6; however, almost all other combinations are found. They differ within and among various districts. 61. In the reassignments of pupils and teachers and the reallocation of equipment and facilities required to accomplish desegregation, the elementary grades and schools present rela tively few administrative difficulties, while the high school grades and facilities present the greater difficulties, particularly with respect to scheduling and curriculum. 62. For these reasons, if it develops that interim choices must be made because of the impossibility of immediate deseg regation of all grades, schools, and clusters in the desegregation area, the weight of the evidence is, and the court so finds, that desegregation should begin first at the earliest grades for entire 77a elementary school groupings throughout as many clusters as possible. E. School Construction 63. Relative to suburban districts the Detroit public schools, as a whole, are considerably over-capacity. (See also Finding 58, supra.) To alleviate this overcrowding equalize rated capacity and' minimize and equalize transportation burdens borne by black pupils in the city, needed new school capacity, consistent with other requirements of a desegregation plan, should be added on a priority basis in the city of Detroit. 64. Relevant to the court’s choice of a desegregation area more limited than the Detroit Board Proposal is the testimony, elecited on cross-examination from two of the primary authors of that proposal, related to the effects of controlling new school construction. The broader area in the Detroit proposal was chosen without any real consideration of the impact of control ling school construction in an area larger than the desegregation area. Upon reflection, both Dr. Flynn and Mr. Henrickson admitted that closely scrutinizing and limiting the addition of capacity to areas outside the desegregation area might lead them to re-evaluate the need, in the context of maintaining now and hereafter a unitary system, to include an area as sweeping as recommended by the Detroit Board Proposal. 65. In our Ruling on Issue of Segregation, pp. 8-10, this court found that the “ residential segregation throughout the larger metropolitan area is substantial, pervasive and of long standing” and that “governmental actions and inaction at all levels, Federal, State and local, have combined with those of private organizations, such as loaning institutions and real estate associations and brokerage firms, to establish and to maintain the pattern of associations and brokerage firms, to establish and to maintain the pattern of residential segregation through the Detroit metropolitan area.” We also noted that this deliberate setting of residential patterns had an important effect not only on the racial composition of inner-city schools but the entire School District of the City of Detroit. (Ruling on Issue of Seg regation at 3-10.) Just as evident is the fact that suburban 78a school districts in the main contain virtually all-white schools. The white population of the city declined and in the suburbs grew; the black population in the city grew, and largely was contained therein by force of public and private racial discrim ination at all levels. 66. We also noted the important interaction of school and residential segregation: “Just as there is an interaction between residential patterns and the racial composition of the schools, so there is a corresponding effect on the residential pattern by the racial composition of schools.” Ruling on Issue of Segregation at 10. Cf Swann v. Charlotte-Mecklenberg, 402 U.S. 1, 20-21 (1971); “ People gravitate toward school facilities, just as schools as located in response to the needs of people. The loca tion of schools may thus influence the patterns of residential development of a metropolitan area and have important impact on composition of inner city neighborhoods.” 67. Within the context of the segregatory housing market, it is obvious that the white families who left the city schools would not be as likely to leave in the absence of schools, not to mention white schools, to attract, or at least serve, their chil dren. Immigrating families were affected in their school and housing choices in a similar manner. Between 1950 and 1969 in the tri-county area, approximately 13,900 “ regular classrooms,” capable of serving and attracting over 400,000 pupils, ^ were added in school districts which were less than 2% black in their pupil racial composition in the 1970-71 school year. (P.M. 14; P.M. 15). 68. The precise effect of this massive school construction on the racial composition of Detroit area public schools cannot be measured. It is clear, however, that the effect has been sub stantial. 20 Unfortunately, the State, despite its awareness of the important impact of school construction and announced policy to control it, acted “ in keeping generally, with the discriminatory practices which advanced or perpetuated racial segregation in these schools.” Ruling on Issue of Segregation at 15; see also id., at 13. 69. In addition to the interim re-evaluation of new school 79a construction required in the order, pursuant to the State Board’s own requirements, the final plan will consider other appropriate provisions for future construction throughout the metropolitan area. F. Governance, Finance and Administrative Arrangements 70. The plans submitted by the State Board, the Detroit Board, and the intervening defendants Magdowski, et al., discuss generally possible governance, finance and administrative ar rangements 21 which may be appropriate for operation of an interim or final plan of desegregation. Without parsing in detail the interesting, and sometimes sensible, concepts introduced by each plan, it is sufficient to note that each contemplates over laying some broad educational authority over the area, creating or using some regional arrangement (with continued use or eventual redrawing of existing districts), and considerable input at the individual school level. The court has made no decision in this regard and will consider the matter at a subsequent hearing. 71. Each concept needs to be “ fleshed-ouf ’ in the hard prospect of implementation of a final plan of desegregation and what is necessary and essential, and only that, for the successful operation of that plan of school desegregation now on an interim basis and hereafter on a permanent footing. 72. There are now some 86 school districts in the tri county area of varying size, numbers of pupils, shapes, and wealth. 73. In another context, the State Board of Education found each related to a “metropolitan core city” (Detroit) as “ city,” “ town,” or “ urban fringe” districts. 74. The boundaries of these school districts in general bear no relationship to other municipal, county, or special dis trict governments, needs or services. 22 75. Some educational services are already provided to stu dents on an interdistrict, county, intercounty, or metropolitan basis: and many support services are provided by the inter mediate school districts and the State Department of 80a Education. For various reasons many pupils already cross school district lines to attend school or receive educational services. 23 76. In many respects — patterns of economic life, work, play, population, planning, transportation, health services - the tri-county area constitutes a rough series of interrelated com munities constituting, in the view of the United States Census Bureau, a single standard metropolitan statistical area. 77. Local units of government in the metropolitan area have in many instances joined together for the purpose of pro viding better solutions to problems confronting them. In such instances various units of government have either disregarded local boundaries or have concluded that the problems were such as to call for a metropolitan solution. In some cases they have created overlay organizations. SEMCOG, recreational autho rities, a metropolitan sewage system, SEMTA, and the Detroit Water System are examples of these metropolitan approaches. 78. Indeed, the State defendants at this very moment are attempting in state court to strike down one irrationality, and the discriminatory effect, of the existing school district arrange ment, i. e., finance, apparently in the hope of moving to a virtual state-wide assumption of costs. 79. In such circumstances there has been no showing that the existing school district boundaries are rationally related to any legitimate purpose; and the court finds that the particular welter of existing boundaries for 86 school districts is not necessary to the promotion of any compelling state interest. 80 80. On the basis of the present record, the court is of the view that the shifts in faculty, staff, resources and equipment and the exchanges of pupils necessary to accomplish maximum actual desegregation may be made, at least on an interim basis, by contractual agreements or otherwise among and between the existing school districts. The court has serious reservations, however, whether such procedures will inevitably threaten the continuing effectiveness of a plan of desegregation over the long-term. On these issues more evidence and further hearings will be necessary before reaching a final decision. 81a 81. The State defendants, and in particular the State Board of Education which is charged with the primary respon sibility for public education in Michigan, are the primary parties to be charged with responsibility to undertake that vital inquiry and return with recommendations about those governance, financial, and administrative arrangements which are necessary and essential to the successful implementation of a plan of de segregation on an interim and continuing basis. G. Involvement of Affected Persons and Communities and Protection Against Racial Discrimination in the Desegregation Process 82. The court has received uncontroverted evidence in the plans filed by every party and in testimony, and advice in several briefs amicus curiae, and the court finds, that the follow ing additional factors are essential to implementation and operation of an effective plan of desegregation in the circum stances of this case: (a) Bi-racial councils made up of the parents and staff, and, where appropriate, pupils, should be set up at each school; the persons most affected must be encouraged and given every opportunity to parti cipate in the implementation of desegregation. (b) Curriculum content, and all curriculum materials and student codes, must be re-evaluated and reflect the diversity of ethnic and cultural backgrounds of the children now in the schools. As far as possible, those immediately affected by these decisions at the indi vidual school level should participate in that process. (c) In-service training for faculty and staff for multi ethnic studies and human relations should be required; we must, after all, rely primarily on our teachers and children to respect, nurture, and deal with the diversity of students present in the deseg regated school. (d) The entire grading, reporting, counselling, and testing program should be reviewed in light of desegregated 82a schools compared to traditional schools and to avoid imposing the effects of past discrimination on the children. Tracking, whether so labeled or by any test, which has racial effects should not be utilized; within schools a pattern of classes which are substantially disproportionate in their racial composition from the relevant school or grade mix should be closely scrutinized and maintained only if necessary to pro mote a compelling educational objective. 83. In making the finding above, we remind the parties that this court’s task is to enforce constitutional rights not to act as a schoolmaster; the court’s task is to protect the con stitutional rights here found violated with as little intrusion into the education process as possible. The court’s objective is to establish the minimum constitutional framework within which the system of public schools may operate now and hereafter in a racially unified, non-discriminatory fashion. Within that framework the body politic, educators, parents, and most par ticularly the children must be given the maximum opportunity to experiment and secure a high quality, and equal, educational opportunity. However, experience has proven that specific goals, deadlines and methods of reporting and review must be required in all desegregation cases to insure compliance. H. Timing 84. The burden remains with State defendants to show why desegregation for all schools, grades, classrooms, and pupils in the desegregation area should not proceed now, i.e., in the context of this litigation, for the 1972 fall term. The design and implementation of desegregation plans for all grades in 15 clusters — including pupil assignments, necessary reassignment of faculty and restructuring of facilities, planning and acquiring the needed transportation facilities — is conceded by all parties to be a major undertaking. Yet next fall will already be a full year, not just four or six or even eight weeks, Cf. Carter v. West Feliciano Parish School Bd., 396 U.S. 290 (1970), after the initial ruling by this court of the need for maximum feasible desegregation “ now.” In such circumstances the burden to prove the infeasibility of implementation of complete relief is high. 83a 85. The desegregation panel, therefore, must make every effort to plan to implement as much actual desegregation, for as many clusters, schools, grades, classrooms, and students as pos sible. 86. At a minimum, there is agreement among, and evidence from, the experts that desegregating several grades, and more particularly entire elementary schools, within many, if not all, clusters may be accomplished in the fall. 87. In view of Findings 60 to 62, supra, if hard choices must be made for the fall, any interim plan should attempt to desegregate grades K-6, K-8, or K-9 in as many entire clusters as possible; and, in the absence of some other showing, there appears no reason why a complete plan may not be imple mented by fall 1973. 24 88. A heavy burden rests with those who seek delay in any way, shape, kind, degree or extent to convince the court that maximum actual desegregation cannot proceed effectively forthwith. 89. In view of the time constraints, the need to discharge this burden forthwith, the State defendants’ default in assisting this court to determine the appropriate desegregation area, and the State defendants’ asserted and evident lack of available plan ning capacity suited to the task, the court finds that some addi tional entity must be charged with the task of preparing a pupil assignment plan to accomplish maximum actual desegregation and a transportation plan within the framework this day established. To that end a panel of skilled experts, broadly re presentative of the parties and their interests, appointed by the court and assigned that task, is required to discharge effectively and promptly these two tasks. 90 90. State defendants remain charged with the duty, how ever, of coming forward with other necessary reports and plans concerning those governance, administrative, and financial ar rangements necessary and essential to the implementation of an effective plan of desegregation on an interim and on-going basis. 84a I. The Plan 91. Based on the entire evidence amassed in this case, the court finds that an educationally sound, administratively fea sible, constitutionally adequate, practicable and effective plan of desegregation may be developed, implemented, and operated hereafter for the desegregation area as set forth in findings 1-90 above. CONCLUSIONS OF LAW 1. The court has continuing jurisdiction of this action for all purposes, including the granting of effective relief. Bradley v. Milliken, Ruling on Issue of Segregation, September 27, 1971; Findings of Fact and Conclusions of Law on Detroit-Only Plans of Desegregation, March 28, 1972. 2. A de jure segregation violation having been found, the minimum remedy is maximum actual desegregation, taking into account the practicalities of the situation. 25 Bradley v. Mil liken, Oral Order, October 4, 1971; Findings of Fact and Con clusions of Law on Detroit-Only Plans of Desegregation, March 28, 1972; Brown v. Board o f Education, 347 U.S. 383 (1954), 349 U.S. 294 (1954); Green v. County School Bd., 391 U.S. 430 (1968); Alexander v. Holmes County Bd. o f Ed., 396 U.S. 19 (1969); Carter v. West Feliciano School Bd., 396 U.S. 290 (1970) ; Swann v. Charlotte Mecklenberg Bd. o f Ed., 402 U.S. 1 (1971) ; Davis v. Board o f School Commissioners o f Mobile, 402 U.S. 33 (1971); Davis v. School District o f City o f Pontiac, 443 F. 2d 573, cert, denied, 925 U.S. 233 (1971). 3. The remedial obligation rests with school authorities, but where in any way they fail, or are unable because of the circumstances of the case, to fulfill any part of the obligation promptly and fully, the court has broad equity power, and the duty, to insure that demonstrable progress be made now; that a schedule for planning be adopted forthwith; and that necessary planning be specifically ordered and immediately undertaken in order that a constitutionally adequate plan may be fashioned and finally ordered implemented as soon as possible. Swann v. Charlotte-Mecklenberg Board o f Education, 311 F. Supp. 265 (W.D.N.C. 1970), aff’d, 402 U.S. 1 (1971); Carter v. West 85a Feliciano School Bd., 396 U.S. 226, 227-228 (1969), 396 U.S. 290 (1970); Acree v. County Board o f Education, No. 72-1211 (5th Cir. March 31, 1972); Rule 53, Fed. R. Civ. ?.,P.A.R.C. v. Pennsylvania, 334 F. Supp. 1247, 1266-7 , (E.D. Pa. 1971). Only then will the court in this case be apprised fully of the practicalities of the situation, and what is reasonable and fea sible, in order that a final order may issue. School authorities, of course, will be given an opportunity to (1) raise relevant objections, (2) make suggestions for modifications, (3) or pre sent an alternative plan of desegregation; and their judgment and expertise will be considered and given appropriate weight by the court. 4. Funds must either be raised or reallocated, where necessary, to remedy the deprivation of plaintiffs’ con stitutional rights and to insure that no such unconstitutional neglect recurs again. Shapiro v. Thompson, 397 U.S. 254, 265-266 (1970); Boddie v. Connecticut, 91 S. Ct. 780, 788 (1971); Griffin v. Illinois, 351 U.S. 12 (1956); Graham v. Richardson, 403 U.S. 365, 374-375 (1971); Mayer v. Chicago, 404 U.S. 189, 197 (1971); Griffin v. Prince Edward County, 377 U.S. 218 (1964); Hoosier v. Evans, 314 F. Supp. 316, 320-321 (D. St. Croix, 1970); United States v. School District 151, 301 F. Supp. 201, 232 (N.D. 111. 1969), aff’d as modified, 432 F. 2d 1147 (7th Cir. 1970), cert, denied, 402 U.S. 943 (1971); Plaquemines Parish School Board v. U.S., 415 F. 2d 319 (5th Cir. 1970); Bradley v. Richmond,______ F. Supp____ , (April 1971); Brewer v. Norfolk, No. 71-1900 (4th Cir., March 7, 1972) (Slip op. at pp. 7-8). It would be a cruel mockery of constitutional law if a different rule were to be applied to school desegregation cases. After all schooling is this nation’s biggest industry and the most important tast of government left to the states by the Constitution. In this case, were a different rule to be applied, it would constitute a gigantic hypocrisy: After all the money which has been spent over the years creating and maintaining the segregated condition, the relatively small amounts of money required to undo that segregation can be found. The law, surely, requires at least that. And the ap plication of the commands of Swann does require that in almost every school desegregation case which has been brought to this court’s attention. 86a 5. In the substantial reassignment of faculty and re structuring of facilities required by the clustering, pairing, and grouping of schools to accomplish pupil desegregation, normal administrative practice should lead to schools with substantially like facilities, faculty and staff, and equipment. Swann, supra, 402 U.S. at 18-20. Moreover, special care should be taken in the necessary reassignment of faculty to avoid creating or maintain ing the racial identification of schools “ simply by reference to the racial composition of teachers and staff.” Swann, supra, 402 U.S. at 18. In any event, the equitable discretion of the court is broad enough to insure that those aspects of faculty deseg regation and equalization of facilities which are essential to the effective operation of a desegregation plan are included in the planning and final order, Swann, supra, 402 U.S. at 15; U.S. v. Montgomery County Board o f Ed., 395 U.S. 225 (1969);Hecht v. Bowles, 321 U.S. 329-330 (1944); and no contract, union agreement or otherwise, or Board policy or practice may impede these Fourteenth Amendment obligations. U.S. v. Greenwood Municipal Separate School District, 406 F. 2d 1086, 1094 (5th Cir.), cert, denied, 395 U.S. 907 (1969); Berry v. Benton Harbor,_____ F. Supp_____ (W.D. Mich. 1971). 6. The Federal courts have repeatedly rejected plans exempting the lower grades from integration, relying less on educational data than upon the hard legal fact that segregation at any age is a denial of the equal protection of the law. See, e.g., United States v. Jefferson County Bd. o f Educ., 372 F.2d 836 (9th Cir. 1966), aff’d on rehearing en banc, 380 F.2d 385 (5th Cir. 1967). To leave grades K through 3 exempt from a desegregation plan is not to eliminate segregation “ root and branch.” Green v. County School Board o f New Kent County, 391 U.S. 430(1968). 7. The consistent application of settled constitutional law invests this court with the equitable power, and the duty, to order preparation, and thereafter implementation, of a practic able and sound plan which embodies the principles set forth in these findings and conclusions and the attached memorandum and order. See, generally, Ruling on Propriety of Considering a Metropolitan Remedy to Accomplish Desegregation of the 87a Public Schools of the City of Detroit, March 24, 1972; Findings of Fact and Conclusions of Law on Detroit-Only Plans, March 24, 1972; oral ruling on offers of proof, April 13, 1972; and the cases cited therein. 8. School construction practices throughout the metro politan area have added to and reinforced the pattern of seg regation referred to. Although there were vacant seats through out the city to which students could have been assigned at lesser cost and with the achievement of integration, continued sums were expended for construction of new schools designed to service particular areas of racial concentration, and such schools opened as and have continued to be racially identifiable in violation of the Fourteenth Amendment. Swann v. Charlotte- Mecklenberg Bd. o f Educ., 402 U.S. 1, 18-20 (1971); United States V. School Dist. 151, 404 F.2d 1125, 1132-33 (7th Cir. 1968); Davis v. School Dist. o f Pontiac, 309 F. Supp. 734, 741-42 (E.D. Mich. 1970), aff’d, 443 F.2d 573 (6th Cir. 1971); Spangler v. Pasadena City Bd. o f Educ., 311 F. Supp. 501, 517-18 (C.D. Calif. 1970); Johnson v. San Francisco Unified School Dist., Civ. No. C-70-1331 (N.D. Calif. April 28, 1971); Brewer v. School Board o f the City o f Norfolk, 397 F.2d 37, 42 (4th Cir. 1968); Cf Sloan v. Tenth School Dist. o f Wilson County,______ F.2d______(6th Cir. 1970); United States v. Board o f Educ. o f Polk County,____F. 2d___ 4th Cir. 1968); Kelley v. Altheimer,_____F.2d____ (8th Cir. 1967); Bradley v. School Bd.,_______F. Supp_______(E.D. Va. 1971); Clark v. Board o f Educ. o f Little Rock, 401 U.S. 971 (1971). 9. The legal effects o f racially discriminatory confinement to a school district are not different from the ef fects of such containment within a district. E.g., Lee v. Macon County Board o f Education, 558 F.2d 746 (5th Cir. 1971); Haney v. County Board Sevier, 410 F.2d 920 (8th Cir. 1969), 429 F.2d 364 (8th Cir. 1970). 10. Where the actions of state defendants and local school authorities throughout the metropolitan area have had the natural, foreseeable, and actual effect of building upon, taking advantage of, and encouraging racially segregated demographic patterns deliberately fixed by governmental action at all levels 88a with the effect of creating and maintaining racial segregation in the public schools, there is a present obligation to eliminate the continuing effects of such violation; and the District Court has the duty, upon default by school authorities, to intervene to secure compliance with the Constitution pursuant to the sound exercise of traditional equity powers consistent with the practicalities of the local situation. Swann v. Charlotte- Mecklenberg, 402 U.S. 1, 15-16, 20-21,31-32 (1971). Cf Find ings of Fact and Conclusions of Law on Detroit-Only Plans of Desegregation, p.5, Conclusion 4. In devising remedies where state-imposed segregation has been established, it is the respon sibility of school authorities and district courts to see to it that future school construction and abandonment is not used and does not serve to perpetuate or re-establish the violation. Swann, supra, 402 U.S. at 21. 11. Moreoever, where the State, and named defendants, are substantially implicated in the segregation violation found and are ultimately responsible for public schooling throughout the state, the consistent application of constitutional principles requires that this court take all steps necessary and essential to require them to desegregate the Detroit public schools ef fectively and maintain, now and hereafter, a racially unified, non-discriminatory system in the absence of a showing that the judicial intervention here contemplated will frustrate the pro motion of a legitimate and compelling state policy or interest. Reynolds v. Sims, 377 U.S. 533, 575 (1964);Hunterv. City of Pittsburg, 207 U.S. 1 61, 178- 179 (1907); Phoenix v. Kolodziejski, 399 U.S. 204, 212-213 (1970); Kramer v. Union Free School District, 395 U.S. 621, 633 (1969); Williams v. Illinois, 399 U.S. 235, 24445 (1970); Shelton v. Tucker, 364 U.S. 479, 488 (1966); Green v. County School Bd., 391 U.S. 430, 439 , 442; Swann v. Charlotte-Mecklenberg, 402 U.S. 1 (1971); Davis v. Bd. o f School Commissioners, 402 U.S. 33 (1971); Brown v. Board o f Education, 347 U.S. 483 (1954); Brown v. Board o f Education, 349 U.S. 292, 300 (1955); Monroe v. Board o f Commissioners, 391 U.S. 450, 459 (1968). 89a FOOTNOTES 1. In the main such proof entirely misses the point: the violation here found has to do with school segregation caused in substantial part by force of public authority and action; yet the intervening defendants’ questions and offer of proof speak mainly to educational theory and recent and sometimes con tradictory research about narrowly measured educational ef fects, mostly on achievement test scores, of quite limited begin nings of racial, or socio-economic integration of various types and as compared with the effects of dollar or other resource inputs and continued segregation. This court does not under stand, however, that such research, from the Coleman report to its many reanalyses, formed the primary bases for the Brown decision or any of its progeny. See, e.g., Brunson v. Bd. of Trustees, 429 F.2d 820, 826 (4th Cir. 1970) (J. Sobeloff, con curring). In the context similar to newly intervening defendants’ objections to desegregation, the Supreme Court in Swann specifi cally held that such factors constitute an impermissible limit upon the duty to desegregate. 402 U.S. at 24, Fn. 8. Citation to such research, either in support or rejection of school deseg regation, misses the primary point: insofar as pupil assignments are concerned, the system of public schooling in every state must be operated in a racially non-discriminatory, unified fashion; until that objective is met, the very system of public schooling constitutes an invidious racial classification. The adoption of an education theory having the effect of main taining a pattern of de jure segregation is therefore clearly impermissible. (Whether such theories, research, or evidence on educational quality or inequality form the basis for requiring judicial intervention and relief in the absence of a finding of de jure segregation is a question this court need not face.) In any event, the Court of Appeals for the Sixth Circuit held, on June 19, 1970, that greater, not less, desegregation is the proper manner to alleviate the problem of disparity in achievement. Monroe v. Board of Commissioners, Jackson, Tenn., 427 F.2d 1005, 1008 (C.A. 6, 1970). 2. Chief Justice Burger in Swann v. Charlotte-Mecklenberg Bd. ofEduc.,402 U.S. 1, 6. 90a 3. Defendants Magdowski, et al., originally opposed to de segregation, during the course of the taking of proofs on the issue of segregation, conceded that the public schools of the city of Detroit were in fact segregated, and took the early lead in suggesting that the only effective avenue for desegregation was a metropolitan plan. The Detroit Board of Education, while continuing to deny that it has been guilty of any act of seg regation, took the position that if desegregation were to be undertaken it could be done only on a metropolitan basis. So that now the white parents of the city of Detroit and its Board of Education — the parties most directly involved with the lot of the students in the Detroit school system — see no alternative to, and, for all practical purposes seek a metropolitan solution to the basic Detroit school problem. 4. In the context of this hearing, the defendant Detroit Board of Education is not in a position to act as the usual “school authority” primarily responsible for suggesting an ap propriate desegregation area simply because its authority does not extend beyond the geographic limits of the city of Detroit. The competence, knowledge of local conditions, and expertise of those schoolmen who helped prepare the Detroit Board’s proposal, however, may be utilized and given appropriate weight. 5. In Oliver v. Kalamazoo Board of Education, #K88-71, Judge Fox pointed out the primary responsibility of the state: “The State of Michigan is represented by two entities, but the entity is an agent of the State . . . [T]he Constitution says something about your [the State’s] responsibility.” The court went on to order the State to take an active role. Pre-trial order and transcript, May 1, 1972. 6. The Detroit Board plan places heavier reliance on white flight and socio-economic factors, while the Magdowski pro posal in addition places an emphasis on maintaining a minimum percentage black in each school. These considerations in no way determine the court’s choice of a desegregation area necessary to meet constitutional requirements. In fairness, however, it also should be noted that the desegregation area, which the court deems to best meet constitutional requirements, also happens in the main, to meet the other concerns expressed in 91a these two proposals. That the Board’s interest in socio economic integration is largely met by racial desegregation is not surprising. There is uncontroverted evidence in the record, and the court so finds, that there is a high correlation between blacks and persons of a low socio-economic status, the result, in the main, of the cumulative effects of past and present racial discrimination including discrimination in education. At some point hereafter, of course, school authorities with responsibility for implementation and operation of the racially-unified non- discriminatory school system contemplated, or parts thereof, may and should include in its plan other educational goals and needs whether or not they are required by the law or any court. Swann v. Charlotte-Mecklenberg, 402 U.S. at 16. 7. If a state is constitutionally forbidden to institute a system of racial segregation by the use of artificial boundary lines, it is likewise forbidden to perpetuate a system whose effect is to maintain segregation. “There is no legally protected vested interest in segregation. If there were, then Brown v Board of Education and the numerous decisions based on that case would be pointless. Courts will not say in one breath that public school systems may not practice segregation, and in the next that they may do nothing to eliminate it.” Wanner v School Bd. of Arlington County, 357 F.2d 452, (Soboloff, Cir. J.), pp. 454 and 455. The historic fact is that existing conditions are based on a design to segregate the races. To hold that segregation, once accomplished, is sacrosanct and beyond constitutional reach, is to say that the United States Constitution and its Amendments, and their provisions for equality, are mere rhetoric. 8. See Findings 70-78, infra. 9. The interplay of these two factors summarizes two other guideposts or starting points: maximum feasible deseg regation and eliminating racially identifiable schools. Factors such as time and distance limitations, together with the rough definitions of substantial disproportion with the relevant sch oo l community’s pupil racial composition, in turn largely determine the meaning of “ eliminating racially identifiable schools” and what constitutes “maximum feasible desegregation,” in the 92a particular circumstances here present and in the context of a prior finding of segregation. 10. The Detroit Board Proposal contemplates desegrega tion on a “minority”-white basis. The proof in this cause, how ever, has been aimed at the segregation of black children and white children; similarly the remedy has been so defined, argued, and in the main presented by parties. The court finds, therefore, that the area, and further planning, should, in the main, be confined to a black-white breakdown. 11. To the Southwest, Plaintiffs’ Proposal falls on the side of less time in transit than the 40-minute guideline because inclusion of more area is not required to desegregate, (see Find ing 27, infra.) 12. Moreover, in the main, the areas, schools, and pupils in these districts are not as fully members of the greater Detroit school community: many are less urban; they are the furthest in terms of time, distance, and contact from the Detroit area’s economic and social acitivities [SIC] ; and many are more oriented, if anything, to urban areas other than Detroit, for example, the Ann Arbor - Ypsilanti area. 13. The court notes, however, that the range of average socio-economic status for the various regions or clusters in Plaintiffs’ Proposal is similar to that in the Detroit Board Pro posal: based on the Michigan Assessment the range in Plaintiffs’ Proposal happens to be 44.7 to 53.7, while in the Detroit Board Proposal the range is 46.3 to 53; and only three of the 15 clusters of schools in Plaintiffs’ Proposal fall below 46.3. 14. Because of the closeness of the question, particularly as it relates to any problems which may arise hereafter in establishing a pupil desegregation plan, the court feels that some opportunity should be given to the expert panel to suggest a modification of this tentative resolution. See also Findings 34-38 below. 15. A common practice in other cases is the use of “pupil locator” maps. See Northcross v. School Board of City of Memphis,_____ F. 2d______ (6th Cir. 1971). 93a 16. For years these city-contained school districts, which include some suburban districts in the desegregation area, as well as the Detroit Public Schools, have demanded without suc cess that this inequitable state practice be changed so that all districts could be reimbursed on the same basis for pupil trans portation. 17. The figure almost twice that which appears in several of the State “plans” was based on the assumption that busing would be “ one-way” with black children being assigned to sub urban schools. Mr. Wagner, the state official in charge of pupil transportation, provided the information on which that esti mate was based and also informed his superiors that a two-way plan of desegregation and transportation would cost much less per pupil. The state defendants did not bring this important fact to the court’s attention in any of their submissions; it was un covered and fully explored in the disposition of Mr. Wagner taken by plaintiffs. 18. This phenomenon was noted in Swann, 402 U.S. 1, 20-21. The principle was long known, and actively, supported by the F.H.A. For example, consider that public agency’s early understanding in its 1936 manual that white subdivision developments require white schools: “ if the children of people living in such area are compelled to attend school where the majority or a good number of the pupils represent a far lower level of society or an incompatible racial element, the neighbor hood under consideration will prove far less stable and desirable than if the condition did not exist.” 19. This figure assumes 30 children/regular classroom. Although rated capacities may be lower, the figure for regular classrooms does not include several types of instructional, recreational, laboratory, and other rooms which add overall pupil capacity to schools. 20. The resulting pattern is unmistakable: “ Residential segregation within the city and throughout the larger metro politan area is substantial, pervasive and of long standing. Black citizens are located in separate and distinct areas within the city and are not generally found in the suburbs. While the racially 94a unrestricted choice of black persons and economic factors may have played some part in the development of this pattern of residential segregation, it is, in the main, the result of past and present practices and customs or racial discrimination, both public and private, which have and do restrict the housing op portunities of black people. Perhaps the most that can be said is that all of them [various governmental units], including school quthorities, are, in part, responsible for the segregated condition which exists.” Ruling on Issue of Segregation, 8 and 10. More over, an examination of PX 181, 192 and 185 shows that black children often remain isolated in predominately black schools in the few suburban school districts with any numbers of black pupils. In the last several weeks the local press has reported that the United States Office of Education cut off funds for one such district. 21. Included in this set of arrangements are contract rela tionships of various types concerning personnel, property and debts. 22. The defendant, William G. Milliken, Governor of the State of Michigan, in his amicus brief filed in the Supreme Court of the United States, No. 71-1332, San Antonio In dependent School District v. Demetrio P. Rodriquez, says, page “ 1. Amici, whose individual and particular interests are set forth in more detail below, are the Governors of the above-listed States. As Governors and Chief executive of ficers of their respective States, Amici are responsible for upholding and carrying out the commands of the Con stitutions and laws of their various States, including the provisions thereof requiring the establishment of public schools and school districts and commanding the children of their States to attend school. Amici are responsible for financial decisions affecting all State operations, including those pertaining to support and financing of the public schools. “Amici are deeply concerned about the ongoing and continuing crisis in public education and the difficulties 95a facing public educational systems in their States and around the nation. Amici recognize that grave inequities exist because of variation in local property tax bases upon which local school districts must rely in order to support their school systems. Amici believe that these inequalities in educational resources violate the requirements of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and that these inequalities must be eliminated* * * *” The Governors’ amicus brief, speaking of the State of Texas, could as well be said of the State of Michigan, when it used these words: “ It is also undisputed that the local school districts and their boundaries, and hence the aggregate value of the property they contain, are entirely the creation of and their maintenance is the responsibility of the State of Texas. Furthermore, the detailed regulation of public education financing in Texas * * * is a state not a local responsibility. Indeed, the school districts have the power to raise funds for education only as a result of delegation by the State of its own power to tax for the general wel fare.” (Page 8 of brief.) “ Since the State could not discriminate directly against students residing in poorer localities, it should not be permitted to accomplish the same result by dividing its responsibility for equal education with local school districts and failing to supplement the funds raised by the school districts sufficiently to eliminate discrimination.” *(Page 11 of brief.) *Compare Griffin v. County School Board, 377 U.S. 218 (1964). While a State may delegate certain of its functions to smaller subdivisions such as cities or counties, it cannot escape accountability for their actions. Such subdivisions are “ created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them * * * * The number, nature, and duration of [their] powers * * * and the territory over which they shall be exercised rests in the absolute 96a discretion of the State.” Hunter v. City of Pittsburg, 207 U.S. 161, 178 (1907). 23. For years black children in the Carver School District were assigned to black schools in the inner city because no white suburban district (or white school in the city) would take the children. 24. These findings are made on the basis of the present record and are subject to modification based on evidence which may be developed once the specific problems of actual deseg regation are faced in the planning process. 25. See, Kelley, et al. v. Metropolitan Bd. of Educ., CCA 6, Nos. 71-1778-79, page 22, slip opinion, May 30, 1972: “ Perhaps the primary thing that the Swann case decided was that in devising plans to terminate such residual effects, it is appropriate for the school system and the District Judge to take note of the proportion of white and black students within the area* and seek as practical a plan as may be for ending white schools and black schools and substituting therefor schools which are representative of the area in which the students live.” *The area referred to in this case is all of Davidson County, including the City of Nashville, which is in cluded in the jurisdiction of defendant Metropolitan Board of Education. 97a UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION RONALD BRADLEY, et al., Plaintiffs WILLIAM G. MILLIKEN, et al., Defendants and DETROIT FEDERATION OF TEACHERS, LOCAL 231, AMERICAN FEDERA TION OF TEACHERS, AFL-CIO, Defendant- Intervenor and DENISE MAGDOWSKI, et al., Defendants- Intervenor et al. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO 35257 RULING ON DESEGREGATION AREA AND ORDER FOR DEVELOPMENT OF PLAN OF DESEGREGATION On September 27, 1971 the court made its Ruling on Issue of Segregation, holding that illegal segregation exists in the public schools of the City of Detroit as a result of a course of conduct on the part of the State of Michigan and the Detroit Board of Education. Having found a constitutional violation as established, on October 4, 1971 the court directed the school board defendants, City and State, to develop and submit plans of desegregation, designed to achieve the greatest possible de gree of actual desegregation, taking into account the practicali- 98a ties of the situation. The directive called for the submission of both a “Detroit-only” and a “Metropolitan” plan. Plans for the desegregation of the Detroit schools were submitted by the Detroit Board of Education and by the plain tiffs. Following five days of hearings the court found that while plaintiffs’ plan would accomplish more desegregation than now obtains in the system, or which would be achieved under either Plan A or C of the Detroit Board of Education submissions, none of the plans would result in the desegregation of the pub lic schools of the Detroit school district. The court, in its find ings of fact and conclusions of law, concluded that “relief of segregation in the Detroit public schools cannot be accom plished within the corporate geographical limits of the city,” and that it had the authority and the duty to look beyond such limits for a solution to the illegal segregation in the Detroit public schools. Accordingly, the court ruled, it had to consider a metropolitan remedy for segregation. The parties submitted a number of plans for metropolitan desegregation. The State Board of Education submitted six - without recommendation, and without indicating any pre ference. With the exception of one of these, none could be con sidered as designed to accomplish desegregation. On the other hand the proposals of intervening defendant Magdowski, et al., the Detroit Board of Education and the plaintiffs were all good faith efforts to accomplish desegregation in the Detroit metro politan area. The three plans submitted by these parties have many similarities, and all of them propose to incorporate, geo graphically, most-and in one instance, all—of the three-county area of Wayne, Oakland and Macomb. The hearing on the proposals have set the framework, and have articulated the criteria and considerations, for developing and evaluating an effective plan of metropolitan desegregation. None of the submissions represent a complete plan for the effective and equitable desegregation of the metropolitan area, capable of implementation in its present form. The court will therefore draw upon the resources of the parties to devise, pur suant to its direction, a constitutional plan of desegregation of the Detroit public schools. 99a Based on the entire record herein, the previous oral and written rulings and orders of this court, and the Findings of Fact and Conclusions of Law filed herewith, IT IS ORDERED: I . A. As a panel charged with the responsibility of pre paring and submitting an effective desegregation plan in accor dance with the provisions of this order, the court appoints the following: 1. A designee of the State Superintendent of Public Instruction;* 2. Harold Wagner, Supervisor of the Transportation Unit in the Safety and Traffic Education Program of the State Department of Education; 3. Merle Henrickson, Detroit Board of Education; 4. Aubrey McCutcheon, Detroit Board of Education; 5. Freeman Flynn, Detroit Board of Education; 6. Gordon Foster, expert for plaintiffs; 7. R ichard Morshead, representing defendant Magdowski, et al.; 8. A designee of the newly intervening defendants;* 9. Rita Scott, of the Michigan Civil Rights Commission. Should any designated member of this panel be unable to serve, the other members of the panel shall elect any necessary replacements, upon notice to the court and the parties. In the *The designees of the State Superintendent o f Public Instruction and newly intervening defendants shall be communicated to the court within seven days of the entry of this order. In the event the newly intervening defendants cannot agree upon a designee, they may each submit a nominee within seven days from the entry o f this order, and the court shall select one of the nominees as representative o f said defendants. 100a absence of objections within five days of the notice, and pend ing a final ruling, such designated replacement shall act as a member of the panel. B. As soon a possible, but in no event later than 45 days after the issuance of this order, the panel is to develop a plan for the assignment of pupils as set forth below in order to pro vide the maximum actual desegregation, and shall develop as well a plan for the transportation of pupils, for implementation for all grades, schools and clusters in the desegregation area. In sofar as required by the circumstances, which are to be detailed in particular, the panel may recommend immediate implementa tion of an interim desegregation plan for grades K-6, K-8 or K-9 in all or in as many clusters as practicable, with complete and final desegregation to proceed in no event later than the fall 1973 term. In its transportation plan the panel shall, to meet the needs of the proposed pupil assignment plan, make recom mendations, including the shortest possible timetable, for ac quiring sufficient additional transportation facilities for any in terim or final plan of desegregation. Such recommendations shall be filed forthwith and in no event later than 45 days after the entry of this order. Should it develop that some additional transportation equipment is needed for an interim plan, the panel shall make recommendations for such acquisition within 20 days of this order. C. The parties, their agents, employees, successors. [SIC] and all others having actual notice of this order shall cooperate fully with the panel in their assigned mission, includ ing, but not limited to, the provision of data and reasonable full and part-time staff assistance as requested by the panel. The State defendants shall provide support, accreditation, funds, and otherwise take all actions necessary to insure that local officials and employees cooperate fully with the panel. All reasonable costs incurred by the panel shall be borne by the State defendants; provided, however, that staff assistance or other services provided by any school district, its employees or agents, shall be without charge, and the cost thereof shall be borne by such school district. 101a II. A. Pupil reassignment to accomplish desegregation of 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 referred to as the “ desegregation area” : Lakeshore Birmingham Fairlane Lakeview Hazel Park Garden City Roseville Highland Park North Dearborn Heights South Lake Royal Oak Cherry Hill East Detroit Berkley Inkster Grosse Pointe Ferndale Wayne Centerline Southfield Westwood Fitzgerald Bloomfield Hills Ecorse Van Dyke Oak Park Romulus Fraser Redford Union Taylor Harper Woods West Bloomfield River Rouge Warren Clarenceville Riverview Warren Woods Farmington Wyandotte Clawson Livonia Allen Park Hamtramck South Redford Lincoln Park Lamphere Crestwood Melvindale Madison Heights Dearborn Southgate Troy Dearborn Heights Detroit 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 dis trict or other districts, the desegregation panel may, upon notice to the parties, apply to the Court for an appropriate modification of this order. B. 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 by substantially 102a disproportionate to the overall pupil racial composition. The panel may, upon notice to the parties, recommend reorganiza tion of clusters within the desegregation area in order to mini mize administrative inconvenience, or time and/or numbers of pupils requiring transportation. C. Appropriate and safe transportation arrangements shall be made available without cost to all pupils assigned to schools deemed by the panel to be other than “walk-in” schools. D. Consistent with the requirements of maximum actual desegregation, every effort should be made to minimize the numbers of pupils to be reassigned and requiring transportation, the time pupils spend in transit, and the number and cost of new transportation facilities to be acquired by utilizing such techniques as clustering, the “ skip” technique, island zoning, reasonable staggering of school hours, and maximization of use of existing transportation facilities, including buses owned or leased by school districts and buses operated by public transit authorities and private charter companies. The panel shall de velop appropriate recommendations for limiting transfers which affect the desegregation of particular schools. E. Transportation and pupil assignment shall, to the ex tent consistent with maximum feasible desegregation, be a two- way process with both black and white pupils sharing the re sponsibility for transportation requirements at all grade levels. In the determination of the utilization of existing, and the con struction of new, facilities, care shall be taken to randomize the location of particular grade levels. F. Faculty and staff shall be reassigned, in keeping with pupil desegregation, so as to prevent the creation or continua tion of the identification of schools by reference to past racial composition, or the continuation of substantially disproportion ate racial composition of the faculty and staffs, of the schools in the desegregation area. The faculty and staffs assigned to the schools within the desegregation area shall be substantially dese gregated, bearing in mind, however, that the desideratum is the 103a balance of faculty and staff by qualifications for subject and grade level, and then by race, experience and sex. In the context of the evidence in this case, it is appropriate to require assign ment 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. G. In the hiring, assignment, promotion, demotion, and dismissal of faculty and staff, racially non-discriminatory cri teria must be developed and used; provided, however, there shall be no reduction in efforts to increase minority group representation among faculty and staff in the desegregation area. Affirmative action shall be taken to increase minority employment in all levels of teaching and administration. H. The restructuring of school facility utilization neces sitated by pupil reassignments should produce schools of sub stantially like quality, facilities, extra-curricular activities and staffs; and the utilization of existing school capacity through the desegregation area shall be made on the basis of uniform criteria. I. The State Board of Education and the State Super intendent of Education shall with respect to all school construc tion and expansion, “ consider the factor of racial balance along with other educational considerations in making decisions about new school sites, expansion of present facilities * * * ” ; and shall, within the desegregation area disapprove all proposals for new construction or expansion of existing facilities when “housing patterns in an area would result in a school largely se gregated on racial * * * lines,” all in accordance with the 1966 directive issued by the State Board of Education to local school boards and the State Board’s “ School Plant Planning Hand book” (see Ruling on Issue of segregation, p. 13.). J. Pending further orders of the court, existing school district and regional boundaries and school governance arrange ments will be maintained and continued, except to the extent necessary to effect pupil and faculty desegregation as set forth herein; provided, however, that existing administrative, finan 104a cial, contractual, property and governance arrangements shall be examined, and recommendations for their temporary and per manent retention or modification shall be made, in light of the need to operate an effectively desegregated system of schools. K. At each school within the desegregated area provision shall be made to insure that the curriculum, activities, and con duct standards respect the diversity of students from differing ethnic backgrounds and the dignity and safety of each indivi dual, students, faculty, staff and parents. L. The defendants shall, to insure the effective desegre gation of the schools in the desegregation area, take immediate action including, but not limited to, the establishment or expan sion of in-service training of faculty and staff, create bi-racial committees, employ black counselors, and require be-racial and non-discriminatory extra-curricular activities. Ill The State Superintendent of Public Instruction, with the assistance of the other state defendants, shall examine, and make recommendations, consistent with the principles estab lished above, for appropriate interim and final arrangements for the (1) financial, (2) administrative and school governance, and (3) contractual arrangements for the operation of the schools within the desegregation area, including steps for unifying, or otherwise making uniform the personnel policies, procedures, contracts, and property arrangements of the various school dis tricts. Within 15 days of the entry of this order, the Super intendent shall advise the court and the parties of his progress in preparing such recommendations by filing a written report with the court and serving it on the parties. In not later than 45 days after the entry of this order, the Superintendent shall file with the court his recommendations for appropriate interim and final relief in these respects. In his examination and recommendations, the Super intendent, consistent with the rulings and orders of this court, 105a may be guided, but not limited, by existing state law; where state law provides a convenient and adequate framework for in terim 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 hp deems necessary. In particular, the Super intendent shall examine and choose one appropriate interim arrangement to oversee the immediate implementation of a plan of desegregation. IV. Each party may file appropriate plans or proposals for inclusion in any final order which may issue in this cause. The intent of this order is to permit all the parties to proceed apace with the task before us: fashioning an effective plan for the de segregation of the Detroit public schools. Fifteen days after the filing of the reports required herein, hearings will begin on any proposal to modify any interim plan prepared by the panel and all other matters which may be inci dent to the adoption and implementation of any interim plan of desegregation submitted. The parties are placed on notice that they are to be prepared at that time to present their objections, alternatives and modifications. At such hearing the court will not consider objections to desegregation or proposals offered “ instead” of desegregation. Hearings on a final plan of desegregation will be set as cir cumstances require. DATE: JUNE 14, 1972. Is/ Stephen J. Roth United States District Judge 106a UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION RONALD BRADLEY, et al, ) Plaintiffs, ) v- ) WILLIAM G. MILLIKEN, et al, ) Defendants, ) and ) DETROIT FEDERATION OF TEACH- ) Civil Action ERS, LOCAL 231, AMERICAN FEDERA- ) No. 35257 HON OF TEACHERS, AFL-CIO, ) Defendant-Intervenor, ) and ) DENISE MAGDOWSKI, et al, ) Defendants-Intervenor, ) et al. ) ORDER FOR ACQUISITION OF TRANSPORTATION At a session of the United States District Court, Federal Building, Detroit, Michigan, on the 11th day of July, 1972. The Court has received a recommendation from the Panel appointed under its previous orders that 295 buses, which it had determined are available, should be acquired for the purpose of providing transportation under an interim plan. The Court also had before it the still pending motion of Plaintiffs for the purchase of 350 buses. Having heard the arguments of counsel, IT IS HERE BY ORDERED: 1. The Defendant Detroit Board of Education shall acquire by purchase, lease or other contractual arrangement at least 295 buses for use in the interim desegregation plan during the 1972-73 school year. All financial obligations incurred as the result of this Order shall be the sole financial obligation of the State Defen 107a dants, including the added State Defendant State Treasurer Allison Green, as set forth below in Paragraph 2. Said order, lease, or other contract shall be entered into by negotiation and without the necessity for bids forthwith and in no event later than Thurs day, July 13, 1972. 2. The State Defendants shall bear the cost of this acquisi tion and State Defendants, including the added State Defendant Green, shall take all necessary steps utilizing existing funds and sources of revenue, to be acquired State funds, legislatively autho rized and funds directed by the State Constitution to the State School Aid Funds and by re-allocation of existing or newfundsto pay for said transportation acquisition either directly or through the Defendant Detroit Board. United States District Judge 108a NO. 72-8002 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT RONALD BRADLEY, et al, Plain tiffs-Appellants ) )v. ) ) ) ) O R D E R DETROIT FEDERATION OF TEACHERS LOCAL 231, AMERICAN FEDERATION OF TEACHERS, AFL-CIO, Defendant-Intervenor and DENISE MAGDOWSKI, et al, Defendants-Intervenors Before: PHILLIPS, Chief Judge, EDWARDS and PECK, Circuit Judges. The District Court has certified that certain orders entered by him in this case involve controlling questions of law, as provided by 28 U. S. C. § 1292(b), and has made a determination of finality under Rule 54(b), Fed. R. Civ. P. This court concludes that among the substantial questions presented there is at least one difficult issue of first impression which never has been decided by this court or the Supreme Court. In so holding we imply nothing as to our view of the merits of this appeal. We conclude that an immediate appeal may materially advance the ultimate termination of the litigation. Accordingly, it is ORDERED that the motion for leave to appeal be and hereby is It is further ORDERED that the appeal in this case be ad vanced on the docket of this court and scheduled for hearing Thursday, August 24, 1972, at 9 a.m. The appendix and simul taneous briefs of all parties shall be filed not later than 25 days granted. 109a after the entry of this order. Reply briefs shall be filed not later than August 21, 1972. Typewritten appendix and briefs may be filed in lieu of printed briefs, together with ten legible copies pro duced by Xerox or similar process. An appendix must be filed. The court will not entertain a motion to hear the appeal on the original record. The motion for stay pending appeal having been considered, it is further ORDERED that the Order for Acquisition of Trans portation, entered by the District Court on July 11, 1972, and all orders of the District Court concerned with pupil and faculty reassignment within the Metropolitan Area beyond the geo graphical jurisdiction of the Detroit Board of Education, and all other proceedings in the District Court other than planning pro ceedings, be stayed pending the hearing of this appeal on its merits and the disposition of the appeal by this court, or until further order of this court. This stay order does not apply to the studies and planning of the panel which has been appointed by the Dis trict Court in its order of June 14, 1972, which panel was charged with the duty of preparing interim and final plans of desegre gation. Said panel is authorized to proceed with its studies and planning during the disposition of this appeal, to the end that there will be no unnecessary delay in the implementation of the ultimate steps contemplated in the orders of the District Court in event the decision of the District Court is affirmed on appeal. Pending disposition of the appeal, the defendants and the School Districts involved shall supply administrative and staff assistance to the aforesaid panel upon its request. Until further order of this court, the reasonable costs incurred by the panel shall be paid as provided by the District Court’s order of June 14, 1972. Entered by order of the Court. /s/ James A. Higgins Clerk Nos. 72-1809 - 72-1814 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Ronald Bradley, et al., Plaintiffs-Appellees, v. William G. Milliken, Governor of Michigan, etc.; Board of Educa tion of the City of Detroit, Defendants-Appellants, and Detroit Federation of Teachers Local 231, American Federation of Teachers, AFL-CIO, Defendant-Intervenor-Appellee, and Allen Park Public Schools, et al., Defendants-Intervenors- Appellants and Kerry Green, et al., Defendants-Intervenors- Appellees. A p p e a l from the United States District Court for the Eastern District of Michigan, Southern Division. Decided and Filed June 12, 1973. Before Phillips, Chief Judge, Weick, Edwards, Celebrezze, Beck, McCree, Miller, Kent and Lively, Circuit Judges. Phillips, C.J., delivered the opinion of the Court, in which Edwards, Celebrezze, Peck, McCree and Lively, JJ., joined. Weick> J. (pp. 82-111) and Miller, J. (pp. 130-131)' filed dis senting opinions and Kent, J., (pp. 112-129) filed a separate 111a opinion concurring in part and dissenting in part. Judge Kent died May 28, 1973 after the opinions were in the hands of the printer. Phillips, Chief Judge. This is a school desegregation case which, as originally filed, was directed against the school sys tem of Detroit, Michigan, but on this appeal involves both Detroit and school districts located in the surrounding met ropolitan area. The present appeal is the fourth time that the case has been before this court since the complaint was filed August 18. 1970. The earlier decisions of this court are reported at Brad ley v. Milliken, 433 F.2d 897 (1970); Bradley v. Milliken, 438 F.2d 945 (1971); and Bradley v. Milliken, 468 F.2d 902, cert, denied, 409 U.S. 844 (1972). (On November 27, 1972 the original panel dismissed for want of jurisdiction an “emergency motion” by the Detroit Board of Education that State officials be required to provide funds to keep the Detroit public schools operating for 180 regular days of instruction during the current school year.----F.2d — ) On February 27, 1973, the Supreme Court denied re view in Bloomfield Hills School District v. Roth, West Bloom field School District v. Roth, and Birmingham School District v. Roth, — U.S.----, 41 U.S.L.W. 3460. In these cases this court had denied applications for writs of mandamus or prohibition against District Judge Roth. The School Districts contended that the District Judge usurped jurisdiction by failing to con vene three-judge courts and by subjecting the School Districts : to his ruling and order in the school desegregation case in spite of the fact that the Districts were not parties to the desegre gation proceedings and had not been found to have committed any act of de jure segregation. The action of the Supreme Court was without prejudice to the right of the School Dis tricts to file application to intervene in the present action.) Oral arguments were heard before a panel of this court on August 24, 1972. An opinion was announced by the panel on December 8, 1972, affirming two orders of the District Court, viz: (1) Ruling on Issue of Segregation, reported at 2 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 112a 338 F.Supp. 582, and (2) Findings of Fact and Conclusions of Law on “Detroit only” plans of desegregation, dated March 28, 1972. The decision of the panel vacated the remaining three orders on appeal (enumerated below), but affirmed in principle the ruling of the District Court on the propriety of a metropolitan remedy to accomplish desegregation. On January 16, 1973, this court granted rehearing in banc. Under the provisions of Rule 3(b) of the local rules of this court, the effect of granting rehearing in banc is “to vacate the previous opinion and judgment of the court, to stay the mandate and to restore the case on the docket as a pending appeal.” Oral arguments before the court in banc were heard Feb ruary 8, 1973. No specific desegregation plan has been ordered by the District Court. The procedural history of the litigation is set forth below. Before this court at the present time are four interlocutory orders from which we have granted appeal pursuant to 28 U.S.C. § 1292(b) and one final order, viz: 1. Ruling on Issue of Segregation, dated September 27, 1971, reported at 338 F.Supp. 582; 2. Findings of fact and conclusions of law on “Detroit only” plans of desegregation, dated March 28, 1972; 3. Ruling on Propriety of a Metropolitan Remedy to Ac complish Desegregation of the Public Schools of the City of Detroit, dated March 24, 1972; 1. Ruling on Desegregation Area and Development of Plan, and Findings of Fact and Conclusions of Law in support thereof, dated June 14, 1972; and 5. Order dated July 11, 1972, directing Michigan State officials to purchase 295 school buses (which this court con siders to be a final order). On July 13, 1972, following oral argument, the original panel granted a motion for a temporary stay of the District Court’s Nos. 72-1809 -1 4 B r a d le y , e t al. v. M il l ik e n , e t al. 3 113a order of July 11, 1972, ordering the purchase of 295 school buses. On July 17, 1972, following oral argument, the original panel directed that its stay order remain in effect until entry by the District Court of a final desegregation order or until certification by the District Court of an appealable question as provided by 28 U.S.C. § 1292(b). Thereafter, on July 19, 1972, the District Court certified that the orders set forth above involve controlling questions of law, as provided by 28 U.S.C. § 1292(b), and made a deter mination of finality under Rule 54(b), Fed. R. Civ. P. On July 20,1972, the original panel entered an order granting the interlocutory appeal concluding that: “ [A]mong the substantial questions presented there is at least one difficult issue of first impression that never has been decided by this court or the Supreme Court. In so holding we imply nothing as to our view of the merits of this appeal. We conclude that an immediate appeal may materially advance the ultimate termination of the litiga tion.” The motion for leave to appeal was granted and the case was advanced for oral arguments on the merits on August 24, 1972. The July 20, 1972 order of the original panel included the following stay order, which has remained in effect pending final disposition of the appeal on its merits: “The motion for stay pending appeal having been con sidered, it is further ORDERED that the Order for Ac quisition of Transportation, entered by the District Court on July 11, 1972, and all orders of the District Court con cerned with pupil and faculty reassignment within the Metropolitan Area beyond the geographical jurisdiction of the Detroit Board of Education, and all other proceed ings in the District Court other than planning proceedings, be stayed pending the hearing of this appeal on its merits and the disposition of the appeal by this court, or until fur ther order of this court. This stay order does not apply 1° 4 B r a d l e y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 114a the studies and planning of the panel which has been ap pointed by the District Court in its order of June 14, 1972, which panel was charged with the duty of pre paring interim and final plans of desegregation. Said panel is authorized to proceed with its studies’ and plann ing during the disposition of this appeal, to the end that there will be no unnecessary delay in the implementation of the ultimate steps contemplated in the orders of the District Court in event the decision of the District Court is affirmed on appeal. Pending disposition of the appeal, the defendants and the School Districts involved shall supply administrative and staff assistance to the aforesaid panel upon its request. Until further order of this court, the reasonable costs incurred by the panel shall be paid as provided by the District Court’s order of June 14, 1972.” This court also has granted leave to appeal to various in tervening parties and leave to file numerous amicus briefs. The briefs and arguments of all the parties have been con sidered in the disposition of this appeal. We agree with two of the rulings of the District Court sum marized above: (1) The Ruling on the Issue of Segregation and (2) the Findings of Fact and Conclusions of Law on “Detroit-only” plans of desegregation. We hold that the find ings of fact of the District Court as set forth in these rulings are not clearly erroneous, Rule 52(a), Fed. R. Civ. P., but to the contrary are supported by substantial evidence. As to the District Court’s third ruling pertaining to the pro priety of a Metropolitan remedy, we agree in part and re verse in part. We vacate this and the two remaining orders and remand to the District Court for further proceedings as hereinafter set forth in detail in this opinion. I. Chronology of Proceedings On April 7, 1970, the Detroit Hoard of Education adopted a plan to effect a more balanced distribution of black and white students in the senior high schools through enactment of changes in attendance zones involving some 12,000 pupils, Nos. 72-1809 -1 4 B r a d le y , e t al. v. M il l ik e n , e t al. 5 115a to become effective over a three year period. Three months later this modest effort was thwarted by the legislature of the State of Michigan through enactment of Act 48 of the Public Acts of 1970. Section 12 of the Act delayed implementa tion of the plan. The four members of the Board who sup ported the April 7 plan were removed from office through a citizen initiated recall election. The new members of the board and the incumbent members who had originally op posed the April 7 plan thereafter rescinded it. The complaint in this case was filed by individual black and white school children and their parents, and the Detroit branch of the NAACP against the Board of Education of the City of Detroit, its members, and the then Superintendent of Schools, as well as the Governor, the Attorney General, the State Board of Education and the State Superintendent of Public Instruction of the State of Michigan. (The State of Michigan as such is not a party to this litigation. References thereto should be read as references to the public officials, State and local, through whom the State is alleged or shown to have acted.) The complaint alleged that the Detroit public school system was and is segregated on the basis of race as the result of actions and policies of the Board of Education and of the State of Michigan. The complaint specifically challenged the constitutionality of Act 48 of the Public Acts of 1970 of the State of Michigan, which in effect repealed the April 7, 1970 high school desegregation plan formulated by the Detroit Board. The case was heard originally on plaintiffs’ motion for a preliminary injunction to restrain the enforcement of Act 48. In response to this motion the District Judge denied a pre liminary injunction, did not rule on the constitutionality of Act 48, but granted the motion of the Governor and Attorney Gen eral of Michigan for dismissal of the cause as to them. 0® appeal this court held that § 12 of Act 48 was an unconstitu tional interference with the lawful protection of Fourteenth Amendment rights, that there was no abuse of discretion in 6 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 116a denying a preliminary injunction, and that the Governor and Attorney General should not have been dismissed as par ties defendant at that stage of the proceeding. The case was remanded to the District Court for an expedited trial on the merits. 433 F.2d 897. On remand plaintiffs moved for immediate implementation of the April 7 plan. On December 3, 1970, following an evidentiary hearing on that plan and two updated plans, the District Court ordered implementation of the “Magnet” or “McDonald” plan effective at the beginning of the next full school year, pending ultimate disposition on the merits. Plain tiffs appealed and filed a motion for summary reversal. This court again held that the District Court had not abused its discretion in refusing to adopt the April 7 plan prior to an evidentiary hearing on the allegations of constitutional viola tions in the complaint. We remanded the case with in structions to proceed to trial expeditiously on the merits of plaintiffs’ allegations concerning the Detroit public school system. 438 F.2d 945. The trial of the case on the issue of segregation began April 6, 1971, and continued until July 22, 1971, consuming 41 trial days. On September 27, 1971, the District Court issued its ruling on the issue of segrega tion, holding that the Detroit public school system was racially segregated as a result of unconstitutional practices on the part of the defendant Detroit Board of Education and the Michigan State defendants. 338 F.Supp. 582. A decision on a motion to join a large number of suburban school districts as parties defendant was deferred on the ground that the motion was premature, in that no reasonably specific desegregation plan was before the court. The Detroit oard of Education was ordered to submit desegregation plans united to the City, while State defendants were directed 0 submit plans encompassing the three-county metropolitan area' An effort was made to appeal these orders to this c°urt. On February 23, 1972, this court held the orders to be non-appealable and dismissed the appeal. 468 F.2d 902, cert, denied, 409 U.S. 844 (1972). Nos. 72-1809 -1 4 B r a d le y , e t al. v. M il l ik e n , e t al. 7 117a After further proceedings concerning proposals for a Detroit only desegregation remedy and the presentation of three plans therefor, the District Judge on March 24, 1972, issued a ruling entitled “Ruling on Propriety of Considering a Metro politan Remedy,” and on March 28, 1972, he issued “ Findings of Fact and Conclusions of Law on Detroit Only Plans of Desegregation.” He rejected all Detroit only plans, saying in part: “Relief of segregation in the public schools o f the City of Detroit cannot be accomplished within the corporate geographical limits of the city.” Subsequently, the District Court issued an order on June 14, 1972, entitled “Ruling on Desegregation Area and Order for Development of Plan for Desegregation.” In this ruling and order the District Court established tentative boundaries for a metropolitan remedy and provided for a panel of nine members to design plans for integration of the Detroit school and those of 53 metropolitan school districts within certain guidelines. The panel recommended preparatory purchases of school buses prior to implementation of an interim plan in Septem ber 1972. Following a hearing, the District Court on July 11 ordered State defendants to purchase or otherwise acquire 295 school buses. In view of the intervening Congressional action by the en actment of the “Broomfield Amendment,” certification was made to the Attorney General of the United States that thej constitutionality of § 803 of the Education Amendments ol 1972, Pub. L. No. 92-318, 86 Stat. 235, had been called into question. The Department of Justice intervened, filed a brief and participated in the oral arguments before this court. II. The Issues All of the parties to this litigation in one form or another present three basic issues which we phrase as follows: 1. Are the District Court’s findings of fact pertaining lJ constitutional violations resulting in system-wide racial segre- 8 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 118a gation of the Detroit Public Schools supported by substan tial evidence or are they clearly erroneous? 2. Based on the record in this case, can a constitutionally adequate system of desegregated schools be established with in the geographic limits of the Detroit school district? 3. On this record does the District Judge’s order requiring preparation of a metropolitan plan for cross-district assign ment and transportation of school children throughout the Detroit metropolitan area represent a proper exercise of the equity power of the District Court? III. The Constitutional Violations (A) Constitutional violations found to have been committed by the Detroit Board of Education: (1) Segregative zoning and assignment practices. (a) The District Judge found that the Detroit Board of Education formulated and modified attendance zones to create or perpetuate racial segregation. He also found that the feeder sys tem for junior and senior high schools was de signed to maintain rather than eliminate black or white schools at the higher levels. Its prac tice of shaping school attendance zones on a north-south rather than an east-west orientation resulted in attendance zone boundaries con forming to racial dividing lines. (b) He further found that the Detroit Board of Education’s policies involved a substantial number of instances of transporting black chil dren past white schools with available school space. He also found that it was the policy of the Board of Education to create optional attendance areas Nos. 72-1809 -1 4 B r a d le y , e t al. v. M il l ik e n , e t al. 9 119a which permitted white students to transfer to all white or predominately white schools located nearer the city limits. The District Judge also found that the policies of the Detroit Board of Education (and State Board of Education) concerning school construction in some instances had the purpose of segregating stu dents on a racial basis and in many others resulted in maintaining or increasing segregation. The District Judge’s findings of fact pertaining to al teration of zones and feeder patterns are as follows: “The Board has created and altered attendance zones, maintained and altered grade structures and created and altered feeder school patterns in a manner which has had the natural, probable and actual effect of continuing black and white pupils in racially segregated schools. The Board admits at least one instance where it pur posefully and intentionally built and maintained a school and its attendance zone to contain black students, Throughout the last decade (and presently) school at tendance zones of opposite racial compositions have been separated by north-south boundary lines, despite the Board’s awareness (since at least 1962) that drawing boundary lines in an east-west direction would result in significant integration. The natural and actual effect of these acts and failures to act has been the creation and perpetuation of school segregation. There has never been a feeder pattern or zoning change which placed a pre dominantly white residential area into a predominantly black school zone or feeder pattern. Every school which was 90% or more black in 1960, and which is still in use today, remains 90% or more black.” 338 F.Supp. at 588. The legal conclusion of the District Judge is as follows: “5. The Board’s practice o f shaping school attendance zones on a north-south rather than an east-west orienta tion, with the result that zone boundaries conformed to 10 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 120a racial residential dividing lines, violated the Fourteenth Amendment. Northcross v. Board of Ed. of Memphis, 6 Cir., 333 F.2d 661.” 338 F.Supp. at 592-93. * * « “9. The manner in which the Board formulated and modified attendance zones for elementary schools had the natural and predictable effect of perpetuating racial segregation of students. Such conduct is an act of de jure discrimination in violation of the Fourteenth Amend ment. United States v. School District 151, D.C., 286 F. Supp. 786; Brewer v. School Board of City of Norfolk, 4 Cir., 397 F.2d 37.” 338 F.Supp. at 593. There is, of course, other legal support for the con clusions set out above. Davis v. School District of Pontiac, 443 F.2d 573, 576 ( 6th Cir.), cert, denied, 404 U.S. 913 (1971); United States v. Board of Education, Ind. School District No. 1, 429 F.2d 1253, 1259 (10th Cir. 1970); United States v. Jefferson County Board of Education, 372 F.2d 836, 867-68 (5th Cir. 1965), aff’d in banc, 380 F.2d 385 (5th Cir. 1966), cert, denied sub nom, Caddo Parish School Board v. United States, 389 U.S. 840 (1970); Clemons v. Board of Education, 228 F.2d 853, 858 (6th Cir.), cert, denied, 350 U.S. 1006 (1956); Spangler v. Pasadena Board of Education, 311 F. Supp. 501, 522 (C.D. Cal. 1970). Witness Charles Wells, defendant School Board’s assistant superintendent in charge of the Office of Pupil Personnel Services, read into the record and testified in support of the minutes of a meeting of the Citizens Association for Better Schools. Mr. Wells was the president of the Citizens As sociation at the time the meeting was conducted. His testi mony includes the following: Q. (By Mr. Lucas) Go ahead, sir. “A. ‘November 3, 1960. TO: Honorable Nathan Kaufman, Chairman Committee on Equal Education Opportunity. Nos. 72-1809- 14 B r a d le y , e t al. v. M il l ik e n , e t al. 11 121a ‘We should like to begin our presentation by reviewing with you briefly the development of our organization. We feel it is significant as it represents an attempt on the part of people who make up this organization to effective ly deal with the frustrations historically inherent in at tempting to provide for minority group children an ade quate education within the Detroit Public School System. A majority of the people of the Negro race moved into the now Center District from other school districts with in the limits of the City of Detroit. Although better housing conditions were but one of the motives for such a move, of equal importance was a desire to provide their children with a more equitable and enriched educational experience. ‘They were aware of the increased population within their new geographical area, and accepted the counselling of the then new administration of the Board of Edu cation, to the effect that additional tax monies would have to be made available if educational standards within the City of Detroit were to be improved, or even main tained. Consequently, each of them made a strong per sonal investment in the millage campaign of Spring 1959. In this campaign, initially, their efforts did not meet the wholehearted approval of the Negro community, since from past experience, particularly involving other millage campaigns, members of the Negro community had ob served that the results of the expenditures of monies obtained from additional taxes, had little effect on the facilities, the equipment, or the curriculum available to their children. ‘Despite this resistance, they were aware that there would be less justification for demanding adequate edu cational opportunities for their children if they did not accept their responsible share for the successful passing of the millage program. As a consequence of their ef forts, their respective schools voted overwhelmingly f°r the millage program, and they logically expected that positive results would follow their efforts. 12 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 122a Their first disillusionment occurred only a few months, but yet a few weeks after the passage of the millage — they were rewarded with the creation of the present Center District. In effect this District, with a few minor exceptions, created a segregated school system. It ac complished with a few marks of the crayon on the map, the return of the Negro child from the few instances of an integrated school exposure, to the traditional pre dominantly uni-racial school system to which he had for merly been accustomed in the City of Detroit. ‘Their attempts to meet this threat to their children’s educational experience through existing school organiza tions met with little success. Their conferences with District and City-Wide administrators including the super intendent, Dr. Samuel Brownell, resulted in only ration alizations concerning segregated housing patterns, and denials of any attempts at segregation. When it was pointed out that regardless of motivation, that segrega tion was the result of their boundary changes, little com promise was effected, except in one or two instances, where opposition leadership was most vocal and ag gressive. Concurrent with boundary changes, it was alarming ly noticeable that the school population within the Cen ter District was rapidly increasing, and that the priority building program would have little positive effect in dealing with the problem. Attempts to discuss this prob lem with school and district administration gave promise of only minimal relief. Finally, it had been earlier noted by new residents moving into what is now the Center District that prior to and during its change from a uniracial (predominant ly white) to a biracial system and again to a uniracial (predominantly Negro) school system that the quality o their children s previous educational experiences did not eqiup them to compete on an equal basis with resi dent children in the same grade and classifications. These experiences made them aware that no one or ganization composed of one or several schools, could ef- Nos. 72-1809 -1 4 B r a d le y , e t al. v. M il l ik e n , e t al. 13 123a fectively coordinate the mutual concern of the many parents residing within the Center District. Thus out of the several discussions of groups of people whose primary concern was the adequate and equitable education of their children, this organization was born. It is felt that no better description of its purpose, its objective, and its reason for being can be found than in the preamble to its Constitution, which is: ‘PREAMBLE: Our interest is in equal educational op portunities for all persons within the City of Detroit. ‘We do not believe that such opportunities are possible within a segregated school system. ‘We oppose a policy of containment of minority groups within specified boundaries, an example of which is the Center District. While the above is of utmost concern to us we are also aware that there is need for improve ment and enrichment of the standards within this district in practice as well as in theory. ‘We believe that once standards have become reason ably adequate, that such standards should be maintained. It should be further recognized that future population l shifts brought about by urban redevelopment will ad versely affect the above goals in the Center District, unless there is anticipation of the impact of this population growth upon this district. ‘Since the inception of our organization we have noted the following: ‘The public school system of the City of Detroit is divided into nine administrative districts, one of which is the Center District. ‘Yet, every day, when the children in this city leave . their homes to go forth to public schools, approximately one out of every four leaves a home in the Center District. Of the 154,969 children enrolled in public elementary schools as of September 30, 1960, 36,264 or 23.4 percent of these children leave a home in the Center District. . 14 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-11 124a ‘There are 221 elementary school buildings in the De troit Public School System. Of these 28 are in the Center District. This means, then, that the 23.4 percent of the total elementary school population is accommodated in 12.7 percent of the buildings. ‘Fifteen percent of these children sit in classes of 40 to 44 students per class. This is in comparison to: Nos. 72-1809 - 14 B r a d le y , e t al. v. M il l ik e n , e t al. 15 East .13 percent North .05 percent Northeast .04 percent Northwest .08 percent South .01 percent Southeast .01 percent West .05 percent ‘Sixty-two and one-half percent of all the children in the city’s elementary schools who sit in classes of 45 to 49 are children in the Center District. These schools in the Center District find their capacities short by 6,352 pupil stations. In other words, their capacities are over taxed to the extent of 16 percent; and the future build ing program, as set forth by the superintendent’s report of October 17, 1960, will make available only 11,189 ad ditional pupil stations within the next ten-year period. However, this will be insufficient to meet the demands of the Center District. Therefore, it is apparent that a school bussing program will have to become a permanent part of the school housing program. Thus the manner in which the bussing program is administered becomes a matter of acute concern. ‘Presently, children are being bussed by grades. Under this system a number of problems are created: 1) It makes necessary a reorganization of the bussing school, as well as the school into which the children are bussed. 2) They are not integrated into the school into which they are bussed, except in minor instances. 125a 3) There is a possibility of the separation of the family unit. 4) Parents are unable to establish a good rapport with the teachers and administrators in the new school since there exists a time limit in which these children will be members of that school. ‘It is recommended that a policy of bussing by geo graphical areas instead of by grades be instituted so as to eliminate the above problems. ‘The emphasis on curricula objective are not compara ble in the various school districts of the Detroit School System. There is a tendancy in the Center District to stereotype the educational capacity of the children. Tbs means that children entering the schools in this district whose background enables them to comprehend an en riched educational program, are not challenged. ‘For example, one student in the Hutchins Intermediate School who desired to prepare for entrance into an East ern college found that Latin was not offered, and only after considerable effort by members of the community, along with his family, was Latin placed back in the school curriculum. Many other instances can be cited upon request. ‘Conversely, children whose initial capacity is retarded by deprived socio-economic circumstances also go un challenged. The District Administrator has admitted that no program exists to take care of these children. “The curriculum and counselling as they now exist, do not encourage students to achieve their maximum ca pacities. We feel that the responsibility for any inequities in the educational experience offered to any group of children within a given school system must be assumed by those p e rso n s charged with the overall responsibility of administering that system. ‘Therefore, we recommend that strong policies be adopt ed by the top administration to erase inequities of the 16 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 126a Detroit Public School System, and a policy of super vision through all levels of administration be instituted at all levels of administration to insure equal educational opportunities to all children. ‘The Citizens’ Association for Better Schools.’ Q. Do you join in that statement in submission to the committee? “A. Yes, I did.” Mr. Wells cited the example of the Center (administrative) District, where attendance boundaries were shaped in a gerry mandered fashion to conform to the racial residential pattern. “Q. With regard to that same situation, you were ex pressing a problem which your committee had met in attempting to discuss this. Can you tell me how you came to be discussing this with the Board at that time? A. It was not with the Board of Education, I be lieve it was with the administration of the school system. “Q. The administrative staff? A. Including the superintendent. “Q. All right. A. Our initial concern about the boundaries of the center district grew out of the concern we had in 1960 about the changing of the attendance areas between the Central High School and the Mackenzie High School. Q. Is that the optional attendance area also set up in that? A. A part of that was optional. Well, let’s put it that way, a part of it had been optional, the proposal was to eliminate the option. In the process of eliminating the option what it would mean would be that by and large the few black children who had been attending Mackenzie would have been pulled back into the Central area. Q. Mackenzie at that time was a majority white school? (<A. Predominately white. Q- Central by that time had become black? Nos. 72-1809 - 14 B r a d l e y , e t al. v. M il l ik e n , e t al. 17 127a “A. Predominately black. “Q. So the cancellation of the optional area which had been there had the effect of preventing black chil dren choosing Mackenzie, is that correct? “A. That is right. “Q. Were there any other schools — there is a ref erence made to the establishment of the center district boundaries —. were there any other schools which had not previously been in certain feeder patterns that were drawn back into the center district? ‘A. I am trying to remember now as I said eleven years. “Q. I understand. “A. If I remember correctly, the Sherrill School which also had been a part of it, that portion north of Tireman had been attending Mackenzie and they in turn, the total school then would have been returned to the Chadsey area. Q. What about Tappan and that area, are you fa miliar at all with changes that took place? A. Tappan was the junior high school in which Win terhalter, the elementary school in the area south of Davison just west of Ewald Circle attended. At that , time the students from that area attended Tappan and ah students from Tappan attended Mackenzie. The new change would mean that the students from Winterhalter, and I think McKerrow which is just below Winterhalter would have attended Tappan through the 9th grade, but then had been pulled back into the center district to attend Central High School. The other students in Tappan would have gone to Mackenzie. “Q. The other students in Tappan, were they pre dominately white students? A. Yes. Our concern about this region really at that time was that we could draw a line which separated the black residents from the white residents and almost to the alley and that in effect was the boundary line of the center district.” 18 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 I 128a There was evidence that school feeder patterns were changed so as to make particular junior high schools or senior high schools either generally white or generally black, as shown in the following testimony: “MR. CALDWELL: Your Honor, I have copies of the Mumford High School district in 1959 which is taken from Plaintiff s Exhibit 78-A, and this makes it easier to see the schools. “Q. Let’s get back to the 1962-’63 overlay. “Prior to the 1962-’63 — first of all, will you point out to the Court where the Vandenberg and Vemor Schools are. “A. This triangle to the northwest corner of this area, (indicating) “Q. Prior to 1962-63 where did the Vemor and Van- derburg youngsters go to high school? “A. Mumford High School. “Q. A boundary change was made in 1962-63? “A. That’s right. “Q. Where did those youngsters go to school in that year? “A. Ford High School. Q. How long did that feeder pattern continue? A. Until 1966-67 when they returned to Mumford. “Q. All right. MR. CALDWELL: Plaintiffs’ Exhibit 128-A, your Honor, reflects that in 1960 Vandenburg and Vemor were 0 percent black. Mumford was 16.1 black, Ford was .1 percent black. With regard to Vandenburg and Vemor, there was a gradual increase in the black population until 1966 when Vandenburg was 39.5 percent black and Ver nor was 39.8 percent black. Then in 1967 the change was made taking Vandenburg and Vernor back into Mumford. Vandenburg had be come 70 percent black, Vernor had become 63.2 percent black. That year the change was made and Mumford was 78.1 percent black, Ford was 4.1 percent black. Nos. 72-1809 -1 4 B r a d le y , e t al. v. M il l ik e n , e t al. 19 129a “Q. I believe that feeder pattern continued into tie current school year? “A. That is right. “Q. Those schools now feed back into Ford High School this year? “A. That is right.” The effect of such a policy was attested to by Dr. Gordot Foster of the University of Miami, director of the Florida School Desegregation Consulting Center: “Q. The effect, Doctor, then, of the removal of Van- denberg and Vemor from the Ford feeder pattern into the Mumford feeder pattern, what was the effect in terms of race? “A. The effect of this move in 1967-68 of the transfer back of the two elementary schools was to increase tie segregation at Mumford, to take blacks from the Ford High School and, therefore, increase the segregated pat tern there, and, in my opinion, it reinforced inevitably the perception that Ford would be kept white as i matter of basic policy and that Mumford would be a racially contained isolated high school attendance area. Similar testimony regarding the segregative effect of alter ing school feeder patterns was given with respect to tie Jefferson and Hutchins Junior High Schools, Garfield and Spain Junior High Schools, Burton and Irving Elementary Schools, Higginbotham Elementary School, Jackson and Foci, Junior High Schools, Stellwagen, Keating and Clark Elem® tary Schools, Cleveland and Nolan Junior High Schools, Coal ville Elementary School, Ford and Brooks Junior High Schools Osborne and Pershing High Schools, Parkman Elementary School, the Ellis, Sills, Newberry and Sampson Elementary Schools, and Northwestern and Chadsey High Schools. The District Judge made the following findings of f®| pertaining to busing black children to black schools pJSi white schools: 20 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-H ) 130a The Board, in the operation of its transportation to relieve overcrowding policy, has admittedly bused black pupils past or away from closer white schools with avail able space to black schools. This practice has continued in several instances in recent years despite the Board’s avowed policy, adopted in 1967, to utilize transporta tion to increase integration. “With one exception (necessitated by the burning of a white school), defendant Board has never bused white children to predominantly black schools. The Board has not bused white pupils to black schools despite the enor mous amount of space available in inner-city schools. There were 22,961 vacant seats in schools 90% or more black.” 338 F.Supp. at 588. The legal conclusion of the District Judge follows: 8. The practice of the Board of transporting black students from overcrowded black schools to other identi- fiably black schools, while passing closer identifiably white schools, which could have accepted these pupils, amounted to an act of segregation by the school authori ties. Spangler v. Pasadena City Bd. of Ed., D.C., 311 F.Supp. 501.” 338 F.Supp. at 593. Additional support for the District Judge’s legal conclusion includes: United States v. School District 151, 286 F.Supp. 786, 798 (N.D. 111. 1967), afd, 404 F.2cl 1125, 1131 (7th Cir. 1968), on remand, 301 F.Supp. 201, 211, 222 (N.D. 111. 1969), 4 ’d, 432 F.2d 1147, 1150 (7th Cir. 1970), cert, denied, 402 U.S. 943 (1971); United States v. Board of School Commis sioners, Indianapolis, Ind., 332 F.Supp. 655, 669 (S.D. Ind. 1971) afd 474 F.2d 81 (7th Cir. 1973). The following testimony pertains to busing black children from overcrowded black schools past white schools with available pupil capacity to other black schools: Q. I am trying to anticipate, Mr. Ritchie’s question. Have you noted some examples of the bussing of black children from black schools to other black schools? Nos. 72-1809 -1 4 B ra d ley , e t al. v. M illik en , e t al. 21 131a “A. I have. “Q. Could you give us a couple illustrations? “MR. BUSHNELL: While Dr. Foster is looking through his notes, might I make the request that we made yesterday that on conclusion of his testimony we have access to the notes made? “MR. LUCAS: At the conclusion, yes. We have no objection to that. “A. In 1960-61, and we don’t have any record for ’61-62 so I am not certain as to that year, students were transported from Angell to Greenfield Park. This has already been part of our testimony, I believe, 186 students and students from Angell to Higginbotham, 118 students. In 1969 - “Q. Excuse me, Doctor, let me ask you if the Angell- Higginbotham — were there white schools available with space, from your examination of the records? “A. Yes, there were. “Q. Between Angell and Higginbotham? “A. Yes, sir, I believe I testified to that before. “Q. All right. “A. In 1969 the Ruthruff Elementary School which was 99 percent black transported 143 children to Herman Elementary, 55 percent black. * * * “Q. (By Mr. Lucas, continuing) Dr. Foster, would you step to the map. “I think we were talking about the Ruthruff-Herman Schools. “A. Yes. We were testifying at recess about trans portation of blacks past white schools. In 1969 we stated that Ruthruff Elementary which is here in the south eastern portion of the Mackenzie High School zone on the large 1970-71 attendance area map, in 1969 trans ported 143 children to Herman Elementary School which is just below the blue area on the undermap here - Herman Elementary School (indicating). Herman in 1969 was 55.6 percent black. Ruthruff was 99.1 percent black and I think it is important to note that the access 22 B ra d ley, e t al. v. M illik en , e t al. Nos. 72-1809-14 132a to Herman goes right past the Parkman Elementary School which at that time had 136 spaces available and according to their capacity figures - Q. Parkman was what percentage? “A. Parkman I don’t have the figure for ’69 and ’70. Parkman was 12.8 percent black.” * * « A. Another example was the Parker Elementary School which is in the general center of the Mackenzie High School zone. Parker in 1970 was 79.4 black; 61 children were bussed from Parker again to the Herman Elementary School which at that time was 58.5 percent black and again past the Parkman Elementary which in 1970 was 12.8 percent black. “Q. Did Parkman have capacity at that time, Doctor? A. Parkman in ’70, according to my data, had 121 spaces. * * * ‘‘Q. Excuse me, would you give us the A. L. Homes. „MR. BUSHNELL: I thought the Court ruled on that? THE COURT: He says he is pursuing a non-cumula- tive matter here. If that be true he may go ahead. A. A. L. Holmes School, children were bussed from this school over to the McGraw School which is in the south end of the Northwestern District in center city. In 1970-71 the Post Junior High School, which is lo cated — MR. EUSHNELL: If the Court please, Mr. Lucas just pointed out the location of Post which the witness obviously couldn t find on the map. THE COURT: Well, he hasn’t moved it. “A. I noted the west section of Cooley instead of the east. The Post Junior High School and Clinton Schools, winch are in the east section of the Cooley High School attendance zone transported 54 students to the Jefferson School which is now in the Murray zone and it is lo cated in the eastern section of the Murray High School attendance area. I think it is important to note that Nos. 72-1809 - 14 B ra d ley , e t al. v. M illik en , e t al. 23 133a these students who were bussed came from a consider able distance north and there were several possibilities - “Q. Excuse me, were the Post children in a black school or white school? “A. The Post School this year, 1970-71 was 99.3 per cent black. The Clinton School from which they also came was 97 percent black. “Q. What about Jefferson? “A. Jefferson was 87.6 percent black. There were two or three other possibilities much closer to the Post-Clinton area. One would have been in the western portion of the Mackenzie district here (indicating). “Q. What is the racial composition? “A. At this time it had 35.4 percent black with a ca pacity of 109 stations available. Another possibility would have been the Vetal School in the Redford zone, the southern portion of the Redford High School zone, which at this time was 2 percent black with vacancies of 203 pupil stations and a third alternative could have been the Coffey School to the east of the Ford attendance area which at this time was 29 percent black with 69 pupil stations available. “Q. Did you say to the east was part of the Ford attendance area or outside of that, Doctor? “A. It’s in the Ford attendance area.# « * “THE COURT: Well, to save time why don’t we pro ceed on the assumption that that was his testimony. But if it proves otherwise we will strike it. “MR. LUCAS: Thank you, sir. Q- (By Mr. Lucas) Doctor, I understand that the policy of the district is that bussing to relieve overcrowd ing would be done in such a manner as to improve in tegration at the receiving school. From your examine- , tion of the current bussing examples which you have given, do you have an opinion as to whether o r not that policy has or has not been followed? “A. Well, I think from the examples I have given so far it would give an indication that integration could 24 B ra d ley, e t al. v. M illik en , e t al. Nos. 72-1809-14 134a have been effected in a much better way if the children, instead of going to the schools would have been dropped off at other schools where the racial balance was quite different. * * * Q. Are there any white schools from your examina tion of data, Doctor Foster, between Angell and Higgin botham which had capacity at that time? A. Yes, there were several which were a good deal closer to Angell than Higginbotham. The effect of this sort of zoning pattern was to provide segregated student ratios at all three of the elementary schools, and in terms of things that could be done or could have been done at tnat particular time to correct the segregated situation, it is my opinion that, first of all, the students being bussed from Angell could have been dropped off at any number of places on the way to Higginbotham, schools which had the space and had a better racial composition for this sort of input. This having been done, zone lines could have been redrawn at these three schools to have approached a racial balance situation which, in my opinion, would have helped to stabilize the situation at that time. This would have also assisted in the overcrowding at Pasteur and a couple of classrooms extra at Higginbotham. Q. Do you have an opinion, Doctor, as to the per ception created by the maintenance of the Higginbotham School under those circumstances, including the transpor tation of black students from Angell into it? A. Well, it is obvious that if you transport black children past white schools to an all black school that the community is going to perceive this as a segregated in tent, a segregated action. If you have a boundary situa tion which isolates and enforces black students to a par ticular area when the boundary lines could be changed to effectuate a better pattern racially, then it seems to me that community perception would also be that the school is not doing what it could in terms of integration and equal opportunity. Nos. 72-1809- 14 B ra d ley , et al. v. M illikan, et a l 25 135a “Q. Doctor, from your examination of the data in 1960 are there any administrative reasons, any administra tive problems which would indicate to you a reason why this boundary was maintained rather than drawn in some other fashion? “A. In terms of school capacity there are none, no.” Defendant’s witness (Mr. Henrickson) admitted instances of busing black students past closer white schools to black schools: “Q. We find on the under and over capacity map in the Higginbotham area that there were three schools sur rounding Higginbotham. Vernor, which is listed as be ing 121 over capacity; MacDowell, 103, is it? Pasteur, 90. At the same time we find that Higginbotham was 489 under capacity. Is that what the exhibit shows, sir? “A. Yes. “Q. We also know, do we not, that Pasteur, Mac Dowell and Vernor were white schools? “A. Both Pasteur and MacDowell at that time, as I recall, had some beginning of black students as a result of the growth of the settlement of the Higginbotham area. “Q. They were predominately white schools at that time? “A. Yes. “Q. Higginbotham was all or virtually all black? “A. Yes. “Q. Indeed, it had been the same in 1950, had it not? “A. Yes. “Q. At the same time that we are talking about you were transporting youngsters from Angell to Higgin botham, is that correct? “A. Yes. “Q. Those were black kids being transported from Angell to Higginbotham? “A. Yes. “Q. We also know on that exhibit that they were 26 B ra d ley, e l al. v. M illik en , e t al. Nos. 72-1809-14 136a transported past such schools as Fitzgerald and Clinton which had more than enough capacity to handle them? “A. We have made no denial of that.” For some years it was a Board of Education policy to trans port classrooms of black children intact to white schools where they were educated in segregated classes. Testimony as to the intact busing practice follows: “Q. (By Mr. Lucas, continuing) Will you go into the Detroit system, Doctor, on transportation. “A. Answering it generally, counsellor, my answer would be that the intact bussing is the practice of trans porting classrooms of children intact from one school to another and leaving them intact when they are educated at the receiving school. Q. Doctor, when such transportation occurs from a school which is 90 percent or more black to a school which is predominantly a white school, what effect, if any, does this have in terms of racial segregation on those chil dren? A. This would lead to what we call classroom seg regation or segregation within a particular school. It could be sometimes resegregation, but essentially it is a segregated situation within a school which could be seg regated or not segregated generally. “Q. Doctor, in your experience with school segregation and school desegregation plans, is this a technique which you have had to deal with in the past? A. On occasion, yes, sir. ‘Q. Doctor, did you examine data or relevant informa tion with respect to the transportation practices in the Detroit school system in connection with this type of bussing, intact bussing? “A. Yes, sir. Q- What did your examination reveal, Doctor? “A. It is my understanding from the data that there was intact bussing generally in the late ’50’s, as I said, and early ’60s. Nos. 72-1809 -14 B ra d ley , e t al. v. M illik en , e t al. 27 137a “Q. How did that intact transportation operate, Doc tor? “A. It involved transporting classrooms in whole from one school to another receiving school and at the receiv ing school the classrooms were kept intact for instructional purposes. “Q. Was this policy changed at any time, Doctor, as far as you know? “A. It is my understanding it was changed in the middle ’60’s but I don’t remember the exact date. “Q. What would the change be, Doctor? What type of bussing would result in terms of relieving overcrowd ing? “A. You simply gather children up on a geographical basis and transport them and assign them at random to whatever grade they are in the receiving school rather than keeping them in an intact classroom.” Segregating children by race within schools has been held repeatedly to be unconstitutional. Jackson v. Marvell School District No. 22, 445 F.2d 211, 212 (8th Cir. 1970); Johnson v. Jackson Parish School Board, 423 F.2d 1055 (5th Cir. 1970). The record indicates that in at least one instance Detroit served a suburban school district by contracting with it to educate its black high school students in a Detroit high school which was overwhelmingly black by transporting them away from nearby suburban white high schools and past Detroit high schools which were predominately white. The District Judge found on this score that for years black children in the Carver School District were assigned to black schools in the inner city because no white suburban district (or white school in the city) would take the children. This finding is supported by the testimony of Detroit School Superintendent Drachler, which follows: “Q. When was the Carver District in existence as a separate entity? “A. The Carver District? The Carver is not in De troit. 28 B ra d ley, e t al. v. M illik en , e t al. Nos. 72-1809-14 138a “Q. Is it a separate school district whose students at tended some Detroit high schools, in particular Northern? “A. Oh, I see what you’re referring to. I am told that back in ’57, ’58, at that time I was not in Central Office, there were some students from Carver District who did not have a place for adequate high school facilities. An arrangement was made with Detroit for the Carver stu dents to come in on buses and go to Northern High School. Now, the nearest school to Carver was Mum- ford at the time. And they did go past Mumford towards Northern. “Q. Is Carver a black district? “A. Yes, black and very poor. “Q. Has Carver District subsequently merged with Detroit? “A. Oak Park. “Q. With Oak Park? “A. That’s right. “Q. And at that time the transportation was termi nated? “A. That’s right. By the way, as a result of those youngsters coming, there was a rumor spread that De troit children were being bussed, say, from the Higgin botham, which is north — Higginbotham area which is north of Mumford High School area but in Detroit, that they were being bussed to Northern, too, because they were black students, people saw black students from the Eight Mile area coming down. But to the best of my knowledge these were outside students. “Q. There were black children being bussed to Hig ginbotham, weren’t they? “A. There were black children being bussed to Hig ginbotham. “Q. From Angell? ‘A. From Angell past some white schools. And when the issue was brought to Doctor Brownell’s attention by me in about ’59 or ’60 — there were a series of instances Nos. 72-1809 - 14 B ra d ley , e t al. v. M illik en , e t al. 29 139a like that. There was the Angell, there was from the military fort in the southwest, they were bussing their own children up to the Noble, and Doctor Brownell, as soon as it was brought to his attention, abolished that as well as the optional areas. “Q. Was this so-called intact bussing, that is a class being brought as a unit? “A. Generally speaking, yes. That policy of changing to geographic bussing occurred about ’62-’63 as a result of the Equal Education Opportunities Committee. “Q. Was all of the bussing done in the City of De troit of an intact nature until the Equal Opportunities study? “A. To the best of my knowledge it was. I know when my children were being bussed, they were bussed intact.” (2) Optional Areas. The record demonstrates that in many instances when neighborhoods in Detroit began to experience some inmigra tion of black families, it was Board of Education policy to create optional attendance zones, thereby allowing white stu dents to change schools to all white or predominately white schools, generally located farther toward the city limits. For many years the record indicates this practice to have been pervasive. It continued in at least one instance up to the 1970-71 school year. As to optional attendance zones, the District Judge found: “During the decade beginning in 1950 the Board cre ated and maintained optional attendance zones in neigh borhoods undergoing racial transition and between high school attendance areas of opposite predominant racial compositions. In 1959 there were eight basic optional attendance areas affecting 21 schools. Optional attendance areas provided pupils living within certain elementary areas a choice of attendance at one of two high schools. In addition there was at least one optional area either created or existing in 1960 between two junior high 30 B ra d ley, e t al. v. M illik en , e t al. Nos. 72-1809-11 140a schools of opposite predominant racial components. All of the high school optional areas, except two, were in neighborhoods undergoing racial transition (from white to black) during the 1950s. The two exceptions were: (1) the option between Southwestern (61.6% black in 1960) and Western (15.3% black); (2) the option be tween Denby (0% black) and Southeastern (30.9% black). With the exception of the Denby-Southeastem option (just noted) all of the options were between high schools of opposite predominant racial compositions. The South western-Western and Denby-Southeastem optional areas are all white on the 1950, 1960 and 1970 census maps. Both Southwestern and Southeastern, however, had sub stantial white pupil populations, and the option allowed whites to escape integration. The natural, probable, fore seeable and actual effect of these optional zones was to allow white youngsters to escape identifiably ‘black’ schools. There had also been an optional zone (elimi nated between 1956 and 1959) created in ‘an attempt . . . to separate Jews and Gentiles within the system,’ the effect of which was that Jewish youngsters went to Mumford High School and Gentile youngsters went to Cooley. Although many of these optional areas had served their purpose by 1960 due to the fact that most of the areas had become predominantly black, one op tional area (Southwestern-Western affecting Wilson Jun ior High graduates) continued until the present school year (and will continue to effect 11th and 12th grade white youngsters who elected to escape from predominant ly black Southwestern to predominantly white Western High School). Mr. Henrickson, the Board’s general fact witness, who was employed in 1959 to, inter alia, elimi nate optional areas, noted in 1967 that: ‘In operation Western appears to be still the school to which white students escape from predominantly Negro surrounding schools.’ The effect of eliminating this optional area (which affected only 10th graders for the 1970-71 school year) was to decrease Southwestern from 86.7% black in 1969 to 74.3% black in 1970.” 338 F.Supp. at 587-88. Nos. 72-1809 -14 B ra d ley , e t al. v. M illik en , e t al. 31 141a From these facts the District Judge arrived at the following legal conclusion: “7. The Board’s policy of selective optional attendance zones, to the extent that it facilitated the separation of pupils on the basis of race, was in violation of the Four teenth Amendment. Hobson v. Hansen, D C., 269 F.Supp. 401, aff’d sub nom., Smuck v. Hobson, 408 F.2d 175. [(D.C. Cir. 1969)].” 338 F.Supp. at 593. Additional support for the District Judge’s legal con clusion includes: United States v. Texas Education Agency, 467 F.2d 848 (5th Cir. 1972); Northcross v. Board of Education of Memphis, 333 F.2d 661, 665-66 (6th Cir. 1964) (different but analogous situation); United States v. Board of School Commissioners of Indianapolis, 332 F. Supp. 655, 668 (S.D. Ind. 1971) affd 474 F.2d 81 (7th Cir. 1973); Spangler v. Pasadena City Board of Education, 311 F.Supp. 501, 502 (C.D. Cal. 1970). The effect of use of optional zones was described in Dr. Foster’s testimony: “The first method or technique 1 might cite that is used to maintain segregation would be the use of op tional zones. “Would it be possible for me to step to the board to illustrate? “Q. Please do. (The witness proceeded to the blackboard.) “A. Optional zones are sometimes also referred to as dual zones or dual overlapping zones. I think it will be easier for me to illustrate this briefly. (The witness drew a sketch on the board.) “A. If you have, let’s say, two high school districts, District X and District Y, frequently when you set up an optional zone you carve the zone out of one district, occasionally two, but assume we carve it out of District Y and the children in this optional zone are then per mitted to go to either high school X or high school Y, 32 B ra d ley , e t al. v. M illik en , e t al. Nos. 72-1809 -11 142a this becomes in a sense an overlapping zone because if we refer to the boundaries of school District X at this point it not only includes the previous boundary but also takes in the optional zone. “District Y in turn would include its previous bound aries, also including the optional zone. I think this may explain the origin of the connotation of the word ‘over lapping’. “Essentially optional zones are set up for two or three reasons, one is to allow white students or black students the option of attending one of the two attendance areas which make up the boundaries of the zone and another is for, occasionally for religious purposes to provide al ternatives for persons of different religions. Sometimes these are set up for socio-economic reasons and I have on occasion seen them set up by boards of superin tendents as political gimicks in order to help pass a bond issue or one thing or another or a school board or super intendent will set up temporary optional zones as a favor to certain constituents in return for assistance in helping the school board with one thing or another. “I think in the frame work in which we operate they are used primarily for maintaining segregated patterns. * « * “Q. Dr. Foster, have you made a study and analysis of optional zones in the Detroit school system? “A. Yes, I have.” Dr. Foster’s analysis of the purpose and effect of each op tional zone in existence in the Detroit School District is exemplified in his testimony on the Mackenzie-Central option. “Q. Doctor Foster, do you have an opinion as to the administrative use of the optional attendance zone in 1960 between and prior to that in Mackenzie-Central area? A. Yes. I think it was used primarily — you mean as to the purpose of it? Q. Well, as to whether or not it had any administra tive value that you know of, Doctor, aside from race? Nos. 72-1809 - 14 B ra d ley , et al. v. M iflik en , et. al. 33 143a “A. In terms of assignment I can see no advantage to it. # * # “Q. Do you have an opinion as to its use in terms of segregation or desegregation, Doctor Foster? “A. In my opinion it was used as an optional zone to allow whites during the period it was in existence in the ’50’s and also until such time as it was done away with in 1962 to be assigned to predominantly white Mac kenzie High School. “Q. Doctor Foster, from your examination of the 1950 census and in turn the 1960 census exhibits, do you have an opinion as to the effect of such an optional zone on the community residence pattern in the community? * * * “A. Community people and residents in a situation such as this generally have a perception that there is something wrong with their school, that the whites need an optional zone to get out into a less black situation and, therefore, this increases their perception of racial isola tion and, in fact, physical containment. “Q. Does this have an effect, Doctor, in terms of the residence pattern? I believe you testified in 1950 the optional area was entirely white or zero to 4.9 per cent white. « O # “A. In my opinion this tends to increase the instability of the community because they generally feel this is an ad hoc temporary interim situation and it increases white flight in this sort of situation. S * “Q. Doctor Foster, does the use of these techniques in some areas have an effect in terms of the perception of the community of schools besides the actual two schools to which the option was involved? « * » “A. Thank you. Yes, I think the perception is not only 34 B r a d le y , e t al. v. M ilU k e n , e t al. Nos. 72-1809 -14 144a of rank and file community residents, but people of con siderable influence in the community, along with School Board administration people, School Board members, School Board officials. In many cases they have sub stantiated this perception that I have recounted; that the optional zones did lead to greater pupil segregation and a feeling of frustration that the school authorities were not doing what was called for in terms of desegre gation, and it had a generally debilitating effect on the image of the schools as far as all of these groups were concerned.” Mr. Henrickson, defendant School Board’s principal wit ness and divisional director of planning and building studies in the School Housing Division, did not deny the discriminatory effect of at least some of these optional zones. “Q. In 1959 optional areas frustrated integration, did they not? “MR. BUSHNELL: Objection to the form of the ques tion. “THE COURT: He may answer. “A. Some of these areas in 1959 had no effect what ever with movement of black or white students. They were either all black or all white. Some of them such as the Western-Southwestern area can be said to have frustrated integration and continued over the decade.” (3) Building Construction. The District Judge found and the record contains evidence that the Detroit Board of Education practices in school con struction generally tended to have segregative effect; the great majority of schools were built in either overwhelming all black or all white neighborhoods so that the new schools opened as one race schools. The District Judge’s school construction findings were as follows: Nos. 72-1809 - 14 B r a d le y , e t al. v. M il l ik e n , e t al. 35 145a “In 1966 the defendant State Board of Education and Michigan Civil Rights Commission issued a Joint Policy Statement on Equality of Educational Opportunity, re quiring that ‘Local school boards must consider the factor of racial balance along with other educational considerations in making decisions about selection of new school sites, expansion of present facilities . . . . Each of these situations presents an opportunity for inte gration.’ Defendant State Board’s ‘School Plant Planning Hand book’ requires that ‘Care in site locations must be taken if a serious transportation problem exists or if housing patterns in an area would result in a school largely segregated on racial, ethnic, or socio-economic lines.’ The defendant City Board has paid little heed to these statements and guidelines. The State defendants have similarly failed to take any action to effectuate these policies. Exhibit NN reflects construction (new or ad ditional) at 14 schools which opened for use in 1970-71; of these 14 schools, 11 opened over 90% black and one opened less than 10% black. School construction costing $9,222,000 is opening at Northwestern High School which is 99.9% black, and new construction opens at Brooks Junior High, which is 1.5% black, at a cost of $2,500,000. The construction at Brooks Junior High plays a dual seg- regatory role: not only is the construction segregated, it will result in a feeder pattern change which will remove the last majority white school from the already almost all-black Mackenzie High School attendance area. “Since 1959 the Board has constructed at least 13 small primary schools with capacities of from 300 to 400 pupds- This practice negates opportunities to integrate, con tains’ the black population and perpetuates and com pounds school segregation.” 338 F.Supp. at 588-89. 36 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 146a Other eases in which such findings have been held to con stitute a de jure act of segregation include: Swann v. Charlotte- Mecklenburg Board of Education, 402 U.S. 1, 21 (1971)- Cisneros v. Corpus Christi Independent School Dist., 467 F.2d 142 (5th Cir. 1972), pet. for cert, filed, 41 U.S.L.W. 3225 (Oct. 31, 1972); Kelly v. Guinn, 456 F.2d 100 (9th Cir. 1972) petition for cert, filed, 41 U.S.L.W. 3114 (U.S. Aug. 28, 1972); Davis v. School District of Pontiac, 443 F.2d 573, 576 (6th Cir.), cert, denied 402 U.S. 913 (1971); Sloan v. Tenth School District, 433 F.2d 587, 590 (6th Cir. 1970); United States v. Board of Education of Tulsa, 429 F.2d 1253, 1259 (10th Cir. 1970); Brewer v. School Board of Norfolk, 397 F.2d 37, 42 ( 4th Cir. 1968); United States v. Board of Public Instruction, 395 F.2d 66, 69 (5th Cir. 1968); Kelley v. Alt- heimer, Arkansas Public School Dist. No. 22, 378 F.2d 483, 496-97 (8th Cir. 1967); Johnson v. San Francisco Unified School District, 339 F.Supp. 1315, 1326, 1341 (N.D. Cal. 1971); United States v. Board of School Commissioners of Indianapolis 332 F.Supp. 655 (S.D. Ind. 1971) affd 474 F.2d 81 (7th Cir. 1973); Spangler v. Pasadena City Board of education, 311 F.Supp. 501, 522 (C.D. Cal. 1970); United States v. School District 151, 286 F.Supp. 786, 798 (N.D. 111.), aff’d, 404 F.2d 1125 (7th Cir. 1968); Lee v. Macon bounty Board of Education, 267 F.Supp. 458, 472 (M.D. Ala.), ajfd per curiam sub nom., Wallace v. United States 389 U S 215 (1967). Record evidence pertaining to Detroit Board of Education building construction practices and their results include: Q. Doctor Foster, I show you a document in evi- ence, Plaintiffs Exhibit 70. I direct your attention to Page 15 of the exhibit. The exhibit is School Planning Handbook, Bulletin 412, revised, January, 1970, Michigan epartment of Education. Directing your attention to apter 2, the School Site, and the last full paragraph in the left-hand column on page 15, Doctor, would you read that paragraph? Nos. 72-1809- 14 B r a d le y , e t a l v. M il l ik e n , e i al. 37 147a “A. ‘Care in site location must be taken if a serious transportation problem exists or if housing patterns in an area would result in a school largely segregated on racial, ethnic or socio-economic lines.’ “Q. Doctor, would you step down to the map, please? Do you have a copy, Doctor, of Plaintiff’s Exhibit 79? “A. Yes, I do. “Q. Doctor, would you examine Plaintiff’s Exhibit 153, which shows new school construction, 1960 to 1970? Per haps you had better step back here. Doctor, the black squares on here represent schools opening 80 to 100 per cent black in pupil enrollment. Would you direct your attention to the Drew Junior High School on the map and examine the exhibit and tell me when Drew was opened? “A. According to the exhibit, the Drew Junior High School was opened in 1970. “Q. And what was it opened as in terms of its en rollment, Doctor? “A. 1,587 students. “Q. And its percent black? “A. 95 per cent black. “Q. And the Eileen Primary School, Doctor, can you locate it on the map? “A. The Eileen Primary is in the Cooley High School zone, I believe. “Q. And when did it open, Doctor? “A. 1970. “Q. And what was its enrollment and its pupil popula tion in terms of black? “A. 333 students. The per cent black was 99.1. “Q. Would you examine the map and locate the E. M. Turner Primary? “A. Yes. “Q. What year was that opened, Doctor? “A. The Turner Primary was opened in 1969. “Q. And its enrollment of pupil population? “A. 362 pupils, 97.5 percent black. 38 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809 -14 148a “Q. Can you find the Stewart School on there, Doc tor? ‘A. The Stewart School is in the same general area as Turner, a little to the south. “Q. What year was it opened? “A. 1970. “Q. Its population and percent black? “A. 766 enrollment, 98.8 percent black. “Q. Marxhausen Primary, Doctor, can you locate that on the map? “A. Marxhausen is in the Finney zone. “Q. Is that near or far away from the A. L. Holmes School, Doctor? “A. As I remember, rather close to the Holmes School. Q. Can you locate the Holmes School with reference to that? “A. The Holmes School is the next one to the north west. Q. And what was its pupil population when it opened? “A. Marxhausen was opened in 1970 with a pupil population of 302, 92.4 percent black. Q. Would you locate Mack Primary, Doctor? “A. Mack Primary is also in the Finney zone. “Q. And when did it open? ‘A. Mack opened in 1970 with an enrollment of 173, 98.8 percent black. Q. Could you locate the Angell Primary area, Doc tor? A. The Angell area is in the Northwestern attendance zone. (Q- And what was its enrollment and percent black? A. Angell was 1,282 students when it opened in 1970. The percent black was 99.9 Q. Is there an asterisk by that particular school, Doctor? A. On the exhibit? “Q. Yes. A. Yes, there is. Nos. 72-1809 -1 4 B r a d le y , e t al. v. M il l ik e n , e t al. 39 149a “Q. Would you refer to the cover and tell us what that asterisk indicates? “A. It says, ‘The racial count data included in ex isting school with the same name.’ “Q. Can you locate the Stark School, Doctor? “A. The Stark School is in the Southeastern zone. “Q. And what was its enrollment? “A. The enrollment was 822 when it opened in 1969. “Q. And the percent black? “A. 98.4 percent black. “Q. Can you locate the new King Senior High School, Doctor? “A. The new King Senior High School? “Q. Yes! “A. Here. “Q. When did it open? “A. It opened in 1968. “Q. What was its enrollment? “A. 1,897 pupils. “Q. And its percent black? “A. 98.8 percent black. “Q. Can you locate the Field Annex, Doctor? “A. Just to the northeast of King, the Field Annex, “Q. And what was its enrollment? “A. 461. “Q. Its per cent black? “A. 90.5 per cent black. “Q. Can you locate the Glazer School, Doctor Foster? “A. The Glazer School is in the Central zone. “Q. And when did it open? “A. In 1967. “Q. And what was its enrollment, Doctor? “A. 850 students. “Q. What was its per cent black? “A. 100 per cent black.” Similar testimony was given with respect to the Stevenson, Cortez, Beaubien, Sander, St. Clair Annex, Murray, Kettering, Krolik, Joy, Tendler, Belleville, McGraw, Knudsen, Keidan, 40 B r a d le y , e t al. v. M il l ik e n , e t at. Nos. 72-1809-14 150a Jamieson, Butzel, Woodward, Tendler and Norvell Schools. White schools built to accommodate white residential areas in cluded Fox, Lessenger, Murphy, Taft, Fleming, Earhart, Reeves, Brooks and McKenny Annex. “Q. Thank you, Doctor. “Doctor Foster, from your examination of the pattern of construction in this school system, 1960 to 1970, do you have an opinion as to the effect of that pattern of con struction on segregation in the Detroit School System? “A. My opinion is that construction practices were followed in such a way as to increase segregation. I say this because of the large number of schools that were opened that were either all black or all white or with a disproportionate number of one race or the other upon opening. « * $ “Q. (By Mr. Lucas) Does the location of a school in a particular place have a long term effect on a school system? “A. In terms of the nature of the pupils assigned to the school, do you mean? “Q. Yes, sir. “A. Yes, it does. “Q. Are there alternatives in schoolhouse construction which can or should be considered by a school district in terms of affecting the racial composition of student bodies? “A. In terms of site selection there are, yes. “Q. What are some of the alternatives which can or should be utilized, in your opinion, Doctor? “A. It is customary in this day and age to consider the problem of integration or segregation very carefully in selecting sites for school buildings and, well, this was pointed out, I believe, in the bit I read from the Michigan State Department. “Q. What effect in terms of perception of the com munity does it have when a school is opened with an overwhelming enrollment of one race or the other? Nos. 72-1809- 14 B r a d le y , e t al. v. M il l ik e n , e t al. 41 151a “A. Generally the community perceives, in my opin ion, that the school has been thought of as being, going to be an all white school or all black school and in either case generally that it is racially isolated.” (B) The constitutional violations found to have been committed by the State of Michigan. (1) School districts in the State of Michigan are instru mentalities of the State and subordinate to its State Board of Education and legislature. (See §V (A), pp. 56-62, infra.) Hence, the segregative actions and inactions of the Detroit Board of Education previously outlined are the actions of an agency of the State of Michigan. (2) In 1970 the Detroit School Board undertook implemen tation of its April 7 desegregation plan applicable to its high schools. On meeting considerable resistance thereto, it none theless proceeded. At that point the State Legislature inter vened by Act 48 of the Public Acts of 1970 specifically over ruling the Detroit Board of Education’s desegregation plan, While this statute has since been invalidated by judgment of this court, 433 F.2d 897, its contribution to preventing desegre gation and to continuing and increasing segregation of the De troit school system cannot be overlooked. (3) Under Michigan law, M.S.A. § 15.1961, school build ing construction plans must be approved by the State Board of Education. Prior to 1962 the State Board also had specific statutory authority to supervise school site selection. The proofs concerning the effect of Detroit’s school construction program are therefore largely applicable to show State re sponsibility for the segregative results. (4) During the critical years covered by this record the School District of Detroit was denied any allocation of State funds for pupil transportation, although such funds were made generally available for students who lived over a mile and a half from their assigned schools in rural Michigan. 42 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-11 152a (5) Finally, the cross-district transportation of black high school students from the Carver School, located in Ferndale school district, to a black high school in Detroit could not have taken place without the approval, tacit or express, of the State Board of Education. ( See supra pp. 28-30). The District Judge’s findings pertaining to constitutional violations by the State of Michigan are as follows: “The State and its agencies, in addition to their gen eral responsibility for and supervision of public education, have acted directly to control and maintain the pattern of segregation in the Detroit schools. The State refused, until this session of the legislature, to provide authoriza tion or funds for the transportation of pupils within Detroit regardless of their poverty or distance from the school to which they were assigned, while providing in many neighboring, mostly white, suburban districts the full range of state supported transportation. This and other financial limitations, such as those on bonding and the working of the state aid formula whereby suburban districts were able to make far larger per pupil expendi tures despite less tax effort, have created and perpetuated systematic educational inequalities. “The State, exercising what Michigan courts have held to be is ‘plenary power’ which includes power ‘to use a statutory scheme, to create, alter, reorganize or even dissolve a school district, despite any desire of the school district, its board, or the inhabitants thereof,’ acted to reorganize the school district of the City of Detroit. “The State acted through Act 48 to impede, delay and minimize racial integration in Detroit schools. The first sentence of Sec. 12 of the Act was directly related to the April 7, 1970 desegregation plan. The remainder of the section sought to prescribe for each school in the eight districts criterion of ‘free choice’ (open enrollment) and ‘neighborhood schools’ ( ‘nearest school priority accep tance’ ), which had as their purpose and effect the main tenance of segregation. Nos. 72-1809 -1 4 B r a d le y , e t al. v. M il l ik e n , e t al. 43 153a “In view of our findings of fact already noted we think it unnecessary to parse in detail the activities of the local board and the state authorities in the area of school con struction and the furnishing of school facilities. It is our conclusion that these activities were in keeping, generally, with the discriminatory practices which advanced or per petuated racial segregation in these schools.” 338 F. Supp. at 589. The District Judge arrived at the following legal conclusions: “II. Under the Constitution of the United States and the constitution and laws of the State of Michigan, the responsibility for providing educational opportunity to all children on constitutional terms is ultimately that of the state. Turner v. Warren County Board of Education, D.C., 313 F.Supp. 380; Art. VIII, §§ 1 and 2, Mich. Con stitution; Daszkiewicz v. Detroit Bd. of Ed. of City of Detroit, 301 Mich. 212, 3 N.W.2d 71. “12. That a state’s form of government may delegate the power of daily administration of public schools to officials with less than state-wide jurisdiction does not dispel the obligation of those who have broader control to use the authority they have consistently with the con stitution. In such instances the constitutional obligation toward the individual school children is a shared one. Bradley v. Sch. Bd. of City of Biclimond, D.C., 51 F.R.D. 139, 143. “13. Leadership and general supervision over all pub lic education is vested in the State Board of Education. Art. VIII, § 3, Mich. Constitution of 1963. The duties of the State Board and superintendent include, but are not limited to, specifying the number of hours necessary to constitute a school day; approval until 1962 of school sites; approval of school construction plans; accreditation of schools; approval of loans based on state aid funds; review of suspensions and expulsions of individual stu dents for misconduct [Op.Atty.Gen., July 7, 1970, No. 4705]; authority over transportation routes and disburse- 44 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 154a ment of transportation funds; teacher certification and the like. M.S.A. 15.1023( 1), M.C.L.A. § 388.1001. State law provides review procedures from actions of local or intermediate districts (see M.S.A. 15.3442, M.C.L.A. §340.442), with authority in the State Board to ratify, reject, amend or modify the actions of these inferior state agencies. See M.S.A. 15.3467; 15.1919(61); 15.1919(68 b); 15.2299(1); 15.1961; 15.3402, M.C.L.A. §§340.467, 388.621, 388.628(a), 388.681, 388.851, 340.402; Bridge- hampton School District No. 2 Fractional of Carsonville, Mich. v. Supt. of Public Instruction, 323 Mich. 615, 36 N.W.2d 166. In general, the state superintendent is given the duty ‘[t]o do all things necessary to promote the welfare of the public schools and public educational instructions and provide proper educational facilities for the youth of the state.’ M.S.A. 15.3252, M.C.L.A. §340.252. See also M.S.A. 15.2299(57), M.C.L.A. § 388.717, providing in certain instances for reorganiza tion of school districts. “14. State officials, including all of the defendants, are charged under the Michigan constitution with the duty of providing pupils an education without discrimina tion with respect to race. Art. VIII, § 2, Mich. Constitu tion of 1963. Art. I, § 2, of the constitution provides: ‘No person shall be denied the equal protection of the laws; nor shall any person be denied the en joyment of his civil or political rights or be discrimi nated against in the exercise thereof because of re ligion, race, color or national origin. The legislature shall implement this section by appropriate legisla tion.’ ” 338 F.Supp. at 593-94 Some of the evidence in this record supporting the District Judge’s findings of State acts which discriminatorily affected the Detroit Board of Education and contributed to pupil segregation follows. The State statutory scheme of support of transportation for school children directly discriminated against Detroit. Dr. John W. Porter, the State Superintendent of Nos. 72-1809 - 14 B r a d le y , e t al. v. A lil l ik en , e t al. 45 155a Public Instruction in Michigan, testified as to the State trans portation aid formula: “Q. (By Mr. Lucas) Dr. Porter, does the State pay the cost of pupil transportation in the State of Michigan? “A. The State pays roughly 75 percent of the cost. Last year the appropriation was $29 million. “Q. Do you know what percent of the school children in the State of Michigan are transported to the school at public expense? “A. Yes, I do. 40 percent of all students in Michigan are transported. That equates out to about 833,000 stu dents last year. “Q. Dr. Porter, is there some formula in terms of distance which makes a child eligible for transportation that would be aided by the state? “A. Yes. It is a very complicated formula that 197 computations, and we are in the process right now of reducing this — “Q. (Interposing) You mean the financial formula is complicated. But, in terms of distance from his home to the school — “A. A mile and a half outside the city limits. Until this year the legislature amended the Act based upon the recommendations of the State Board of Education to allow for in-city transportation which we had never had before* The legislature did not appropriate funds for that. So, now the funds that are now used are basically for rural areas and suburban areas where the students live a mile and a half from the school. “Q. When you say ‘city,’ is there some limitation? For instance, would Grosse Pointe, Harper Woods, areas like that that surround the City of Detroit, are they eligible for transportation? “A. In the in-city. But, if the students come across the city boundary lines they live more than a mile ana a half, which is quite prevalent throughout the state, then they are eligible for the funds. 46 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 156a “Q. Well, I think my question may have been con fusing. Is there some type of city — is it just anyplace incorporated as a city that is differentiated from the rural areas, or certain cities eligible for this state aid at the present time and receive the funds — “THE COURT: I think what Mr. Lucas is trying to get at is whether under the old practice whether any city has ceased state aid for transportation within the city. “A. Yes, we have a number of instances where the city would be receiving aid for transportation, because the law says that if the bus in order to get the students to the school crosses outside of the city boundary, the city is then eligible for aid, and we, and we have a number of instances where that exists. “THE COURT: In other words, where the student originates his ride outside the city limits transportation is assisted? “A. That’s right, or where the student lives in the city but the bus has to go outside of the city and come back he is also eligible. This, however, does not negate local city officials, school board officials from providing transportation. There is no prohibition against that. Q. (By Mr. Lucas) You said the legislature changed the law but didn’t provide the money. Now, they are eligible for state aid but it is unfunded now, is that what you are saying? A. The law was changed last year to permit in-city bus transportation but in changing the law the legislature said our department had to disburse the funds to the eligible existing areas which meant that since they did not increase the amount of funds appropriated we could not provide for in-city transportation. Q. If a child lives in the city and lives more than a mile and a half from the school to which he is assigned he may not receive the state aid because it is unfunded at the present time? A. That is correct. Nos. 72-1809 - 14 B r a d l e y , e t al. v. M il l ik e n , e t al. 47 157a “Q. But if he lives the same distance away and lived outside the City of Detroit, for example, then he could receive state aide? “A. That is correct, or any other area.” The clearest example of direct State participation in en couraging the segregated condition of Detroit public schools, however, is that of school construction in Detroit and the surrounding suburban areas. Until 1962 the State Board of Education had direct statutory control over site planning for new school construction. During that time, as was pointed out above, the State approved school construction which fostered segregation throughout the Detroit Metropolitan area (See supra pp. 35-42). Since 1962 the State Board has con tinued to be involved in approval of school construction plans. IV. Conclusion as to Constitutional Violations The discriminatory practices on the part of the Detroit School Board and the State of Michigan revealed by this record are significant, pervasive and causally related to the substan tial amount of segregation found in the Detroit school system by the District Judge. There is, of course, a significant distinction between this record and those school segregation cases which have flooded the courts since Brown v. Topeka, supra. This distinction is that Michigan has never enforced segregation by State laws which provided for separate black and white school systems, as was the pattern prior to 1954 in many other States. As a consequence, there always have been some instances of actual school integration in Detroit and still more instances of token school integration. Defendants seek to insulate themselves from remedial action by federal courts by pointing to the long standing public policy of Michigan, as expressed in its statutes, of integration of public education. However, this court is not blind to the fact that governments can act only through the conduct of 48 B r a d le y , e t al. v. M iU ik cn . e t al. Nos. 72-1809-11 158a their officials and employees and that unconstitutional actions of individuals can be redressed. See, e.g., Clemons v. Board of Education, 228 F.2d 853 (6th Cir.), cert, denied, 350 U.S. 1006 (1956). The record in this case amply supports the findings of the District Court of unconstitutional actions by public officials at both the local and State level. Historically de jure segregation has come about through statutory command explicitly establishing dual school systems. Michigan’s declared public policy is urged as a controlling distinction. No matter how important this distinction may be, it does not in our judgment negate the de jure segregation findings entered in this case by the District Judge. As said in United States v, The Board of School Commissioners of the City of Indianapolis, 474 F.2d 81, 83 (7th Cir. 1973): [T]he actions of the Board of School Commissioners and its duly-appointed representatives and agents may be sufficient to constitute de jure segregation without being based on state law, or even if they are in derogation of state law forbidding segregation.” The record contains substantial evidence to support the find ing of the District Court that the segregation of the Detroit public schools, however rooted in private residential segrega tion, also was validated and augmented by the Detroit Board of Education and Michigan State Board action of pervasive in fluence through the system. Even if the segregation practices were a bit more subtle than the compulsory segregation statutes of Southern States, they were nonetheless effective. It is our view that the findings of fact pertaining to actions °f the Detroit Board of Education and the State of Michigan which caused or contributed to Detroit school segregation are not clearly erroneous and that the District Court was therefore authorized and required to take effective measures to desegregate the Detroit Public School System. Brown v. B°ard of Education of Topeka [I], 347 U.S. 483 (1954); Brown v' hoard of Education of Topeka [II], 349 U.S. 294 (1955); Nos. 72-1809 - 14 B r a d le y , e t al. v. M il l ik e n , e t al. 49 159a Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971); Davis v. Board of Commissioners, 402 U.S. 33 (1971). This record contains a substantial volume of testimony con cerning local and State action and policies which helped produce residential segregation in Detroit and in the metro politan area of Detroit. In affirming the District Judge's findings of constitutional violations by the Detroit Board of Education and by the State defendants resulting in segregated schools in Detroit, we have not relied at all upon testimony pertaining to segregated housing except as school construction programs helped cause or maintain such segregation. V. The District Court’s Ruling that no Detroit Only Desegregation Plan is Possible Subsequent to the entry of its findings of constitutional violations on the part of the Detroit Board of Education and the State of Michigan resulting in system-wide segregation of Detroit public schools, the District Court requested plans for Detroit only desegregation. His findings of fact pertaining to these plans warrant repetition: “FINDINGS OF FACT AND CONCLUSIONS OF LAW ON DETROIT-ONLY PLANS OF DESEGREGATION “In accordance with orders of the court defendant Detroit Board of Education submitted two plans, limited to the corporate limits of the city, for desegregation of the public schools of the City of Detroit, which we will refer to as Plan A and Plan C; plaintiffs submitted a similarly limited plan, which will be referred to as the Foster Plan. Hearings were had on said plans on March 14, 15, 16, 17 and 21, 1972. In considering these plans the court does not limit itself to the proofs offered at the hearing just concluded; it considers as part of the evidence bearing on the issue (i.e., City-Only Plans) all proofs sub mitted in the case to this point, and it specifically incor 50 B r a d l e y , e t a l . v. M i l l i k e n , e t al. Nos. 72-1809 -14 160a porates herein by reference the Findings and Conclusions contained in its “Ruling on Issue of Segregation,” filed September 27, 1971. “The court makes the following factual findings: “PLAN A. “1. The court finds that this plan is an elaboration and extension of the so-called Magnet Plan, previously au thorized for implementation as an interim plan pending hearing and determination on the issue of segregation. “2. As proposed we find, at the high school level, that it offers a greater and wider degree of specialization, but any hope that it would be effective to desegregate the public schools of the City of Detroit at that level is virtually ruled out by the failure of the current model to achieve any appreciable success. “3. We find, at the Middle School level, that the expanded model would affect, directly, about 24,000 pupils of a total of 140,000 in the grades covered; and its effect would be to set up a school system within the school system, and would intensify the segregation in schools not included in the Middle School program. In this sense, it would increase segregation. “4. As conceded by its author, Plan A is neither a desegregation nor an integration plan. “PLAN C. “1. The court finds that Plan C is a token or part-time desegregation effort. “2. We find that this plan covers only a portion of the grades and would leave the base schools no less racially identifiable. “PLAINTIFFS’ PLAN “1. The court finds that Plaintiffs’ Plan would accom plish more desegregation than now obtains in the system, or would be achieved under Plan A or Plan C. Nos. 72-1809 - 14 B r a d l e y , e t al. v. M il l i k e n , e t al. 51 161a “2. We find further that the racial composition of the student body is such that the plan’s implementation would clearly make the entire Detroit public school system racially identifiable as Black. “3. The plan would require the development of trans portation on a vast scale which, according to the evidence, could not be furnished, ready for operation, by the open ing of the 1972-73 school year. The plan contemplates the transportation of 82,000 pupils and would require the acquisition of some 900 vehicles, the hiring and train ing of a great number of drivers, the procurement of space for storage and maintenance, the recruitment of main tenance and the not negligible task of designing a trans portation system to service the schools. “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 if a metropolitan plan is adopted. “5. It would involve the expenditure of vast sums of money and effort which would be wasted or lost. “6. The plan does not lend itself as a building block for a metropolitan plan. “7. The plan would make the Detroit school system more identifiably Black, and leave many of its schools 75 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 increasing the flight of Whites from the city and the system, thereby increasing the Black student population. “9. It would subject the students and parents, faculty and administration, to the trauma of reassignments, wit little likelihood that such reassignments would continue for any appreciable time. “In summary, we find that none of the three plans would result in the desegregation of the public schoos of the Detroit school district. B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 162a “CONCLUSIONS OF LAW “1. The court has continuing jurisdiction of this action for all purposes, including the granting of effective relief. See Ruling on Issue of Segregation, September 27, 1971. “2. On the basis of the court’s finding of illegal school segregation, 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 desegregation. Green v. County School Board, 391 U.S. 430; Alexander v. Holmes County Board of Education, 396 U.S. 19; Carter v. West Feliciana Parish School Board, 396 U.S. 290; Swann v. Charlotte-Mecklen- burg Board of Education, 402 U.S. 1. “3. Detroit Board of Education Plans A and C are legally insufficient because they do not promise to effect significant desegregation. Green v. County School Board, supra, at 439-440. 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 inescapable that relief of segregation in the public schools of the City of Detroit cannot be accomplished within the corporate geographical limits of the city. The State, however, cannot escape its constitutional duty to desegregate the public schools of the City of Detroit by pleading local authority. * * * “School district lines are simply matters of political con venience and may not be used to deny constitutional rights. If the boundary lines of the school districts of the City of Detroit and the surrounding suburbs were drawn today few would doubt that they could not with- Nos. 72-1809 -1 4 B r a d le y , e t al. v. M il l ik e n , e t al. 53 163a stand constitutional challenge. In seeking for solutions to the problem of school segregation, other federal courts have not “treated as immune from intervention the ad ministrative structure of a state’s educational system, to the extent that it affects the capacity to desegregate. Geo graphically or administratively independent units have been compelled to merge or to initiate or continue co operative operation as a single system for school de segregation purposes.”1 “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 authority, nay more, the duty to (under the circumstances of this case) do so appears plainly an ticipated by Brown II,2 seventeen years ago. While other school cases have not had to deal with our exact situation,3 the logic of their application of the command of Brown II supports our view of our duty. “FOOTNOTES 54 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 “ 1 Bradley v. Richmond, supra [slip opinion p. 68]. “ 2 Brown v. Bd. of Ed. of Topeka, 349 U.S. 294, pp. 3 00-301. “ 3 Haney v. County Board of Education of Sevier County, 410 F.2d 920 (8th Cir. 1969); Bradley v. School Board of the City of Richmond, supra, slip opinion pp. 664-65; Hall v. St Helena Parish School Board, 197 F.Supp. 649 (E.D. La. 1961), aff’d. 287 F.2d 376 (5th Cir. 1961) and 368 U.S. 515 ( 1962); Lee v. Macon County Bd. of Educ., 448 F.2d 746, 752 (5th Cir. 1971), Gomillion v. Lightfoot, 364 U.S. 339 (1960); Turner v. Littleton- Lake Gaston School Dist., 442 F.2d 584 (4th Cir. 1971); United States v. Texas 447 F.2d 551 (5th Cir. 1971); Lemon v. Bossier Parish School Board, 446 F.2d 911 (5th Cir. 1971).” The District Judge’s finding that no Detroit only plan can achieve desegregation of the Detroit public school system points up another substantial distinction between this case and the classical school segregation case. 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 164a than a metropolitan area plan would result in an all black school system immediately surrounded by practically all white subur ban school systems, with an overwhelmingly white majority population in the total metropolitan area. Relevant to and supportive of the District Judge’s findings are these school census figures showing trends toward segre gation in the Detroit schools during the last decade: 1960 100 of 251 schools were 90% or more white 71 of 251 schools were 90% or more black 68% of all schools were 90% or more one race. 1970 69 of 282 schools were 90% or more white 133 of 282 schools were 90% or more black 71.6% of all schools were 90% or more one race. 1960-61 65.8% of the total number of black students in regular schools were in 90% or more black schools. 1970-71 74.9% of the total number of black students in regular schools were in 90% or more black schools. This record reflects a present and expanding pattern of all black schools in Detroit (resulting in part from State ac tion) separated only by school district boundaries from near by all white schools. We cannot see how such segregation can be any less harmful to the minority students than if the same result were accomplished within one school district. The boundaries of the Detroit School district are identical to the geographical boundaries of the City of Detroit. This means t at the Detroit school district, like the City, contains with- ln its boundaries two entirely separate cities (and school districts), Hamtramck and Highland Park, and surrounds a t ird City (and school district), Dearborn, on three sides, immediately adjacent to the boundaries of the Detroit school istrict are seventeen school districts. An overwhelming ma- 10r'ty of these districts, other than Detroit, Highland Park, Nos. 72-1809 -1 4 B r a d le y , e t al. v. M il l ik e n , e t al. 55 165a River Rouge and Hamtramck, are entirely white or contain only a token number of black students. Like the District Judge, we see no validity to an argument which asserts that the constitutional right to equality before the law is hemmed in by the boundaries of a school district. A. Status of School Districts under Michigan Law This conclusion is supported by the status of school districts under Michigan law and by the historical control exercised over local school districts by the legislature of Michigan and by State agencies and officials, which we now discuss. As held by the District Court, it is well established under the Constitution and laws of Michigan that the public school system is a State function and that local school districts are instrumentalities of the State created for administrative con venience. The Northwest Ordinance of 1787 governing the Territory of Michigan provided: “Religion, morality and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” Art. III. With this genesis, Michigan’s four Constitutions have clearly established that the public school system in that State is solely a State function. The Constitution of 1835 in Article X, Section 3, provided, in part: “The legislature shall provide for a system of common schools . . .” The Constitution of 1850, Article XIII, Section 4, provided, in part: “The legis lature shall . . . provide for and establish a system of primary schools . . .” Section 1 of the same Article provided, ■ ■ the Superintendent of Public Instruction shall have general supervision of public instruction . . .” The Constitution of 1908 in Article XI, Section 2, provided that the Superintendent of Public Instruction “shall have 56 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 166a general supervision of public instruction in the State.” Article XI, Section 9, provided, in part as follows: The legislature shall continue a system of primary schools, whereby every school district in the State shall provide for the education of pupils without charge for tuition . . .” The Constitution of 1963, the present Constitution of the State of Michigan, in Article VIII, Section 2, provides, in part, as follows: “The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law.” Nos. 72-1809 - 14 B r a d le y , e t al. v. M il l ik e n , e t al. 57 In interpereting the above educational provisions of the Constitution of 1850, the Michigan Supreme Court stated: The school district is a State agency. Moreover, it is of legislative creation . . .” Attorney General v. Lowrey, 131 Mich. 639, 644, 92 N.W. 289, 290 (1902). Again, interpreting the Constitution of 1850, the Supreme Court of Michigan in Attorney General v. Detroit Board of Education, 154 Mich. 584, 590, 118 N.W. 606, 609 (1908), adopted lower court language which read: “Education in Michigan belongs to the State. It is no part of the local self-government inherent in the township or municipality, except so far as the legislature may chose to make it such. The Constitution has turned the whole subject over to the legislature . . .” The Supreme Court of Michigan interpreted Article XI, Section 9, of the Constitution of 1908 to mean: The legislature has entire control over the schools of the State subject only to the provisions above referred to. The division of the territory of the State into districts, the conduct of the school, the qualifications of teachers, 167a the subjects to be taught therein are all within its con trol.” Child Welfare v. Kennedy School Dist., 220 Mick 290, 296, 189 N.W. 1002, 1004 (1922). In the leading case concerning construction of this section of the Michigan Constitution of 1963, the Michigan Supreme Court said: “It is the responsibility of the State board of education to supervise the system of free public schools set up by the legislature and, as a part of that responsibility, to promulgate regulations specifying the number of hours necessary to constitute a school day for elementary school students as well as for other classifications or groupings of students, to determine the curricula and, in general, to exercise leadership and supervision over the public school system.” Welling v. Livonia Board of Education, 382 Mich. 620, 624, 171 N.W.2d 545, 546 (1969). See also Governor v. State Treasurer, 389 Mich. 1, 13, 203 N.W.2d 457 (1972). Michigan has not treated its school districts as sacrosanct To the contrary, Michigan always has regarded education as the fundamental business of the State as a whole. Local school districts are creatures of the State and act as instru mentalities of the State under State control. Cf. Senghas v, L’Anse Creuse Public Schools, 368 Mich. 557, 118 N.W.2d 975 (1962); McLaughlin v. Board of Education, 255 Mich. 667, 239 N.W. 374, (1931). The record discloses a number of examples of State control over local public education in Michigan. 1. Following the holding of Welling v. Livonia Board of Education, supra, that there was no minimum length of day required under the 180-day school attendance rule absent a State Board of Education regulation, the Michigan State Board of Education, acting under its Constitutional mandate without legislative authority, established an administrative rule requiring local school boards to provide a minimum 58 B r a d le y , e t al. v. M tt l ik e n , e t al. Nos. 72-1809-14 168a number of hours per school year. See, School Districts Child Account for Distribution of State Aid, Bulletin No. 1005, Michigan State Department of Education (1970). 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. When Public Act 289 became ef fective, 1,438 public school districts existed in Michigan. By the beginning of 1968, this figure had been reduced to 738, meaning that 700 school districts in Michigan have disap peared since 1964 through reorganization. Annual Beport, Committee on School District Reorganization, 1968 Journal of the Senate 422-423 (March 1, 1968). 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. The action is best explained by the fact that Browns town was, at that time, the wealthiest school district in the State, indeed, with a property valuation of $340,000 backing each child, perhaps the wealthiest district in the nation, while the other three districts were extremely poor. 4. When the Sumpter School District was on the verge of bankruptcy in 1968, the State Board of Education, acting under Public Act 239 of 1967 (MSA § 15.2299(51) et seq., MCLA § 388.691 et seq.), merged the district with four adjoining districts, including the Airport School District. Significantly, though Sumpter was in Wayne County, Airport was in Monroe County, showing that county lines are not inviolate in Michigan. 5. The Nankin Mills School District in Wayne County was beset with financial problems and had no high school. Again, pursuant to Act 239, the State Board of Education in 1969 ordered this school district to merge with the Livonia, Garden City and Wayne Community schools. 6. When the Inkster School District in Wayne County was on the verge of financial bankruptcy, the Michigan legislature Nos. 72-1809 -1 4 B r a d le y , e t al. v. M il l ik e n , e t al. 59 169a passed Public Act 32 of 1968 (MSA § 15.1916 et seq., MCLA § 388.201 et seq.) enabling the district to borrow $705,000 but on the condition that if the district could not balance its budget, the State Board of Education could reorganize, merge or annex the district. The legislative history of Act 32 indicates at least two legislators voted against the bill in the House of Representatives because of the excessive control given to the State Board of Education: “I voted No on House Bill No. 3332 because in setting up the machinery to bail out distressed districts, it takes from the local communities the control over their own educational system by providing for excessive arbitrary reorganization powers in the hands of the Board of Education. . “This bill certainly sets up the State Board of Educa tion to be a dictator of all school districts that run into financial problems.” 1968 Journal of the House of Repre sentatives 1965. 7. Too small and too poor to operate a high school, the all black Carver School District in suburban Oakland County reached a crisis in 1960 when other surrounding white districts refused to accept Carver pupils on a tuition basis. The Carver district was merged with Oak Park. 8. The State Board of Education and Superintendent of Public Instruction may withhold State aid for failure to operate the minimum school year. MSA § 15.3575, MCLA § 340.575. In 1970, funds were withheld from the City of Grand Rapids School District. 17 Michigan School Board Journal 3 (March, 1970). For Attorney General O p i n i o n s holding that State aid may be withheld by the State Board of Education from school districts for hiring uncertified teachers, defaulting on State loans and for other reasons, see Op. Atty. Gen. No. 880, 1949-1950 Report of the Attorney General 104 (January 24, 1949, Roth); No. 2333, 1955 Report of the At torney General 561 (October 20, 1955, Kavanaugh); No. 60 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-11 170a 4097, 1961-1962 Report of the Attorney General 553 (October 8, 1962, Kelley). 9. The State of Michigan contributes, on the average, 34% of the operating budgets of the 54 school districts included in the proposed Metropolitan Plan of Integration. In eleven of the 54 districts, the State’s contribution exceeds 50% and in eight more, it exceeds 40%. State aid is appropriated from the Gen eral Fund, revenue raised through state-wide taxation, and is distributed annually to the local school districts under a formula devised by the legislature. See, e. g., Public Act 134 (1971), MSA §15.1919(51), MCLA § 388.611. Though the local school districts obtain funds from the assessment of local property, the ultimate authority in insur ing equalized property valuations throughout the State is the State Tax Commission. MSA § 7.631, et seq., MCLA § 209.101, et seq.; MSA § 7.206, MCLA § 211.148; MSA § 7.52, MCLA §211.34. The State’s duty to equalize is required by the Michigan Constitution, Article IX, Section 3. This “State equalized valuation” serves as the basis for calculating local revenue yields. See, Ranking of Michigan Public High School - School Districts by Selected Financial Data, 1970, Bulletin 1012, Michigan State Department of Education (1971). 10. The Michigan School Code reaffirms the ultimate con trol of the State over public education. Local school districts must observe all State laws relating to schools,1 hold school a minimum number of days per year,2 employ only certified teachers,3 teach civics, health and physical education and drivers’ education,4 excuse students to attend religious instruc- Nos. 72-1809 - 14 B r a d le y , e t al. v. M il l ik e n , e t al. 61 'M SA § 1 5 . 3 2 5 2 ( c ) , MCLA § 340.252(c). 2 MSA § 15.3575, MCLA § 340.575. 3 MSA §§ 15.1023(10) (a), 15.3570, MCLA §§ 388.1010(a ), 340.570. , 4 MSA §§ 15.1951,15.3361, MCLA §§ 388.371, 340.361; MSA §§ 15.3781- 15 3782, MCLA §§ 340.781-340.782; MSA § 9.2511(c), MCLA § 257.811 171a tion classes,5 observe State requirements when teaching sex education,6 make annual financial and other reports to the Superintendent of Public Instruction,7 adopt only textbooks which are listed with the Superintendent of Public Instruc tion8 and must follow all rules and regulations of the State Department of Education. Local school districts, unless they have the approval of the State Board of Education or the Superintendent of Public Instruction, cannot consolidate with another school district,9 annex territory,10 11 divide or attach parts of other districts,” borrow monies in anticipation of State aid,12 or construct, re construct or remodel school buildings or additions to them.13 The power to withhold State aid, of course, effects enormous leverage upon any local school district, since on the average 34 per cent of the operation budget of the 54 school districts included in the proposed Metropolitan Plan is paid for by the State. In the instance of the City of Detroit, the State exhibited its understanding of its power over the local school district by the adoption of Act 48 of the Public Acts of 1970 which repealed a high school desegregation plan previously adopted by the Detroit Board of Education. See 433 F.2d 897. 5 MSA § 15.3732(g), MCLA § 340.732(g). <5 MSA § 15.3789, MCLA § 340.789. 7 MSA §15.3612, MCLA §340.612; M SA §§ 15.3616, 15.3688, MCLA §§ 340.616, 340.688. 8 MSA § 15.3887(1), MCLA § 340.887(1). 9 MSA § 15.3402, MCLA § 340.402. lOMSA § 15.3431, MCLA § 340.431. 11 MSA § 15.3447, MCLA § 340.447. 12 MSA § 15.3567(1), MCLA § 340.567(a). '3 MSA §15.1961, MCLA § 388.851, Op. Atty. Gen. No. 1837, 1952- 1954 Report of the Attorney General 440 (Nov. 8 1954). 62 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 172a B. D e Jure Acts of Segregation Thus, the record establishes that the State has committed de jure acts of segregation and that the State controls the instmmentalities whose action is necessary to remedy the harmful effects of the State acts. There can be little doubt that a federal court has both the power and the duty to effect a feasible desegregation plan. Indeed, such is the essence of Brown II. Brown v. Board of Education, 349 U.S. 294, 300-01 (1955). In the instant case the only feasible desegregation plan involves the crossing of the boundary lines between the Detroit School District and adjacent or nearby school districts for the limited purpose of providing an effective desegregation plan. The power to disregard such artificial barriers is all the more clear where, as here, the State has been guilty of discrimination which had the effect of creating and maintaining racial segregation along school district lines. See Section III B, pp. 42-48, supra. United States v. Scotland Heck Board of Education, 407 U.S. 484, 489 (1972); Wright v. City of Emporia, 407 U.S. 451, 463 (1972); United States v. State of Texas, 447 F.2d 441, 443-44 (5th Cir. 1971); Haney v. County Board of Education of Sevier County, 429 F.2d 364, 368 ( 8th Cir. 1970). See also Davis v. Board of School Com missioners, 402 U.S. 33, 36-38 (1971). There exists, however, an even more compelling basis for the District Court’s crossing artificial boundary lines to cure the State’s constitutional violations. The instant case calls up haunting memories of the now long overruled and dis credited “separate but equal doctrine” of Plessy v. Ferguson, 163 U.S. 537 (1896). If we hold that school district bound- uries are absolute barriers to a Detroit school desegregation plan, we would be opening a way to nullify Brown v. Board °j Education which overruled Plessy, supra. This court in considering this record finds it impossible lo declare “clearly erroneous” the District Judge’s conclusion that any Detroit only desegregation plan will lead directly Nos. 72-1809 - 14 B r a d le y , e t at. v. M il l ik e n , e t al. 63 173a to a single segregated Detroit school district overwhelmingly black in all of its schools, surrounded by a ring of suburbs and suburban school districts overwhelmingly white in composition in a State in which the racial composition is 87 per cent white and 13 per cent black. We deal with a record which demonstrates more than ample support for the District Judge’s findings of unconstitu tional segregation by race resulting in major part from action and inaction of public authorities, both local and State. This segregation is found in the school system of the inner city of a metropolitan area 81% white against 19% nonwhite. Under this record a remedial order of a court of equity which left the Detroit school system overwhelmingly black ( for the fore seeable future) surrounded by suburban school systems over whelmingly white cannot correct the constitutional violations herein found. 64 B r a d l e y , e t al. v. M il l ik e n , e t al. Nos. 72-1809 -14 V I. The District Judge’s Order to Prepare A Metropolitan Area Desegregation Plan The third major issue in this case pertains to the validity of the District Judge’s ruling on desegregation area and order for development of a plan of desegregation dated June 14, 1972, accompanied by a statement of findings of facts and conclusions of law in support thereof. At the outset it is obvious from what we have said pertain ing to the inadequacy of any Detroit only desegregation plan that this court feels that some plan for desegregation beyond the boundaries of the Detroit School District is both within the equity powers of the District Court and essential to a solution of this problem. We reiterate this, keeping in mind the admonition from Chief Justice Marshall: “The government of the United States has been emphatically termed a government of laws, and not or 174a men. It will certainly cease to deserve this high appel lation, if the laws furnish no remedy for the violation of a vested legal right.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803). We reject the contention that school district lines are sacrosanct and that the jurisdiction of the District Court to grant equitable relief in the present case is limited to the geographical boundaries of Detroit. We reiterate that school districts and school boards are instrumentalities of the State. See Cooper v. Aaron, 358 U.S. 1, 16 (1958). As early as Brown II the Supreme Court pointed out that: “[T]he courts may consider problems related to ad ministration, arising from the physical condition of the school plant, the school transportation system, person nel, revision of school districts and attendance areas into compact units to achieve a system of determining admis sion to the public schools on a nonracial basis, . . . 349 U.S. at 300-01. The Supreme Court has held that school boundary lines cannot be changed or new school systems created where the result is a larger imbalance in racial ratios in school systems where all vestiges of enforced racial segregation have not been eliminated. United States v. Scotland Neck Board of Edu cation, 407 U.S. 484 (1972); Wright v. Council of the City of Emporia, 407 U.S. 451 (1972). This is true regardless of dominant purpose.” Wright v. City of Emporia, 407 U.S. at 462. If school boundary lines cannot be changed for an uncon stitutional purpose, it follows logically that existing boundary fines cannot be frozen for an unconstitutional purpose. We therefore conclude that the District Court in the present case is not confined to the boundary lines of Detroit in fash ioning equitable relief. Nos. 72-1809 - 14 B r a d le y , e t al. v. M il l ik e n , e i al. 65 175a Bradley v. School Board of the City of Richmond, 462 F.2d 1058 (4th Cir. 1972), aff’d by an equally divided court, — U.S. — (May 21, 1973), is distinguishable in several respects. In that case the District Court ordered an actual consolidation of three separate school districts, all of which the Court of Appeals for the Fourth Circuit declared to be unitary. In the instant case the District Court has not ordered consolida tion of school districts, but directed a study of plans for the reassignment of pupils in school districts comprising the met ropolitan area of Detroit. In the Richmond case the court found that neither the Constitution nor statutes of Virginia previously or presently in effect, would have permitted the State Board of Education, acting alone, to have effected a consolidation of the three school districts into a single system under the control of a single school board. The Fourth Circuit held that compulsory consolidation of political subdivisions of the State of Virginia was beyond the power of a federal court because of the Tenth Amendment to the Constitution of the United States. The decisions which now are under review did not contemplate such a restructuring. Furthermore, the court in the Richmond case cited provisions of the Constitution and statutes of Virginia in support of its holding that — 66 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 “The power to operate, maintain and supervise public schools in Virginia is, and always has been, within the exclusive jurisdiction of the local school boards and not within the jurisdiction of the State Board of Education,” 462 F.2d at 1067 The record in the present case amply supports the finding that the State of Michigan has not been subject to such limi tations in its dealings with local school boards. 176a VII. Rights of Other School Districts To Be Made Parties and To Be Heard In his “Ruling on Propriety of Considering a Metropolitan Remedy” the District Court defined the metropolitan area “for the present purposes” to comprise the three counties of Wayne, Oakland and Macomb. In his “Findings of Fact and Conclusions of Law in Support of Ruling on Desegregation Area and Development Plans” the District Court noted that “the court has taken no proofs with respect to the establish ment of the boundaries in the counties of Wayne, Oakland and Macomb.” In his “Ruling on Desegregation Area and Order for Development of Plan of Desegregation” the District Court defined the desegregation area to include some 53 school districts. Certain of these school districts have inter vened in this case, but have not yet been afforded an oppor tunity to offer proof. Some of the other school districts are not parties to the litigation. In United States v. Texas Education Agency, 467 F.2d 848, 873 (5th Cir. 1972), the Court said: “The discriminatory acts of the school authorities in fect the entire school system; they are particularly obvi ous in the so-called ‘pockets’. Some schools may be the result’ of state-imposed segregation even though no spe cific discriminatory school board action may be shown as to those schools. Had the school authorities not spe cifically segregated the minority students in certain schools, other schools may have developed as desegregated facilities. Thus, though they may not be ‘pockets of discrimination’, these schools are the ‘results’ of discrimi nation.” Under the authorities heretofore discussed, these school istricts are arms and instrumentalities of the State of Michi gan. Nevertheless, under Michigan law, they may sue and be sued. See M.S.A. §§ 15.3154, 15.3192. Nos. 72-1809 - 14 B r a d le y , e t al. v. M il l ik e n , e t al. 67 177a 68 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 Rule 19, Fed. R. Civ. P. provides that a person who is subject to service of process shall be joined as a party to the action if “in his absence complete relief cannot be ac corded among those already parties.” Under this rule joinder of necessary parties is required if jurisdiction over them can be obtained and if joinder will not defeat federal jurisdiction of the case. We hold that school districts which are to be affected by the decree of the District Court are “necessary parties” under Rule 19. As a prerequisite to the implementation of a plan in this case affecting any school district, the affected district first must be made a party to this litigation and afforded an opportunity to be heard. While agreeing with the District Court in its conclusion that it can consider a metropolitan remedy, we express no views as to the desegregation area set forth in the orders of the District Court. We vacate the order of March 28, 1972, entitled “Ruling on Propriety of a Metropolitan Remedy to Accomplish De segregation of the Public Schools of Detroit.” This Court recognizes that, as set forth above, the legisla ture of the State of Michigan has power to provide a com plete remedy for the unconstitutional segregation disclosed in this record. It, too, has responsibility for following the great mandates of the United States Constitution. If, however, the legislature fails to act, or if it acts in a manner inconsistent with the expeditious and efficient elimina tion of the unconstitutional practices and conditions described in this opinion, the District Court shall proceed to fashion such a remedy, including an interim remedy if found to be necessary, as it shall determine to be appropriate within the guidelines of this opinion. On remand, any party against whom relief is sought, in cluding school districts which heretofore have intervened an school districts which hereafter may become parties to this 178a litigation, shall be afforded an opportunity to offer additional evidence, and to cross-examine available witnesses who previ ously have testified, on any issue raised by the pleadings, in cluding amendments thereto, as may be relevant and ad missible to such issues. The District Court may consider any evidence now on file and such additional competent evi dence as may be introduced by any party. However, the District Court will not be required to receive any additional evidence as to the matters contained in its Ruling on the Issue of Segregation, dated September 27, 1971, and reported at 338 F. Supp. 582, or its Findings of Fact and Conclusions of Law on the “Detroit-only” plans of desegregation, dated March 28, 1972. We hold that the findings of fact contained in these rulings are not clearly erroneous, Rule 52(a), Fed. R. Civ. P., but to the contrary are supported by substantial evidence. Upon remand, the plaintiffs and other parties shall be per mitted to amend their pleadings to conform to the evidence (see Rule 15(b), Fed. R. Civ. P.), to add additional parties and to ask for any additional appropriate relief, the details of such amendments to be under the continuing supervision of the District Court. We also vacate the District Court’s Ruling on Desegrega tion Area and Development Plan, dated June 14, 1972, except those parts of the order appointing a panel charged with the duty of preparing interim and final plans of desegregation. The panel appointed by the District Court is authorized to proceed with its studies and planning under the direction of the District Court. Pending further orders of the District Court or this Court, the defendants and school districts in volved will continue to supply administrative and staff assist ance to the panel upon its request. Until further order of the court, the reasonable costs incurred by the panel will be paid as provided by the District Court’s order of June 14, 1972. The order of the District Court directing the purchase of school buses, dated July 11, 1972, also is vacated, subject to the Nos. 72-1809 - 14 B r a d le y , e t al. v. M il l ik e n , e t a l 69 179a right of the District Court, in its discretion, to consider the entry of another order requiring the purchase of school buses at the appropriate time. VIII. Equitable Relief In this opinion we have emphasized the broad powers of a District Court to fashion equitable relief in school desegre gation cases. For the guidance of the District Court on remand, we now review the decisions on this subject in further depth, 1) The Fundamental Constitutional Holding: “We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.” Brown v. Board of Education, 347 U.S, 483, 495 (1954). 2) The Supreme Court’s Initial Description of the Equitable Remedy: “In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies4 and by a facility for adjusting and reconciling public and private needs.5 These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondisci'iminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May17 1954, decision. Courts of equity may properly take into 4 See A lexander v. Hillman, 296 U.S. 222, 239. s See H echt Co. v. Bowles, 321 U.S. 321, 329-330. 70 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 180a account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these con stitutional principles cannot be allowed to yield simply because of disagreement with them. “While giving weight to these public and private con siderations, the courts will require that the defendants make a prompt and reasonable start toward full compli ance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective man ner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school trans portation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regula tions which may be necessary in solving the foregoing problems. They will also consider the adequacy of any plans the defendants may propose to meet these prob lems and to effectuate a transition to a racially nondis- criminatory school system. During this period of transition, the courts will retain jurisdiction of these cases.” Brown v. Board of Education of Topeka [II], 349 U.S. 294, 300-01 (1955) 3) Delay Is No Longer Tolerable: “In determining whether respondent School Board met that command by adopting its ‘freedom-of-choice’ plan, it is relevant that this first step did not come until some 11 years after Brown I was decided and 10 years after Brown II directed the making of a ‘prompt and reason able start.’ This deliberate perpetuation of the uncon stitutional dual system can only have compounded the Nos. 72-1809 -14 B r a d le y , e t al. v. M il l ik e n , e t al. 71 181a harm of such a system. Such delays are no longer toler able, for ‘the governing constitutional principles no longer bear the imprint of newly enunciated doctrine.’ Watson v. City of Memphis, supra, at 529; see Bradley v. School Board, supra; Rogers v. Paul, 382 U.S. 198. Moreover, a plan that at this late date fails to provide meaningful assurance of prompt and effective disestablishment of a dual system is also intolerable. ‘The time for mere “deliberate speed” has run out,’ Griffin v. County School Board, 377 U.S. 218, 234; ‘the context in which we must interpret and apply this language [of Brown II] to plans for desegregation has been significantly altered.’ Goss v. Board of Education, 373 U.S. 683, 689. See Calhoun v. Latimer, 377 U.S. 263. The burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to woi now.” Green v. County School Board, 391 U.S. 430, 438- 39 (1968) (Emphasis added.) 4) State Imposed Segregation Must be Completely Removed at Earliest Practicable Date: “The obligation of the district courts, as it always lias been, is to assess the effectiveness of a proposed plan in achieving desegregation. There is no universal answer to complex problems of desegregation; there is obvious ly no one plan that will do the fob in every case. The matter must be assessed in light of the circumstances present and the options available in each instance. It is incumbent upon the school board to establish that its proposed plan promises meaningful and immediate progress toward disestablishing state-imposed segregation. It is incumbent upon the district court to weigh that claim in light of the facts at hand and in light of any alternatives which may be shown as feasible and more promising in their effectiveness. Where the court finds the board to be acting in good faith and the proposed plan to have real prospects for dismantling the state- imposed dual system ‘at the earliest practicable date, . then the plan may be said to provide effective relief. 72 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 182a Of course, the availability to the board of other more promising courses of action may indicate a lack of good faith; and at the least it places a heavy burden upon the board to explain its preference for an apparently less effective method. Moreover, whatever plan is adopted will require evaluation in practice, and the court should retain jurisdiction until it is clear that state-imposed seg regation has been completely removed. See No. 805, Raney v. Board of Education, post, at 449.” Green v. County School Board, 391 U.S. 430, 439 (1968) (Empha sis added.) 5) The Court Has The Power and The Duty to Eliminate Effects of Past Discrimination: “We hear in mind that the court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.” Louisiana v. United States, 380 U. S. 145, 154 (1965) (Emhasis added). Compare the remedies discussed in, e. g., NLRB v. Newport News Shipbuilding & Dry Dock Co., 308 U. S. 241 (1939); United States v. Crescent Amusement Co., 323 U. S. 173 (1944); Standard Oil Co. v. United States, 221 U. S. 1 (1911). See also Griffin v. County School Board, 377 U. S. 218, 232-234 (1964). Green v. County School Board, 391 U.S. 430, n. 4 at 438 (1968) (relating to the remedial command of Brown II) 6) Resegregation is Impermissible: Like the transfer provisions held invalid in Goss v. Board of Education, 373 U.S. 683, 686, ‘ [i]t is readily apparent that the transfer [provision] lends itself to perpetuation of segregation.’ While we there indicated that ‘free- transfer plans under some circumstances might be valid, we explicitly stated that ‘no official transfer plan or provision of which racial segregation is the inevitable consequence may stand under the Fourteenth Amend ment. Id., at 689. So it is here; no attempt has been Nos. 72-1809 -14 B r a d le y , e t al. v. M il l ik e n , e t al. 78 183a made to justify the transfer provision as a device de signed to meet ‘legitimate local problems,’ ibid.; rather it patently operates as a device to allow resegregation of the races to the extent desegregation would be achieved by geographically drawn zones. Respondent’s argument in this Court reveals its purpose. We are frankly told in the Brief that without the transfer option it is apprehended that white students will flee the school system altogether. ‘But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.’ Brown II, at 300. “We do not hold that ‘free transfer’ can have no place in a desegregation plan. But like ‘freedom of choice,’ if it cannot be shown that such a plan will further rather than delay conversion to a unitary, nonracial, nondis- criminatory school system, it must be held unacceptable. See Green v. County School Board, supra, at 439-441. “We conclude, therefore, that the Board ‘must be re quired to formulate a new plan and, in light of other courses which appear open to the Board, . . . fashion steps which promise realistically to convert promptly to a system without a ‘white’ school and a ‘Negro’ school, but just schools.” Id., at 442. Monroe v. Board of Com missioners, 391 U.S. 450, 459-60 (1968) (Emphasis added.) 7) The Remedial Tools: In Swann v. Board of Education, 402 U.S. 1, 15 (1971), Chief Justice Burger, writing for a unanimous Court, said: “If school authorities fail in their affirmative obligations under these holdings, judicial authority may be invoked . Once a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are in h e re n t in equitable remedies. 74 B r a d le y , e t al. v. M il l ik e n , e t at. Nos. 72-1809-14 184a ‘The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and recon ciliation between the public interest and private needs as well as between competing private claims.’ Hecht Co. v. Bowles, 321 U.S. 321, 329-330 (1944), cited in Brown II, supra, at 300.” a) The Flexible Ratio: “As the voluminous record in this case shows, the predicate for the District Court’s use of the 71%-29% ratio was twofold: first, its express finding, approved by the Court of Appeals and not challenged here, that a dual school system had been maintained by the school authorities at least until 1969; second, its finding, also approved by the Court of Appeals, that the school board had totally defaulted in its acknowledged duty to come forward with an acceptable plan of its own, notwithstand ing the patient efforts of the District Judge who, on at least three occasions, urged the board to submit plans. As the statement of facts shows, these findings are abundantly supported by the record. It was because of this total failure of the school board that the District Court was obliged to turn to other qualified sources, and Dr. Finger was designated to assist the District Court to do what the board should have done. “We see therefore that the use made of mathematical ratios was no more than a starting point in the process of shaping a remedy, rather than an inflexible require ment. From that starting point the District Court pro ceeded to frame a decree that was within its discre tionary powers, as an equitable remedy for the particu lar circumstances. As we said in Green, a school authori ty s remedial plan or a district court’s remedial decree is to be judged by its effectiveness. Awareness of the racial Nos. 72-1809 - 14 B r a d le y , e t al. v. M il l ik e n , e t al. 75 185a composition of the whole school system is likely to be a useful starting point in shaping a remedy to correct past constitutional violations. In sum, the very limited use made of mathematical ratios was within the equitable remedial discretion of the District Court.” Swann v, Board of Education, 402 U.S. 1, 24-25 (1971). b) Noncontiguous School Zoning: “The maps submitted in these cases graphically dem onstrate that one of the principal tools employed by school planners and by courts to break up the dual school system has been a frank — and sometimes drastic - gerrymandering of school districts and attendance zones. An additional step was pairing, ‘clustering,’ or ‘grouping’ of schools with attendance assignments made deliberate ly to accomplish the transfer of Negro students out of formerly segregated Negro schools and transfer of white students to formerly all-Negro schools. More often than not, these zones are neither compact nor contiguous; indeed they may be on opposite ends of the city. As an interim corrective measure, this cannot be said to be beyond the broad remedial powers of a court. “Absent a constitutional violation there would be no basis for judicially ordering assignment of students on a racial basis. All things being equal, with no history of discrimination, it might well be desirable to assign pupils to schools nearest their homes. But all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation. The reme dy for such segregation may be administratively awkward, inconvenient, and even bizarre in some situations and may impose burdens on some; but all awkwardness and inconvenience cannot be avoided in the interim period when remedial adjustments are being made to eliminate the dual school systems. “No fixed or even substantially fixed guidelines can be established as to how far a court can go, but it most 76 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 186a be recognized that there are limits. The objective is to dismantle the dual school system. ‘Racially neutral’ assignment plans proposed by school authorities to a dis trict court may be inadequate; such plans may fail to counteract the continuing effects of past school segrega tion resulting from discriminatory location of school sites or distortion of school size in order to achieve or main tain an artificial racial separation. When school authori ties present a district court with a ‘loaded game board,’ affirmative action in the form of remedial altering of attendance zones is proper to achieve truly non-discrim- inatory assignments. In short, an assignment plan is not acceptable simply because it appears to be neutral. “In this area, we must of necessity rely to a large ex tent, as this Court has for more than 16 years, on the informed judgment of the district courts in the first in stance and on courts of appeals. “We hold that the pairing and grouping of noncontigu ous school zones is a permissible tool and such action is to be considered in light of the objectives sought. Judicial steps in shaping such zones going beyond combinations of contiguous areas should be examined in light of what is said in subdivisions (1), (2), and (3) of this opinion concerning the objectives to be sought. Maps do not tell the whole story since noncontiguous school zones may be more accessible to each other in terms of the critical travel time, because of traffic patterns and good highways, than schools geographically closer together. Conditions in different localities will vary so widely that no rigid rules can be laid down to govern all situations.” Swann v. Board of Education, supra, at 27-29. (Empha sis added.) c) Transportation of Students: “The scope of permissible transportation of students as an implement of a remedial decree has never been de fined by this Court and by the very nature of the problem it cannot be defined with precision. No rigid guidelines Nos. 72-1809 - 14 B r a d le y , e t al. v. M il l ik e n , e t al. 77 187a as to student transportation can be given for application to the infinite variety of problems presented in thousands of situations. Bus transportation has been an integral part of the public education system for years, and was perhaps the single most important factor in the transi tion from the one-room schoolhouse to the consolidated school. Eighteen million of the Nations public school children, approximately 39%, were transported to their schools by bus in 1969-1970 in all parts of the country. “The importance of bus transportation as a normal and accepted tool of educational policy is readily discernible in this and the companion case, Davis, supra. The Char lotte school authorities did not purport to assign students on the basis of geographically drawn zones until 1965 and then they allowed almost unlimited transfer privi leges. The District Court’s conclusion that assignment of children to the school nearest their home serving their grade would not produce an effective dismantling of the dual system is supported by the record. “Thus the remedial techniques used in the District Court’s order were within that court’s power to pro vide equitable relief; implementation of the decree is well within the capacity of the school authority. “The decree provided that the buses used to implement the plan would operate on direct routes. Students would be picked up at schools near their homes and trans ported to the schools they were to attend. The trips for elementary school pupils average about seven miles and the District Court found that they would take ‘not over 35 minutes at the most.’ This system compares favorably with the transportation plan previously operated in Charlotte under which each day 23,600 students on all grade levels were transported an average of 15 miles one way for an average trip requiring over an hour. In these circumstances, we find no basis for holding that the local school authorities may not be required to employ bus transportation as one tool of school desegregation. 78 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 188a Desegregation plans cannot be limited to the walk-in school. “An objection to transportation of students may have validity when the time or distance of travel is so great as to either risk the health of the children or significantly impinge on the educational process. District courts must weigh the soundness of any transportation plan in light of what is said in subdivisions (1), (2), and (3) above. It hardly needs stating that the limits on time of travel will vary with many factors, but probably with none more than the age of the students. The reconciliation of competing values in a desegregation case is, of course, a difficult task with many sensitive facets but fundamentally no more so than remedial measures courts of equity have traditionally employed.” Swann v. Board of Education, supra, at 29-31. (Emphasis added.) In North Carolina v. Swann, 402 U.S. 43, 46 (1971), the Chief Justice said: “As noted in Swann, supra, at 29, bus transporta tion has long been an integral part of all educational sys tems, and it is unlikely that a truly effective remedy could be devised without continued reliance on it.” d) Equity Power to Require Payment of Tax Funds for Integrated Schools: In the exercise of its equity powers, a District Court may order that public funds be expended, particularly when such an expenditure is necessary to meet the minimum requirements mandated by the Constitution. Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 233 (1964); Eaton v. kew Hanover County Board of Education, 459 F.2d 684 (4th Cir. 1972); Brewer v. School Board of City of Norfolk, 456 F-2d 943, 947, 948 (4th Cir.), cert, denied, 406 U.S. 933 (1972); Plaquemines Parish School Board v. United States, 415 F.2d 817 (5th Cir. 1969). This opinion heretofore has emphasized that the Legisla ture of Michigan has an opportunity to determine the or- Nos. 72-1809 -1 4 B r a d le y , e t al. v. M il l ik e n , e t al. 79 189a ganizational and governmental structure of an enlarged de segregation area to remedy the unconstitutional segregation results set forth in this opinion. In the event the Legislature fails to act effectively and expeditiously, the foregoing and other cases cited in this opinion outline the broad scope of equitable relief that may be fashioned by the District Court in this case on remand after all school districts to be affected are afforded an opportunity to be heard as hereinabove provided. IX. Other Issues Numerous other issues are presented which do not require discussion. We do not consider it necessary to construe the “Broom field Amendment,” Pub. L. No. 92-318, 86 Stat. 235, § 803, known as the Education Amendments of 1972, since no final desegregation order has been entered. Deal v. Cincinnati Board of Education, 419 F.2d 1387, 1392 (6th Cir. 1969), cert, denied, 402 U.S. 962 (1971) is not con trolling. There the District Court made findings of fact that there had been no unconstitutional conduct on the part of the Cincinnati Board of Education. This court held that these findings of fact were not clearly erroneous. Rule 52(a), Fed. R. Civ. P. All other contentions presented by the parties contrary to the conclusions reached in this opinion have been considered and are found to be without merit. X. Conclusion 1. The Ruling of the District Court on the Issue of Segre gation, dated September 27, 1971, and reported at 338 F.Supp. 582, is affirmed. 2. The findings of fact and conclusions of law on “Detroit- only” plans of desegregation, dated March 28, 1972, are af firmed. 80 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 190a Nos. 72-1809 -14 Bradley, et al. v. Milliken, et al. 81 3. The Ruling on Propriety of a Metropolitan Remedy to Accomplish Desegregation of the Public Schools of the City of Detroit, dated March 24, 1972, is affirmed in part, but vacated for the reasons set forth above. 4. The Ruling on Desegregation Area and Development of Plan, dated June 14, 1972, is vacated except as hereinabove prescribed. 5. The order dated July 11, 1972, directing the purchase of school buses is vacated. The case is remanded to the District Court for further proceedings not inconsistent with this opinion. No costs are taxed. Each party will bear his own costs. Edwards, C e le b r e zze , Pec k , M cC ree , and L iv e l y , JJ., concur. 191a Weick, Circuit Judge, dissenting: Eighty-seven years before the landmark decision of the Supreme Court in Brown v. Board of Education, 347 U.S. 483 (1954) was announced, the legislature of the State of Michigan, in Public Acts of Michigan, 1867, Act 34 § 28, had abolished segregation in the public school system which had prohibited Negro children from attending the same public schools as white children. This statute in relevant parts reads as follows: “All residents of any district shall have an equal right to attend any school therein. . . The Supreme Court of Michigan, in an opinion written for the court by Chief Justice Cooley, construed the statute in 1869 and held it applicable to Detroit and that Detroit con stituted one school district. In granting a writ of mandamus requiring the school board to admit a Negro child who had been denied admission, Chief Justice Cooley said: “It cannot be seriously urged that with this provision in force, the school board of any district which is subject to it may make regulations which would exclude any resident of the district from any of its schools, because of race or color, or religious belief, or personal peculiarities. It is too plain for argument that an equal right to all of the schools, irrespective of such distinctions, was meant to be estab lished.” People, ex rel. Workman v. Board of Education of Detroit, 18 Mich. 399, 409 (1869). The issues in this case do not concern the right of any Negro child in Detroit to attend any school he desires in that City. They do involve the authority of a district judge to adopt a so-called metropolitan plan designed to integrate the Negro school children living in Detroit with white children living in three adjoining counties and attending public schools in fifty-two additional school districts, eighteen of which dis tricts have never been made parties to this lawsuit. Condi tions were imposed on the districts allowed to intervene which rendered their intervention ineffective. 82 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 192a The District Judge followed the pattern of Judge Merhige in the Richmond case whose decision was reversed by the Fourth Circuit in Bradley v. School Board of the City of Rich mond, 462 F.2d 1068 ( 4th Cir. 1972), aff’d by equally divided Court, — U.S. — (Nos. 72-549, 72-550, May 21, 1973), 41 U.S.L.W. 4685. The fact that Richmond involved dismantling of a dual system was regarded as unimportant by the District Judge. In an unprecedented opinion, a panel of this Court and now a majority of the en banc Court have upheld findings of the District Court that segregation exists in Detroit and that it cannot be dismantled with a Detroit-only plan of desegregation and the District Court may consider and adopt a metropolitan plan.1 Just to start such a plan involves the expenditure of about $3,000,000 for the purchase of 295 buses and untold millions of dollars to operate them and for other expenses. It will in volve about 780,000 children and, if ordered by the court, will force the busing of black children, against their will and with out the consent of their parents, from the inner city of Detroit to one or more of the fifty-three different school districts in four counties, and the white children of these districts will be forcibly bused to the inner city. None of these children have committed any offense for which they should be so punished. It will disnipt the lives of these children and their parents. The metropolitan plan was ill conceived and is a legal monstrosity. However, such a plan will achieve a racial balance or quota in the desegregation area, which is what plaintiffs are seeking. The District Court made no findings that any of the fifty- two school districts outside of Detroit had practiced desegrega- ' While the present undefined desegregation area consists of three additional counties and 53 school districts, this could, of course, be expanded so as to include as many as the District Judge may order. Ihe plan seeks to achieve a racial balance or quota in each public school in the system of 75% white and 25% black in a state which is 87% white and 13% black. The Plan violates Public Acts of Michigan, 1867, Act 34 § 28, by ordering children living in one district t0 attend school in another district. Nos. 72-1809 -14 B r a d le y , e t al. v. M il l ik e n , e t al. 83 193a tion tactics against Negro children in their districts or in any other district, or that they were in any wise responsible for the concentration of Negroes or their segregation in Detroit. These fifty-two school districts have been created by the legislature as separate and independent corporate units with power to sue and be sued. They are governed by locally- elected Boards of Education. In each district, the real estate of the people living therein is taxed for the support of their public schools. The school districts were established by neutral legislation when the cities were incorporated. There was not an iota of evidence in the record that the boundaries of the Detroit school district, or any other school district in Michigan, were established for the purpose of creating, maintaining or per petuating segregation of the races. No such claim was ever made by the plaintiffs. In 1910, long after the districts were created, the black population of Detroit was only 1.2% of the total population of the City. By 1970 it had increased to 43.9% of the total popula tion of 1,511,000. It is obvious that the great influx of blacks, as well as whites, to Detroit was influenced by the favorable industrial climate existing in Michigan and the ability of its industry, principally automotive, to provide jobs. In the school year 1970-1971, there was 285,512 students in the public school system in Detroit of which 168,200 or 63.82 were black and 117,312 or 37.2% where white. The School Board of Detroit ought not to be blamed for the heavy con centration of blacks in the inner City, for housing conditions, or for discrimination by public or private agencies or in dividuals and ought not be be saddled with the duty to dis mantle the concentration. These same conditions exist in other cities throughout the country regardless of the type of school system in effect — whether de jure or de facto. Nor should the adjoining three counties and the fifty-two school districts be penalized because they are located near Detroit. In his book Negroes in Cities, Dr. Karl Taeuber states 84 B r a d le y , e t ah v. M il l ik e n , e t al. Nos. 72-1809-14 194a that residential segregation exists “regardless of the character of local laws and policies and regardless of other forms of discrimination”. He said substantially the same thing in his article “Residential Segregation” in the August, 1965 issue of Scientific American. In Bradley v. School Board of City of Richmond, 462 F.2d 1058 ( 4th Cir. 1972), aff’d by equally divided Court, — U.S. — (Nos. 72-549, 72-550, May 21, 1973), 41 U.S.L.W. 4685, the Court said: "The root causes of the concentration of blacks in the inner city are simply not known. . . And: “Whatever the basic causes, it has not been school assignments and school assignments cannot reverse that trend.” The District Court was motivated in its decision by social considerations. In a pretrial conference on October 4, 1971 the District Court stated: “We need not recite the many serious problems such a plan entails, suffice it to say that a plan of such dimensions can hardly be conceived in a day, to say nothing of the time it will require for implementation. A large metro politan area such as we have in our case can not be made the subject of instant integration. We must bear in mind that the task we are called upon to perform is a social one, which society has been unable to accomplish. In reality, our courts are called upon, in these school cases, to attain a social goal, through the educational system, by using law as a lever.” App. IV, pp. 454, 455. This is incredible! It is submitted that the courts are not called upon to in tegrate the school system, using law as a lever. Nor should judges assume to act as legislators, for which they are neither Nos. 72-1809 -14 B r a d le y , e t al. v. M il l ik e n , e t a l 85 195a fitted nor qualified. It is enough for judges to perform their judicial function and to abide by the separation of powers doctrine provided by our Constitution. The thesis of the panel which wrote the original opinion in this appeal is best stated in its own words in its slip opinion: “This court in considering this record finds it impossible to declare ‘clearly erroneous’ the District Judge’s con clusion that any Detroit only desegregation plan will lead directly to a single segregated Detroit school district over whelmingly black in all of its schools, surrounded by a ring of suburbs and suburban school districts overwhelm ingly white in composition in a State in which the racial composition is 87 per cent white and 13 per cent black. Big city school systems for blacks surrounded by suburban school systems for whites cannot represent equal protec tion of the law.” Slip Opin. p. 65. The majority opinion adopts all of the paragraph except the last sentence which reads as follows: “Big city school systems for blacks surrounded by suburban school systems for whites cannot represent equal protection under the law.” In my opinion, the retained part of the paragraph expresses the same thought as the sentence which has been deleted. No decision of the Supreme Court or any other court con struing the Constitution supports this thesis and it is not our province to rewrite the Constitution. The majority opinion sharply conflicts with Spencer v. Kug- ler, 326 F.Supp. 1235 (D. N.J. 1972), affirmed, 404 U.S. 1027 (1972). In Spencer the black students sued the Attorney General of the State of New Jersey, the Commissioner of Edu cation and the State Board of Education alleging that they failed to achieve a racial balance among several districts of a state system of public schools. New Jersey, like Michigan, did not operate a dual system and the alleged imbalance was characterized as de facto segregation. 86 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809 -14 196a The three-judge Court which heard the case stated: “In none of the schools of which the plaintiffs complain is any black pupil ‘segregated’ from any white pupil. Indeed, complaint is made that the blacks who reside in the school district served predominate over the whites, thus affording an example of complete desegregation which was the expressed object of the court in the Brown case. At page 487 of the Opinion at page 688 of 74 S.Ct. in Brown it is stated that: ‘In each of the cases [from Kansas, South Carolina, Virginia and Delaware] minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, they had been denied admission to schools attended by white children under laws re quiring or permitting segregation according to race.’ Such is not the basis upon which each of the plaintiffs in the present case seeks relief in this cause. On the con trary plaintiffs would have a substantial portion of the pupils now in attendance in their respective schools or dered by the court removed from these schools and as signed to a school in another district. Alternatively plaintiffs would have the court abolish the respective districts in which their schools are located and assign them to other districts in which the disproportion between white and black students is reduced in one direction or the other. If, as plaintiffs contend, the proportionate black attendance in their respective schools adversely affects the degree of excellence of education which they can receive there must be a point at which any excess of blacks over whites is likely to impair the quality of the education available in that school for the black pupils. No where in the Appendix filed by the plaintiffs or in the facts involved in any of the judicial precedents which they cite are we informed of the specific racial proportions which Nos. 72-1809 -1 4 B r a d le y , e t al. v. M il l ik e n , e t al. 87 197a are likely to assure maximum excellence of the educational advantages available for the whites. Assuming further that efforts to achieve the ideal interracial proportion necessarily include the alteration of the population factor determinative of the redistricting, there can be no assur ance that the population factor will remain static. If so, it would be necessary to successively reassign pupils to another district as the rate of births and graduations alters the racial proportions creating the demand for the educa tional facilities as it changes from term to term. In sum, the difficulty complained of does not amount to uncon stitutional segregation.” (Id. at 1239-1240). Speaking of school district boundaries, the Court stated: “It is clear that these legislative enactments prescribe school district boundaries in conformity with municipal boundaries. This designation of school district zones is therefore based on the geographic limitations of the various municipalities throughout the State. Nowhere in the drawing of school district lines are considerations of race, creed, color or national origin made. The setting of municipalities as local school districts is a reasonable standard especially in light of the municipal taxing author ity. The system as provided by the various legislative en actments is unitary in nature and intent and any pur ported racial imbalance within a local school district results from an imbalance in the population of that mu nicipality-school district. Racially balanced municipalities are beyond the pale of either judicial or legislative inter vention.” (Id. at 1240). Spencer is on “all fours” with our case. The majority opinion conflicts with prior decisions of this Court with the unfortunate result that acts which do not violate the Constitution in Cincinnati, are held to be uncon stitutional in Detroit. The two decisions with which the majority opinion is in 88 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809 -14 198a irreconcilable conflict are Deal v. Cincinnati Board of Educa tion, 419 F.2d 1387 ( 6th Cir. 1969), cert, denied, 402 U.S. 962 (1971); Deal v. Cincinnati Board of Education, 369 F.2d 55 (6th Cir. 1966), cert, denied, 389 U.S. 847 (1967), affirming, 244 F.Supp. 572. Twice the Supreme Court was afforded the opportunity to review Deal and as late as 1971 it refused to do so, with only one Justice dissenting. More than eighty-two years ago Ohio, like Michigan, by statute had abolished segregation in the public schools in the State. The neighborhood school system, however, was provided by statute so that schools would be constructed at such places as will be convenient for the attendance of the largest number of children. Ohio Rev. Code § 3313.48. It was not then be lieved that neighborhood schools were obnoxious. Nevertheless, in Cincinnati the races were imbalanced in the public school system. Some schools were attended entirely by Negroes and others entirely by whites, while others were attended in varying pro portions by both white and Negroes. Some Negro schools were racially identified. The segregation was allegedly caused by gerrymandered school-zone lines, by housing discrimination by public and private agencies, by discrimination in job op portunities, and school construction. We held in Deal I that the Board of Education had no constitutional duty to eliminate racial imbalance not caused or created by it, and upheld the neighborhood plan adopted by the State Legislature. The District Judge had excluded evidence of discrimination in the public and private housing markets. We held this ruling was correct on the ground that the discrimination, if it existed, was caused by persons not parties to that case and the Board of Education had no power to rectify that situation. We said: [If] appellants have any valid claim for infringing their rights by public-housing or urban-renewal officials, they may obtain appropriate relief against them under the Fourteenth Amendment. With respect to private actions amounting to dis- Nos. 72-1809 -14 B r a d le y , e t al. v. M il l ik e n , e t al. 89 199a criminatory practices, while there is no federal constitutional right available to appellants, they may seek relief from the state Civil Rights Commission, or in the state courts, if relief is denied under the provisions of the Ohio Fair Housing Law.2 Deal I, 369 F.2d at 60 fn. 4. The majority opinion also conflicts with Bradley v. School Board of Richmond, supra, and Swann v. Board of Education, 402 U.S. 1 (1971). Swann stated that: “[The] objective is to dismantle the dual school system.” Id. at 28. Here there has been no dual school system to dismantle. Although not racially balanced, Detroit for many years had achieved a unitary school system in which no student was precluded from attending any school in the district. Alexander v. Holmes County Board of Education, 396 U.S. 19 (1969). There are limits as to how far a district court can go. Swann at 28. Swann also stated: “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 ap proach would be disapproved and we would be obliged to reverse.” 402 U.S. at p. 24. The metropolitan plan violates this principle which was applicable only to dual systems. It is even worse when the District Court applies broader orders to a unitary system than have ever been applied to dismantling of a dual system. Swann, is violated by overloading the school system with excess “baggage.” Id. at 22. 90 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 2 The Supreme Court in Jones v. Mayer Co., 392 U.S. 409 (1968), has since held that Section 1982 of 42 U.S.C. applies to all discrimina tion in the sale or rental of property. . , The majority distinguishes Deal I on the ground that the Uistnc Court made findings of fact that there had been no unconstituuon conduct on the part of the Cincinnati Board of Education. In ora - ley, the District Judge had found similar facts to constitute a viola tion of the Constitution. Both District Court decisions, although i consistent, have now been affirmed. 200a THE DETROIT ONLY PLAN The finding of the District Court that a Detroit only plan could not accomplish desegregation is not supported by the evidence and are clearly erroneous. The percentage of black and white children in the public schools in 1970-1971 was 63.8% and 37.2% respectively. The racial composition of the state is 87% white and 13% black. In Wright v. Council of City of Emporia, 407 U.S. 451 (1972), the Supreme Court approved a pairing plan for the City and County which had a racial composition of 34% white and 66% black. The existing ratios in Detroit are practically the same. But the District Court in our case was concerned about its own forecast of population trends that the percentage of black students would increase from 63.8% in 1970 to 72% in 1980, and in 1992 would be all black. This forecast is wholly speculative. Such an unsupported and speculative forecast cannot be made the basis for a metropolitan cross-district order. Even if true, which it is not, the Board of Education is not responsible for the population remaining static, or for the mobility of the races. This was made clear in Spencer, supra, id. at 1239, 1240, and also in Swann, supra, id. at 31, 32. Nor is the Board re quired from time to time to adopt plans to meet shifting population trends. Spencer, supra; Swann, supra. Significantly, all that the plaintiffs are complaining about is the operation of the Detroit school system and the failure of the State defendants to properly supervise, control or finance it. Plaintiffs cannot complain about school district lines be cause those lines were neutrally drawn with the incorporation of the cities long before the Negroes had migrated north in large numbers. If school-zone lines in Detroit have not been properly drawn or if there are imbalances of black and white students, or imbalances on faculty or staffs in the Detroit schools, or if school buildings have been improperly located, or if plaintiffs have been discriminated against in any other Nos. 72-1809 - 14 B r a d le y , e t al. v. M il l ik e n , e t al. 91 201a respect, these inequities can all be remedied in the Detroit school system without forcibly moving Negroes and whites against their will across district lines into other counties and districts. An order requiring the adoption of a metropolitan plan under the facts of this case, merely to dismantle the con centration of blacks in the inner city, violates constitutional rights of both races and constitutes a flagrant abuse of judicial power.3 Swann recognized a limitation on the power of Dis trict Judges. Id. at 28. Chief Justice Vinson, in writing the opinion for the court in Oyama v. California, 332 U.S. 633, 646 (1948), stated: “But assuming, for the purposes of argument only, that the basic prohibition is constiutional, it does not follow that there is no constitutional limit to the means which may be used to enforce it.” Thus, the District Court may not enter orders in school desegregation cases which impinge upon and violate the con stitution rights of other persons. Many Negroes as well as whites are opposed to integration of the races in the public school system by enforced busing.4 A busing order directed at “benefiting” black students in Detroit (by distributiing the black student population through out the entire metropolitan area) produces a head-on clash of constitutional principles. Blacks are given an (alleged) benefit when other citizens “similarly situated”, i.e., other minority- group students and even inner-city white students, are not given such benefits but are discriminated against. This result, of course, is a classic denial of the equal protection of the 92 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 3 Indeed, there is no finding by the District Court of any pattern of purposeful segregation by the School Board or finding of any causal relationship between any alleged segregative acts of the Board of Education and the concentration of blacks in the inner city. « At the National Black Political Convention held in Gary, Indiana (March, 1972), mandatory busing and school integration were con demned as racist and as preserving a black minority structure. 202a laws. Barbier v. Connolly, 113 U.S. 27, 32 (1885); Truax v. Corrigan, 257 U.S. 312, 333 (1921). In a very recent thought-provoking article, appended hereto as Appendix A and entitled “Reverse Discrimination”, Dr. Morton Teicher, Dean of the School of Social Science of the University of North Carolina, discussed the problems of de prived groups and remedies for past discrimination including quota systems. Since opinions of sociologists were relied upon in Brown I, it is important that they not be overlooked here. See also the discussion entitled “Busing: A Review of ‘The Evidence’ ”, The Public Interest No. 30 Winter 1973; “The Evidence on Busing,” The Public Interest No. 28 Summer 1972; Ross, “Why Quotas Won't Work,” Reader’s Digest, Feb. 1973, p. 51. The District Court’s metropolitan cross-district order, an order purportedly directed at furthering the purposes of the equal protection clause, itself clashes with this constitutional principle. The metropolitan busing remedy ordered by the Court is, however, unconstitutional on a more fundamental level. It invalidly assumes that the equal protection clause of the Fourteenth Amendment protects groups and not individuals. The entire thrust of the District Court’s order is that the rights of blacks as a group must be redressed and that, in the process, the rights of individual black children (and non-black children) may be disregarded. Consider the burden on the individual students who are bused in order to achieve a “racial balance” throughout the entire Detroit Metropolitan Area. Individual black and white students who formerly walked to a nearby school would be forced to travel substantial distances to other schools. These are not individuals who are burdened because their parents have chosen to reside far from the nearest school in the district or because they have special educational needs attended to in but a single school in the district. These are individual chil- Nos. 72-1809 - 14 B r a d le y , e t al. v. M il l ik e n , e t al. 93 203a dren who are burdened with being bused solely because they are black or white, as the case may be. Parenthetically, it should be noted that if there were any question that busing involves a substantial burden on the individual who cannot attend his neighborhood school, that question has been dispelled by the urgings of desegregation- case plaintiffs that black children can not be “unequally bur dened” by being the only students bused, the white students being permitted to attend their neighborhood schools, See e.g., Haney v. County Bd. of Education of Sevier Co., 429 Fid 364, 371-372 ( 8th Cir. 1970); Brice v. Landis, 314 F.Supp. 974, 978-979 (N.D. Calif. 1969). Yet in proposing a remedy for black students as a group based on a head count, the District Court entirely disregards these individual black and white students and their right not be burdened solely on account of their race. The equal protection clause of the Fourteenth Amendment states: 94 B r a d le y , e t al. v. M il l ik e n , e t a l Nos. 72-1809-14 “. . . nor shall any state . . . deny to any person within its jurisdiction the equal protection of the laws.” (Em phasis added.) The Supreme Court has recognized the individual nature of the equal protection clause on a number of occasions.5 In s Of course, merely because equal protection is an individual right does not mean, as implied in United States v. Jefferson Co. Bd. of Education, 372 F.2d 836 (5th Cir. 1966), that a class action will not be available under Rule 23 (a) for redress of discrimination. A class action lies where a number of persons have similar indi vidual rights infringed. On the other hand, it does not follow that simply because a class action is available to redress discrimination individual rights can be obliterated by superimposing the “rights” of the class. The individual plaintiffs, who charge in their Complaint the main tenance of a desegregated school system in Detroit, were all Negroes except one. Nevertheless, the District Court in determining the class held “that the plaintiffs in their action represent all school children in the City of Detroit, Michigan, and all Detroit resident 204a Shelley v. Kraemer, 334 U.S. 1, 22 (1948), the Court was ex plicit: “The rights created by the first section of the Fourteenth Amendment [the equal protection clause] are, by its terms, guaranteed to the individual. The rights estab lished are personal rights. [Court’s n.29.] McCabe v. Atchison, Topeka & Santa Fe R. Co., 235 U.S. 151, 161-162 (1914); Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938); Oyama v. California, 332 U.S. 633 (1948).” It simply defies logic to have a “constitutionally required” remedy for a group of individuals which, in turn, uncon stitutionally denies equal protection to the individuals in the group as well as individuals in other groups, and which remedy unconstitutionally imposes burdens on students within and without the group solely because of their race. Yet this is pre cisely what the District Court has held. The Court states (cor rectly) that discrimination against the black race in Detroit must be remedied, but then orders massive interdistrict busing of students to achieve racial balances, denying individual blacks (and non-blacks) their right not to be substantially burdened solely on account of their race. But the fundamental error of the District Court order was in treating the Michigan school system as a dual system when it was not, and in proposing the dismantling of concentration of blacks in Detroit and distributing them in fifty-two other school districts in three other counties. Virtually all of the cases relied upon by the plaintiffs to support the District Court’s rulings involved dual school systems. Nos. 72-1809 - 14 B r a d le y , e t al. v. M il l ik e n , e t al. 95 Parents who have children of school age, . . . .” Thus white and black children and their parents, who are not situated similarly with the plaintiffs and may violently disagree with plaintiffs’ position, are arbitrarily placed in the same class. It will also be noted that the Complaint sought only the desegregation of the Detroit schools and made no claim against other counties and other school districts. 205a DUE PROCESS VIOLATIONS OF FIFTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION Although, as stated by the majority, this is the fourth time that the case has been before us, the District Court has not as yet adopted any specific plan for desegregation; instead the District Court has entered a number of interlocutory or ders some of which are now before us for review under 28 U.S.C. § 1292(b). These include rulings on the issue of Seg regation, findings of fact and conclusions of law on Detroit Only Plan of Desegregation, propriety of a Metropolitan remedy to desegregate Detroit Schools, Desegregation Area, and Order directing Michigan State officials to purchase 295 school buses. This procedure is unprecedented. Usually school desegre gation cases are reviewed on appeal only after a plan of de segregation has been adopted. It appears to us that the District Court has placed the cart before the horse. It has entered a number of far-reaching piecemeal interlocutory or ders from which no appeal could be taken without the court’s permission, and which would bring about a fait accompli of a metropolitan plan without affording the defendants their right of appeal. This was in the absence of necessary and indispensable parties and to the prejudice of intervening school districts which had been denied effective participation in the proceedings. The Complaint, which has never been amended, sought only the desegregation of the Detroit school system. There was no allegation that any other school district would be affected. As soon as it was determined that other school districts might be adversely affected, the District Court should have required the plaintiffs to make them parties defendant with a full opportunity to be heard on the merits of the case. These school districts were necessary and indispensable parties. This is the correct procedure, and was followed in Bradley v. School Board of the City of Richmond, 338 F.Supp. 67 (E.D. Va. 96 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809 -14 206a 1971) , reversed on other grounds, 462 F.2d 1058 (4th Cir. 1972) , aff’d by equally divided Court, — U.S. — (Nos. 72- 549, 72-550, May 21, 1973), 41 U.S.L.W. 4685. All school districts whose borders were being invaded were entitled, as a matter of right and not of mere grace, to be made parties defendant in the case and to be accorded the same rights as any other defendants. They were entitled to be heard on all issues in the case which affected them, and were entitled to participate effectively in the proceedings. They were entitled to be heard on the issues of segregation, the “Detroit-Only plan” and the “Metropolitan plan”. They had the right to offer evidence and endeavor to prove that there was no causal connection between any act or omission of the Detroit Board of Education (or of the State) and the concen tration of blacks in the inner City, and that whatever consti tutional violations of the rights of the plaintiffs may have oc curred, such violations could be remedied within the Detroit school district without invading other districts which were not in any manner responsible for conditions in Detroit. These rights were denied to the intervenors. While the orders of the District Court on these three issues were interlocutory, the judgment entered by the majority is final and the issues may not be relitigated on remand. Thus judgment has been entered against the absent school districts as well as those allowed to intervene, in violation of their due process rights to a fair and impartial trial. The orders affirmed are far reaching; they will require the expenditure of untold millions, and will disrupt the lives of hundreds of thousands of children and their parents. However, in its opinion the majority did provide for amend ment of pleadings on remand, making new party defendants, for intervention, and for offering additional testimony. These provisions are wholly illusory with respect to the issues of segregation, the “Detroit-Only plan” and the “Metropolitan plan”, as the opinion expressly excludes these issues from reconsideration upon the remand. The only remedy available Nos. 72-1809 -14 B r a d le y , e t al. v. M il l ik e n , e t al. 97 207a to the intervening school districts is to petition the Supreme Court for certiorari. The eighteen school districts, as well as any additional school districts which the District Court may add to the desegregation area upon the remand, are with out any remedy. Since they have never been made parties, they may not petition the Supreme Court for a writ of certi orari. They have surely been deprived of their property rights, not only without due process of law, but without any process of law. The majority opinion, with its disapproval of the “Detroit- Only” plan and its order to the District Court to consider and adopt a so-called “Metropolitan” plan invading the borders of three counties and the boundaries of fifty-two school dis tricts, completely destroys local control of the public school system along with all of its advantages. Local control is a traditional concept of the American public school system. Its merit and value were recognized by the Supreme Court in two very recent decisions. San Antonio Independent School Dist. v. Rodriguez, — U.S. — (No. 71-1332, 41 U.S.L.W. 4407, decided March 21, 1973); and Wright v. Council of the City of Emporia, 407 U.S. 451 (1972). In San Antonio Independent School District, supra, Mr. Jus tice Powell, wrote the opinion for the Court, cited and quoted from opinions of Chief Justice Burger and Justice Potter Stew art in Wright, stating: “The Texas system of school finance is responsive to these two forces. While assuring a basic education for every child in the State, it permits and encourages a large measure of participation in and control of each district’s schools at the local level. In an era that has witnessed a consistent trend toward centralization of the func tions of government, local sharing of responsibility for public education has survived. The merit of local con trol was recognized last Term in both the majority and dissenting opinions in Wright v. Council of the City of Emporia, 407 U.S. 451 (1972). Mk Ju stic e Ste w a r t stated there that ‘[djirect control over decisions vitally affecting 98 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809 -14 208a the education of one’s children is a need that is strongly felt in our society.’ Id., at 469. T h e C h ie f Ju stic e , in his dissent, agreed that ‘[ljocal control is not only vital to continued public support of the schools, but it is of overriding importance from an educational standpoint as well.’ Id., at 478. “The persistence of attachment to government at the lowest level where education is concerned reflects the depth of commitment of its supporters. In part, local control means, as Professor Coleman suggests, the free dom to devote more money to the education of one’s children. Equally important, however, is the opportunity it offers for participation in the decision-making process that determines how those local tax dollars will be spent. Each locality is free to tailor local programs to local needs. Pluralism also affords some opportunity for experimenta tion, innovation, and a healthy competition for educa tional excellence. An analogy to the Nation-State rela tionship in our federal system seems uniquely appropriate. Mr. Justice Brandeis identified as one of the peculiar strengths of our form of government each State’s free dom to ‘serve as a laboratory . . . and try novel social and economic experiments.’ No area of social concern stands to profit more from a multiplicity of viewpoints and from a diversity of approaches than does public educa tion.” (41 U.S.L.W. at 4422) As we have pointed out, the facts of the present case furnish no basis whatsoever for the Court to destroy local control of our public school system. Unreasonable and intolerable conditions, however, were im posed by the Court on the intervention by the school districts.6 Nos. 72-1809 -1 4 B r a d le y , e t al. v. M il l ik e n , e t al. 99 6 “The interventions granted this day shall be subject to the ■Mowing conditions: 1- No intervenor will be permitted to assert any claim or defense pr®vi°usly adjudicated by the court. „ ■ . No intervenor shall reopen any question or issue which has Previously been decided by the court. '*■ The participation of the intervenors considered this day shall 209a The school districts filed objections to the conditions which were never ruled on by the Court. These conditions alone constituted a denial of due process to the intervenors who were precluded from raising questions necessary for their own pro tection and who were denied the right to be heard fully on the merits of the case. The type of intervention permitted by the District Court is graphically illustrated in the brief filed by counsel for the intervenors in which he complains about the following incidents with citation of supporting record references: “Seven days after allowing appellants to intervene, as a matter of right but subject to oppressive conditions, [27] the trial court required the filing of written briefs on the legal propriety of a metropolitan plan of desegre- * 6 7 * 9 100 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809 -14 be subordinated to that of the original parties and previous in tervenors. . . . ,. „„ 4. The new intervenors shall not initiate discovery proceedings except by permission of the court upon application in writing, ac companied by a showing that no present party plans to or is willing to undertake the particular discovery sought and that the particular matter to be discovered is relevant to the current stage of the pro- 5. No new intervenor shall be permitted to seek a delay of any proceeding in this cause; and he shall be bound by the brief an hearing schedule established by the court’s Notice to Counsel, issued March 6, 1972. . . . . .6 New intervenors will not file counterclaims or cross-compiainp, nor will they be permitted to seek the joinder of additional parties or the dismissal of present parties, except upon a showing that suen action will not result in delay. „ 7 New intervenors are granted intervention for two principal purposes: (a) To advise the court, by brief, of the legal propriety or impropriety of considering a metropolitan plan; (b) to rev any plan or plans for the desegregation of the so-called larger Detroit Metropolitan area, and submitting objections, modifications o alternatives to it or them, and in accordance with the requirement of the United States Constitution and the prior orders of this court. 8. New intervenors shall present evidence, if any they nave, through witnesses to a number to be set, and limited, if necessary, by the court, following conference. 9 With regard to the examination of witnesses, all new mie venors shall among themselves select one attorney per witness act for them, unless one or more of the new intervenors show cause otherwise. These conditions of intervention shall remain suDjeu to change or modification by the court in the interest of timeiy disposition of the case. DATE: March 15, 1972.” App. at 408-410. 210a gation. (A. Ia397) The court did not require or permit oral argument. Less than 36 hours later the court issued its ‘Ruling on Propriety of Considering a Metropolitan Remedy to Accomplish Desegregation of the Public Schools of the City of Detroit’ (A. Ia439) rejecting the contentions of Intervenor School Districts. Testimony regarding metropolitan plans commenced four days later (a weekend and Motion day falling between) at 10:10 A.M. Prior to the noon recess, just two hours after In tervenor School District counsel had first appeared in the District Court and before completion of testimony of a single witness, the District Judge announced that counsel could stop by his office and pick up his ‘Findings of Fact and Conclusions of Law on Detroit-only Plans of Desegregation’ (A. Ia456) wherein the court announced its intention to seek a more desirable racial mix by means of a Metropolitan Plan. Thus, without any opportunity for oral argument, with out opportunity to examine or cross-examine one witness, without opportunity to present one shred of evidence, and indeed, without opportunity to obtain copies of previ ous pleadings and testimony (let alone read same), the Intervenor School Districts had been effectively fore closed from protecting their interests. [28].” He further complains about the fact that the Court per mitted him to take the deposition of Dr. David Armor, a soci ologist of Harvard University, and then refused to receive it in evidence. Dr. Armor was a well-qualified expert. He had previously written an article entitled “The Evidence on Rusing” pub lished in The Public Interest No. 28, Summer 1972, which ex ploded some of the existing theories on educational achieve ment resulting from busing. In a subsequent article by Dr. Thomas F. Pettigrew and associates, they responded to Dr. Armor’s article on busing and quoted from Judge Roth’s ruling excluding his deposition as follows: Nos. 72-1809 - 14 B r a d le y , e t al. v. M il l ik e n . e t a l 101 211a “This fundamental fact was dramatically demonstrated by the judicial reaction to Armor’s deposition in the De troit school case, a deposition based on an earlier draft of ‘The Evidence on Busing.’ On June 12, 1972, U.S. District Court Judge Stephen H. Roth ruled the deposition inadmissible as evidence on the grounds of irrelevancy. The deposition, in Judge Roth’s view, represented ‘a new rationale for a return to the discredited “separate but equal policy . . . .’ ”7 The Public Interest No. 30, Winter 1973. In an article entitled “The Double Double Standard ap pearing in the same issue at page 119, Dr. Armor replied to the Pettigrew article stating among other things: “The double standard here is obvious. One willingly applies social science findings to public policy if they are in accordance with one’s values, but declares them irrele vant if they contradict one’s values. . . .” Id. at 130. The Supreme Court in Brown I relied heavily on testimony of sociologists as to the adverse effect of segregation on the educational achievement of Negro children. It is inconceiva ble that the District Court would hold contrary testimony of a sociologist irrelevant and exclude it. This was prejudicial error. In a court of justice not merely one side but both sides are entitled to offer evidence. The District Court quashed a subpoena duces tecum is sued by the intervenors for Charles Wells, an employee of the Detroit Board of Education, to bring with him “all rec ords of the past two (2) years concerning incidents involving damage to property, safety of pupils or staff (whether perpe trated by other pupils, staff or outsiders) criminal activities, or fires in or on school property as regards each school in the Detroit public school system.” r Judge Roth’s language is not understandable in view of the 1869 decision of the Supreme Court of Michigan in People, ex rel. W , man v. Board of Education of Detroit, supra, upholding the rign Negro children to attend any school in their district. 102 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 212a Although the Court had previously received the testimony of Freeman Flynn, offered by plaintiffs on the subject of safety, it denied permission to the Intervenors to offer evidence on the same subject by quashing the subpoena. The Court was not that technical in admitting into evidence Exhibit 16, al though it was not properly identified, stating that the Court decided to follow Justice of the Peace Cane’s rule: “We will let it in for what it is worth.” Indeed, he did, but did not apply Justice Cane’s rule to the deposition. Due process required an opportunity to be heard which must be granted at a meaningful time and in a meaningful manner. Jenkins v. McKeithen, 395 U.S. 411 (1969); In Re Gault, 387 U.S. 1, 19-21 (1967); Armstrong v. Mango, 380 U.S. 545, 552 (1965); In Re Oliver, 333 U.S. 257 (1948). As well stated in Railroad Commisison of California v. Pa cific Gas & Electric Co., 302 U.S. 388, 393 (1938): “The right to a fair and open hearing is one of the rudiments of fair play assured to every litigant by the Federal Constitution as a minimal requirement. Ohio Bell Telephone Co. v. Public Utilities Comm’n, 301 U.S. 292, 304, 305.” The intervenors were entitled to the effective assistance of counsel, to have a reasonable time to examine the papers in the case and to prepare for trial, and to offer evidence in sup port of their contentions before the case is decided against them. One other matter is worthy of comment. The District Court appointed a nine-member panel to set up a metropolitan plan of desegregation. Three members of the panel were from Detroit. Only one member was appointed to represent the fifty-two school districts whose school population exceeds that of Detroit by more than two times. This is a plain ex ample of unfairness. The Detroit Board of Education, although vigorously deny- fflg the commission of any purposeful segregative acts com- Nos. 72-1809 -14 B r a d l e y , e t al. v. M il l ik e n , e t al. 103 213a mitted against Negroes and contending that plaintiffs have not proven their case, has taken an unusual and extraordinary position. It supports the plaintiffs on the issue of a metro politan plan contending that if a constitutional violation has been shown, only such a drastic remedy will rectify it. It is obvious that the Detroit Board was motivated by its con cern that a 63.8%-black and a 37.27-white quota was too heavi ly weighted with black pupils, and that it owed a constitu tional duty to dilute that quota and to distribute the black- pupil population of Detroit into the other three counties and fifty-two additional school districts, in order to effectuate a quota of about 257-black and 757-white children in each school. It is submitted that no such constitutional duty exists and that the District Court erred in ordering it; Swann, supra. THE ELEVENTH AMENDMENT TO THE CONSTITUTION PROSCRIBES SUITS AGAINST THE STATE OF MICHIGAN, AND IT HAS SOVEREIGN IMMUNITY The plaintiffs have attempted to sue the State of Michigan by making the Governor, the Attorney General, and the Act ing Superintendent of Schools parties defendant. Later, when the District Court issued an order prior to the adoption of any plan for desegregation, to purchase 295 buses, it made the Treasurer of the State a party defendant in order to se quester funds in his hands. It was the theory of the plaintiffs that under the doctrine of vicarious liability the state was liable for the acts and con duct of the Detroit Board of Education and of other political subdivisions, and that since the State is a party defendant it really was not necessary to make the Detroit School Board, or the school boards in the other districts, parties to the case. This theory has no legal support and is unsound. Each school district is a separate and independent corporate unit with power to sue and to be sued, and has separate taxpayers whose 104 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809 -14 214a property is taxed for the support of the schools as well as for the payment of the district’s bond issues. If, as plaintiffs contend, the State has been made a party defendant, then such an action against the State is proscribed by the Eleventh Amendment. The most recent decision of the Supreme Court upholding sovereign immunity of a state is Krause v. State of Ohio, — U.S. — (1972). To the same effect is Ex Parte State of New York, 256 U.S. 490 (1921), where the court made it clear that the applica bility of the Eleventh Amendment “is to be determined not by the mere names of the titular parties but by the essential nature and effect of the proceeding as it appears from the entire record.” Id. at 500. The general rule was stated in Dugan v. Rank, 372 U.S. 609 (1963), as follows: “The general rale is that a suit is against the sovereign if ‘the judgment sought would expend itself on the pub lic treasury or domain or interfere with the public ad ministration,’ Land v. Dollar, 330 U.S. 731, 738 (1947), or if the effect of the judgment would be ‘to restrain the Government from acting, or to compel it to act.’ Larson v. Domestic & Foreign Corp., supra, at 704; Ex parte New York, 256 U.S. 490, 502 (1921).” The Civil Rights Act has not yet been construed as an ex ception to the Eleventh Amendment. The order issued against the State defendants provided: “1. The Defendant Detroit Board of Education shall ac quire by purchase, lease or other contractual arrange ment at least 295 buses for use in the interim desegrega tion plan during the 1972-73 school year. All financial ob ligations incurred as the result of this Order shall be the sole financial obligation of the State Defendants, includ ing the added State Defendant State Treasurer Allison Green, as set forth below in Paragraph 2. Said order, Nos. 72-1809 -14 B r a d le y , e t al. v. M il l ik e n , e t al. 105 215a lease, or other contract shall be entered into by negotia tion and without the necessity for bids forthwith and in no event later than Thursday, July 13, 1972. 2. The State Defendants shall bear the cost of this acquisition and State Defendants, including the added State Defendant Green, shall take all necessary steps utilizing existing funds and sources of revenue, to be acquired State funds, legislatively authorized and funds directed by the State Constitution to the State School Aid Funds and by re-allocation of existing or new funds to pay for said transportation acquisition either directly or through the Defendant Detroit Board.” App. at 576, 577. This order imposed a personal liability on the State de fendants and would require them, if they complied with it, to misappropriate and misapply State funds in violation of state law. If they did not comply with it they could be punished for contempt. In addition, the State defendants were ordered to pay the cost of the nine-member panel appointed by the Court to devise the Metropolitan Plan, (1 Ba 538). This cost was estimated at $22,500. All defendants were ordered to hire black counsellors and provide in-service training for teachers in the fifty-three school district desegregation area. The in itial cost of the in-training was about $3,000,000. The District Court was without authority to impose a per sonal liability on the State defendants or to order them to misapply and misappropriate State funds in violation of State law.8 The legislature of Michigan is not likely to act on the sug gestion of the majority, accompanied by a veiled threat if it fails to so act, that it change school district boundary lines 8 The orders entered by the District Court have certainly been ex pended on the public treasury, have interfered with public administra tion, have restrained the State from acting, and have compelled it to act, which is the test for determining whether the action is against the State, under Dugan v. Rank, supra. Such an action is clearly proscribed by the Eleventh Amendment. 106 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 216a Nos. 72-1809 - 14 Bradley, et al. v. Milliken, et al. 107 to benefit a few at the expense of many, and thereby violate the constitutional rights of many. School district lines may not be changed for an unconstitutional purpose. United States v. Scotland Neck City Board of Education, 407 U.S. 484 (1972); Wright v. Council of the City of Emporia, 407 U.S. 451 (1972). Since an adequate remedy already exists within the Detroit school district to correct any constitutional violation therein, there is no occasion for the legislature to alter the existing neutral, non-discriminatory school district boundaries. RELIEF Because of prejudicial errors of constitutional magnitude committed by the District Court, each of the orders from which an appeal has been taken should be reversed and a new trial granted with instructions to consider and adopt a Detroit- only desegregation plan to remedy any constitutional viola tions which it may find to exist in said City. The Governor, the Attorney General and the Treasurer of the State should be dismissed, as they are unnecessary parties to a determination of the issues of the case. 217a APPENDIX A 108 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 REVERSE DISCRIMINATION The development of “affirmative action” programs for minori ty groups is posing some intractable problems. These prob lems arise from the existence of conflicting, fundamentally in compatible values. On the one hand, we social workers value righting the wrongs perpetrated for too long on minority groups. On the other hand, we value the right of all persons to be treated equally. Distributive justice requires the dissemination of benefits to all without depriving any individual or group of something it values. This is far more in keeping with fairness and equity than the idea of redistributive justice, which confers benefits on one group at the expense of others. Redistributive justice, then, leads to reverse discrimination. Redistributive justice is advocated to atone for our failure to live up to the belief in the capacity and the dignity of each human being. This failure does not negate the sound ness of that belief. Rather, it should spur us to correct the failure—not the belief. When practices fail to reflect princi ples, then we should change our practices, not our principles. For social workers, the issue has come to the forefront in agency and university hiring practices and admissions policies of schools of social work. Social agencies, especially those serving ghetto populations, are giving preference to minority group members in employment. Universities, beset by pres sures from the U.S. Department of Health, Education, and Welfare, are similarly giving preference to women and minori ty groups. Some schools of social work have adopted quota systems in dealing with candidates for admission. These practices conflict with the fundamental social work belief in individual human dignity and the libertarian belief that each person is entitled to be judged and valued as an in dividual. Quota systems and preferential treatment are arti- 218a ficial restrictions on this right because they substitute irrele vant group characteristics such as race or religion for con sideration of an individual’s capacity and potential. Respect for the individual is a basic part of social work’s credo and commitment. We cannot reconcile this conviction with treating people only as representatives of a racial group. When we try to eliminate discrimination and compensate for past wrongs by quota systems, we substitute one injustice for another. We deny the inherent equality of all people and undermine the proposition that each individual should have the same opportunity to achieve and to be judged according to his merits. We pit group against group and destroy the possibility of harmonious interaction. Quotas are pernicious instruments; they represent an unacceptable means for achiev ing a desirable end. “Preferential quotas are condescending, divisive and detrimental to the integrity of a university.”1 A quota system institutionalizes discrimination and must be vigorously opposed. Ultimately, it is a form of segrega tion. The progressive democratization of the university through the elimination of any criterion for admission other than merit has been one of the success stories of America. Now some of the benighted beneficiaries of that victory ally them selves with those antilibertarian forces that would have blocked their own access to education. They are ready to eradicate the victory of equal opportunity over discriminatory quotas, for which their forebears fought so hard. That victory has only been partially won. We cannot falter now by substituting a host of irrelevant and inappropriate considerations for merit. The test a university must apply to each candidate is merit— not inherited status. Some advocates of quota systems believe that quotas will redress wrongs and thus produce equal opportunity, when actually they eliminate equal opportunity. Quotas have his torically been used for exclusion. They were an insidious man- 1 ’ Editorial, “Discrimination by HEW,” New York Times, March 2, Nos. 72-1809 - 14 B r a d le y , e t al. v. M il l ik e n , e t al. 109 219a ifestation of institutionalized bigotry, covertly designed to ex clude unwanted groups. They were wrong in the past and they are wrong now, even though they are now designed to achieve inclusion, rather than exclusion. Discriminatory prac tices are wrong, no matter what their intent. Whether they are for or against particular groups, quota systems are morally indefensible. For social workers, the distinctions among people based on race, ethnic background, religion, or creed that inhere in quota systems are particularly abhorrent. Our regard for the individual and our objection to hereditary caste as a status de terminant should make quota systems especially impossible for us to accept. For schools of social work, the argument that quotas for admission will produce student bodies that represent the pro portion of racial, ethnic, or religious groups in society is a curi ous expression of bigotry. Proportional representation on a group basis is highly discriminatory. What taxonomy shall be used to categorize the groups that should be represented? Among the characteristics that defy classification are the fol lowing: cultural, economic, ethnic, gender, geographic, linguis tic, national, occupational, racial, religious, social class, and tribal. Some minority groups include the following: the aged, American Indians, Asian-Americans, Blacks, capitalists, Catho lics, Chicanos, easterners, factory workers, farmers, German- Americans, Hispanic Americans, Hungarian-Americans, im migrants, Irish-Americans, Italian-Americans, Jews, the lower class, migrants, nomads, northerners, Polish-Americans, the poor, Puerto Ricans, slum-dwellers, southerners, Swedish- Americans, the upper class, w asps, westerners, and youths. Who is not a member of a minority group? Who cannot find a place among this woefully incomplete list of minorities? We are all minorities. Each of us comes from a distinctive racial, religious, or ethnic stock. Each of us is a newcomer or a descendant of newcomers. Even the native Americans—the 110 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 220a Nos. 72-1809 -14 Bradley, et al. v. Milliken, et al. I ll Indians—came to North America from across the Bering Straits 25,000 years ago. Each of us has ties to our own roots. Each of us has pride in our origins. Each minority contributes to America—to its building, its evolution, and its maintenance. M orton T e ic h e r Morton Teicher, Ph.D., is Dean, School of Social Work, Uni versity of North Carolina, Chapel Hill, North Carolina. 221a K e n t , Circuit Judge, concurring in part and dissenting in part: While I cannot concur in the majority opinion in these cases I am in accord with certain of the conclusions announced in that opinion. To narrow the scope of this dissent it should be stated at the outset that I am in complete agreement with the majori ty’s conclusion that on the record as presented and because of the concessions made by counsel for the School District of the City of Detroit during oral argument it appears without question that the Detroit city schools were unconstitutionally segregated and that an order for integration of those schools must be fashioned by the District Court. I am further in ac cord with the conclusion of the majority that the District Court’s order for the purchase of buses for use in effectuating a plan of integration covering the metropolitan Detroit area is premature and must be stayed until an appropriate plan has been approved by the District Court. I agree that each of the suburban school districts which may be affected by any proposed metropolitan plan is a necessary party to the litigation within the meaning of Rule 19, Federal Rules of Civil Procedure, as found by the majority and that the plead ings must be amended to join such school districts and bring all parties before the Court. It is at this point that I separate from the majority and find myself compelled to state the reasons why I cannot join in the majority opinion. The majority opinion approves the District Court’s conclusion that a Detroit only integration plan would be insufficient to cure the unconstitutional segregation found to have been imposed in the Detroit city schools. Those who join in such a conclusion appear to me to have a mis apprehension of the record in this case. As stated by the Court in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971), at page 22: “The constant theme and thrust of every holding from Brown I to date is that state-enforced separation of races 112 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 I 222a in public schools is discrimination that violates the Equal Protection Clause. The remedy commanded was to dis mantle dual school systems.” The “state-enforced separation of races” to which refer ence is made in the quoted material was not found to exist in the metropolitan Detroit area. While the District Judge made comments about the segregation of the races with ref erence to the situation existing within the City of Detroit as related to at least some of the suburban communities with in the counties of Wayne, Oakland and Macomb, which com ments have been quoted with approval and adopted by the majority of this Court, we cannot escape the conclusion of the District Judge, as stated in his formal opinion, 345 F.Supp. 914 (E.D. Mich. 1972), at page 920, where the Court said: 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, Oak land 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.” With such a statement in the record it is beyond the com prehension of this writer to understand how the majority can approve the conclusion of the District Court which re quires that at least some of the 86 public school districts out side the City of Detroit should be embraced within a metro politan school district for the purpose of desegregating the Detroit city schools, the only district which has been found from the evidence to have “committed acts of de jure segre gation.” Without proof with regard to segregatory activities within the other school districts or in regard to district bound aries any conclusion by the District Court or by this Court that school district boundaries of other districts had the effect of maintaining or creating unconstitutionally segregated schools within the City of Detroit is obviously based on irrelevant, unsubstantial evidence or totally unsupported assumptions. Nos. 72-1809 -1 4 B r a d le y , e t al. v. M il l ik e n , e t al. 113 223 a I am in accord with the application of the statement of the Court of Appeals for the Fifth Circuit (though not in the limitation to specific schools) in United States v. Texas Educa tion Agency, 467 F.2d 848 (5th Cir. 1972), en banc, where at page 883 the majority opinion quoted the statement in Swann that “the nature of the violation determines the scope of the remedy,” and then proceeded to conclude at page 884: “The power of the district court will depend first upon a finding of the proscribed discrimination in the school system. Swann, 402 U.S. at 16, 91 S.Ct. 1267, 28 L.Ed. 554. In determining the fact of discrimination vel non, whether imposed by statute or as a result of official action, the district court must identify the school or schools which are segregated as a result of such discrimination. This identification must be supported by findings of fact. The importance of such a determination will be seen in some populous school districts embracing large geographical areas. There may be segregated schools which are the result of unconstitutional statutes or of official action. There may be other one race schools which are the product of neutral, non-discriminatory forces.” If we accept the premise that “the nature of the violation de termines the scope of the remedy,” as announced by the United States Supreme Court, then, clearly, the remedy pro posed by the District Court, and approved by a majority of this Court, goes far beyond the “nature of the violation” since the District Court has already stated as a conclusion that no evidence was taken as to any violation with regard to any suburban school district. While the minority in the Texas Ediwation Agency case disapproved of the suggestion of the majority that specific schools within a system must be found to have been segre gated, and treated separately, (476 F.2d 888 where the minori ty speaks through Judge Wisdom), yet the minority does not find nor even suggest that it would be appropriate to expand the order for relief beyond the system found to have 114 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809 -14 224a committed acts which violated the constitutional rights of the plaintiffs in the action. 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, never theless, I am persuaded that those who subscribe to the ma jority opinion are convinced, as stated in the slip opinion of the original panel, “big city school systems for blacks sur rounded by suburban school systems for whites cannot rep resent equal protection of the law.” While that statement has been removed from the opinion of the majority, yet the premise upon which the statement was obviously based must necessarily form the foundation for the conclusions reached in the majority opinion. It may be that such will become the law, but such a conclusion should not receive our approval on a record such as exists in this case. As has been pointed out in the other opinions, the bound aries of the school district of the City of Detroit have been co-terminus with the boundaries of the City of Detroit for more than 100 years. Those lines were laid out at a time when there was a minimal black population in the metropolitan area of Detroit, if there was such metropolitan area at the time the boundary lines were established. The District Judge and the majority make much of the fact that “if the boundary lines of the school districts of the City of Detroit and the surrounding suburbs were drawn today few would doubt that they could not withstand constitutional challenge.” This interesting statement provides a fertile field for speculation but certainly has no validity. A proposal to adopt an amendment to the Constitution of the United States >n the same manner and with the same people voting as adopted the Constitution of the United States would be stricken immediately. I know of no one who would suggest that be- Nos. 72-1809 -1 4 B r a d le y , e t al. v. M il l ik e n , e t al. 115 225a cause of changes in the methods of electing the membership of state legislatures that the Constitution of the United States thereby becomes unconstitutional. The quoted statement is to me a complete non sequitur. I know of no authority which would permit a Court to announce a conclusion, based upon a violation of the Con stitution, absent the taking of proofs to establish such con stitutional violation, which proofs the District Judge stated he did not take in this case. Absent proofs, which clearly were not taken, to establish a violation of the constitutional rights of these plaintiffs by the suburban school district personnel and by the State of Michigan in laying out suburban school district lines it would appear that we are in complete and absolute conflict with the prior decisions of this Court. In Deal v. Cincinnati Boati of Education, 369 F.2d 55 (6th Cir. 1966), cert, denied 389 U.S. 847 (1967) (Deal I), this Court rejected the contention that the state had an affirmative obligation to balance schools racially (in that case within the City of Cincinnati) “to counteract the variety of private pressures that now operate to restrict the range of choices presented to each school child.’ 369 F.2d at 59. Deal I was cited with approval by this Court in Davis v, School District of City of Pontiac, 443 F.2d 573 (6th Cir. 1971), cert, denied 404 U.S. 913 (1971). The Court said at page 575; “Appellants correctly contend that under Deal v. Cin cinnati Bd. of Educ., 369 F.2d 55 (6th Cir. 1966), cert denied, 389 U.S. 847, 88 S.Ct. 39, 19 L.Ed.2d 114 (1967), a school district has no affirmative obligation to achieve a balance of the races in the schools when the existing im balance is not attributable to school policies or practices and is the result of housing patterns and other forces over which the school administration had no control.” The majority, while refusing to overrule Deal I and Dads, creates without evidence an obligation to achieve a balance of the races in schools not in a school district but in a metro- 116 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 226a politan area, and does so while denying to the vast ma jority of the school districts involved in such metropolitan area the opportunity to offer evidence to establish that they had not been used for or guilty of any segregative practices. Many other appellate courts have agreed with Deal and Davis. Downs v. Board of Education of Kansas City, 336 F.2d 988, 998 (10th Cir. 1964): “Appellants also contend that even though the Board may not be pursuing a policy of intentional segregation, there is still segregation in fact in the school system and under the principles of Brown v. Board of Education, supra, the Board has a positive and affirmative duty to eliminate segregation in fact as well as segregation by intention. While there seems to be authority to support that contention, the better rule is that although the Four teenth Amendment prohibits segregation, it does not com mand integration of the races in the public schools and Negro children have no constitutional right to have white children attend school with them.” Keyes v. School District No. 1, Denver, Colorado, 445 F.2d 990,1005 (10th Cir. 1971), cert, granted 404 U.S. 1036 (1972): “Our reluctance to embark on such a course stems not from a desire to ignore a very serious educational and social ill, but from the firm conviction that we are without power to do so. Downs v. Board of Education, 336 F.2d at 998. Before the power of the federal courts may be invoked in this kind of case, a constitutional deprivation must be shown. Brown v. Board of Educa tion, 347 U.S. 483, 493-495, 74 S.Ct. 686, 98 L.Ed. 873 (1954) held that when a state segregates children in public schools solely on the basis of race, the Fourteenth Amendment rights of the segregated children are violated. We never construed Brown to prohibit racially imbalanced schools provided they are established and maintained on racially neutral criteria, and neither have other circuits considering the issue. Deal v. Cincinnati Board of Edu- Nos. 72-1809 -1 4 B r a d l e y , e t al. v. M il l ik e n , e t al. 117 227a cation, 369 F.2d 55 (6th Cir. 1966); 419 F.2d 1387 (1969); Springfield School Committee v. Barksdale, 348 F.2d 261 (1st Cir. 1965); Bell v. School City of Gary, Indiana, 324 F.2d 209 (7th Cir. 1963).” United States v. Board of School Commissioners of City of Indianapolis, Indiana, 474 F.2d 81, 83, 84 (7th Cir. 1973): “Appellants first assert that there is no constitutional duty to remedy the effects of racial imbalance or to main tain any particular racial balance in the public schools. The Government does not quarrel with this assertion, and, indeed, insofar as it relates to purely de facto segrega tion, unaided by any state action, it is the law of this circuit, Bell v. School City of Gary, Indiana, 324 F.2d 209 ( 7th Cir. 1963), aff’g 213 F.Supp. 819 (N.D.Ind. 1963).” A similar prayer for re-districting was before the District Court in Spencer v. Kugler, 326 F.Supp. 1235 (D.N.J. 1971), and was rejected. The Supreme Court affirmed without opin ion, 404 U.S. 1027 (1972) with Mr. Justice Douglas dissenting. While the Fifth Circuit in Cisneros v. Corpus Christi In dependent School District, 467 F.2d 142 (5th Cir. 1972), en banc, sustained a finding of unconstitutional segregation re sulting from a neighborhood school policy which effectively segregated Mexican-Americans within a school district it did so based upon competent evidence. The majority here announces, “If school boundary lines cannot be changed for an unconstitutional purpose, it follows logically that existing boundary lines cannot be frozen for an unconstitutional purpose.” (Pg. 65). Again it may be that this will become the law. Clearly, the cases cited have reached this conclusion as to the attendance lines existing within a specific school system. I know of no case which permits such a conclusion as to boundary lines existing be tween school districts, and while the conclusion that existing boundary lines cannot be frozen for an unconstitutional pur- 118 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 228a pose may flow logically from the premise announced it should be based upon competent evidence justifying a finding of fact that such boundary lines have been frozen for an un constitutional purpose, and the District Judge in this case announced that he took no evidence on that issue. I do not understand how the majority can reach a conclu sion as to an appropriate remedy without evidence of any violation, particularly when in Deal I and Deal II a contrary conclusion has been reached. As stated at 369 F.2d, page 59: “If the state or any of its agencies has not adopted im permissible racial criteria in its treatment of individuals then there is no violation of the Constitution.” and again in Davis this Court framed the issues as follows: “Accordingly, the principal question before us is whether there is sufficient evidence in the record to sup port the determination of the District Judge that appel lants are responsible for the existing racial imbalance in the Pontiac School System.” 443 F.2d at 575. (Emphasis supplied). and in responding to that issue this Court said: ‘Although, as the District Court stated, each decision considered alone might not compel the conclusion that the Board of Education intended to foster segregation, taken together, they support the conclusion that a purposeful pattern of racial discrimination has existed in the Pontiac school system for at least 15 years.” 443 F.2d at 576. Thus, the cases in this Court, prior to this case, appear conclusively to have been decided on the basis of discrimina tory intent, and unless we specifically reverse our previous decisions we cannot reach the conclusion announced by the majority in a case where the District Court specifically stated that it did not take any evidence to establish any discriminatory mtent on the part of the suburban school districts who were Nos. 72-1809 -14 B r a d le y , e t al. v. M il l ik e n , e t al. 119 229a not parties to the action or on the part of the State in the structure of the suburban school districts. Other circuits have also required the establishment of a discriminatory intent. Keyes v. School District No. 1, Denver, Colorado, 445 F.2d 990 (10th Cir. 1971), cert, granted 404 U.S. 1036 (1972); Bell v. School City of Gary, Indiana, 324 F.2d 209 (7th Cir. 1963), cert, denied 377 U.S. 924 (1964); United States v. School District 151 Cook County, 111., 404 F.2d 1125 (7th Cir. 1968), cert, denied 402 U.S. 943 (1971); United States v. Board of School Commisisoners of Indianapolis, Indiana, 474 F.2d 81 (7th Cir. 1973); Spencer v. Kuglet, 326 F.Supp. 1235 (D.N.J. 1971), affd. 400 U.S. 1027 (1972). But see: United States v. Texas Education Agency, 467 Fid 848 (5th Cir. 1972). The evidence in regard to building of school buildings with in the City of Detroit and lack of state aid for transportation of pupils within the City of Detroit may have demonstrated that these factors contributed to racial segregation within the City of Detroit. Clearly, if the Court took no proofs with respect to the commission of acts causing segregation of the races as between the City of Detroit and the suburban school districts it would be inappropriate to include those school districts within any remedy to be adopted to eliminate segre gation within the City of Detroit. The cases cited by the District Court and by the majority of this Court are in applicable. In each case cited the school district involved and against which a remedial order was granted was found to have been guilty of segregative practices. In every instance, as we read the cases, that finding was supported by substan tial evidence after an adversary proceeding in which all the interested parties were represented. Such is not the case here. It seems obvious to me that the majority and the District Court have become confused and are unable to distinguish between violation and remedy. As stated by the District Court no evidence was taken as to any violation in the fixing 120 B r a d l e y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 230a of the boundaries of the suburban school systems nor as to any violation because of the relationship between the subur ban school systems and the schools of the City of Detroit. The errors to which we have already alluded were brought about by the failure on the part of the District Court to re quire that all interested parties be brought into the case at the earliest appropriate moment. A review of this record reveals that on March 22, 1971, a group of white Detroit residents, who were parents of children enrolled in the De troit public schools, were permitted to intervene as parties defendant. On June 24, 1971, the District Judge alluded to the possibility of a metropolitan school system, App. Vol. IV, pgs. 259, 260, and in that connection stated: “As I have said to several witnesses in this case: how do you desegregate a black city, or a black school system.” App. Vol. IV, pg. 260. Subsequently, and on July 17, 1971, the white parents filed a motion in an effort to require the joinder of the 85 suburban school districts as parties defendant and gave the following reasons: “1. That said suburban school districts are agents of the State of Michigan and subject to the jurisdiction and supervision of the State Board of Education. “2. That said school districts are white segregated school districts. “3. That questions of law and fact common to the defendant, School District of the City of Detroit, and proposed additional suburban school districts have been presented to this Court. “4. In the event that this Court rules for the plain tiff, in the absence of joinder of the proposed school dis tricts, complete relief cannot be awarded the plaintiff, and in addition would impose an unconstitutional burden on the intervening defendant, in that the resulting school district of the City of Detroit would be and will remain as established by the proofs already submitted an in ferior school district.” App. I at 142-3. Nos. 72-1809 -1 4 B r a d le y , e t al. v. M il l ik e n , e t al. 121 231a The trial court did not rule upon this motion, but in the course of the proceedings discussed it in September, 1971, and concluded that the motion should not be considered at that time because “in considering the motion to add the listed school districts we pause to note that the proposed action has to do with relief.” App. Vol. I, pg. 215, 338 F.Supp. 582, at 595. Between February 9 and February 17, 1972, four parties, Grosse Pointe Public Schools, Allen Park Public Schools, et al.,1 Southfield Public Schools and the School District for the City of Royal Oak, made motions for leave to intervene. These motions were finally granted on March 15, 1972, during the second day of hearing on the plans for desegregation in volving only the Detroit school system. Intervention, ac cording to the District Judge, was permitted under Rule 24 (a), “Intervention of Right,” and also under Rule 24(b), “Permissive Intervention.” Before permitting such interven tion and on March 6, 1972, the District Judge set up a time table for the consideration of plans already submitted, which timetable was as follows: “1. Hearing on desegregation intra-city plans will pro ceed, beginning at 10:00 a.m., Tuesday, March 14, 1972. “2. Recommendations for ‘conditions’ of intervention to be submitted not later than 10:00 a.m., March 14, 1972. “3. Briefs on propriety of metropolitan remedy to be submitted not later than March 22, 1972. “4. Tentatively and unless the court rules otherwise, hearings on metropolitan remedy to commence 10:00 a.m., March 28, 1972.” App. I at 397. When intervention was granted, the District Judge placed strict limitations upon the part which the intervenors would be permitted to play. The order provides: 1 The others referred to included 38 additional suburban school districts. 122 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809 -14 232a “The interventions granted this day shall be subject to the following conditions: 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. 3. The participation of the intervenors consid ered this day shall be subordinated to that of the original parties and previous intervenors. 4. The new intervenors shall not initiate dis covery proceedings except by permission of the court upon application in writing, accompanied by a showing that no present party plans to or is willing to undertake the particular discovery sought and that the particular matter to be discovered is relevant to the current stage of the proceedings. 5. No new intervenor shall be permitted to seek a delay of any proceeding in this cause; and he shall be bound by the brief and hearing schedule established by the court’s Notice to Counsel, issued March 6, 1972. 6 7 6. New intervenors will not file counterclaims or cross-complaints; nor will they be permitted to seek the joinder of additional parties or the dismissal of present parties, except upon a showing that such action will not result in delay. 7. New intervenors are granted intervention for two principal purposes: (a) To advise the court, by brief, of the legal propriety or impropriety of con sidering a metropolitan plan; (b) To review any plan or plans for the desegregation of the so-called larger Detroit Metropolitan area, and submitting ob jections, modifications or alternatives to it or them, and in accordance with the requirements of the United States Constitution and the prior orders of this court. Nos. 72-1809 - 14 B r a d le y , e t al. v. M il l ik e n , e t al. 123 233a 8. New intervenors shall present evidence, if any they have, through witnesses to a number to be set, and limited, if necessary, by the court, follow ing conference. 9. With regard to the examination of witnesses, all new intervenors shall among themselves select one attorney per witness to act for them, unless one or more of the new intervenors show cause otherwise. These conditions of intervention shall remain sub ject to change or modification by the court in the interest of timely disposition of the case.” App. Ia 408-410. 124 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 We point out that the intervening school districts (42 out of 85) came into the case while the court was already con sidering the Detroit only plans, were permitted a total of less than one week to prepare briefs in regard to a metropoli tan remedy, and found themselves faced with a ruling favor able to the consideration of such remedy within two days after the date on which their briefs were due. All of this despite the fact that an effort had been made to bring the suburban school districts into the case almost eight months prior to the mlings in regard to the Detroit only plans and the metropolitan plan. The majority finds no fault witn this timetable. It affirms the conclusions of the District Court in regard to the Detroit only plan and the need for a metro politan plan without affording to the suburban school districts any opportunity to be heard. Those suburban school districts which are not yet parties to this action, 43 in number, have had no opportunity to be heard with respect to any alleged constitutional vio lation within their respective school districts or with respect to the existence of their respective school district boundaries. Of course, the pleadings do not assert any such violations but under the majority opinion a remedy will be imposed which will drastically affect the future scboo 234a ing of their children without granting to them any oppor tunity to be heard with regard to any reasons which might support the adoption of such a remedy. The suburban school districts which were belatedly made parties to this action assert that because they have not been afforded the oppor tunity to offer evidence to demonstrate that they have not been guilty of any constitutional violation they have been denied the fundamental requirements of due process. The response of the appellee to the claimed rights of the suburban school districts is that there is no denial of “life, liberty or property” within the meaning of the Fifth Amendment. They also claim that the interests of the suburban school districts were adequately represented by “their parent state defendant.” An examination of the record in this case will effectively dis pose of any claim that the interests of the suburban school districts were represented by the state defendants. Clearly, the state defendants were defending against the claims of the plaintiffs that the state had by its actions created racial segregation within the school district of the City of Detroit. As I examine the record it does not appear that any defendant felt compelled to offer evidence in defense of an unasserted claim that the existence of suburban school districts was with out other evidence a violation of the constitutional rights of the students in the schools of the City of Detroit. Had the state defendants comprehended that the District Court intended to impose a metropolitan school district upon the schools of three counties the writer is confident that they would have joined in the earlier motion to require the suburban school districts to be named as parties defendant. As to the first argument of the appellees it is clear from the language of the Court in Bolling v. Sharpe, 347 U.S. 497 (1954), that the segregation of schools is a denial of due process within the meaning of the Fifth Amendment. If segregation is a denial of the Fifth Amendment due process then clearly orders eliminating such segregation are a part of the due process rights. In that case the Court said: Nos. 72-1809 -1 4 B r a d le y , e t a l v. M il l ik e n , e t al. 125 235a “Although the Court has not assumed to define ‘liberty’ with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law ex tends to the full range of conduct which the individual is free to pursue, * 9 V ’ 347 U.S. at 499. Even earlier, in Pierce v. Society of Sisters, 268 U.S. 510 (1925), the Supreme Court found a violation of the Fourteenth Amendment in matters relating to the liberty of parents to direct the upbringing and education of children under their control. Had we any doubt, it would have been settled in Wisconsin v. Yoder, 406 U.S. 205 (1972), where the Court permitted parents to withdraw their children from the state public school system and found a constitutional right in par ents to control the upbringing and religious training of their children. That the right under the Fifth Amendment ap plies to the states was recognized in Griswold v. Connecticut, 381 U.S. 479 (1965), where the court noted at page 482: “By Pierce v. Society of Sisters, supra, the right to edu cate one’s children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments.” Being convinced that the interest of parents in the educa tion of their children represents a right protected by the Con stitution as to all parents and not only those parents whose children are required to attend segregated schools, we then reach the question of the application of due process to that right. As pointed out by the Court in Armstrong v. Manzo, 380 U.S. 545, 552 (1965): “A fundamental requirement of due process is ‘the op portunity to be heard.’ 9 9 9 It is an opportunity which must be granted at a meaningful time and in a meaning ful manner.” 126 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 236a and in greater detail we find the same principal in Boddie v. Connecticut, 401 U.S. 371, 377-8 (1971), where Mr. Justice Harlan, speaking for the Court, stated: “Prior cases establish, first, that due process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard. Early in our jurisprudence, this Court voiced the doc trine that ‘[wjherever one is assailed in his person or his property, there he may defend,’ Windsor v. McVeigh, 93 U. S. 274, 277 (1876). See Baldwin v. Hale, 1 Wall. 223 (1864); Hovey v. Elliott, 167 U. S. 409 (1897). The theme that ‘due process of law signifies a right to be heard in one’s defence,’ Hovey v. Elliott, supra, at 417, has continually recurred in the years since Baldwin, Windsor, and Hovey. Although ‘[mjany controversies have raged about the cryptic and abstract words of the Due Process Clause,’ as Mr. Justice Jackson wrote for the Court in Midlane v. Central Hanover Tr. Co., 339 U. S. 306 (1950), there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudi cation be preceded by notice and opportunity for hear ing appropriate to the nature of the case.’ ” Id., at 313. Thus, each party to a lawsuit should be advised as to the claims asserted by the other parties to the lawsuit and have an opportunity to be heard in respect to all such claims. In this case no pleading has ever been filed suggesting any wrongdoing on the part of any suburban school district, none suggesting that the suburban schools and the schools of the City of Detroit constituted a dual school system or even intimating any possibility of a need for a metropolitan school district to eliminate the segregated conditions alleged to have existed in the schools of the City of Detroit. We can only speculate upon the timing of the first suggestion of a metropolitan district but it appears that the District Judge Nos. 72-1809 -14 B r a d le y , e t al. v. M il l ik e n , e t al. 127 237a seized upon the suggestion without requiring any amend ments to the pleadings or the adding of any parties. I question whether the suburban school districts have any interest in being heard as to the claim of segregation within the City of Detroit, and there can be no question as to the right of the trial court to place certain limitations upon the part which any intervening school district would be permitted to play. Had all of this, in regard to metropolitan school dis tricts, come up at the eleventh hour as suggested by the ap pellees one might, although it is doubtful, accept the condi tions imposed by the District Judge. Such was not the case here. The motion to require the joinder of the suburban school districts was made almost eight months before consideration was given to the Detroit only plans. The Advisory Committee on the Rules anticipated that limi tations and conditions might be placed upon intervention as a matter of right under Rule 24(a): “An intervention of right under the amended rule may be subject to appropriate conditions or restrictions respon sive among other things to the requirements of efficient conduct of the proceedings.” 3R Moore’s Federal Prac tice If 24.01J10], at 24-18 (2d Ed.). and see also Galbreath v. Metropolitan Trust Co. of California, 134 F.2d 569, 570 (10th Cir. 1943); Chavis v. Whitcomb, 305 F.Supp. 1359, 1363 (S.D.Ind. 1969). The situation in this case is pointed up by the language found at 3B Moore’s Federal Practice H 24.16[4], 2d Ed. “It would be meaningless to give him an absolute right to intervene in order to protect his interest, if once in the proceeding he were barred from raising questions necessary to his own protection.” What we have said in regard to intervention under Rule 24 sets forth without the necessity of repetition those mat ters which should be considered by any court in determining 128 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809 -14 238a the part which is to be played by one who is joined as a party under Rule 19, as well as one who intervenes as a party, aspects of this case which are almost completely ignored by the majority and the District Court. In conclusion I am constrained to say that I do not suggest that a metropolitan remedy is totally beyond the realm of consideration in this case upon an appropriate record. My whole purpose in writing this opinion is to point out that the majority and the District Court have fallen into a state of confusion in failing to distinguish between violation and reme dy and in failing to recognize the necessity for the finding of violation before the trial court embarks upon that broad field of equity which permits a trial judge to devise a remedy which will adequately overcome the violation previously found to be in existence. I have also written because I am satisfied that the District Judge in failing to consider the necessity for join ing the suburban school districts pursuant to a motion filed more than a year before the disposition of the case was in error. The suggestion by the District Court that the subur ban school districts were only involved in the remedy points up the trap into which both the District Court and the ma jority of this Court have fallen in failing to recognize the necessity for finding a violation before a remedy may be im posed. I would reverse the District Court and remand the case with instructions to require the joinder of the suburban school districts of the counties of Wayne, Oakland and Macomb with permission to the representatives of those districts, with reasonable limitations, to participate in all aspects of this law suit which may affect the suburban school districts, and with particular attention to the necessity for finding a constitutional violation which would justify the imposition of a metropolitan remedy. Nos. 72-1809 -1 4 B r a d le y , e t al. v. M il l ik e n , e t al. 129 239a Miller, Circuit Judge, dissenting. It is my firm conviction that it is premature at this time for the Court to adjudicate any of the questions arising from the various orders of the district court from which this ap peal is taken. This is true for the reason that school districts and parties to be affected by a metropolitan plan or remedy have not been afforded an opportunity to be heard or to pre sent evidence upon all of the issues involved. The majority opinion does indeed state: On remand, any party against whom relief is sought, including school districts which heretofore have inter vened and school districts which hereafter may become parties to this litigation, shall be afforded an opportunity to offer additional evidence, and to cross-examine avail able witnesses who previously have testified, on any issue raised by the pleadings, including amendments thereto, as may be relevant and admissible to such issues. The District Court may consider any evidence now on file and such additional competent evidence as may be in troduced by any party. The effect of this conclusion is, in my opinion, vitiated by the two succeeding sentences: However, the District Court will not be required to receive any additional evidence as to the matters con tained in its Ruling on the Issue of Segregation, dated September 27, 1971, and reported at 338 F. Supp. 582, or its Findings of Fact and Conclusions of Law on the “Detroit-only” plans of desegregation, dated March 28, 1972. We hold that the findings of fact contained in these rulings are not clearly erroneous, Rule 52(a), Fed. R. Civ. P., but to the contrary are supported by substantial evidence. Parties to be affected and against whom relief is sought should be accorded, in compliance with basic principles of 130 B r a d le y , e t al. v. M il l ik e n , e t al. Nos. 72-1809-14 240a due process, an opportunity to be heard at a meaningful time and in a meaningful manner not only with respect to the ultimate scope of the remedy to be fashioned, but also with respect to important, significant and perhaps even controlling issues, including the issue of segregation, a “Detroit only” school plan and the propriety of a metropolitan remedy. If any one of these issues is resolved in favor of parties out side the Detroit School District, the nature and scope of a remedy embracing outlying districts would not be reached. Hence the outlying districts have a vital interest in each issue separately and should be heard on each in a true adversary sense. Until this is done our expression of view on the merits of the several questions is uncalled for and ill- advised. To permit these additional parties to be heard only in the restricted sense set forth in the majority opinion is to deny them basic rights guaranteed not only by Rule 19, Fed eral Rules of Civil Procedure, but by the Constitution itself. I would, therefore, vacate all orders appealed from the dis trict court, remand the action for the joinder of all parties to be affected, and direct the district court to afford the parties a proper opportunity to be heard and to present evidence on the issues indicated above. Nos. 72-1809 - 14 B r a d le y , e t al. v. M il l ik e n , e t al. 131 241a Nos. 72-1809 through 72-1814 J A M E S A . H I G G I N S CLERK OFFICE OF THE CLERK U N ITE D S TA TE S C O U R T O F APPEALS FOR THE SIXTH CIRCUIT C I N C I N N A T I , O H I O 4 S Z 0 2 June 12,1973 Mr. Frank J. Kelley Mr. Louis R. Lucas Mr. George T. Roumell, Jr. Mr. William M. Saxton Mr. Douglas H. West Mr. Richard P. Condit Mr. Kenneth B. McConnell Mr. Robert J. Lord Mr. Robert A. Derengoski Mr. Alexander B. Ritchie Mr. J. Harold Flannery Mr. Jack Greenberg Mr. E. Winther McCroom Mr. Nathaniel R. Jones Mr. Bruce Miller < Mr. Ralph B. Guy, Jr. Mr. Theodore Sachs Mr. William T. Downs Mr Theodore W. Swift Mr. Irwin Ellman Re: Ronald Bradley, et al., Plaintiffs-Appellees, vs. > William G. Milliken, Governor of Michigan, et al., Defendants-Appellants. Case Nos. 72-1809, 72-1810, 72-1811, 72-1812, 72-1813, 72-1814 Gentlemen: Enclosed is a copy of the Court’s opinion which was an-' nounced today in the above-entitled cases. A judgment in conformity with the opinion has been entereu today as required by Rule 36. Yours very truly, James A. Higgins, Clerk,' /si GRACE KELLER. Chief Deputy Enclosure 242a Excerpt from proceedings had in the above-entitled matter before Honorable Stephen J. Roth, United States District Judge, at Detroit, Michigan on Thursday, June 24, 1971. ❖ * * THE COURT: I want briefs, proposed findings and conclusions to be filed not later than July 26th. This is in no way conditioned on when we finish with the proofs, but I expect by that time we will have finished with the proofs. Now, there will be some housekeeping matters to take care of. First of all the construction injunction which is pendente lite, so you both might want to give some consideration to that, and I will welcome any suggestions any of the parties have with respect to what if anything need be done pending my resolution of the basic issue on segregation here. And what I’m thinking about is this, so you will share my thinking: I think that those who are involved in this lawsuit ought to be preparing for eventualities, and I mean within the limits, the maximum and the minimum, so that if the time comes for judicial intervention, and Mr. Reporter, that is not interference. It may be so classified by counsel, but the word is intervention — [4003] it would be well for the parties to be prepared if that develops because I am mindful of the time pres sures that I am under, and I am going to pass the pressure on. And that means that I don’t want the parties to be saying: “Well, we didn’t know you were going to hold this way.” I want everybody to think in terms of what may happen and time accordingly. Let me be more specific. I have just indicated that I denied the motion of the State defendants to have this action dismissed against them. I am not going to take the time at the present time to outline my reasons for it. If that becomes necessary in due course I will. I have my reasons, and I am aware of them without taking the time to put them down in a formal ruling. If the Court in this case finds that the situation calls for some other judicial action then the School Board ought to be preparing themselves to meet that eventuality. But the State defendants too. I don’t think that the State defendants should hide, put their heads in the sand and avoid considering what may happen if certain developments already made plain in this case take shape. 243a Mr. Ritchie has made some points along that line, and I have, and to repeat mine as I have said to several witnesses in this case: “How do you desegregate a black city, or a black school system;” That is why I was [4004] interested in the projections of the student population of the city. We end up with student population of Detroit of 80 to 85 percent black. How do you integrate, or, if I find segregation, to put it another way, how do I desegregate. Now, State defendants, particularly School Board as well, ought to be thinking in these terms indeed if that’s what develops. I throw these out so that I am putting people on notice. I don’t know whether Mr. Young or Mr. Krasicky — is Mr Young in town? 244a UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Nos. 72 -1809-72 -1814 RONALD BRADLEY, et al., Plain tiffs-Appellees, vs. WILLIAM G. MILLIKEN, GOVERNOR OF MICHIGAN, ETC; BOARD OF EDUCATION OF THE CITY OF DETROIT, Defendants-Appellants, and DETROIT FEDERATION OF TEACHERS LOCAL 231, AMERI CAN FEDERATION OF TEACHERS, AFL-CIO, Defendan t-Interven or-Appellee, and ALLEN PARK PUBLIC SCHOOLS, et al., Defendan ts-Intervenors-Appellants, and KERRY GREEN, et al., Defendan ts-Intervenors-Appellees. BEFORE: PHILLIPS, Chief Judge, WEICK, EDWARDS, CELEBREZZE, PECK, McCREE, MILLER, KENT and LIVELY, Circuit Judges. JUDGMENT APPEAL from the United States District Court for the East ern District of Michigan. THIS CAUSE came on to be heard on the record from the United States District Court for the Eastern District of Michigan and was argued by counsel. ON CONSIDERATION WHEREOF, It is now here ordered and adjudged by this Court that: 1. The Ruling of the District Court on the Issue of Seg regation, dated September 27, 1971, and reported at 338 F.Supp. 582, is affirmed. 245a 2. The findings of fact and conclusions of law on “Detroit-only” plans of desegregation, dated March 28, 1972, are affirmed. 3. The Ruling on Propriety of a Metropolitan Remedy to Accomplish Desegregation of the Public Schools of the City of Detroit, dated March 24, 1972, is affirmed in part, but vacated for the reasons set forth in the majority opinion of the Court. 4. The Ruling on Desegregation Area and Development of Plan, dated June 14, 1972, is vacated except as prescribed in the majority opinion of the Court. 5. The order dated July 11, 1972, directing the pur chase of school buses is vacated. The case is remanded to the District Court for further pro ceedings not inconsistent with this opinion. No costs are taxed. Each party will bear his own costs. Entered by order of the Court. JAMES A. HIGGINS Clerk COSTS: NONE irtpnmtT ©curt cf % States October Term, 1973 I n t h e No. 73-434 William G. Milliken, et al., P etition ers, vs. Ronald G. Bradley, e t al. No. 73-435 Allen Park Public Schools, et al., P etition ers , vs. Ronald G. Bradley, e t al. No. 73-436 The Grosse Pointe Public School System, et al., P etition ers, vs. Ronald G. Bradley, e t al. MEMORANDUM IN OPPOSITION TO PETITIONS FOR WRITS OF CERTIORARI Jack Greenberg Norman J. Chachkin 10 Columbus Circle New York, New York 10019 Paul R. D imond 210 East Huron Street Ann Arbor, Michigan 48108 Lotus R. Lucas William E. Caldwell 525 Commerce Title Bldg. Memphis, Tennessee 38103 Nathaniel R. J ones 1790 Broadway New York, New York 10019 Elliott Hall 950 Guardian Building Detroit, Michigan 48226 J. Harold Flannery Robert Pressman Larsen Hall, Appian Way Cambridge, Mass. 02138 A tto rn ey s fo r R espondents R onald B rad ley , et al., Plaintiffs B elow I n t h e §u jm w Court o! tfjr Imtrft i>tatra October Term, 1973 No. 73-434 W illiam G. Milliken, et al., Petitioners, vs. Ronald Cf. Bradley, et al. No. 73-435 Allen P ark P ublic Schools, et al., Petitioners, vs. Ronald G. Bradley, et al. No. 73-436 The Grosse P ointe P ublic School System, et al., Petitioners, vs. Ronald G. Bradley, et al. MEMORANDUM IN OPPOSITION TO PETITIONS FOR WRITS OF CERTIORARI As set forth hereafter, respondents Bradley, et al. (plain tiffs in this cause), submit that this school segregation case 2 is not in an appropriate posture for Supreme Court re view.1 Basically, the petitioners seek review of interlocutory remedial orders in advance of the framing and adoption of a remedial plan and evidentiary hearings in the trial court. No actual plan of desegregation has been approved or even considered by the courts below; no defendant has been ordered to do anything except to participate fully in plan ning and to join in the hearing in the district court. The Court of Appeals has affirmed the findings of constitutional violation and of inadequacy of relief limited to the Detroit school system, directed that plaintiffs amend their com plaint to conform to the evidence, required joinder of any school district potentially affected by any plan, and ordered that a full hearing on remedy be held and that the Legisla ture of the State of Michigan be given an opportunity to act before any plan of desegregation is devised and ap proved by the district court. Proceedings are underway in the district court in com pliance with these directions. The court has ordered that school districts (and the chief school officials of districts) which may possibly be affected by any plans eventually adopted, be joined as parties defendant so that they may be heard. Plaintiffs have filed an amended complaint to conform to the evidence and seeking full relief; the opinion of the Court of Appeals has been formally transmitted by the petitioner Attorney General to the Michigan Legisla ture for its consideration. 1 We have chosen not to submit a lengthy Brief in Opposition to Certiorari correcting petitioners’ various omissions of fact and mis- charaeterizations. In our view, the real issues, if any remain, will appear only after the actions and hearings directed by the Court of Appeals are concluded, and a decision has been rendered by the district court and reviewed by the Court of Appeals. 3 In such circumstances, this court cannot properly con sider the very issues which are essential to review in a case like this. As yet, there are no plans, nor hearing on remedy, nor findings and conclusions thereon by the district court, nor review of any remedial orders by the Court of Appeals. This Court is in no position to evaluate the practicalities of the local situation, the constitutional effectiveness of al ternative plans of remedy, the extent and form of the remedy, the extent of transportation and administrative reorganization required, and the precise manner in which school district boundaries need be permeated for the limited purpose of accomplishing complete relief. Petitioners, and all other school districts which may be affected by any plan, as well as all other parties to this litigation, and the Michigan state officials, now have the opportunity in the courts below to present evidence and ar gument which will shape a complete record in this cause.2 2 In remanding this case the Court of Appeals directed the dis trict court to afford to “ any party against whom relief is sought, including school districts which heretofore have intervened and school districts which hereafter may become parties . . . an oppor tunity to offer additional evidence, and to cross-examine available witnesses who previously have testified, on any issue raised by the pleadings, including amendments thereto, as may be relevant and admissible to such issues.” This direction is in accord with the tra ditional legal principles under which federal courts have always afforded parties litigant an opportunity to be heard upon a proper showing of the relevance and admissibility of evidence. C f. K elley v. M etropolitan C ounty Bd. o f E duc., 463 F.2d 732, 745-46 (6th Cir.), cert, denied, 409 U.S. 1001 (1972). We respectfully suggest that the district court should and will allow the added defendants to_ develop all relevant evidence necessary for decision and deter mination of the issues both of violation and of remedy. Petitioners correctly note that the Court of Appeals held that the district court “need not” consider evidence with respect to constitutional violation. However, the Court did not direct the district court to refuse to consider such evidence if offered. We believe that peti tioners and others added as parties may, upon a proper showing, present evidence on this issue; but in light of this Court’s decision in K eyes v. School D ist. No. 1, D e n v e r ,------ U .S .-------- (1973), and 4 No one can foretell what contested issues will thereafter remain among the parties, nor what record evidence will define those issues.3 It may well be that after the hearings in the district court, the form, scope and indeed the source of the remedy would be markedly different from that de scribed in the petitions.4 Under these circumstances, deci sion of the issues presented in the petitions at this stage of the proceedings would virtually require an advisory opinion. Judicial economy and the established practice of this Court require that the district court decide, and the Court of Appeals review, these issues based on the relevant evidence presented by all of the parties, prior to this Court’s review. There is no reason to depart from this Court’s established practice of refusing to review school segregation cases in of the evidence already introduced documenting the use by Detroit and Michigan school officials of virtually all of the classic segre gating techniques which have been identified by this and other Courts, and since petitioners lack the power to rewrite history, the district court’s findings of violation seem likely to be reaffirmed. To date, the original intervening school districts have never sug gested what evidence they can or would present on this issue. 3 The district court will of course consider the evidence already introduced in this record at the lengthy trial; similarly, it will evaluate any other evidence to be presented by the parties which might lead it to modify, amend or supplement its original rulings. New evidence concerning the practicality and efficacy of proposed specific remedial techniques will of necessity be presented by all parties, including (if they so desire), evidence by petitioners in tended to demonstrate the impracticality of any remedy extending beyond the present boundaries of the Detroit school district. 4 For example, in a report to the district court, petitioner State Superintendent of Public Instruction recommended the exchange of pupils by contract among existing school districts, at least as an interim measure. Plaintiffs supported this recommendation below as a workable method of proceeding to accomplish complete relief from the constitutional violations with as little intrusion as pos sible into the State’s existing internal structures for administering public education. Com pare B rad ley v. S tate Bd. o f E duc., 462 F.2d 1058, 1066-67 (4th Cir. 1972), aff’ d by an equally divided court, — U.S. ------ (1973). 5 the absence of a plan, especially when remedial proceedings are underway below, the final outcome is uncertain, and the resolution of issues depends upon the evidentiary contribu tions both of petitioners and of newly added parties. No substantial harm will be visited upon petitioners should this Court decline review. I f after the completion of the proceedings below, any party is still dissatisfied with the final determination and orders, recourse may be had to the Court of Appeals, and if necessary, to this Court. With the benefit of the rulings of the lower courts, this Court could better determine whether any remaining disputed issue pre sented by the completed record is worthy of review. Wh erefo re, for the foregoing reasons, these respondents Bradley, et al. respectfully pray that the petitions for writs of certiorari be denied. CONCLUSION Respectfully submitted, Jack Greenberg Nath a n iel R. J ones 1790 Broadway New York, New York 10019 Norman J. Ch a ch kin 10 Columbus Circle New York, New York 10019 E llio tt H all 950 Guardian Building Detroit, Michigan 48226 Paul R. D imond 210 East Huron Street Ann Arbor, Michigan 48108 J. H arold F lannery Louis R. L ucas William E. Caldw ell 525 Commerce Title Bldg. Memphis, Tennessee 38103 Robert Pressman Larsen Hall, Appian Way Cambridge, Mass. 02138 A tto rn ey s fo r R espondents R onald B rad ley , e t al., Plaintiffs B elow MEILEN PRESS INC. — N. Y. C. 219 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM 1973 No, 73-434 No. 73-435 No. 73-436 WILLIAM G. MILLION, Governor o f the State o f Michigan; FRANK J. KELLEY, Attorney General o f the State of Michigan; MICHIGAN STATE BOARD OF EDU CATION, a constitutional body corporate, and JOHN W, PORTER, Superintendent of Public Instruction, o f the State o f Michigan: ALLISON GREEN. Treasurer of the State of Michigan; ALLEN PARK PUBLIC SCHOOLS, SCHOOL DISTRICT OF THE CITY OF BERKLEY, BRANDON SCHOOLS, CENTERLINE PUBLIC SCHOOLS. CHERRY HILL SCHOOL DISTRICT, CHIPPEWA VALLEY PUBLIC SCHOOLS, SCHOOL DISTRICT OF THE CITY OF CLAWSON, CRESTWOOD SCHOOL DISTRICT. DEARBORN PUBLIC SCHOOLS, DEARBORN HEIGHTS SCHOOL DISTRICT NO. 7, EAST DETROIT PUBLIC SCHOOLS, SCHOOL DIS TRICT OF THE CITY OF FERNDALE, FLAT ROCK COMMUNITY SCHOOLS, (Continued on Inside Front Cover) -vs- RONALD BRADLEY and RICHARD BRADLEY, bv their Mother and Next Friend, VERDA BRADLEY; JEANNE GOINGS, by her Mother and Next Friend, BLANCH (Continued on Inside Front Cover) * 720 BRIEF IN OPPOSITION TO PETITIONS FOR WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT RILEY AND ROUMELL GEORGE T. ROUMELL, JR, JOHN F. BRADY THOMAS M. J. HATHAWAY GREGORY P. THEOKAS C. NICHOLAS REVELOS, o f counsel 720 Ford Building Detroit, Michigan 48226 Counsel for Respondents, BOARD OF EDUCATION FOR THE SCHOOL DISTRICT OF T HE CITY OF DETROIT, a school district o f the first class, Pa t r ic k McDo n a l d , JAMES HATHAWAY and CORNELIUS GOLIGHTLY, members o f the Board of Education of the City o f Detroit, and NORMAN DRACHLER, Superintendent of the Detroit Public Schools GARDEN CITY PUBLIC SCHOOLS, GIBRALTAR SCHOOL DISTRICT SCHMi DISTRICT OF THE CITY OF HARPER WOODS SCHOOL DISTRICT OFtBF CITY O f HAZEL PARK. INTERMEDIATE SCHOOL DISTRICT OF THE COP TY OF MACOMB, LAKE SHORE PUBLIC SCHOOLS, LAKEVIFW PLBii: SCHOOLS, THE LAMPHFRE SCHOOLS, LINCOLN PARK PUBLIC SCHOOL' MADISON DISTRICT PUBLIC SCHOOLS. MELVINDALE NORTH ALIEN tie ' SCHOOL DISTRICT. SCHOOI DISTRICT OF NORTH DEARBORN HFIGHTI ■ FORD AREA COMMUNITY SCHOOLS, REDFORD UNION SCHOOL D1STRIC NO i RICHMOND COMMUNITY SCHOOLS, SCHOOL DISTRICT OF THE CIT OF RIVER ROUGE, RIVERViEW COMMUNITY SCHOOL DISTRICT ROSE VILLE PUBLIC SCHOOLS, SOUTH LAKE SCHOOLS, TAYLOR SCHOOL D» TRIC T, WARREN CONSOLIDATED SCHOOLS, WARREN WOODS PUBUf SCHOOLS, WAYNE-WESTLAND COMMUNITY SCHOOLS, WOODHAVE SCHOOL DISTRICT, and WYANDOTTE PUBLIC SCHOOLS, CROSSE POINT' PUBLIC SCHOOLS; SOUTHFIELD PUBLIC SCHOOLS; and SCHOOL DISTRICT OF THE CITY OF ROYAL OAK, Petitions GOINGS: BEVERLY LOVE, JIMMY LOVE and DARRELL LOVE, bv Mother and Next Friend, CLARISSA LOVE: CAMILLE BURDEN, PIERRE DEN, AVA BURDEN, MYRA BURDEN, MARC BURDEN and STEVEN BUR by their Father and Next Friend. MARCUS BURDEN: KAREN WILLIAMS as KRISTY WILLIAMS, by their Father and Next Friend. C WILLIAMS; RAY LIT! and MRS. WILBUR BLAKE, parents; all parents having children attending the lie schools of the City of Detroit, Michigan, on their own behalf and on be their minor children, all on behalf of any person similarly situated; and NAT! ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, DETRi BRANCH; BOARD OF EDUCATION OF THE CITY OF DETROIT, a school is trict of the first class; PATRICK McDONALD, JAMES HATHAWAY and CORNEL IUS GOLIGHTLY, members of the Board of Education o f the City of Detroit;!:: NORMAN DRACHLER, Superintendent of the Detroit Public Schools; DEijjP FEDERATION OF TEACHERS, LOCAL 231, AMERICAN FEDERATION TEACHERS, AFL CIO; DENISE MAGDOWSKI and DAVID MAGDOWSKI. their Mother and Next Friend, JOYCE MAGDOWSKI: DAVID V1BTTI b? Mother and Next Friend, VIOLET VIETTI. and the CITIZENS COMMITTEE BETTER EDUCATION OF THE DETROIT METROPOLITAN AREA, a Mi. non-profit Corporation; KERRY GREEN and COLLEEN GREEN, by their Fi and Next Friend, DONALD G. GREEN, JAMES, JACK and KATHLEEN R' MARY, by their Mother and Next Friend, EVELYN G, ROSEMARY. T* DORAN, by her Mother and Next Friend, BEVERLY DORAN, SHE KEITH, JEFFREY' and GREGORY' COULS, by their Mother and Next F SHARON COULS, EDWARD and MICHAEL ROMESBURG. by their Father Next Friend, EDWARD M. ROMESBURG, JR , TRACEY and GREGORY A* LEDGE, by their Mother and Next Friend, AILEEN ARLEDGE, SHERYL J* RUSSELL PAUL, by their Mother and Next Friend, MARY LOU PAUL, TRAP QUIGLEY, by her Mother and Next Friend, JANICE QUIGLEY, IAN. STEPHANS KARL and JAAKO SUNI, by their Mother and Next Friend, SHIRLEY SUNT® TRI-COUNTY CITIZENS FOR INTERVENTION IN FEDERAL SCHOOL ACTIO' NO 35257; MICHIGAN EDUCATION ASSOCIATION; and PROFESSIONAL FE> SONNEl OF VAN DYKE, Responded ALLEN PARK PUBLIC SCHOOLS, SCHOOL DISTRICT OF THE CITY OF BERK LEY BRANDON SCHOOLS, CENTERLINE PUBLIC SCHOOLS, CHERRY HILL SCHOOL DISTRICT, CHIPPEWA VALLEY PUBLIC SCHOOLS, SCHOOL DIS TRICT OF THE CITY OF CLAWSON, CRESTWOOD SCHOOL DISTRICT, DEAR BORN PUBLIC SCHOOLS, DEARBORN HEIGHTS SCHOOL DISTRICT NO. 7, EAST DETROIT PUBLIC SCHOOLS, SCHOOL DISTRICT OF THE CITY OF FERNDALE, FLAT ROCK COMMUNITY SCHOOLS, GARDEN CITY PUBLIC SCHOOLS, GIBRALTAR SCHOOL DISTRICT, SCHOOL DISTRICT OF THE CITY OF HARPER WOODS, SCHOOL DISTRICT OF THE CITY OF HAZEL PARK, INTERMEDIATE SCHOOL DISTRICT OF THE COUNTY OF MACOMB, LAKE SHORE PUBLIC SCHOOLS, LAKEVIEW PUBLIC SCHOOLS, THE LAMP- HERE SCHOOLS, LINCOLN PARK PUBLIC SCHOOLS, MADISON DISTRICT PUBLIC SCHOOLS, MELVINDALE-NORTH ALLEN PARK SCHOOL DISTRICT, SCHOOL DISTRICT OF NORTH DEARBORN HEIGHTS, NOVI COMMUNITY SCHOOL DISTRICT, OAK PARK SCHOOL DISTRICT, OXFORD AREA COM MUNITY SCHOOLS, REDFORD UNION SCHOOL DISTRICT NO. 1, RICHMOND COMMUNITY SCHOOLS, SCHOOL DISTRICT OF THE CITY OF RIVER ROUGH, RIVERVIEW COMMUNITY SCHOOL DISTRICT, ROSEVILLE PUBLIC SCHOOLS, SOUTH LAKE SCHOOLS, TAYLOR SCHOOL DISTRICT, WARREN CONSOLIDATED SCHOOLS, WARREN WOODS PUBLIC SCHOOLS, WAYNE- WESTLAND COMMUNITY SCHOOLS, WOODHAVEN SCHOOL DISTRICT, and WYANDOTTE PUBLIC SCHOOLS; SOUTHFIELD PUBLIC SCHOOLS; and SCHOOL DISTRICT OF THE CITY OF ROYAL OAK, Petitioners, RONALD BRADLEY and RICHARD BRADLEY, by their Mother and Next Friend, VERDA BRADLEY; JEANNE GOINGS, by her Mother and Next Friend, BLANCH i GOINGS; BEVERLY LOVE, JIMMY LOVE and DARRELL LOVE, by their Mother and Next Friend, CLARISSA LOVE; CAMILLE BURDEN, PIERRE BURDEN, I AVA BURDEN, MYRA BURDEN, MARC BURDEN and STEVEN BURDEN, by their Father and Next Friend, MARCUS BURDEN; KAREN WILLIAMS and KRISTY WILLIAMS, by their Father and Next Friend, C. WILLIAMS; RAY LITT and MRS. WILBUR BLAKE, parents; all parents having children attending the pub lic schools of the City of Detroit, Michigan, on their own behalf and on behalf of their minor children, all on behalf of any person similarly situated; and NATIONAL 1 ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, DETROIT BRANCH; WILLIAM G. MILLIKEN, Governor of the State of Michigan and ex-of- ficio member of the Michigan State Board of Education; FRANK J. KELLEY, Attorney General of the State of Michigan; MICHIGAN STATE BOARD OF EDU CATION, a constitutional body corporate, and JOHN W. PORTER, Superintendent °f Public Instruction, Department of Education of the State of Michigan; ALLISON GREEN, Treasurer of the State of Michigan;BOARD OF EDUCATION OF THE CITY OF DETROIT, a school district of the first class; PATRICK McDONALD, JAMES , HATHAWAY and CORNELIUS GOLIGHTLY, members of the Board of Education the City of Detroit; and NORMAN DRACHLER, Superintendent of the Detroit Public Schools; DETROIT FEDERATION OF TEACHERS, LOCAL 231, AMERI CAN FEDERATION OF TEACHERS, AFL-CIO; DENISE MAGDOWSKI and DAVID MAGDOWSKI, by their Mother and Next Friend, JOYCE MAGDOWSKI; DAVID VIETTI, by his Mother and Next Friend, VIOLET VIETTI, and the CITI- j ZJNS COMMITTEE FOR BETTER EDUCATION OF THE DETROIT METRO POLITAN AREA, a Michigan non-profit Corporation; KERRY GREEN and COLLEEN GREEN, by their Father and Next Friend, DONALD G. GREEN, jAMES,JACK and KATHLEEN ROSEMARY, by their Mother and Next Friend, | EVELYN G. ROSEMARY, TERRI DORAN, by her Mother and Next Friend, I BEVERLY DORAN, SHERRILL, KEITH, JEFFREY and GREGORY COULS, by (Continued on Reverse Side) their Mother and Next Friend, SHARON COULS, EDWARD and MICHAEl ROMESBURG, by their Father and Next Friend, EDWARD M. ROMESBURG.Ji TRACEY and GREGORY ARLEDGE, by their Mother and Next Friend, AILEEN ARLEDGE, SHERYL and RUSSELL PAUL by their Mother and Next Friend MARY LOU PAUL, TRACY QUIGLEY, by her Mother and Next Friend, JANICE QUIGLEY, IAN, STEPHANIE, KARL AND JAKOO SUNI, by their Mother ani Next Friend, SHIRLEY SUNI; and TRI-COUNTY CITIZENS FOR INTERVES TION IN FEDERAL SCHOOL ACTION NO. 35257; MICHIGAN EDUCATION AS SOCIATION; PROFESSIONAL PERSONNEL OF VAN DYKE, and THE GROSS! POINTS PUBLIC SCHOOLS, ) THE G R O S S E P O IN T E P U B L IC S C H O O L S Y S T E M , Petitioner, vs. RONALD BRADLEY and RICHARD BRADLEY, by their Mother and Next Friend, VERDA BRADLEY; JEANNE GOINGS, by her Mother and Next Friend, BLANCH GOINGS; BEVERLY LOVE, JIMMY LOVE and DARRELL LOVE, by their Mother and Next Friend, CLARISSA LOVE; CAMILLE BURDEN, PIERRE BURDEN, AVA BURDEN, MYRA BUR DEN, MARC BURDEN and STEVEN BURDEN, by their Father and Next Friend, MARCUS BURDEN; KAREN WILLIAMS and KRISTY WIL LIAMS, by their Father and Next Friend, C. WILLIAMS; RAY LITT and MRS. WILBUR BLAKE, parents; all parents having children attending the public schools of the City of Detroit, Michigan, on their own behalf and on behalf of their minor children, all on behalf of any person similarly situ ated; and NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, DETROIT BRANCH; DETROIT FEDERATION OF TEACHERS, LOCAL 231, AMERICAN FEDERATION OF TEACHERS, AFL-CIO; BOARD OF EDUCATION OF THE CITY OF DETROIT, a school district of the first class; PATRICK McDONALD, JAMES HATHA WAY and CORNELIUS GOLIGHTLY, members of the Board of Educa tion of the City of Detroit; and NORMAN DRACHLER, Superintendent of the Detroit Public Schools; WILLIAM G. MILLIKEN, Governor of the State of Michigan and ex-officio member of the Michigan State Board of Education; FRANK J. KELLY, Attorney General of the State of Michigan; MICHIGAN STATE BOARD OF EDUCATION, a constitutional body corporate, and JOHN W. PORTER, Superintendent of Public Instruction, Department of Education of the State of Michigan, ALLISON GREEN, State Treasurer; ALLEN PARK PUBLIC SCHOOLS, SCHOOL DISTRICT OF THE CITY OF BERKLEY, BRANDON SCHOOLS, CENTERLINE PUBLIC SCHOOLS, CHERRY HILL SCHOOL DISTRICT, CHIPPEWA VALLEY PUBLIC SCHOOLS, SCHOOL DISTRICT OF THE CITY OF CLAWSON, CRESTWOOD SCHOOL DISTRICT, DEARBORN PUBLIC SCHOOLS, DEARBORN HEIGHTS SCHOOL DISTRICT NO. 7, EAST DETROIT PUBLIC SCHOOLS, SCHOOL DISTRICT OF THE CITY OF FERNDALE, FLAT ROCK COMMUNITY SCHOOLS, GARDEN CITY PUBLIC SCHOOLS, GIBRALTAR SCHOOL DISTRICT, SCHOOL DISTRICT OF THE CITY OF HARPER WOODS, SCHOOL DISTRICT OF THE CITY OF HAZEL PARK, INTERMEDIATE SCHOOL DISTRICT OF THE COUNTY OF MACOMB, LAKE SHORE PUBLIC SCHOOLS, LAKEVIEW PUBLIC SCHOOLS, THE LAMPHERE SCHOOLS, LINCOLN PARK PUBLIC SCHOOLS, MADISON DISTRICT PUBLIC SCHOOLS, MELVINDALE-NORTH ALLEN PARK SCHOOL DISTRICT, SCHOOL DISTRICT OF NORTH DEARBORN HEIGHTS, NOVI COMMUNITY SCHOOL DISTRICT, OAK PARK SCHOOL DISTRICT, OXFORD AREA COMMUNITY SCHOOLS, REDFORD UNION SCHOOL DISTRICT NO. 1. RICHMOND COMMUNITY SCHOOLS, SCHOOL DISTRICT OF THE CITY OF RIVER ROUGE, RIVERVIEW COMMUNITY SCHOOL DISTRICT, ROSEVILLE PUBLIC SCHOOLS, SOUTH LAKE SCHOOLS, TAYLOR SCHOOL DISTRICT, WARREN CONSOLIDATED SCHOOLS, WARREN WOODS PUBLIC SCHOOLS, WAYNE-WESTLAND COM MUNITY SCHOOLS, WOODHAVEN SCHOOL DISTRICT and WYAN DOTTE PUBLIC SCHOOLS; KERRY and COLLEEN GREEN, by their Father and Next Friend, DONALD G. GREEN; JAMES, JACK and KATH LEEN ROSEMARY, by their Mother and Next Friend, EVELYN G. (Continued on Reverse Side) ROSEMARY; TERRI DORAN, Mother and Next Friend, BEVERLY DORAN; SHERRILL, KEITH, JEFFREY and GREGORY COULS, by their Mother and Next Friend, SHARON COULS; EDWARD and MICHAEL ROMESBURG, by their Father and Next Friend, EDWARD M ROMESBURG, JR.; TRACEY and GREGORY ARLEDGE, by their Mother and Next Friend, AILEEN ARLEDGE; SHERYL and RUSSELL PAUL, by their Mother and Next Friend, MARY LOU PAUL; TRACY QUIGLEY, by her Mother and Next Friend, JANICE QUIGLEY; IAN, STEPHANIE, KARL and JAAKO SUNI, by their Mother and Next Friend, SHIRLEY SUNI; and TRI-COUNTY CITIZENS FOR INTERVENTION IN FEDERAL SCHOOL ACTION NO. 35257; DENISE MAGDOWSKI and DAVID MAGDOWSKI, by their Mother and Next Friend, JOYCE MAGDOWSKI; DAVID VIETTI, by his Mother and Next Friend, VIOLET VIETTI; and the CITIZENS COMMITTEE FOR BETTER EDUCATION OF THE DETROIT METROPOLITAN AREA, a Michigan non-Profit Corporation; SCHOOL DISTRICT OF THE CITY OF ROYAL OAK; SOUTHFIELD PUBLIC SCHOOLS, R esp on d en ts. 1 INDEX Introductory Prayer ............................................................................... 1 Opinions and Orders B elow ................................................................. 2 Jurisdiction ................................................................................................. 3 Questions Presented .............................................................................. 3 Constitutional Provisions, Statutes and Rules Involved ........... 4 Statement o f the Case ............................................................................ 5 Summary o f the Argum ent ................................................................. 1 1 Reasons for Denying the Writs .......................................................... 13 1. Certiorari should be denied as this is not an appeal from a final decision since the Sixth Circuit has rem anded the case to the district cou rt to determ ine what type o f remedy should be ordered, and what districts, if any, should be included in that rem edy............................................ 13 2. Certiorari should be denied because this H onorable Court cannot properly assess the propriety o f a m ulti district rem edy when all factual aspects o f the rem edy are hypothetical and speculative and their im pact, i f any, upon each Petitioner is unknow n at this tim e............ 1 7 3. The m etropolitan desegregation rem edy ordered by the courts below is based on specific Michigan public school law, set in the con text o f the relevant m etropolitan D etro it com m unity , and thus certiorari should be denied.................................................................................................... 19 4. Certiorari should be denied as the courts below did not err in ordering a m etropolitan rem edy, w ithout regard to artificial c ity or boundary lines, to eliminate uncon stitutional, racially identifiable schools in the m etropoli tan Detroit com m unity , since the State o f Michigan, in and o f itself, has sole responsibility for education within its boundaries..................................................................................... 27 5. Since this H onorable C ourt has encouraged district courts to fashion broad, tailor-m ade, equitable remedies for the elim ination o f constitutional violations in each PAGE 11 PAGE given situation, there is nothing unconstitutional in the instant remedy, pursuant to established Michigan public school law, so as to justify certiorari.............................. 40 6. The courts below found systematic acts of segregation affecting the constitutional rights of black children for which the State Defendants are responsible................... 47 7. The Petitioner school districts have not been denied due process of law since they are agencies of the State Board of Education which has been a party to this litigation from its inception, and which has adequately protected the interests of the Petitioner school dis tricts............................................................................. 53 Conclusion ........................................................................ 55 Appendix............................................................................ laa Ill TABLE OF AUTHORITIES American Construction Company v. Jacksonville T & K.W.R. Company, 148 U.S. 372 (1893) ...................................... 13 Attorney General, ex rel Kies v. Lowrey, 131 Mich. 639 (1902), aff’d, 199 U.S. 233 (1905).................................. 19 Baker v. Carr, 369 U.S. 186 (1962) ....................................... 36 Bradley et al. v. Milliken et al., 433 F2d 897 (6th Cir., 1971) . 2, 7 Bradley et al. v. Milliken et al., 438 F2d 945 (6th Cir., 1971) . 2, 7 Bradley et al. v. Milliken et al., 468 F2d 902 (6th Cir., 1972), cert, denied, 409 U.S. 874 (1972).................................... 2 PAGE Bradley v. Milliken, Nos. 72-1809-1814 (6th Cir., June 12, 1973)............................................................................... 54 Bradley v. School Board o f the City o f Richmond, 51 F.R.D. 139 (D.C. Va. 1970)......................................................... 53 Bradley v. School Board o f the City o f Richmond, 462 F.2d 1058 (4th Cir., 1972), aff’d____U.S____ , 93 S.Ct. 1952 (1973) ............................... ......................................... 26, 42 Brotherhood o f Locomotive Firemen and Enginemen v. Bangor & Aroostook R. Co., 389 U.S. 327 (1967)............. 14 Brown v. Board of Education o f Topeka, 347 U.S. 483 (1954) ......................................................................... 28, 31 Brown v. Board of Education o f Topeka, 349 U.S. 294 0955) ................................................................... 17, 31, 45 Burleson v. County Board o f Election Commissioners of Jefferson County, 308 F.Supp. 352 (E.D. Ark. 1970), aff’d per curiam, 432 F.2d 1356 (8th Cir. 1970)............ 41 Catlin v. U.S., 324 U.S. 229 (1945)...................................... 13 Clark v. Board of Education o f Little Rock School District, 426 F.2d 1035 (8th Cir. 1970) ....................................... 35 Cooper v. Aaron, 358 U.S. 1 (1958) ................................... 50 Davis v. Board of School Commissioners o f Mobile County, 402 U.S. 33 (1971) ............................................... 33, 34,40 Dickinson v. Petroleum Conversion Corp., 338 U.S. 507 (1950) .......... 14 IV Gillespie v. U.S. Steel Corporation, 379 U.S. 148 (1964). . . . 14 Goldberg v. Kelly, 397 U.S. 254 (1970) ............................. 54 Gomillion v. Lightfoot, 364 U.S. 339 (1960) .................. 36, 40 Goss v. Board of Education o f the City o f Knoxville, Civil Nos. 72-1766-1767 (6th Cir. July 18, 1973)................... 43 Green v. County School Board o f New Kent County, 391 U.S. 430 (1968) ..................................................... 17,36 Griffin v. School Board o f Prince Edward County, 377 U.S. 218 (1964) .................................................................... 51 Hall v. St. Helena Parish School Board, 197 F.Supp. 649 (E.D. La. 1961), aff’d, 287 F.2d 376 (5th Cir. 1961 ),aff’d per curiam, 368 U.S. 515 (1962)................................... 41 Hamilton-Brown Shoe Co. v. Wolf Bros., 204 U.S. 251 (1916) 14 Haney v. County Board o f Education o f Sevier County, 410 F.2d 920 (8th Cir. 1969) ................................................. 41 Hatton v. County Board o f Education o f Maury County, 422 F.2d 457 (6th Cir. 1970)................................................... 54 Higgins v. Board of Education, City o f Grand Rapids, No. 6386 (D.C. W.D. Mich., July 18, 1973)............................. 53 Isdaner v. Beyer, 53 F.R.D. 4 (D.C. Pa. 1971)..................... 53 Jenkins v. Township o f Morris School District, 58 N.J. 483, 279 A.2d 619 (1971) ................................................... 43 PAGE Kelley v. Metropolitan County Board o f Education of Nash ville and Davidson County, 463 F.2d 732 (1972), cert. denied, 409 U.S. 1001 (1972)........................................ 33 Keyes v. School District No. 1, Denver,___U.S___ , 37 L.Ed. 2d 548 (1973) ................................................. 47, 48, 49, 50 Lee v. Macon County Board of Education, 448 F.2d 746 (5th Cir. 1971) ....................................................................... 40 Lemon v. Bossier Parish School Board, 446 F.2d 911 (5th Cir. 1971) ....................................................................... 33 Lindsey v. Normet, 405 U.S. 56 (1972) ............................. 54 Louisiana v. United States, 380 U.S. 145 (1965)................. 35 Morgan v. 77xompson, 124 F. 203 (8th Cir. 1903) ............... 13 V PAGE Northcross v. Board o f Education o f Memphis, 420 F.2d 546 (1969), aff’d per curiam, 397 U.S. 232 (1970)............... 28 Owenby v. Morgan, 256 U.S. 94 (1921) .............................. 54 Raney v. Board o f Education o f Gould School District, 391 U.S. 443 (1968) ............................................................. 28 Reynolds v. Sims, 377 U.S. 533 (1964)................................ 40 San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973) ................................................................. 50 Spencer v. Kugler, 326 F.Supp. 1235(D.N.J. 1971),aff’d,404 U.S. 1027 (1972) ............................................................ 43 St. Louis, I.M. and S.R.R. v. Southern Express Company, 108 U.S. 24(1883) ......................................................... 13 Swann v. Charlotte-Mecklenburg Board o f Education, 318 F.Supp. 786 (W.D. N.C. 1970) ......................................... 51 Swann v. Charlotte-Mecklenburg Board o f Education, 402 U.S. 1 (1971) ................ 11, 17, 27, 28, 33, 34, 35, 44, 45 Taylor v. Board of Education o f New Rochelle, 288 F.2d 600 (1961) ............................................................................. 14 Turner v. Warren County Board o f Education, 313 F.Supp. 380 (E.D. N.C. 1970) ..................................................... 41 United States v. Scotland Neck City Board o f Education, 407 U.S. 484 (1972) ............................................. .......... 28,41 United States v. State o f Texas, 447 F.2d 441 (5th Cir. 1971) 41 Wright v. Council o f City o f Emporia, 407 U.S. 451 (1972)28, 41 U.S. Const, amend. X I ......................................... 4, 50, 51, laa U.S. Const, amend. X IV ................................ 4, 35, 42, 51, laa U.S. Const, amend. X V ............................................. 4, 35, laa Michigan Const, art. VIII, § 2 ......................................4, 6, laa Judicial Code, 28 U.S.C. § 1292(b) ............................4, 9, 2aa Act 48, Sec. 12, Mich. Pub. Acts of 1970 ............ 4, 7, 48, 2aa Fed. R. Civ. P.19 ..................................................... 4, 53, 3aa Fed. R. Civ. P.24(a)(2) ........................................... 4, 54, 4aa 1 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM 1973 No. 73-434 No. 73-435 No. 73-436 WILLIAM G. MILLIKEN, et al„ -vs- RONALD BRADLEY, et al„ ALLEN PARK PUBLIC SCHOOLS, et al„ -vs- RONALD BRADLEY, et al„ GROSSE POINTE PUBLIC SCHOOL SYSTEM, -vs- RONALD BRADLEY, et al„ Petitioners, Respondents. Petitioners, Respondents, Petitioner, Respondents. BRIEF IN OPPOSITION TO PETITIONS FOR WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT R espondents, the Board o f E ducation fo r the School District o f the City o f D etroit, a sch oo l district o f the first class, Patrick M cDonald, James Hathaway, Cornelius G olightly and Norm an Drachler, respectfully pray that these Petitions fo r Writs o f Cer tiorari should be denied. 2 OPINIONS AND ORDERS BELOW The opinion of the Sixth Circuit, not yet reported, appears in the Appendix, at 110a-240a.l 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 plan], not reported. (46a-47a). 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-107a). United States Court of Appeals for the Sixth Circuit July 20, 1972 Order [granting leave to appeal], not reported. (108a-109a). Other opinions of the Sixth Circuit rendered at prior stages of the present proceedings are reported in 433 F.2d 897, 438 F.2d 945 and 468 F.2d 902, cert, den., 409 U.S. 844 (1972). [1] Hereinafter references to the Petitioners’ Appendix already filed herein will be indicated by page numbers enclosed in parentheses and desig nated by the letter “ a” . Appendix references followed by the letters “aa” refer to the Appendix to this Brief commencing at page laa hereof. 3 JURISDICTION There is no jurisdiction in this Honorable Court because the decision of the district court is not final and is not at an appropri ate stage for review. QUESTIONS PRESENTED 1. Should certiorari be denied since this is not an appeal from a final decision and since the Sixth Circuit has remanded the case to the district court to determine what type of remedy should be ordered, and what districts, if any, should be included in that remedy? 2. Should certiorari be denied because this Honorable Court cannot properly assess the propriety of a multidistrict remedy when all factual aspects of the remedy are hypothetical and specu lative and their impact, if any, upon each Petitioner is unknown at this time? 3. Should certiorari be denied where the metropolitan de segregation remedy ordered by the courts below is based on spe cific Michigan public school law, set in the context of the relevant metropolitan Detroit community? 4. Should certiorari be denied when the courts below did not err in ordering a metropolitan remedy, without regard to arti ficial city or municipal boundary lines, to eliminate unconstitu tional racially identifiable schools in the metropolitan Detroit community, since the State of Michigan, in and of itself, has sole responsibility for education within its boundaries? 5. Should certiorari be denied where this Honorable Court has encouraged district courts to fashion broad, tailor-made, equit able remedies for the elimination of constitutional violations in each given situation, and where there is nothing unconstitutional in the instant remedy, pursuant to established Michigan public school law? 6 6. Should certiorari be denied where the courts below found systematic acts of segregation affecting the constitutional rights of black children for which the State Defendants are respon sible? 4 7. Should certiorari be denied where the Petitioner school districts have not been denied due process of law since they are agencies of the State Board of Education, which has been a party to this litigation from its inception, and which has ade quately protected the interests of the Petitioner school districts? CONSTITUTIONAL PROVISIONS, STATUTES AND RULES INVOLVED The constitutional provisions, statutes and rules relevant to the issues in this case are: U.S. Constitution Amendment XI; U.S. Constitution Amendment XIV; U.S. Constitution Amendment XV; Michigan Constitution Art. VIII, Sec. 2; Judicial Code, 28 U.S.C. § 1292(b); Fed. R. Civ. P. 19 and 24(a) (2); and Michigan Public Acts of 1970, Act 48, Sec. 12, which are set forth in relevant part in the Appendix to this Brief in Opposition to Peti tions for Writs of Certiorari. 5 STATEMENT OF THE CASE The School District of the City of Detroit is one of 85 school districts in the metropolitan Detroit community and one of about 600 school districts in the State of Michigan. Unlike most of the school districts in Michigan, the Detroit School District is coter minous with a political boundary (z. e. the city limits of Detroit)̂ At the time the district court rendered its decision on the issue of segregation, September 27, 1971, the Detroit School District ser viced some 280,000 school children, 180,000 of whom were black. (20a). This resulted in a school population ratio of approxi mately 65% black and 35% white, though the City of Detroit itself had a population ratio of 56% white and 44% black. (21a). With some exceptions, the surrounding school districts in the metro politan Detroit community have overwhelmingly white student populations. (66a). The City of Detroit is part of the metropolitan Detroit community which is intensely interrelated in terms of social and economic activities. The metropolitan Detroit community is viewed by the United States Census Bureau as a single standard metropolitan statistical area. Metropolitanization has become a growing hallmark of government services in the metropolitan Detroit community. There is a metropolitan transit system (SEMTA), a metropolitan park authority (Huron-Clinton Metro politan Authority), a metropolitan water system, a metropolitan sewage system and a metropolitan council of governments (SEM- COG). (80a). [21 At least the following Petitioner school districts are not coterminous with political boundary lines of any municipality or county, to wit: Brandon Schools, Cherry Hill School District, Chippewa Valley Public School District, Crest wood School District, Dearborn Heights School District No. 7, Flatrock Community Schools, Lakeshore Public Schools, Lakeview Public Schools, The Lamphere Schools, Melvindale-North Allen Park School District, Allen Park Public Schools, School District of North Dearborn Heights, Oxford Area Community Schools, Redford Union School District No. 1, Richmond Community Schools, South Lake Schools, Warren Consolidated Schools, Warren-Woods Public Schools, Wayne-Westland Community Schools, Grosse Pointe Public Schools. 6 In the field of education, children in the metropolitan Detroit community have crossed school district lines to attend school or to receive educational services. Some educational services in the metropolitan Detroit community are already provided to students on an inter-district, inter-county, or metro politan basis by county-wide intermediate school districts and the State Department of Education. (79a). Education in Michigan has been a function of the State since the Northwest Ordinance of 1787 which governed the then Territory of Michigan, (165a). The current Constitution of Michigan, the Constitution of 1963, Ar ticle VIII, Section 2, provides in part as follows: “The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law.” The Michigan legislature, exercising the aforementioned constitu tional mandate, which was also found in Michigan’s preceding three constitutions, established numerous school districts. These school districts under Michigan law are creatures of the State of Michigan and act as instrumentalities of the Michigan legislature under the control of the State Board of Education. (167a). School district boundaries in Michigan are not sacrosanct. (167a). This is evidenced by the fact that the State Board of Education had between 1964 and 1968, eliminated 700 school districts. (168a). Since that time the State Board of Education has eliminated additional school districts. Detroit is located in Wayne County, where a number of school districts have been merged and consolidated by the State Board of Education primarily for financial and educational service reasons. (168a). The pervasiveness of State control over its school districts is further illustrated by the fact that the State provides massive State financing, dictates the number of school days, re quires certain courses to be taught, controls the use of particular text books, and imposes many other details of regulatory control. (170a-l 71a). On April 7, 1970, the Detroit Board of Education adopted a desegregation plan for its high schools. (17a). However, before the Detroit Board of Education could implement its April 7, 1970 desegregation plan, the State of Michigan exercising its plenary 7 powers of control over local school districts enacted Act 48 of Public Acts of 1970 which automatically invalidated the April 7, 1970 plan, thereby frustrating the execution and operation of the Detroit School Board’s attempts to desegregate. (151a). It was this action of the State of Michigan that precipitated the complaint filed herein by plaintiffs alleging acts of de jure segrega tion on the part of the Board of Education for the School District of the City of Detroit, as well as the Superintendent of Public Instruction for the State of Michigan, the Michigan State Board of Education, the Governor of the State and its Attorney General. Although Michigan does have a procedure whereby the Attorney General may render opinions as to the legality of legislation and the Governor is accorded the privilege of addressing the legislature on matters of public importance, there is nothing in the record below to indicate that the Attorney General or the Governor took any action as State officers to advise the legislature of the uncon stitutional aspects of Act 48 in depriving black children of their constitutional rights. The same is true as to the Superintendent of Public Instruction and the State Board of Education. The plaintiffs originally filed their preliminary injunction to reinstate the Detroit Board’s April 7, 1970 plan which had been thwarted by Act 48. The district court denied the injunction. On appeal, the Sixth Circuit affirmed the denial of the injunction while properly holding that Act 48 was unconstitutional insofar as it nullified the implementation of the Detroit Board’s April 7th Plan. 433 F.2d 897 (1971). On remand, the plaintiff sought implementation of a tempor ary plan of desegregation. The district court permitted the Detroit Board to introduce three temporary desegregation plans, one of which, the so-called Magnet Plan was approved by the court for implementation pending the trial on the merits. Plaintiff again appealed this order of the district court, but the Sixth Circuit remanded with instructions that the case “beset forthwith and heard on its merits.” 438 F.2d 945, 946 (1971). The trial on the merits began on April 6, 1971 and lasted forty-one trial days through the spring and summer, 1971. All parties were ably represented by counsel, had the opportunity to 8 present evidence and fully participate in the trial. On September 27, 1971, the district court issued its Findings of Fact and Con clusions of Law, (17a), holding inter alia that the State of Michigan was guilty of de jure segregation committed directly by bodies or officers with state-wide jurisdiction and by its local subordinate agent, the Detroit Board of Education. The State Defendants and the Detroit Board appealed these Findings, but the Sixth Circuit, dismissed the Appeal as being untimely. Subsequently, the district court ordered the Detroit Board to present Detroit-only desegregation plans and the State De fendants to present metropolitan plans of desegregation. After such plans had been presented to the trial court, a hearing on plans of desegregation limited to the geographic boundaries of the City of Detroit commenced. The State Defendants vigorously urged a Detroit-only remedy. On March 28, 1972 the district court issued its ruling on the Detroit-only plan. The district court properly concluded that no Detroit-only plan could constitutionally desegregate the Detroit school system, because of this stark reality: without some 700,000 white students in the surrounding metropolitan Detroit community, any desegregation plan directed towards the 180,000 black school children and the 100,000 white school children with in the Detroit School District would have resulted in unconstitu tional black racially identifiable schools, encircled by schools ra cially identifiable as white, thereby continuing to racially isolate black children in the metropolitan Detroit community. The Chief Education Officer of Michigan, the Chief Executive of the State of Michigan and the Chief Legal Officer of the State of Michigan could not convince the district court otherwise though they at tempted to do so. It should be noted that the State Defendants were parties throughout this litigation who adequately represent the interests of their subordinate agents, the local school districts. Despite mas sive publicity received by this litigation, Petitioner school districts were apparently satisfied that their interests were properly repre sented for it was not until February 9, 16 and 17, 1972 that the Petitioner school districts asked for the right to intervene. The district court granted intervention on March 15, 1972. In passing 9 it should be noted that the publicity of the case resulted in the Detroit Federation of Teachers and a group representing home owners within the City of Detroit intervening as party defendants even prior to the trial on the issue of segregation. The Petitioner districts had every opportunity to participate in the hearing on metropolitan plans and were not denied the right to present any evidence as to metropolitan plans. As proof of that fact, several school districts prevailed in limiting the metropolitan desegregation plan to exclude their school districts. The district court, on June 14, 1972, (97a), adopted certain basic guidelines for metropolitan desegregation plans designed to eliminate the isolation of black children within the metropolitan Detroit community. The court used the guidelines announced by this Honorable Court designed to eliminate the vestiges of segrega tion “root and branch” , and to do it in the most practical, con venient manner employing all known techniques of desegregation approved by this Honorable Court. Of course, the findings of fact and conclusions of law as to the metropolitan desegregation plans announced on June 14, 1972, were far from complete, and the district court acknowl edged this. The district court established a desegregation panel to develop a plan for further hearings. The Petitioner school districts were granted representation on that panel. The Superintendent of Public Instruction was also on that panel. The panel was directed to develop a metropolitan plan of desegregation consistent with the court’s findings of fact and conclusions of law under a clear mandate that further hearings would be held on the plan. Peti tioners, at all times, had full opportunity to participate in this procedure. At the request of both the Attorney General of the State of Michigan, who has always represented the State Defendants and the Petitioner school districts, the District Judge certified the case for review pursuant to 28 U.S.C. 1292(b). The Court of Appeals for the Sixth Circuit in a three judge panel reviewed the entire proceedings. After the Petitioners were given every opportunity to file briefs along with the original parties and to argue orally, the Sixth Circuit on December 11, 1972, unanimously affirmed the district court. 10 On petition for rehearing en banc, the Sixth Circuit granted the petition, and again, the Sixth Circuit en banc affirmed the district court on all matters save the final form of the metropoli tan remedy which they remanded to the district court with instructions to permit those districts which had not chosen to intervene in the hearing to develop a metropolitan plan. On remand, the district court is proceeding to hold hearings to determine, with all petitioners present, what other local school districts should be brought into the hearings, and what procedure should be followed in developing the metropolitan plan. The hear ings are not complete. There is much work to be done. The oppor tunity to provide additional legal input by interested parties is present and pending. The case, at this point, is still incomplete, making an appeal to this Honorable Court, most premature and most untimely. 11 SUMMARY OF ARGUMENT The Sixth Circuit sitting en banc remanded this case to the district court for the development of a desegregation remedy pur suant to the guidelines previously announced by this Honorable Court, including the use of “mathematical ratios” as a “starting point in the process of shaping a remedy” . Swann v. Charlotte- Mecklenburg Board o f Education, 402 US 1, 17-18 (1971). This case does not, and never has, involved a racial balance remedy. Among the issues which must yet be resolved in a final metropoli tan desegregation plan are the extent and type of transportation to be required, the precise method of crossing school district bound aries to exchange pupils, the number of pupils to be exchanged and the faculty to be exchanged, if any. A case which is in this posture does not represent a final decision for which this Honor able Court should grant certiorari. If this Honorable Court were to grant certiorari, it would place itself in the novel position, which it has consistently con demned, of deciding hypothetical, speculative and abstract ques tions as there is no specific desegregation plan now before this Court for review. Under Michigan public school law, the sole responsibility for education rests with the State, and Michigan school districts are mere instrumentalities of the State subordinated to the State Board of Education and the Legislature and subject to pervasive State control. Thus, the de jure actions of the subordinate agent Detroit School District are binding on the State of Michigan just as the de jure actions of the State of Michigan are binding on the Detroit School District. It is the State of Michigan, and only the State of Michigan, that has committed de jure acts of segregation, and it is the State alone that must provide a remedy. A Detroit-only desegregation plan would not eliminate un constitutional racial isolation in the relevant metropolitan Detroit community. There are 180,000 black children and 100,000 white children in the Detroit School System — a system surrounded by 700,000 white school children in the metropolitan Detroit com munity. The relevant metropolitan Detroit community is an intensely interrelated community both socially and economically with many 12 forms of metropolitan governmental services. Students in the metropolitan Detroit community already cross school district lines to attend school. Educational services are already provided to the metropolitan students on an inter-district basis. The boundaries of Michigan school districts in general bear no relationship to the boundaries of other municipal or county governments. The arguments presented by the Petition of the State Defen dants have failed to explain that if the State can eliminate 700 school districts out of 1438 school districts in a five-year period (1964-1968), including districts in the metropolitan Detroit com munity, for financial and educational reasons, then why are the Michigan school district lines so sacrosanct when it comes to pro tecting constitutional rights of black children? The Michigan State Board of Education has always been a party to this litigation and has adequately represented the interests of its subordinate districts. Petitioner school districts, although having every opportunity to intervene in a case that had great publicity, chose to intervene in February, 1972. The Sixth Circuit in its remand has made it clear that all districts may participate in the fashioning of a metropolitan remedy, which still is in the process of being developed. If the State of Michigan can continue to provide educational services for students on an inter-district basis and continue to transport students across school district lines, then a multi-district desegregation remedy is consistent with Michigan school law. It is mandatory for the district court, exercising its equity powers, to remedy the constitutional violation of the rights of 180,000 black school children isolated from the rest of the relevant metropolitan Detroit community. By practical necessity, this requires a multi district remedy. 13 REASONS FOR DENYING THE WRITS I. CERTIORARI SHOULD BE DENIED AS THIS IS NOT AN APPEAL FROM A FINAL DECISION SINCE THE SIXTH CIRCUIT HAS REMANDED THE CASE TO THE DIS TRICT COURT TO DETERMINE WHAT TYPE OF REMEDY SHOULD BE ORDERED, AND WHAT DIS TRICTS, IF ANY, SHOULD BE INCLUDED IN THAT REMEDY. A grant of certiorari would be improvident in this case as the decision of the Sixth Circuit is not a final decision. The Sixth Circuit agreed with the district court on its conclusion to consider a metropolitan remedy and remanded the case for the joinder of additional parties and for a determination of the relief to be granted the plaintiffs; namely what type of metropolitan remedy should be ordered. The district court has begun proceedings in compliance with the instructions of the Sixth Circuit. Among the issues that must be resolved in the district court are (1) the identities of the school districts to be included in a final desegregation plan, (2) the extent and type of transportation to be required, (3) the precise method of crossing school district boundaries to exchange pupils, (4) the number of pupils to be ex changed, and (5) the faculty involved. If “a ‘final decision’ generally is one which ends the litigation on the merits and leaves nothing for the Court to do but execute the judgment,” Catlin v. U.S., 324 U.S. 229, 233 ( 1945),the June 12, 1973 decision of the Sixth Circuit is not a final decision. See St. Louis, I.M. and S.R.R. v. Southern Express Company, 108 U.S. 24, 28 (1883); Morgan v. Thompson, 124 F. 203, 204 (8th Cir. 1903). This Honorable Court admittedly has power to grant certio rari in cases that are not yet final, but it has consistently refused to review interlocutory orders of the courts of appeals “unless it is necessary to prevent extraordinary inconvenience and embarrass ment to the conduct of the cause.” American Construction Com pany v. Jacksonville T & K.W.R. Company, 148 U.S. 372, 384 (1893). This refusal to review especially follows when the case has 14 been remanded to the district court for further proceedings. See Hamilton-Brown Shoe Co. v. Wolf Bros., 204 U.S. 251, 257-58 (1916); Brotherhood o f Locomotive Firemen and Enginemen v. Bangor & Aroostook R. Co., 389 U.S. 327, 328 (1967). The possibility that the Sixth Circuit has erred may present some slight inconvenience, but that inconvenience is much less than would result from repeated piecemeal appeals. On the facts of this case the inconvenience, if any, is hardly extraordinary, nor will delay in Supreme Court review cause any “embarrassment to the conduct of the cause.” Neither the State of Michigan nor the Petitioner school districts are placed in any danger of being de prived of rights which cannot be vindicated by an appeal in the normal course of litigation. Assuming, arguendo, that the State and Petitioner school districts should be entitled to prevail on every substantive point they raise, those points will still be capable of vindication after the district court has concluded its hearing. Consequently, there is no “danger of denying justice by delay.” Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511 (1950); Gillespie v. U.S. Steel Corporation, 379 U.S. 148 (1964). Judge Friendly’s opinion for the Second Circuit in Taylor v. Board of Education o f New Rochelle, 288 F.2d 600, 602 (1961) dealt decisively with the related issue of finality of a dis trict court decision after a finding of segregation and before the ordering of a remedy: “ Upon full consideration, we conclude that we have no power to entertain the Board’s appeal until the District Court has finished its work by directing the Board to take or refrain from action. “ Familiar decisions of the Supreme Court establish the con trolling principles. ‘Finality as a condition of review is an historic characteristic of federal appellate procedure. It was written into the first Judiciary Act and has been departed from only when observance of it would practically defeat the right to any review at all.’ Cobbledick v. United States, 1940, 309 U.S. 323, 324-325, 60 S.Ct. 540, 541, 84 L.Ed. 783. ‘The foundation of this policy is not in merely technical conceptions of ‘finality.’ It is one against piecemeal litigation. 15 ‘The case is not to be sent up in fragments * * *’ Lux tony. •North River Bridge Co., 147 U.S. 337, 341 [ 13 S.Ct. 356, 358, 37 L.Ed. 194], Reasons other than conservation of judicial energy sustain the limitation. One is elimination of delays caused by interlocutory appeals.’ Catlin v. United States, 1945, 324 U.S. 229, 233-234, 65 S.Ct. 631, 634, 89 L.Ed.911. “A ‘final decision’ within 28 U.S.C. §1291, the basic statute authorizing appeals to the courts of appeals, and its predecessors going back to § § 21 and 22 of the Act of Sept. 24, 1789, c. 20, 1 Stat. 73, 83-84, ‘is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ Catlin v. United States, supra, 324 U.S. at page 233, 65 S.Ct. at page 633. Plainly Judge Kaufman’s decision of January 24, 1961 does not fit that description. It constituted only a determination that plaintiffs were entitled to relief, the nature and extent of which would be the subject of subsequent judicial considera tion by him. What remained to be done was far more than those ministerial duties the pendency of which is not fatal to finality and consequent appealability, Ray v. Law, 1805,3 Cranch 179, 180, 2 L.Ed. 404. An order adjudging liability but leaving the quantum of relief still to be determined has been a classic example of non-finality and non-appealability from the time of Chief Justice Marshall to our own, The Palmyra, 1825, 10 Wheat. 502, 6 L.Ed. 375; Barnard v. Gib son, 1849, 7 How. 650, 12 L.Ed. 857; Leonidakis v. Inter national Telecoin Corp., 2 Cir., 1953, 208 F.2d 934; 6 Moore, Federal Practice (1953 ed.), p. 125 and fn. 5, al though in all such cases, as here, this subjects the defendant to further proceedings in the court of first instance that will have been uncalled for if that court’s determination of liabi lity is ultimately found to be wrong. * * * “ Here, while we understand defendants dislike of presenting a plan of desegregation and attending hearings thereon that would be unnecessary if the finding of liability were ulti mately to be annulled, and also the possibly unwarranted 16 expectations this course may create, this is scarcely injury at all in the legal sense and surely not an irreparable one. Equally inapposite is the doctrine of Cohen v. Beneficial In dustrial Loan Corp., 1949, 337 U.S. 541, 545-547, 69 S. Ct. 1221, 1225, 93 L. Ed. 1528, also advanced by appellants, permitting review of orders ‘which finally determine claims of right separable from, and collateral to rights asserted in the action, too important to be denied review and too indepen dent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.’ Here the issue sought to be reviewed, far from being collateral to the main litigation, represents the very findings and conclusions upon which any final judgment against the defendants must rest.” Judge Friendly’s rationale is equally persuasive and dispositive of this case. For these reasons, certiorari should be denied. 17 n. CERTIORARI SHOULD BE DENIED BECAUSE THIS HONORABLE COURT CANNOT PROPERLY ASSESS THE PROPRIETY OF A MULTI-DISTRICT REMEDY WHEN ALL FACTUAL ASPECTS OF THE REMEDY ARE HYPO THETICAL AND SPECULATIVE AND THEIR IMPACT, IF ANY, UPON EACH PETITIONER IS UNKNOWN AT THIS TIME. At this stage of the case there are too few firm facts available to this Honorable Court in reviewing the work of the courts below. Petitioners’ objections are to hypothetical conditions. Remedies in school segregation cases, being matters of equity, are characterized by a flexibility deeply rooted in the facts of each case. See Brown v. Board of Education o f Topeka, 349 U.S. 294, 299-300 (1955); Swann v. Chariot t e-Mecklenburg Board of Educa tion, 402 U.S. 1, 12-13, 15, (1971). As this Honorable Court has said, “There is no universal answer to complex problems of deseg regation; there is obviously no one plan that will do the job in every case. The matter must be assessed in light of the cir cumstances present and the options available in each instance.” Green v. County School Board o f New Kent County, 391 U.S. 430, 439 (1968). That task cannot be done well if this Honorable Court is not fully informed of the circumstances and options. The Supreme Court cannot properly evaluate the decisions of the courts below in the factual vacuum that exists at this point in this case. Every major measureable aspect of a desegregation remedy is unsettled in this case, as indicated in Reason I, supra at 13. The Petitions for certiorari show on their face that they present hypothetical questions divorced from the concrete facts necessary to sound judicial decision-making. Petitioner Grosse Pointe Public School System refers to “the impact of the lower courts’ proposed remedy upon the residents of every school dis trict in the Detroit Metropolitan Area” . Grosse Pointe Public School System, Petition for Writ of Certiorari, at 14. Yet that petition cannot point to an actual remedy agreed upon by those courts. Rather, Petitioner concedes that the district court’s plan was vacated by the Sixth Circuit. (Id. at 16.) Nevertheless, in the eyes of Petitioner Grosse Pointe Public School System, the vacated plan “ remains fully illustrative of the magnitude of a plan” the Petitioner wants to attack. Only if one assumes that the lower 18 courts are playing games with the parties, can one assume before rehearing that a vacated plan is “ fully illustrative” of the ultimate plan. This Honorable Court does not sit to resolve “ illustrative” issues but to deal with concrete legal issues. Petitioner jumbles statistics based on a vacated plan and statistics from a much larger metropolitan area in an effort to discredit a remedy that has not yet been ordered. (Id. at 16). Petitioner admits that “ the exact geographical area and the number of students to be involved” are unsettled, but asserts that the consequences of a remedy will be “important” to Petitioner. Significantly, Petitioner cannot assert with absolute certainty that it will be included in the geographical area of the ultimate plan. Petitioner Grosse Pointe Public School System in effect concedes that all the critical facts are unknown: pupil reassignment and transportation, faculty reassignment, “governance, finance and administrative arrangements.” (Id. at 17, note 25). Yet it asserts, as a justification for premature interven tion of this Honorable Court, that the cost of the unknown factors is “inestimable” . (Id. at 17, note 25). The fact that all aspects of the remedy are inestimable is good cause for this Honorable Court to stay its hand and allow the district court to finish its work. Petitioners Allen Park Public Schools, et al., are similarly un certain of the scope of the remedy. They also vacillate between the vacated plan and the outer limits of the three county metro politan area in asserting the unreasonableness of a remedy that has not yet been announced. Allen Park Public Schools, et al.,Petition for Writ of Certiorari, at 14-15. Their uncertainty is reflected in the very terms of the Statement of Questions Presented. Question II refers to an order “embracing up to eighty-five (85)” school districts and requiring the transportation of “hundreds of thousands” of children. (Id. at 3, emphasis added). Precision was obviously impossible at this stage of the case. Question III asserts a failure to afford a meaningful hearing to “Petitioners against whom relief is imposed. ” (Id. at 4, emphasis added.) The wording of the question obscures the fact that relief has never been “im posed” against some of those petitioners and, for all that, is now known, never will be. Other petitioners were included in the vacat ed plan but may or may not be affected by the next one. Sound judicial administration will not be served by deciding major issues of constitutional law on the speculative factual basis presently available to this Honorable Court. 19 111 THE METROPOLITAN DESEGREGATION REMEDY OR- DERED BY THE COURTS BELOW IS BASED ON SPE- CIFIC MICHIGAN PUBLIC SCHOOL LAW, SET IN THE CONTEXT OF THE RELEVANT METROPOLITAN DE TROIT COMMUNITY, AND THUS CERTIORARI SHOULD BE DENIED. The Sixth Circuit correctly concluded that the Public School System in Michigan is a State function and that the local school districts are mere “ instrumentalities of the State created for administrative convenience” . (165a). More succinctly stated, under Michigan law, “ the school district is a State agency”. Attorney General, ex rel Kies v. Lowrey, 131 Mich. 639, 644,92 N.W. 289, 290 (1902),aff’d, 199 U.S. 233 (1905). Tracing the long history of State control over local public education in Michigan the Sixth Circuit noted as follows: “ The Northwest Ordinance of 1787 governing the Terri tory of Michigan provided: ‘Religion, morality and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.’ Art. III. “With this genesis, Michigan’s four Constitutions have clearly established that the public school system in that State is solely a State function. The Constitution of 1835 in Article X, Section 3, provided, in part: ‘The legislature shall provide for a system of common schools . . .’ The Constitution of 1850, Article XIII, Section 4, provided, in part: ‘The legisla ture shall . . . provide for and establish a system of primary schools . . .’ Section 1 of the same Article provided, ‘ . . . the Superintendent of Public Instruction shall have general super vision of public instruction . . .’ “ The Constitution of 1908 in Article XI, Section 2, pro vided that the Superintendent of Public Instruction ‘shall have general supervision of public instruction in the State.’ Article XI, Section 9, provided, in part as follows: 20 ‘ The legislature shall continue a system of primary schools, whereby every school district in the State shall provide for the education of pupils without charge for tui tion . . “The Constitution of 1963, the present Constitution of the State of Michigan, in Article VIII, Section 2, provides, in part, as follows: ‘The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law.’ “In interpereting [sic] the above educational provisions of the Constitution of 1850, the Michigan Supreme Court stat ed: ‘The school district is a State agency. Moreover, it is of legislative creation...’ Attorney General v. Lowrey, 131 Mich. 639, 644, 92 N.W. 289, 290 (1902). Again, inter preting the Constitution of 1850, the Supreme Court of Michigan in Attorney General v. Detroit Board o f Education, 154 Mich. 584, 590, 1 18 N.W. 606, 609 (1908), adopted lower court language which read: ‘Education in Michigan belongs to the State. It is no part of the local self-government inherent in the township or municipality, except so far as the legislature may chose to make it such. The Constitution has turned the whole subject over to the legislature . . .’ “The Supreme Court of Michigan interpreted Article XI, Section 9, of the Constitution of 1908 to mean: ‘The legislature has entire control over the schools of the State subject only to the provisions above referred to. The division of the territory of the State into districts, the conduct of the school, the qualifications of teachers, the subjects to be taught therein are all within its control.’ Child Welfare v. Kennedy School Dist., 220 Mich. 290. 296, 189 N.W. 1002, 1004 (1922). “ In the leading case concerning construction of this sec tion of the Michigan Constitution of 1963, the Michigan Su preme Court said: 21 ‘It is the responsibility of the State board of education to supervise the system of free public schools set up by the legislature and, as a part of that responsibility, to promul gate regulations specifying the number of hours necessary to constitute a school day for elementary school students as well as for other classifications or groupings of students, to determine the curricula and, in general, to exercise leadership and supervision over the public school system.’ Welling v. Livonia Board o f Education, 382 Mich. 620, 624, 171 N.W.2d 545, 546 (1969). See also Governors. State Treasurer, 389 Mich. 1, 13, 203 N.W.2d 457 (1972). “ Michigan has not treated its school districts as sacrosanct. To the contrary, Michigan always has regarded education as the fundamental business of the State as a whole. Local school districts are creatures of the State and act as instru mentalities of the State under State control. Cf. Senghas v. L’Anse Creuse Public Schools, 368 Mich. 557, 1 18 N.W.2d 975 (1962); McLaughlin v. Board of Education, 255 Mich. 667, 239 N.W. 374, (1931).” (165a-167a) The Sixth Circuit also cited numerous examples illustrating the pervasive effect of State control over local school districts in Michigan. These examples serve to unequivocally substantiate the court’s conclusion that local school districts are mere instrumen talities or agents of the State created for administrative conven ience. As cited by the Sixth Circuit, examples were as follows: “ 1. Following the holding of Welling v. Livonia Board of Education, supra, that there was no minimum length of day required under the 180-day school attendance rule absent a State Board of Education regulation, the Michigan State Board of Education, acting under its Constitutional mandate without legislative authority, established an administrative rule requiring local school boards to provide a minimum number of hours per school year. See, School Districts Child Account for Distribution o f State Aid, Bulletin No. 1005, Michigan State Department o f Education ( 1 970). (167a-168a). “ 2. Public Act 289 of 1964 (MSA § 15.2299 (1) et seq., MCLA §388.681 et seq.) required Michigan school districts 22 to operate K-12 systems. When Public Act 289 become effec tive, 1,438 public school districts existed in Michigan. By the beginning of 1968, this figure had been reduced to 738, meaning that 700 school districts in Michigan have disap peared since 1964 through reorganization. Annual Report, Committee on School District Reorganization, 1968 Journal of the Senate 422-423 (March 1, 1968). (168a). “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. The action is best explained by the fact that Browns town was, at that time, the wealthiest school district in the State, indeed, with a property valuation of $340,000 backing each child, perhaps the wealthiest district in the nation, while the other three districts were extremely poor. (168a). “4. When the Sumpter School District was on the verge of bankruptcy in 1968, the State Board of Education, acting under Public Act 239 of 1967 (MSA § 15.2299 (51) et seq., MCLA §388.691 et seq.), merged the district with four ad joining districts, including the Airport School District. Signi ficantly, though Sumpter was in Wayne County, Airport was in Monroe County, showing that county lines are not in violate in Michigan. (168a). “ 5. The Nankin Mills School District in Wayne County was beset with financial problems and had no high school. Again, pursuant to Act 239, the State Board of Education in 1969 ordered this school district to merge with the Livonia, Garden City and Wayne Community schools. (168a). “6. When the Inkster School District in Wayne County was on the verge of financial bankruptcy, the Michigan legis lature passed Public Act 32 of 1968 (MSA § 15.1916 et seq., MCLA §388.201 et seq.) enabling the district to borrow $705,000 but on the condition that if the district could not balance its budget the State Board of Education could reor ganize, merge or annex the district. The legislative history of Act 32 indicates at least two legislators voted against the bill in the House of Representatives because of the excessive con trol given to the State Board of Education: 2 3 ‘I voted No on House Bill No. 3332 because in setting up the machinery to bail out distressed districts, it takes from the local communities the control over their own educational system by providing for excessive arbitrary re organization powers in the hands of the Board of Educa tion. . .’ ‘This bill certainly sets up the State Board of Education to be a dictator of all school districts that run into fi nancial problems.’ 1968 Journal of the House of Represen tatives 1965. (168a-l69a). “ 7. Too small and too poor to operate a high school, the all-black Carver School District in suburban Oakland County reached a crisis in 1960 when other surrounding white dis tricts refused to accept Carver pupils on a tuition basis. The Carver district was merged with Oak Park. (169a). “ 8. The State Board of Education and Superintendent of Public Instruction may withhold State aid for failure to operate the minimum school year. MSA § 15.3575, MCLA §340.575. In 1970, funds were withheld from the City of Grand Rapids School District. 17 Michigan School Board Journal 3 (March, 1970). For Attorney General Opinions holding that State aid may be withheld by the State Board of Education from the school districts for hiring uncertified teachers, defaulting on State loans and for other reasons, see Op. Att’y Gen. No. 880, 1949-1950 Report of the Attorney General 104 (January 24, 1949, Roth); No. 2333, 1955 Report of the Attorney General 561 (October 20, 1955, Kavanaugh); No. 4097, 1961-1962 Report of the Attorney General 553 (October 8, 1962, Kelley). (169a-170a). “ 9. The State of Michigan contributes, on the average, 34% of the operating budgets of the 54 school districts in cluded in the proposed Metropolitan Plan of Integration. In eleven of the 54 districts, the State’s contribution exceeds 50% and in eight more, it exceeds 40%. State aid is appropri ated from the General Fund, revenue raised through state wide taxation, and is distributed annually to the local school districts under a formula devised by the legislature. See, e.g., Public Act 134(1971),MSA § 15.1919(51),MCLA §388.611. 2 4 “Though the local school districts obtain funds from the assessment of local property, the ultimate authority in in suring equalized property valuations throughout the State is the State Tax Commission. MSA §7.631, et seq., MCLA §209.101, et seq.; MSA §7.206, MCLA §211.148; MSA §7.52, MCLA §211.34. The State’s duty to equalize is re quired by the Michigan Constitution, Article IX, Section 3. This ‘State equalized valuation’ serves as the basis for calcu lating local revenue yields. See, Ranking of Michigan Public High School — School Districts by Selected Financial Data, 1970, Bulletin 1012, Michigan State Department of Educa tion (1971). (170a). “ 10. The Michigan School Code reaffirms the ultimate control of the State over public education. Local school dis tricts must observe all State laws relating to schools, 1 hold school a minimum number of days per year,2 employ only certified teachers,3 teach civics, health and physical educa tion and drivers’ education, ̂ excuse students to attend reli gious instruction classes,̂ observe State requirements when teaching sex education,6 make annual financial and other re ports to the Superintendent of Public Instruction, ̂ adopt only textbooks which are listed with the Superintendent of Public Instruction ̂ and must follow all rules and regulations of the State Department of Education. “Local school districts, unless they have the approval of the State Board of Education or the Superintendent of Public * 161 ‘‘ [1] MSA §15.3253(c), MCLA §340.252(c). [2] MSA §15.3575, MCLA §340.575. [31 MSA § § 15,1023(10)(a), 15.3570, MCLA § §388 .1010(a), 340.570. 141 MSA § § 1 5.1951, 15.3361, MCLA §§388.371, 340.361; MSA §§15.3781, 15.3782, MCLA § §340.781, 340.782; MSA §9.2511(c), MCLA §257.811 (c). [5] MSA §15.3732(g), MCLA §340.732(g). 161 MSA §15.3789, MCLA §340.789. MSA §15.3612, MCLA §340.612; MSA § § 15.3616,15.3688, MCLA § §340.616, 340.688. MSA §15.3887(1), MCLA §340.887(1). 18] 2 5 Instruction, cannot consolidate with another school district,̂ annex territory,^ divide or attach parts of other districts,̂ borrow monies in anticipation of State aid,^ or construct, reconstruct or remodel school buildings or additions to them. 13 “ The power to withhold State aid, of course, effects enor mous leverage upon any local school district, since on the average 34 per cent of the operation budget of the 54 school districts included in the proposed Metropolitan Plan is paid for by the State. “ In the instance of the City of Detroit, the State exhibited its understanding of its power over the local school district by the adoption of Act 48 of the Public Acts of 1970 which repealed a high school desegregation plan previously adopted by the Detroit Board of Education, See 433 F.2d 897.” (170a-l 71a). As noted in the above excerpt from the Sixth Circuit Opinion, the State of Michigan eliminated 700 school districts be tween 1964 and 1968. (168a). Those school districts were elimi nated by the State for educational and financial reasons. The fact that Michigan can, and did, eliminate nearly half of its local school districts in a five year period is overwhelming evidence that, in Michigan, local school districts are mere “ instrumentalities of the State” that can be created, eliminated, or consolidated for the administrative convenience of the State. If this Honorable Court has any doubt about the pervasive state control of education in Michigan we urge this Honorable Court to re-read the Petition for Writ of Certiorari of Michigan’s Attorney General and ask this simple question: Does the Attorney General at any point deny the “ [9] MSA §15.3402, MCLA §340.402. [10] MSA §15.3431, MCLA §340.431. [11] MSA §15.3447, MCLA §340.447. [12] MSA §15.3567(1), MCLA §340.567(a). [13] MSA §15.1961, MCLA §388.851, Op. Att’y Gen. No. 1837, 1952- 1954 Report of the Attorney General 440 (Nov. 8, 1954).” 2 6 finding of the district court, affirmed by the Sixth Circuit, that local school districts in Michigan are mere state agencies through which the state acts?^ Since the Michigan State Board of Education has previously arranged for multi-district co-operation, and in some cases multi district consolidation, for educational and financial purposes, there is no reason why the Michigan State Board of Education and its agents, in the instant case the metropolitan Detroit community school districts, cannot be involved in remedying a constitutional violation of the rights of black children. In Michigan, it makes no difference whether the offender of those constitutional rights was the agent, the Detroit School Board, or the principal, the State of Michigan, or both. The action of the Detroit School Board is, under Michigan law, the action of the State of Michigan. Conversely, the actions of the State are binding on the Detroit School Board, The instant decision by the Sixth Circuit, based on specific Michigan public school law set in the context of the relevant metropolitan Detroit community, is limited to Michigan and can not be applied to other states having different applicable public school law. The public school law of Michigan, as enunciated by the Michigan Constitution, the State Legislature, judicial inter pretation and avowed public policy, is clear and consistent: local school districts are mere instrumentalities or agents of the State of Michigan. Hence, the contention that school district boundaries in Michigan are sacrosanct, and that the Courts below have no power to grant effective remedial equitable relief beyond established school district boundaries, should be rejected and Certiorari denied. D) Because of the unique agency relationship existing between the State of Michigan and its local school districts, case law involving public ed ucation in other states may not necessarily apply. For example, in Bradley v. School Board o f the City o f Richmond, 462 F.2d 1058 (4th Cir. 1972), a ff ’d by an equally divided court,___ U.S______ , 93 S.Ct. 1952 (1973) the Fourth Circuit noted that: “The power to operate, maintain and supervise public schools in Virginia is, and always has been within the exclusive jurisdiction of the local school boards and not within the jurisdiction of the State Board of Education.” 462 F.2d at 1067. The Sixth Circuit, in the instant case, emphasized the distinction be tween Virginia and Michigan public school law, when it said: “The record in the present case amply supports the finding that the State of Michigan has not been subject to such (referring to Vir ginia law) limitations in its dealings with local school boards.” (175a). 27 IV . C E R T IO R A R I SH O U LD BE D E N IED AS THE COURTS BE L O W DID N O T E R R IN O R D E R IN G A METROPOLITAN R E M E D Y , W IT H O U T R E G A R D T O A R T IF IC IA L CITY OR M U N ICIPA L B O U N D A R Y LIN ES, T O EL IM IN A TE UN C O N S T I T U T I O N A L , R A C I A L L Y ID E N T IF IA B L E SCHO OLS IN T H E M E T R O P O L IT A N D E T R O IT COMMU N IT Y , SINCE TH E S T A T E OF M IC H IG A N , IN A N D OF IT SE L F, H A S SO LE R E SPO N SIB ILITY F O R EDUCATION W ITH IN ITS B O U N D A R IE S. On the basis of the Record in this case the courts below correctly ordered a metropolitan remedy. 1. This is not a racial balance case. Instead the courts below used a racial proportion of the relevant community as a starting point for desegregation as specifically endorsed by Swann v. Charlotte-Mecklenburg Board o f Education, 402 U.S. 1 (1971). 2. The relevant community is the metropolitan Detroit commu nity; not just the City of Detroit. 3. A finding of de jure acts on the part of the Petitioner school districts, or the de jure establishment of school boundaries, is unnecessary because of the legal relationship between the Petitioner school districts and the State. 4. A Detroit-only remedy is constitutionally impermissible as such an alleged remedy is not a remedy which results in de segregation. 1. THIS IS N O T A R A C IA L B A L A N C E CA SE. This is not a racial balance case. The district court found that the schools in Detroit, averaging 65% black, are racially identi fiable in a metropolitan community that is three-quarters white. There is nothing constitutionally repugnant in having black ma jority schools per se in majority black communities. However, what is constitutionally repugnant is a remedy which would main tain a set of majority black schools, clearly identifiable as dif ferent, in a community in which the vast majority of the rest of the schools are all white. Swann, supra. 28 Petitioners’ reliance on Wright v. Council o f City o f Emporia, 407 U.S. 451 (1972) and United States v. Scotland Neck Board of Education, 407 U.S. 484 (1972) for the proposition that pre dominately black schools can be tolerated in the metropolitan Detroit community is misplaced. ̂ Both cases involved county wide black communities. For that reason, the fact that the schools in the relevant community were racially identifiable as black was not constitutionally repugnant. In fact, this Honorable Court re jected an attempt by municipalities, within those counties, to withdraw from the county-wide school districts after a desegrega tion order had been issued. Neither Emporia nor Scotland Neck is applicable to the instant case because here the relevant community is the metropolitan Detroit community which is urban and ma jority white. The maintenance of identifiably black schools in such a community results in the racial isolation that Brown I con demned. Brown v. Board of Education of Topeka 347 U.S. 483 (1954). Where the relevant community is majority white, then a rem edy which retains racially identifiable black schools is repugnant to the Constitution of the United States. This Honorable Court, in Swann, specifically held that every school, or almost every school, should consist of a mixture of the races that roughly approximates the make-up of the student community as a whole. The courts below examined the Detroit metropolitan com munity of 780,000 students and, in the words of Swann, used racial ratios as “a starting point in the process of shaping a rem edy, rather than [as] an inflexible requirement.” 402 U.S. at 25. H] We are unable to explain the State’s reliance, page 35 of its Petition, on Raney v. Board o f Education o f Gould School District, 391 U.S. 443 (1968). The Raney case rejected “ freedom of choice” as a tool for desegregation. The question of “ freedom of choice” is not an issue in the instant case. The State also has relied on a 1969 Sixth Circuit case, Northcross v. Board o f Education o f Memphis, 420 F.2d 546, 548 (1969), a ff ’d per curiam, 397 U.S. 232 (1970), for the proposition that a unitary school system can be effectuated in a school district that is majority black. The Sixth Circuit was obviously aware of its Northcross holding, and the particular facts which supported it, when it agreed with a metro politan plan in principle, while remanding same to the district court with instructions to develop a metropolitan plan of desegregation. 2 9 2. T H E C O M M U N IT Y IN V O L V E D IS T H E METROPOLI T A N D E T R O IT C O M M U N IT Y . The relevant community for an appropriate remedy in the instant case is much larger than the City of Detroit. The district court’s findings, adopted by the Sixth Circuit, noted the following facts clearly establishing the metropolitan nature of the Detroit community: A. Many pupils in the metropolitan Detroit community already cross school district lines to attend school or receive edu cational services on an inter-district basis. (79a-80a) B. The metropolitan Detroit area has been labeled by the Bureau of the Census as a Standard Metropolitan Statistical Area because of the high degree of interaction among the populace of the tri-county (Wayne, Oakland and Macomb) area (80a). C. Recognizing the interdependence of its citizens, the Detroit metropolitan community has joined together in establishing the Metropolitan Detroit Water System. (80a). D. The metropolitan Detroit community has joined together to establish a joint transportation system known as the South eastern Michigan Transportation Authority (SEMTA). (80a) E. The metropolitan Detroit community has joined together in establishing a Metropolitan Sewage System. (80a). F. The metropolitan Detroit community has joined together in establishing a metropolitan park authority known as the Huron-Clinton Metropolitan Authority. (80a). G. The local governments have recognized their interdependence by creating the Southeastern Michigan Council of Govern ments (SEMCOG). (80a). H. The school authorities have recognized the metropolitan nature of education by creating intermediate school districts which provide educational services on an inter-district basis in each of the three counties. (80a). 30 I. A number of school districts encompass more than one city. For example, Petitioner, Grosse Pointe School System, encompasses five separately incorporated cities (Grosse Pointe Park, Grosse Pointe City, Grosse Pointe Farms, Grosse Pointe Woods, and Grosse Pointe Shores) and part of a sixth (Harper Woods), most of which have at least one common indistinguishable pavement border with the City of Detroit (80a). J. The economic and social life of metropolitan Detroit is metropolitan in scope. (70a-80a). Subjective perceptions as to the metropolitan nature of the Detroit community coincide with above objective data. Metropoli tan Detroit residents cross indistinguishable political lines casually in shopping, commuting to work, seeking recreation and seeking private or higher education. Dr. Robert Green, an expert witness in the trial below, testified to those perceptions when he referred to the stream of whites driving down the freeway from the sub urbs to Detroit in the morning rush hour traffic and when he described how Detroit-educated whites have fled to the suburbs. Just as black children in a 90% black school still perceive their school as identifiably black, even though all children in the atten dance zone go to the same school, children in a 60% to 80% black Detroit school will continue to perceive their school as identifiably black even though it is no different from any other school in Detroit - precisely because they know that there are nearby suburbs full of white youngsters receiving educations in all-white schools. It would be a most unusual third grader of any race who could stand on Tireman Street, a paved indistinguishable boundary line, separating overwhelmingly white Dearborn from Detroit, and explain that a political boundary, rather than race, was the reason the white children south of Tireman attended a white school and ihe black children north of Tireman attended a black school. His perception of the metropolitan community also is conditioned by ihe metropolitan orientation of the communication media — news- 31 papers, television, radio - to which he is exposed. There is no evidence in the Record which permits an assumption that the per ception of the community felt by a black child in Detroit is limit ed to the irregular boundaries of the school district of the City of Detroit and further limited to the racial composition of the stu dents in the Detroit school system. It is obvious, in a community that is so interrelated between city and suburbs, that the black child would wonder why his school does not reflect the total racial composition of the metropolitan Detroit community, and why he has been racially isolated. The avoidance of racial isolation has been a part of the law of school desegregation for 19 years. Mr. Chief Justice Warren form ulated this issue for a unanimous Court in Brown v. Board of Education o f Topeka, (Brown I), 347.U.S. 483 (1954) when he said: “To separate them (blacks) from others of similar age and qualification solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” 347 U.S. at 494. There are over a million children of school age in the metro politan Detroit area. There are 280,000 school children in the Detroit system, of which 180,000 are black children. It would be unconstitutional racial isolation to confine these children to the city limits of Detroit. Their education is the responsibility of the State of Michigan. And the State of Michigan has established, for its own administrative convenience, the Detroit school system and the surrounding, basically all-white school districts. We may add that in Brown II, 349 U.S. 294 (1955), Chief Justice Warren speaking to the method of desegregation, stated: “To that end, the Courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, re vision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a non-racial basis, and revision of local laws and regulations which may be necessary in solving the fore- 32 going problems. They will also consider the adequacy of any plans the Defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system.” 349 U.S. at 300-301. The district court and the Sixth Circuit, both in panel and en banc, came to realize that the only way unconstitutional racial school isolation in the extensively interrelated metropolitan Detroit community can be eliminated is through a metropolitan desegregation remedy. 3. A F IN D IN G O F DE JURE AC TS O N TH E P A R T OF TH E PETITIO N ER SC H O O L D ISTR ICTS O R TH E DE JURE EST A B LISH M E N T O F SCH O O L BO U N D A R IE S IS U N N E C E S S A R Y BE CA U SE O F TH E L E G A L R E L A T IO N S H IP BETW EEN TH E PETITION ER SCHO OL D ISTRICTS A N D T H E STA TE . The suggestion that a de jure finding must be made against the suburbs is totally irrelevant. Assuming, arguendo, that the Courts below proceeded on a de jure basis, and that there cannot be any showing of de jure acts on the part of the Petitioner school districts, or with regard to the drawing of their boundary lines, the results here would be the same. The Sixth Circuit has demonstrat ed with clarity the pervasive power of the State of Michigan over individual school districts and has shown that the districts are mere instrumentalities or agents of the State of Michigan. If the Detroit School Board committed de jure acts of segre gation, as an agent or instrumentality of the State, its actions con stitute State action, and the State of Michigan is responsible for a desegregation remedy. If the State of Michigan alone committed de jure acts of segregation, again, the State is responsible for a de segregation remedy. In fact, the court below found that both the State of Michigan and the Detroit School Board had committed de jure acts of segregation. The Petitioner school districts have con veniently ignored their relationship with the State of Michigan. It makes no difference what basis was used for drawing their bound ary lines. These Petitioner school districts are an integral part of Michigan’s system of education and when there is an unconstitu- 3 3 tional violation in that system they must form part of the remedy. If the State of Michigan is responsible for a remedy either because of the State’s own actions or because of the actions of its agent, the Detroit School Board, or both, the State of Michigan can properly be ordered to implement a remedy that involves the school districts contained within the metropolitan Detroit com munity which, as State controlled agents created by the State for its convenience, are nothing more than the State of Michigan it self. There are at least four elements that must be present for a desegregation plan to work. (1) Every school, or almost every school, should contain a mixture of the races that roughly approximates the make-up of the student community as a whole. Swann, supra; Davis v. Board of School Commissioners o f Mobile County, 402 U.S. 33 (1971). (2) The plan should be educationally sound. Swann, supra. (3) The plan should avoid resegregation. Lemon v. Bossier Parish School Board, 446 F.2d 911 (5th Cir. 1971). (4) The plan must be practical. Each of these elements of a workable plan deserves to be examined more closely. Swann, supra; Davis, supra. Racial Mix: We repeat that Swann validates the use of race in student assignments where the goal is desegregation rather than segregation. This Honorable Court has recognized the racial assign ment concept as a primary teaching of Swann in Kelly v. Metro politan County Board of Education of Nashville and Davidson County, 463 F.2d 732 (1972), cert, denied, 409 U.S. 1001 (1972), where this Honorable Court said: “Perhaps the primary thing that the Swann case decided was that in devising plans to terminate such residual effects, it is appropriate for the school system and the District Judge to take note of the proportion of white and black students with in the area and to seek as practical a plan as may be for end ing white schools and black schools and substituting therefor schools which are representative of the area in which the students live. 34 We have noted that the District Judge in Swann employed a flexible 71% white to 29% black population ratio as a guide in seeking a practical plan. The Supreme Court specifically approved his doing so. See Swann v. Charlotte-Mecklenburg Board of Education, supra at 16, 23-24. The District Judge in this case clearly read and followed the Swann guideline. As to this issue, we find no error.” 463 F.2d at 744 In the instant case, the district court found that in the metro politan Detroit desegregation area the ratio of whites to blacks was approximately 75% to 25% and, therefore, on June 14, 1972, adopted a plan that would approximate this ratio, in the spirit of Swann as apparently approved by this Honorable Court in Nash ville. Educational soundness: No desegregation plan can function unless it is educationally sound. The educational soundness of an integration plan is to a large extent dependent upon how effec tively it gives children an opportunity to have stable multi-racial experiences in groups composed substantially like the surrounding community. Such experiences, especially if begun as early as pos sible, give children of both major races accurate perceptions of their own abilities and those of the members of the opposite race. These informed self-perceptions in turn lead to more self-con fidence and better scholastic performance. Multi-racial education is essential preparation for life in a multi-racial society. For this rea son, if no other, schools should reflect the racial composition of the entire metropolitan community which they serve. Practicalities: Swann and Davis obviously suggest that a plan must be practical. The transportation plan envisioned by the dis trict court in its desegregation area is no more massive nor does it require rides longer in distance than are presently being under taken by children in the metropolitan Detroit area. The clusters are so designed as to provide for administrative convenience. (72a- 75a). In other words, there is nothing in the plan to suggest that it is not practical. To illustrate, a substantial part of the educational program of the State is not conducted on a local school district basis. The intermediate school districts provide inter-district educa tion for the physically handicapped, the emotionally disturbed 35 and vocational students. Frequently, with the exception of voca tional education which is usually operated at large central skills centers, these special educational programs are operated on an inter-district basis. In point of fact, inter-district transportation has been a common phenomenon for the special education student for a good many years. If there is any distinction between the pro priety of the State of Michigan providing a metropolitan desegre gation remedy for the purpose of terminating the violation of con stitutional rights and the propriety of the above inter-district activi ties, such distinction escapes the Detroit School Board. Resegregation: No desegregation plan can function if it offers a ready avenue for resegregation. Even policies pursued by school board officials in good faith do not relieve them of their duty to fully eradicate the vestiges of segregation. Clark v. Board of Educa tion o f Little Rock School District, 426 F.2d 1035 (8th Cir. 1970). It follows then that the courts should require school authorities to take steps to prevent resegregation by various means. Lemon, supra. Similarly, in protecting Fourteenth and Fifteenth Amendment rights, this Honorable Court has spoken of a “need to eradicate past evil effects and to prevent the continua tion or repetition in the future of discriminatory practices. ..” Louisiana v. United States, 380 U.S. 145, 156 (1965). Were a less rigorous standard insisted upon by the courts, the constitutional obligation to eradicate segregation “root and branch” would be re duced to a pruning that would let the old evil grow back, more vigorous and more intractable than ever. See Swann, supra. Neither this Honorable Court nor the school authorities would be true to their duty were they to adopt a plan that will create more, rather than less, segregation. Failure to adopt a metropolitan remedy would mean that the black children of the City of Detroit would, in effect, have had their constitutional rights denied and would be without a remedy required by Swann. In other words, we would have the anomaly that there is a constitutional wrong but no remedy. 36 In recent years it has been urged upon the federal court sys tem that constitutional violations as to voting rights could not be remedied. See Baker v. Carr, 369 U.S. 186 (1962). This Honorable Court responded and now voting rights cases are an intricate part of our system of constitutional protections with remedies. See, e.g., Gomillion v. Lightfoot, 364 U.S. 339 (1960). We suggest that the remedy in the instant case must be the metropolitan remedy adopted by the district court which considered the necessity of racial mix, education soundness, prevention of resegregation, and the practicalities of the situation, and which has attempted to eradi cate the evils of segregation “root and branch” pursuant to the dic tates of Green v. County School Board o f New Kent County, 391 U.S. 430 (1968). No more elegant statement of the legal and practical reasons for a metropolitan remedy in the Detroit metropolitan community has been made than the district court’s own statement from the bench on July 19, 1972: “1 think it should be clearly understood, however, that in my disposition of the motions before me today this Court does not retreat from nor abandon . . . our conclusion that any plan for the desegregation of the public schools of the City of Detroit would not accomplish desegregation and that only a Metropolitan Plan of desegregation would accomplish the de segregation of those schools.” “The Equal Protection clause of the Fourteenth Amendment to the Constitution of the United States, as I read it, is not geographically limited. It is difficult for this Court to believe that any higher judicial authority of the United States would or, for that matter Constitutionally could, engraft on that amendment any such geographical limitation. The vindication of the Plaintiffs’ Constitutional right to equal education can not be denied on the claim of alleged sovereign powers of local school districts.” (Tr. 1947-48). 4. A DETROIT-ONLY PLAN IS CONSTITUTIONALLY IM PERMISSIBLE It is the contention of all Petitioners that the district court’s finding that “relief of segregation in the Detroit public schools cannot be accomplished within the corporate geographical limits °f the city” , is in error. This contention completely ignores the 37 constitutional rights of 280,000 Detroit school children. We call this Honorable Court’s attention to what the district court stated in its Findings of Fact and Conclusions of Law as to Detroit-only plans in its Opinion of March 28, 1972. With regard to Defendants’ Plan A, the district court found: “4. As conceded by its author, Plan A is neither a desegrega tion nor an integration plan.” (54a). As to Defendants’ Plan C, the district court held: “ 2. We find that this plan covers only a portion of the grades and would leave the base schools no less racially identifiable.” (54a). Insofar as Plaintiff’s Plan was concerned, the district court said: “7. The Plaintiffs’ Plan would make the Detroit school system more identifiably Black, and leave many of its schools 75 to 90 per cent Black.” (55a). “8. It would change a school system which is now Black and White to one that would be perceived as Black, thereby increasing the flight of Whites from the City and the system, thereby increasing the Black student popu lation.” (55a). Thus, the district court’s conclusions of law on this point, were most explicit. “ 2. On the basis of the court’s findings of illegal school seg regation, the obligation of the school defendants is to adopt and implement an educationally sound, practica ble plan of desegregation that promises realistically to achieve now and hereafter the greatest possible degree o f actual school desegregation. Green v. County School Board, 391 U.S. 430; Alexander v. Holmes County Board o f Education, 396 U.S. 19; Carter v. West 38 Feliciana Parish School Board, 396 U.S. 290; Swann v. Charlotte-Mecklenburg Board o f Education, 402 U.S. 1. (Emphasis added). (56a). * * * “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 o f the district as a Black school system, and would not accomplish desegregation. (Emphasis added). (56a). “5. The conclusion, under the evidence in this case, is ines capable that relief o f segregation in the public schools of the City o f Detroit cannot be accomplished within the corporate geographical limits o f the city.” (Emphasis added). (56a). The Sixth Circuit emphatically agreed with the district court when it said: “At the outset it is obvious from what we have said per taining to the inadequacy of any Detroit only desegregation plan that this court feels that some plan for desegregation be yond the boundaries of the Detroit School District is both within the equity powers of the District Court and essential to a solution of this problem.” (173a) As the above citations indicate, both the district court and the Sixth Circuit have agreed that complete relief within Detroit is constitutionally impossible. Detroit is the hub of a highly inter related metropolitan area which contains a public school popula tion that is approximately 75% white and 25% black. Yet the student population within the Detroit school system is 65% black and 35% white. There are no steps the Detroit Board of Education can take within its boundaries which would desegregate the Detroit public schools. 3 9 This Honorable Court should not grant certiorari. The rem edy proposed is consistent with Michigan school law and the metropolitan nature of Detroit. It recognizes the fact that in the metropolitan Detroit community, governmental services - parks, water, sewage, transportation and education - have assumed metropolitan dimensions. Thus, a metropolitan desegregation remedy is compelling in its logic and irrefutable in its necessity. 40 V. SINCE THIS HONORABLE COURT HAS ENCOURAGED DISTRICT COURTS TO FASHION BROAD, TAILOR- MADE, EQUITABLE REMEDIES FOR THE ELIMINATION OF CONSTITUTIONAL VIOLATIONS IN EACH GIVEN SITUATION, THERE IS NOTHING UNCONSTITUTIONAL IN THE INSTANT REMEDY, PURSUANT TO ESTAB LISHED MICHIGAN PUBLIC SCHOOL LAW, SO AS TO JUSTIFY CERTIORARI. As the courts below clearly indicated, education in Michigan is solely a function of the State. Local school districts are mere creatures of the State acting as agents or instrumentalities of the State under pervasive State control. When the district court, having heard over fifty-eight days of testimony, including five days on a Detroit-only desegregation remedy, ruled in favor of a metropolitan desegregation remedy, it was simply responding to this Honorable Court’s directive to “make every effort to achieve the greatest possible degree of actual desegregation.” Davis v. Board of School Commissioners of Mobile County, 402 U.S. 33, 37 (1971). The Sixth Circuit twice (December 8, 1972 and June 12, 1973) (110a- 111a) approved the necessity of a metropolitan desegregation remedy as found by the district court. The legal path for the metropolitanization of school districts was first cleared by this Honorable Court in the so-called voting rights cases. Those decisions established that constitutional re quirements supercede the importance of maintaining State created legislative districts. Reynolds v. Sims, 377 U.S. 533 (1964); Gomillion v. Light foot, 364 U.S. 339 (1960). The concept of ignoring political division lines for purposes of guaranteeing constitutional rights has been extended to school districts. Where a city attempted to remove its schools from a county system when the latter was ordered to establish a unitary school system, the Fifth Circuit refused to permit the secession because it would have had a substantial adverse effect on desegre gation. Lee v. Macon County Board o f Education, 448 F.2d 746 (5th Cir. 1971). The court observed: “ [SJchool district lines within a State are matters of political convenience.” 448 F.2d at 752. 41 In another case, a district court refused to permit the crea tion of two school districts where one could operate as easily as two, and where the creation of two school districts was obviously designed to foster racial segregation. Turner v. Warren County Board of Education, 313 F.Supp. 380 (E.D. N.C. 1970). See also, Hall v. St. Helena Parish School Board, 197 F.Supp. 649, 658 (E.D. La. 1961), aff’d, 287 F.2d 376 (5th Cir. 1961), aff’d per curiam, 368 U.S. 515 (1962); Burleson v. County Board of Elec tion Commissioners of Jefferson County, 308 F.Supp. 352 (E.D. Ark. 1970), aff’d per curiam, 432 F.2d 1356 (8th Cir. 1970). The principle that school district lines may not be used for purposes of violating fundamental constitutional rights has re cently been recognized by this Honorable Court. School districts are not permitted to withdraw from county-wide school systems where the effect of such a separation would impede the process of dismantling a segregated school system. Wright v. Council of City of Emporia, 407 U.S. 451 (1972); United States v. Scotland Neck City Board of Education, 407 U.S. 484 (1972). Refusal to permit the separation of school districts where such action would foster segregation has its counterpart in the court-ordered merger of districts. In Haney v. County Board Edu cation of Sevier County, 410 F.2d 920 (8th Cir. 1969), the Eighth Circuit ordered the merger of a white school district and a black school district even though they had been maintained as separate units for fourteen years. The court declared: “ [SJtate political subdivisions have long ago lost their mastery over the more desired effects of protecting the equal rights of all citizens.” 410 F.2d at 924. The Eighth Circuit viewed merger of the two districts in Sevier County as the only possible means of effectively desegregating the schools. In Texas, the annexation and consolidation of all-black school districts with nearby biracial units was ordered as a means of achieving meaningful racial desegregation. United States v. State of Texas, 447 F.2d 441 (5th Cir. 1971). With regard to changes in school district boundaries, the Fifth Circuit specifically directed: “ Defendants shall not permit, make arrangements for, approve, acquiesce in, or give support of any kind to changes 42 in school district boundary lines - whether by detachment, annexation, or consolidation of districts in whole or in part — which are designed to, or do in fact, create, maintain, rein force, renew, or encourage a dual system based on race, color, or national origin.” 447 F.2d at 443-444. In short, the courts have found that the State has an affirmative duty to enforce Fourteenth Amendment rights. Bradley v. School Board o f the City o f Richmond, 462 F.2d 1058 (4th Cir. 1972), U.S___ , 93 S.Ct. 1952 (1973) can be clearly distinguished from the instant case. In Richmond, the district court ordered consolidation of three separate school dis tricts, all of which were declared to be unitary by the Fourth Circuit. In the instant case, there is no district court order for consolidation of school districts, but rather an order for a study of plans for the reassignment of pupils in school districts comprising the metropolitan Detroit community. In Richmond, the district court found that neither the past nor present Virginia Constitu tions or statutes would have permitted the State Board of Educa tion, acting alone, to have consolidated three school districts into a single system under the control of a single school board. The Fourth Circuit merely held that compulsory consolidation of poli tical subdivisions in the State of Virginia was beyond the power of a federal court because of the Tenth Amendment to the Constitu tion of the United States. The instant case involves no such re structuring of school districts. Rather, it merely concerns the transfer of students. Moreover, as we have already pointed out in this Brief, 5 the Board of Education of the State of Michigan has the power to consolidate school districts and in fact has utilized that power to consolidate seven hundred school districts in five years for pur poses that could have been no more important than remedying the violation of the constitutional rights of 180,000 black school children. Given these considerable distinctions between Richmond and the instant case, Petitioners’ substantial reliance on t\\Q Rich mond holding is without justification. In the instant case, the courts below recognized — not Vir- 15 15] See Reason III at 19, supra. 43 ginia law or the law of any other state - but only Michigan public school law. The courts also found that: the metropolitan Detroit community is extensively interrelated, both economically and socially; has already taken massive steps toward the provision of metropolitan community and government services; and that in the relevant metropolitan Detroit community the isolation of 180,000 black school children in racially identifiable schools was in viola tion of the Constitution of the United States and required remedy. Petitioners’ reliance on Spencer v. Kugler, 326 F.Supp. 1235 (D. N.J. 1971), aff’d, 404 U.S. 1027 (1972) for the unique propo sition that there can be a finding that racially identifiable schools violate constitutional rights, but that the remedy for the violation may and must be the continuation of racially identifiable schools, is wholly without foundation. Petitioners fail to distinguish be tween the basic right to a remedy and the remedy itself. Spencer merely held that a statute of the State of New Jersey making school district boundary lines coterminous with the boundary lines of municipalities in the State was not unconstitu tional. The case did not involve an effective allegation that the act of enacting the statute was segregation by State action; rather it contemplated an assertion that the act involved a suspect classifi cation based on race. On those assertions the lower court found, and this Honorable Court affirmed, that the classification was neutral and had a reasonable basis. The case has no application to the appropriateness of school desegregation remedies, and does not even attempt to establish a right to a desegregation remedy.̂ Petitioners reliance on Goss v. The Board o f Education o f the City of Knoxville, Nos. 72-1766-1767 (6th Cir., July 18, 1973) is equally misplaced. As the Sixth Circuit noted in that case: “Appellant complained that the result in this case is incon sistent with that reached by this Court in other school [61 We suggest quite strongly that if Spencer were tried in the State courts of New Jersey the result could very well have been different. In 1971, the year that Spencer was first decided, the Supreme Court of New Jersey held that racial imbalance is unconstitutional under the State’s Constitution. Jenkins v. Township o f Morris School District, 58 N.J. 483, 279 A.2d 619 (1971). 44 desegregation cases. If the result is different, it is only be cause the evidence produced in the District Court required a different result. . . This Court has consistently upheld the decrees of District Judges of this Circuit when properly sup ported by the pleadings and evidence. . .” Slip Op. at 4. The Sixth Circuit made this same point in the instant case when it said: “We reject the contention that school district lines are sacro sanct and that the jurisdiction of the District Court to grant equitable relief in the present case is limited to the geographi cal boundaries of Detroit. We reiterate that school districts and school boards are instrumentalities of the State. See Cooper v. Aaron, 358 US 1, 16 (1958). As early as Brown II the Supreme Court pointed out that: ‘[T]he courts may consider problems related to adminis tration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, ....’ 349 U.S. at 300-01. The Supreme Court has held that school boundary lines can not be changed or new school systems created where the re sult is a larger imbalance in racial ratios in school systems where all vestiges of enforced racial segregation have not been eliminated. United States v. Scotland Neck Board o f Educa tion, 407 U.S. 484 (1972); Wright v. Council of the City of Emporia, 407 U.S. 451 (1972). This is true regardless of “dominant purpose.” Wright v. City of Emporia, 407 U.S. at 462. If school boundary lines cannot be changed for an unconsti tutional purpose, it follows logically that existing boundary lines cannot be frozen for an unconstitutional purpose.” (174a) In the instant case the Sixth Circuit correctly affirmed the district court’s use of traditional equity powers, within the guide lines set forth in Swann, to remedy constitutional violations. The Swann decision emphasized: 45 “Once a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” 402 U.S. at 15. We cannot ignore the equity teachings of Brown II, which are as equally important today as they were in 1955 when this Honor able Court said: “In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and pri vate needs. These cases call for the exercise of these tradi tional attributes of equity power. At stake is the personal in terest of the plaintiffs in admission to public schools as soon as practicable on a non-discriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in ac cordance with the Constitutional principles set forth in our May 17, 1954, decision. Courts of equity may properly take into account the public interest in the elimination of such ob stacles in a systematic and effective manner. But it should go without saying that the vitality of these Constitutional princi ples cannot be allowed to yield simply because of disagree ment with them. “ [T]he courts may consider problems relating to administra tion, arising from the physical condition of the school plant, the school transportation systems, personnel, revision ot school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a non-racial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems.” 349 U.S. 294, 299-300. This posture was reiterated in Swann, which quoted the above lan guage verbatim, 402 U.S. 1, 12-13 (1971). There is absolutely no reason why the power of a court of equity should not be extended to metropolitan school desegregation plans. Under principles of 46 equity, the remedy must be evaluated by assessing its capacity to achieve the ultimate objective — the establishment of a unitary school system. Since constitutional rights have been violated, the district court, affirmed by the Sixth Circuit, was within the scope of its equity powers in remedying the violation by ordering a metropoli tan plan of desegregation based upon Michigan public school law as it applies to the relevant metropolitan Detroit community. Returning to our initial proposition, the State of Michigan controls all education in Michigan. The Detroit School Board is its instrumentality. If either or both have violated the constitutional rights of black school children, then the remedy can extend to the other school districts in the metropolitan Detroit community, be cause they are mere instrumentalities of the State, and the State, acting through its agents, must remedy the situation. 47 VI. THE COURTS BELOW FOUND SYSTEMATIC ACTS OF SEGREGATION AFFECTING THE CONSTITUTIONAL RIGHTS OF BLACK CHILDREN FOR WHICH THE STATE DEFENDANTS ARE RESPONSIBLE. The Detroit Board of Education has chosen not to appeal the Sixth Circuit’s decision because it believes that there is no appeal able issue. Keyes v. School Dist. No. 1___ U.S----- , 37 L.Ed. 2d 548 (1973) indicates that this Honorable Court, in desegregation cases, is more concerned with the legal standard applied by the courts below than the specific factual findings of unconstitutional acts of segregation. Regardless of the relative culpability of De fendants below, if a constitutional violation has been found under the appropriate legal standard, a remedy must issue. Public school education is a function of the State of Michigan. Clearly it is the State of Michigan that must provide the remedy in the instant case. The State of Michigan functions through subordinate school districts which are its agents. The expendability of those school districts is illustrated by the fact the State of Michigan eliminated seven hundred of them between 1964 and 1968, for financial and educational purposes. Yet, what reason, other than segregatcry intent, could explain the State’s contradictory position. On the one hand, it is willing to eliminate numerous school districts fa 48 financial and educational purposes, but on the other hand, it re fuses to accept a necessary multidistrict solution to its own viola tion of black children’s constitutional rights.^ Prior to the district court’s finding of unconstitutional acts of segregation in the Detroit School System, the Detroit School Board, as agent of the State of Michigan, attempted to desegregate high schools within the City of Detroit. The State of Michigan, through the enactment of Public Act 48 of 1970, thwarted the efforts of its agent, the Detroit School Board, to desegregate the Detroit school system. The district court (28a) and the Sixth Circuit (151a) both found that the enactment of Public Act 48 was one of several systematic acts which helped to create and maintain segregated conditions within the Detroit school system, segregated conditions within the Detroit school system. The State challenges the findings of the district court and the Sixth Circuit as to the effect of Public Act 48. Public Act 48 was declared unconstitutional by the Sixth Circuit. The Act’s statutory stigmatization of black children, because of race, occurred as late as 1971 and would certainly fall within the Keyes [71 The State asserts in its Petition at 15, footnote 3, that the Detroit School Board’s decision not to petition for certiorari in this case is “ proof positive that under Michigan law, the Detroit Board of Education governs and controls the conduct of the school district of the City o f Detroit” . In light o f the examples of State control cited in this Brief and found to be true by the district court and the Sixth Circuit, such a statement is totally without merit. It is true that under MSA §§15.3154 and 15.3192 local school districts may sue or be sued. However, the State fails to point out that this privilege was granted to the local school districts by the state legislature as a matter of admin istrative convenience in the processing of legal matters involving the schools. in addition, the State in its Petition at 15-16, erroneously cites the Sixth Circuit Opinion (177a) to substantiate its makeweight claim that there is no agency relationship between the State Defendants and the local school districts. To the contrary, the citation (177a) con tains no denial of an agency relationship — express or implied—but rather refers to a completely different issue, the right o f other school districts to be made parties. In fact, the previous page (176a) states quite specifically: “ Under the authorities heretofore discussed, these school districts are arms and instrumentalities of the State of Michigan.” 49 guidelines that racially inspired actions have an impact beyond the particular schools that are the subjects of those actions. Public Act 48 was sufficiently proximate to other acts of segregation found by the courts below to establish a requisite causal nexus between those prior state acts of segregation and the resulting pattern of unconstitutional segregation. In its Petition for Certiorari,8 the State asserts, under Mich igan law, that the Michigan Superintendent of Public Instruction had no control over school site selection prior to 1949 and after 1962. Furthermore, the State indicates that most of the school construction relied upon by the lower courts in finding acts of de jure segregation occurred after 1962. This Honorable Court in Keyes, however, pointed out that the site selection for even one school in a school district the size of the Denver School District (96,580 pupils in 1969 and 119 schools) can have a substantial reciprocal effect on the racial composition of other nearby schools. “ Similarly, the practice of building a school — such as the Barrett Elementary School in this case — to a certain size and in a certain location, ‘with conscious knowledge that it would be a segregated school’, 303 F.Supp. at 285, has a substantial reciprocal affect on the ratio composition of other nearby schools.” --------U.S---------- , 37 L.Ed.2d 559. * * * “The Court found that by building Barrett Elementary School west of the Boulevard and by establishing Colorado Boulevard as the Eastern boundary of the Barrett attendance zone, the Board was able to maintain for a number of years the Anglo character of the Park Hills School.” _____U.S. _____ ,37 L.Ed.2d 561. It is apparent from Keyes that even discrimination in one school site selection can be pervasive considering the long range effect that school site locations can have on the racial composition of surrounding areas. The courts below predicated their finding, in the instant case, on this very proposition. [81 State Petition at 22-23. 50 The State erroneously assertŝ that the late 1950’s practice of busing black Carver School District high school students to black inner-city schools (while by-passing nearby all white high schools) should be overlooked as evidence of discrimination in light of the 1960 merger of the Carver School District with the predominately white Oak Park School District. The Keyes standard does not uphold the State’s contention. Can there be any doubt that the discriminatory treatment of the black Carver school district high school students as late as 1959 had “a profound reciprocal effect on the racial composition of residential neighborhoods within [the] metropolitan area” of Detroit?___U.S___ , 37 L Ed 2d 559. The State and school district Petitioners (except Grosse Pointe) cite San Antonio Independent School District v. Rodriguez, 411 US 1 (1973), for the rule that “ this 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 (citations omitted)” . 10 But Rodri quez was a school finance case, not a desegregation case. The inappropriateness of a "'per se rule of territorial uniformity” in that case was confined to the financing of school districts, for which a “rational basis” legal standard was developed. The instant case, however, is a desegregation case concerned with the denial of equal protection on racial grounds. 11 The State has suggested that certain State officials, Defendants below, are improper parties to this suit by virtue of the sovereignty provisions of the Eleventh Amendment. 12 T]le argument presented by the State is not novel. It previously has been made by states in an attempt to frustrate federal court remedial orders in the area of school desegration. It has consistently been laid to rest as quickly as it has been raised. The !91 State Petition, at 21. (1°] 411 U.S. 54, cited at 24 of State Petition and at 17-18 of School District Petitions. DD Except for a minor finding by the District Court (152a),inter-district financial disparities are not mentioned by the courts below. The genesis of this argument dates back as early as Cooper v. Aaron, 358 U.S. 1 (1958). [12] 51 response to the State’s argument is the universal holding of courts that it is the duty of state officers to support both the Constitution and the rights guaranteed against infringement by the states under the Fourteenth Amendment. In Griffin v. School Board of Prince Edward County, 377 U.S, 218 (1964), which involved the closing of public schools and the operation of a system of private schools by the county with the acquiescence of the Commonwealth of Virginia, Mr. Justice Black, speaking for a unanimous Court, summarily dismissed the Eleventh Amendment argument. “It is contended that the cases and action against the State, is forbidden by the Eleventh Amendment, and therefore should be dismissed. The complaint, however, charged that State and county officials were depriving Petitioners of rights guaranteed by the Fourteenth Amendment. It has been settled law since Ex parte Young, (citation omitted), that suits against State and County officials to enjoin them from invading constitutional rights are not forbidden by the Eleventh Amendment.” 377 U.S. at 228. The Court went on to state that the district court could, in addition to its injunctive powers, force the various Defendants, that is, the Board of Supervisors, School Board, Treasurer, Division Superintendent of Schools of Prince Edward County, the State Board of Education and the State Superintendent of Education, all of whom were held to have duties which related “directly or indirectly to the financing, supervision, or operation of the schools” , to undertake positive action to reopen the public schools in the county: “ For the same reasons, the District Court may, if necessary to prevent further racial discrimination, require the Supervisors to exercise the power that is theirs to levy taxes to raise funds adequate to reopen, operate and maintain with out racial discrimination a public school system in Prince Edward County . . .” 377 U.S. at 233. Furthermore, as the district court correctly recognized in Swann v. Charlotte-Mecklenburg Board of Education, 318 F. Supp. 786 (W.D. N.C. 1970), the implementation of procedures 5 2 necessary to assure any Constitutional rights of the individual may place, directly or indirectly, additional financial burdens upon the State, even though it is not a formal party to the proceedings: “However, a Constitutional right has been denied, this court believes that it is the Constitutional right that should prevail against the cry of ‘unreasonableness’. . . . The unreasonable ness of putting the State to some expense cannot be weighed against or prevail over the privilege against self incrimination, or the right of people to be secure in their homes. If, as this court and the Circuit Court have held, the rights of children are being denied, the cost and inconve nience of restoring those rights is no reason under the Con stitution for continuing to deny them.” (Citation omitted). 318 F. Supp. at 801. Thus, it becomes readily apparent that State Defendants, through the exercise of inherent powers which they possess as officers and agents of the State, can and should effectuate and implement the remedy ordered by the courts below. School boards in Michigan being but agents of the State, any finding of unconstitutional segregatory actions traceable to the state, if not clearly erroneous, compels the conclusion that the state shall be held accountable and shall be included in a remedy. 5 3 V II. PE TITIO N ER SCH O O L D ISTRICTS H A V E N O T BEEN D E N IED D U E PROCESS O F L A W SINCE T H E Y ARE AG E N C IE S O F T H E S T A T E B O A R D O F EDUCATION, W HICH H A S BEEN A P A R T Y T O THIS LITIGATION FR O M ITS IN CEPTIO N , A N D W HICH H A S ADEQUATELY PR O TECTED TH E IN T ER ESTS O F T H E PETITIONER SC H O O L D ISTR ICTS. The Petitioner school districts have not been denied due pro cess of law. Throughout the proceedings in the courts below, State Defendants including the State Board of Education had been joined and did participate fully in all phases of the trial and early appeals. As the State was represented, the school districts were represented, for under Michigan law local school districts are mere agencies and instrumentalities of the State. Education in Michigan is a state function and not a matter of local concern except as the legislature may choose to make it such. 13 The joinder of all possible parties need not be had if the various interests are likely to be adequately protected by those already parties to the cause, and joinder would be onerous or defeat jurisdiction. Isdaner v. Beyer, 53 F.R.D. 4 (D.C. Pa. 1971). The interests of the local school districts, being identical to those of the State, were adequately represented by the State Defendats. Cf. Higgins v. Board o f Education, City o f Grand Rapids, No. 6386 (D.C. W.D. Mich., July 18, 1973), Slip Op. at 79-80. To have required joinder of local school districts, prior to the ruling that a Detroit-only plan would not remedy the violation found in this cause, would have been not only onerous, but im possible. Joinder is required after it becomes apparent that addi tional parties will be necessary in order to afford complete relief in the proceedings. F.R.C.P. 19. Bradley v. School Board o f the City of Richmond, 51 F.R.D. 139 (D.C. Va., 1970). Prior to the hear ing and decision that a Detroit-only plan would not be effective, there was no indication that additional parties would be necessary to afford complete relief. As of that point in time, the advisability of joinder became apparent as to Petitioners and to the district court. [ 1 3 ] See R e a s o n III, supra, at 1 9 -2 6 . 54 The Sixth Circuit recognized this in vacating all proceedings subsequent to the hearing on Detroit-only plans and remanding to the district court for a hearing on the propriety of a Metropolitan remedy, after joinder of the school districts likely to be affected thereby. Bradley v. Milliken, Nos. 72-1809-1814, (6th Cir., June 12, 1973). (244(a)-245(a)). To have called for a joinder of local school districts prior to the date that it became apparent that they might be affected by the remedy in this cause, would have re quired that all local school districts throughout the State of Michi gan be joined, pending a determination by the district court re garding which of them would not be affected by the remedy necessary to grant Plaintiffs below full relief. This would have not only been onerous, but of no substantive merit, as the State De fendants had already been joined and were able to adequately protect whatever interests local school districts may have had in the litigation. There is no indication by Petitioner school districts that the State defendants did not adequately represent their interests in the litigation, prior to their joinder; if such were the case, Petitioners had adequate remedy during the course of the trial proceedings to request intervention on that basis. F.R.C.P. 24 (a) (2); Hatton v. County Board o f Education of Maury County, 422 F. 2d 457 (6th Cir. 1970). Finally, Petitioners claim that the conditions imposed upon them by the Sixth Circuit in the litigation of matters on remand constitute a denial of due process. The hearing granted, in order to meet requirements of due process, must be meaningful. Goldberg v. Kelly, 397 U.S. 254 (1970). Flowever, reasonable conditions may be imposed upon such a hearing. Owenby v. Morgan, 256 U.S. 94 (1921). The denial by a state, through its statutes, of the right of a litigant to raise certain defenses in an action brought against him, does not constitute a denial of due process, Lindsey v. Normet, 405 U.S. 56 (1972). The Sixth Circuit in this cause has provided Petitioners with a hearing which will deal with those matters which directly affect them — the formulation of a proper remedy within the guidelines enunciated by this Honorable Court. The relitigation of issues already decided in the district court in this 55 cause would add nothing to the question of de jure segregatory acts by the State Defendants and the Detroit Board of Education, as found by the district court and affirmed by the Sixth Circuit en banc. A relitigation of the issues regarding the propriety of a Detroit-only plan would also add nothing to the present status of this cause. Presentation of evidence regarding the propriety of a Detroit-only plan by Petitioners would be of no substantive merit and would be cumulative to that presented by State Defendants including the State Board of Education in the hearing below. CO N CL U SIO N For the reasons above stated it is respectfully submitted that this Honorable Court deny the Petitions for Writs of Certiorari. Respectfully submitted, RILEY AND ROUMELL By: GEORGE T. ROUMELL, JR. JOHN F. BRADY THOMAS M. J. HATHAWAY GREGORY P. THEOKAS C. NICHOLAS REVELOS, O f Counsel 720 Ford Building Detroit, Michigan 48226 Telephone: 313/962-8255 Counsel fo r Respondents, BOARD OF EDUCATION FOR THE SCHOOL DISTRICT OF THE CITY OF DETROIT, a school district of the first class; Pa t r ic k McDo n a l d , JAMES HATHAWAY and CORNELIUS GOLIGHTLY, members of the Board of Education of the City of Detroit and NORMAN DRACHLER, Superintent of the Detroit Public Schools. Dated: October 5, 1973 laa APPEN D IX C O N S T IT U T IO N A L PR O VISIO N S United States Constitution, Amendment XI provides: Limitation of judicial powers. The Judicial power of the United States shall not be con strued 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. United States Constitution, Amendment XIV, Section 1, provides: Citizenship; security of persons and property, due process and equal protection clauses. 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 of life, liberty, or proper ty, without due process of law; nor deny to any person with in its jurisdiction the equal protection of the laws. United States Constitution, Amendment XV, Section 1, provides: Right of citizens to vote; race; color. Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Michigan Constitution of 1963, Art. 8 §2 provides: Free public elementary and secondary schools; discrimi nation. Section 2. The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law. Every school district shall provide for the ed ucation of its pupils without discrimination as to religion, creed, race, color or national origin. 2aa U N ITE D ST A T E S S T A T U T E S Judicial Code, 28 U.S.C. § 1292(b) provides: § 1292. Interlocutory decisions (b) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay pro ceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order. M IC H IG A N S T A T U T E S Act 48, Sec. 12, Mich. Pub. Act of 1970 provides: 3 88.182 Attendance provisions, implementation; con ditions. [M.S.A. 15.2298(12)] Section 12. The implementation of any attendance pro visions for the 1970-71 school year determined by any first class school district board shall be delayed pending the date of commencement of functions by the first class school dis trict boards established under the provisions of this amenda tory act but such provision shall not impair the right of any such board to determine and implement prior to such date such changes in attendance provisions as are mandated by practical necessity. In reviewing, confirming, establishing or modifying attendance provisions the first class school district boards established under the provisions of this amendatory act shall have a policy of open enrollment and shall enable students to attend a school of preference but providing pri ority acceptance, insofar as practicable, in cases of insuffi cient school capacity, to those students residing nearest the school and to those students desiring to attend the school for 3aa participation in vocationally oriented courses or other specialized curriculum. F E D E R A L R U LE S O F C IV IL PR O C ED U R E Fed. R. Civ. P. 19 provides: Rule 19. Joinder of Persons Needed for Just Adjudication (a) Persons to be Joined if Feasible. A person who is sub ject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the per sons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and his joinder would render the venue of the action improper, he shall be dis missed from the action. (b) Determination by Court Whenever Joinder not Feas ible. If a person as described in subdivision (a) (l)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent per son being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judg ment rendered in the person’s absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will 4aa have an adequate remedy if the action is dismissed for nonjoinder. (c) Pleading Reasons for Nonjoinder. A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as described in subdivision (a) (l)-(2) - hereof who are not joined, and the reasons why they are not joined. (d) Exception of Class Actions. This rule is subject to the provisions of Rule 23. Fed. R. Civ. P. 24 provides in part: (a) Intervention of Right. Upon timely application any- i one shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest re- i lating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is ' adequately represented by existing parties. IN T H E SU PR EM E CO URT OF T H E U N IT E D S T A T E S October Term 1973 N o. ------ 1------ THE GROSSE POINTE PUBLIC SCHOOL SYSTEM, Petitioner, vs. RONALD BRADLEY and RICHARD BRADLEY, by their Mother and Next Friend, VERDA BRADLEY; JEA N NE GOINGS, by her Mother and Next Friend, BLANCH GOINGS; BEVERLY LOVE, JIMMY LOVE and DARRELL LOVE, by their Mother and Next Friend, CLARISSA LOVE; CAMILLE BURDEN, PIERRE BUR DEN, AVA BURDEN, MYRA BURDEN, MARC BURDEN and STEVEN BURDEN, by their Father and Next Friend, MARCUS BURDEN, KAREN WILLIAMS and KRISTY WILLIAMS, by their Father and Next Friend, C. WILLIAMS; RAY LITT and MRS. WILBUR BLAKE, parents; all parents having children a t tending the public schools of the City of Detroit, Michigan, on their own behalf and on behalf of their minor children, all on be half of any person similarly situated; and NATIONAL ASSOCIA TION FOR TH E ADVANCEMENT OF COLORED PEOPLE, DETROIT BRANCH; DETROIT FEDERATION OF TEACHERS, LOCAL 231, AMERICAN FEDERATION OF TEACHERS, AFL- CIO; BOARD OF EDUCATION OF THE CITY OF DETROIT, a school district of the first class; PATRICK McDONALD, JAMES HATHAWAY and CORNELIUS GO LIGHTLY, members of the Board of Education of the City of Detroit; and NORMAN DRACH- LER, Superintendent of the Detroit Public Schools; WILLIAM G. MILLIKEN, Governor of the State of Michigan and ex-officio mem ber of the Michigan State Board of Education; FRANK J. KELLY, Attorney General of the State of Michigan; MICHIGAN STATE BOARD OF EDUCATION, a constitutional body corporate, and (Continued on Reverse Side) ---------♦-------- brief in s u p p o r t o f p e t it io n s f o r w r it OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH DISTRICT ------ ♦------ RO SS, B R U F F A N D H E N D R IK S E N Attorneys for Professional Personnel o f Van Dyke 215 S. Gratiot M t. Clemens, Michigan 962-6281 Interstate Brief S Record Co., 1036 Beaubien St., Detroit, Michigan 48226 W O . 2-8745—W O . 2-8732 JOHN W. PORTER, Superintendent of Public Instruction, Depart ment of Education of the State of Michigan, ALLISON GREEN, State Treasurer, ALLEN PARK PUBLIC SCHOOLS, SCHOOL DISTRICT OF THE CITY OF BERKLEY, BRANDON SCHOOLS, CENTERLINE PUBLIC SCHOOLS, CHERRY HILL SCHOOL DISTRICT, CHIPPEW A VALLEY PUBLIC SCHOOLS, SCHOOL DISTRICT OF THE CITY OF CLAWSON, CRESTWOOD SCHOOL DISTRICT, DEARBORN PUBLIC SCHOOLS, DEARBORN HEIGHTS SCHOOL DISTRICT NO. 7, EAST DETROIT PUBLIC SCHOOLS, SCHOOL DISTRICT OF THE CITY OF FERNDALE, FLAT ROCK COMMUNITY SCHOOLS, GARDEN CITY PUBLIC SCHOOLS, GIBRALTAR SCHOOL DISTRICT, SCHOOL DIS TRICT OF THE CITY OF HARPER WOODS, SCHOOL DISTRICT OF THE CITY OF HAZEL PARK, INTERM EDIATE SCHOOL DISTRICT OF THE COUNTY OF MACOMB, LAKE SHORE PUBLIC SCHOOLS, LAKEVIEW PUBLIC SCHOOLS, THE LAM- PHERE SCHOOLS, LINCOLN PARK PUBLIC SCHOOLS, MAD ISON DISTRICT PUBLIC SCHOOLS, MELVINDALE-NORTH ALLEN PARK SCHOOL DISTRICT, SCHOOL DISTRICT OP NORTH DEARBORN HEIGHTS, NOVI COMMUNITY SCHOOL DISTRICT, OAK PARK SCHOOL DISTRICT, OXFORD AREA COMMUNITY SCHOOLS, BEDFORD UNION SCHOOL DIS TRICT NO. 1, RICHMOND COMMUNITY SCHOOLS, SCHOOL DISTRICT OF THE CITY OF RIVER ROUGE, RIVERVIEW COMMUNITY SCHOOL DISTRICT, ROSEVILLE PUBLIC SCHOOLS, SOUTH LAKE SCHOOLS, TAYLOR SCHOOL DIS TRICT, WARREN CONSOLIDATED SCHOOLS, WARREN WOODS PUBLIC SCHOOLS, WAYNE-WESTLAND COMMUN ITY SCHOOLS, WOODHAVEN SCHOOL DISTRICT and WYAN DOTTE PUBLIC SCHOOLS; KERRY and COLLEEN GREEN, by their F ather and Next Friend, DONALD G. GREEN; JAMES, JACK and KATHLEEN ROSEMARY, by their Mother and Next Friend, EVELYN G. ROSEMARY; TERRI DORAN, Mother and Next Friend, BEVERLY DORAN; SHERRILL, KEITH, JEFFREY and GREGORY COULS, by their Mother and Next Friend, SHARON COULS; EDWARD and MICHAEL ROMESBURG, by their F ather and Next Friend, EDWARD M. ROMESBURG, JR.; TRACEY and GREGORY ARLEDGE, by their Mother and Next Friend, AILEEN ARLEDGE; SHERYL and RUSSELL PAUL, by their Mother and Next Friend, MARY LOU PAUL; TRACY QUIGLEY, by her Mother and Next Friend, JANICE QUIGLEY; IAN, STEPHANIE, KARL and JAAKO SUNI, by their Mother and Next Friend, SHIRLEY SUNI; and TRI-COUNTY CITIZENS FOR INTERVENTION IN FEDERAL SCHOOL ACTION NO. 35257; DENISE MAGDOWSKI and DAVID MAGDOWSKI, by their Mother and Next Friend, JOYCE MAGDOWSKI; DAVID VIETTI, by his Mother and Next Friend, VIOLET1 V IETTI; and the CITI ZENS COMMITTEE FOR BETTER EDUCATION OF THE DE TROIT METROPOLITAN AREA, a Michigan non-Profit Corpora tion; SCHOOL DISTRICT OF THE CITY OF ROYAL OAK; SOUTHFIELD PUBLIC SCHOOLS, MICHIGAN EDUCATION ASSOCIATION; PROFESSIONAL PERSONNEL OF VAN DYKE, Respondents. T A B L E OF CON TEN TS Page Statement o f the Case ..................................................... 1 Eeasons for Granting the W r it ............................... 2 Conclusion ............................................. 5 Appendix ............. 7 IN D E X OF A U T H O R IT IE S Cases: Page Oliver v. 'School District of Kalamazoo, 448 F. 2d 635 (CA 6, 1971) ............................................ 3 iSmuck v. Hobson, 408 F12d 175 (Dist of Col Dis trict, 1969) ........................................... 3 Statutes: M.C.L.A. 423,211 ........................................................... 3 IN THE SUPREME COURT OF THE UNITED STATES October Term 1973 No. ------ f------ THE GROSSE POINTE PUBLIC SCHOOL SYSTEM, Petitioner, vs. RONALD BRADLEY, et al., Respondents +■ BRIEF IN SUPPORT OF PETITIONS FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH DISTRICT ------- f------ The briefant, Professional Personnel o f Van Dyke, upon Order o f the Sixth Circuit Court o f Appeals, was granted the right to intervene in this cause. This brief is written in support o f the three Petitions for Writ o f Certiorari previously filed herein. Its page references are to the Petition o f the Grosse Pointe School System. STATEMENT OF THE CASE Professional Personnel of Van Dyke is an independent, i-e., unaffiliated, labor union, representing some three hundred and fifty-three teachers in the Van Dyke School District. It is the exclusive bargaining agent o f such teachers, having been so elected under the appropriate statutes o f the State of Michigan (423.211 M .C.L.A .). A s such exclusive bargaining agency, it has entered into a labor contract, (called “ Master Agreement” by the par- 2 .ties) with the School District o f Van Dyke, Such agree ment covers the salaries, fringe benefits, class size, teacher assignments, grievance procedure and teacher responsibil ity. The school district is located in southeast Macomb County (immediately north o f D etroit). It has 1,500 stu dents. When, at the trial level, it first became apparent that the trial judge might fashion a remedy that encompassed school districts other than the defendant, School District o f the City o f Detroit, Professional Personnel of Van Dyke petitioned fo r the right to intervene, or, in the al ternative, fo r leave to intervene. This petition, filed on February 22, 1972, was denied by order dated March 15, 1972. Professional Personnel then filed a motion for re-hearing o f its original petition. F iled on A pril 11, 1972, the re-hearing Avas denied on June 29, 1972. Finally, on July 2, 1973, the United States Court of Appeals fo r the Sixth D istrict reversed. (Its Order is appendixed herein.) (It is noteworthy that the Detroit Federation o f Teach ers, the bargaining agent for the teachers o f the School District o f Detroit, was granted intervention early in this matter, and without the difficulty experienced by the Professional Personnel). REASONS FOR GRANTING THE WRIT Professional Personnel o f Van Dyke agrees with Rea son 1 (o f Petition o f Crosse Pointe School S ystem — p.B). The Decisions Below are in Direct and IRRECON- C IL IA B L E CON FLICT W IT H TH E DECISION S OF O TH E R U N ITE D S T A T E S COU RTS OF A P P E A L , AS W E L L A S D E CISIO N OF TH E U N ITE D ST A T E S SU PR E M E CO U RT; and Reason 2 (p. 14). 3 THE D ECISIO N S B E L O W IN V O L V E IS SU E S OF IMMENSE PU B LIC IM PO R TA N C E O F (A ) TH E FAB-REACHING P R E C E D E N T E S T A B L IS H E D THEREBY, AN D (B ) TH E IM P A C T OF TH E LO W E R COURTS’ PRO PO SED R E M E D Y UPON TH E R E S I DENTS OF E V E R Y SCHOOL D IS T R IC T IN TH E D E TROIT M E TR O PO LITA N A R E A . It is in agreement with Reason 3, p. 17) as well, but would re-state such reason to be more specifically applicable to this briefant, an organization o f teachers, as follow s: THE R E F U S A L OF T H E L O W E R COU RTS TO ACCORD FU N D AM EN T AT. DUE PR O C E SS OF L A W TO T H E PR O F E SS IO N A L P E R SONNEL OF V A N D Y K E , W H O, IT IS N OW c o n c e d e d , SHOULD H A V E B E E N GRANTED TH E R IG H T TO IN T E R V E N E (AS OF F E B R U A R Y 22, 1972) R E Q U IR E S THE E X E R C IS E OF T H IS COU RT OF IT S SU PERVISO RY PO W E R S. Professional Personnel o f Van Dyke was singularly unsuccessful, on the trial level, in its attempts to inter vene. Its original petition was filed on February 22, 1972 (prior to the adoption by the trial court o f the so-called Metropolitan Plan.) It was denied on March 15, 1972. Its petition fo r re-hearing, filed on A pril 11, 1972, was denied on June 14, 1972, after fhe passage o f two very critical months in the proceedings. And this in spite o f the fact that the law was clear that its motion to inter vene should have been granted. [Oliver v School District °f Kalamazoo, 448 F 2d 635 (C A 6, 1971) and Smv,ck v Hobson, 408 F 2d 175 (D ist o f Col District, 1969)]. Assuming a M etropolitan Plan, the issues to be deter mined by the trial court are overwhelming: Teacher place ment, tenure, grievance, salaries and advancements; cur ricula and class size are but a few o f them. 4 'The original input in an attempt ,to solve these prob lems is to be made by a court-appointed panel, consisting o f two members o f the defendant, State B oard o f Educa tion, three members o f the defendant, Detroit Board of Education, one from the plaintiff, one from defendant in- tervenors, MagdowsM (who favor a Metropolitan Plan and who are essentially white home owners residing in the City o f Detroit,) one from all the intervening school districts and one from the Michigan Civil Rights Com mission (Joint Appendix 99a). It is at once noteworthy that no one from any teacher organization is included. Yet without any teacher parti cipation, this panel is mandated to re-assign faculty and staff, and to develop criteria “ in the hiring, assignment, promotion, demotion and dismissal o f faculty and staff . . . ” (Joint Appendix 103a). And the Court o f Appeals expressly held that such panel should proceed with its studies and plans (Joint Appendix 178a). It is respectfully submitted that such panel— totally without a representative o f any teacher organization or of any teachers— is violative of elementary due process and, indeed, contrary to the statutes o f the State o f Michigan (M .C.L.A. 423.211) recognizing collective bargaining right o f public employees. It is further submitted that such panel has been given the power to completely obliterate the contractual rights o f members o f the Professional Personnel o f Van Dyke. The grant o f the Petition to Intervene, as ordered by the Sixth Circuit Court o f Appeals, is rendered totally meaningless i f Professional Personnel is foreclosed from full and active participation in open court as well as this most important planning panel. 5 In its appellate brief on the denial o f its Petition to Intervene, Professional Personnel w rote: Once an order is entered herein that affects the Van Dyke School District, the movant appellant will be practically foreclosed from litigating its rights in any form. Its members may be laid off, transferred, have their salaries reduced, their con tractual rights decimated, have their tenure lost, without any day in court. In reversing the trial court and ordering intervention, the Court o f Appeals must have agreed with such think ing. Yet, under the terms o f the Judgment o f the Sixth Circuit Court o f Appeals, Professional Personnel will be sent back to the trial court with naught but a hollow “ right to intervene.” It will not have a day in court-un- less, the Supreme Court grants the writs o f certiorari re quested. CONCLUSION Wherefore, Professional Personnel o f Van Dyke re spectfully submit that ,the W rits o f Certiorari requested issue. Respectfully submitted, ROSS, BR.UFF and H E N R IK SE N B y : W illiam Ross Attorneys for Professional Personnel of Van Dyke 215 S. Gratiot Mt. Clemens, Michigan 962-6281 ■ - : ■ ■ ■ ■ . ' ■ ■ ’ ■ 7 APPENDIX M.C.L.A. 423.211 Representatives designated o r se lected for purposes o f collective bargaining by the m ajor ity of ,the public employees in a unit appropriate fo r such purposes, shall be the exclusive representatives o f all the public employees in such unit fo r the purposes o f collective bargaining in respect to rates o f pay, wages, hours of employment or other conditions o f employment, and shall be so recognized by the public em ployer: P ro vided, That any individual employee at any time may present grievances to this employer and have the griev ances adjusted, without intervention o f the bargaining representative, i f the adjustment is not inconsistent with the terms of a collective bargaining contract or agree ment then in effect, provided that the bargaining repre sentative has been given opportunity to be present at such adjustment. 8 O RD E R (U. S. Court o f Appeals'— Sixth Circuit) (F iled July 2, 1973) In re Appeal of Professional Personnel o f Van Dyke, Appellants. Ronald Bradley, et al. v. W illiam Gr. Milliken, et al. No. 72-2008 B efore P H IL L IP S , Chief Judge, and E D W A R D S and PE C K , Circuit Judges. This is an appeal by Professional Personnel of Van Dyke, which is the exclusive bargaining agent for the teaching personnel o f the Van Dyke School District. Ap pellants undertook to intervene in the D istrict Court in the case o f Bradley v. Milliken. On March 15, 1972, the District Court denied the motion o f appellants to inter vene. On A pril 11, 1972, appellants filed a petition for re hearing o f their motion to intervene. On June 29, 1972, the District Court affirmed its previous denial o f the mo tion. Upon consideration, it is Ordered that the decision of the District Court denying to appellants' the right to in tervene is vacated and the case is remanded to the Dis trict Court with directions to grant the motion to inter vene. Entered by order o f the court. / s / James A. Higgins, Clerk. . ■ T3or D v*«<Viia.iK IN THE SUPREME COURT OF THE UNITED STATES October Term 1973 No. 73436 THE GROSSE POINTE PUBLIC SCHOOL SYSTEM, Petitioner, vs. RONALD BRADLEY, et. al., Respondents. PETITIONER’S REPLY BRIEF IN SUPPORT OF PETITIONS FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT DOUGLAS H. WEST 3700 Penobscot Building Detroit, Michigan 48226 Counsel for Petitioner THOMAS E. COULTER and HILL, LEWIS, ADAMS, GOODRICH &TAIT 3700 Penobscot Building Detroit, Michigan 48226 Of Counsel for Petitioner 1 IN THE SUPREME COURT OF THE UNITED STATES October Term 1973 No. 73-436 THE GROSSE POINTE PUBLIC SCHOOL SYSTEM, Petitioner, vs. RONALD BRADLEY, et al„ Respondents. PETITIONER’S REPLY BRIEF IN SUPPORT OF PETITIONS FOR WRIT OF CERTIORARI ARGUMENT The Plaintiffs’ Memorandum in Opposition urges this Court to deny the several Petitions for Writ of Certiorari because the pre cise details of a plan for the desegregation of the Detroit school district are not yet before the Court, and therefore this Court would be unable to “ . . .evaluate the practicalities of the local situ ation. . . ,” U1 Petitioner submits, however, that “local practicali ties” are irrelevant to the basic issue of the legal propriety or necessity for a “Metropolitan plan” of desegregation, so complete ly framed by the Opinion of the Court of Appeals in the following passages: 121 HI Memorandum of Bradley, et al, in Opposition to Petitions for Writ of Certiorari, at page 3. (21 Joint Appendix, at 173a. 2 “ Under this record a remedial order of the court of equity which left the Detroit school system overwhelmingly black (for the foreseeable future) surrounded by suburban school systems overwhelmingly white cannot correct the constitu tional violations herein found. * * * “At the outset it is obvious from what we have said pertain ing to the inadequacy of any Detroit only desegregation plan that this court feels that some plan for desegregation beyond the boundaries of the Detroit School District is both within the equity powers of the District Court and essential to a so lution o f this problem. ” (emphasis added). “This problem” , as perceived by the Court of Appeals, is simply that the student population of the Detroit school system is predominately black, vis a vis school districts outlying therefrom. It is therefore difficult to conceive of how additional evidentiary record as to “ . . . the precise manner in which school district boun daries need be permeated. . .” and students transferred and trans ported, will assist this Court in its review of the lower Court’s basic proposition that a racial imbalance of students in any multi school district geographical area is, per se, unconstitutional; irre spective of intention to segregate or causal connection therewith. The Court of Appeals Opinion could not have been more clear in its declaration that there will be a metropolitan plan, and because the District Court’s final order 01 on that issue was affirmed, review by this Court now is appropriate, without the necessity of considering any plan details. This case, in its present posture, presents a holding which is in square conflict with decisions of this Court and other Courts of Appeal, and has far reaching effect of an unprecedented nature. It is therefore respectfully submitted that review of the question presented at this time is not only 0 1 The District Court’s Findings of Fact and Conclusions of Law on Detroit-Only Plans of Desegregation, as well as other relevant Orders, were certified as containing controlling questions of law under 28 USC 51292(b), and were also determined to be final under Rule 54(b), FRCP. See Joint Appendix at 113a. 3 proper, but essential, for the reasons set forth in the several Peti tions for Writ of Certiorari. 14 *1 Respondents Bradley, et al, have also submitted, however, that this Court should deny Certiorari because the Court of Appeals has already ordered that Petitioner and newly added school districts will be permitted to present . . all relevant evidence necessary for decision and determination of the issues both of violation and of remedy.” [5] Petitioner will be able to do this, it is argued, because the Court of Appeals did not expressly direct the District Court to refuse to receive such evidence. Although Petitioner is overwhelmed by Plaintiff’s claimed change of attitude on the question of its participation in the District Court proceedings, I6) this is unfortunately a misleading and un realistic analysis of the treatment which Petitioner may expect to receive. This is apparent from a review of the actual language of the Court of Appeals’ remand to the District Court: “The District Court may consider any evidence now on file and such additional competent evidence as may be intro duced by any party. However, the District Court will not be required to receive any additional evidence as to the matters contained in its Ruling on the Issue of Segregation, dated September 27, 1971, and reported at 338 F. Supp. 582, or its Findings o f Fact and Conclusions of Law on the “Detroit- only” plans o f desegregation, dated March 28, 1972. We hold that the findings of fact contained in these rulings are not clearly erroneous, Rule 52(a), Fed. R. Civ. P., but to the con trary are supported by substantial evidence.” (Emphasis added). ^ Petitioner notes plaintiff’s assertion that tills Court should deny Cer tiorari in the name of judicial economy. Petitioner fails to perceive, however, now additional hearings, now involving 85 school districts and nearly 1,000,000 students, can result in judicial economy when the very issue peti tioner requests this court to decide may obviate the necessity for such hearings, or deliniate the scope thereof so that an additional remand of this and other cases in the future will be unnecessary. Memorandum of Bradley, et al, in opposition to Petitions for Writ of Certiorari, at page 3, footnote 2. ^ Throughout the District Court proceedings, Plaintiffs have consistently opposed any effective or meaningful participation by Petitioner. As but one example, the Conditions on Intervention, imposed upon Petitioner school istricts by the District Court, (Joint Appendix, page 232a) were those Proposed by the Plaintiffs and adopted verbatim by the District Court. 4 Thus, the Court of Appeals has effectively excluded from its direc tion that Petitioner be permitted to present additional evidence, any matters relating to the question of the necessity for a Metro politan Plan of Desegregation. Judge Weick’s dissenting observa tion on this point is particularly perceptive: “However, in its opinion the majority did provide for amend ment of pleadings on remand, making new party defendants, for intervention, and for offering additional testimony. These provisions are wholly illusory with respect to the issues of se gregation, the ‘Detroit-only Plan’ and the ‘Metropolitan plan', as the opinion expressly excludes these issues from reconside ration upon remand. ” (Emphasis added) Joint Appendix, at 206a. For the reasons set forth in the Petitions for Writ of Certiorari, hi Petitioner school districts have been and will continue to be de nied due process of law by the Courts below, unless this Court intercedes. It is therefore respectfully submitted that should this Court concur with Plaintiffs position that this case is not yet in a appropriate posture for review, it is essential that this Court also insure Petitioner’s full, fair and unrestricted participation in the ensuing proceedings before the District Court; which participation Plaintiffs have represented to this Court as being a basis for denial of Certiorari. I8! Consequently, if full review is declined at this Petition of Grosse Pointe Schools, at pg. 17. Petition of Allen Park Schools et al, at pg. 20. I8 5 Petitioner appreciates Plaintiff’s magnanimous statements that the Dis trict Court should permit presentation of additional evidence on issues of violation and remedy, “ upon a proper showing” . In light of the Plaintiffs previous attitude concerning Petitioners participation in the proceedings, however, and the District Court’s previous treatment of the Petitioner as outlined in the Petition for Writ of Certiorari, Plaintiff’s statement that the District Court will permit such evidence can only be characterized as falsely optimistic rhetoric, intended only to sway the Court at this moment. In addition, Plaintiffs misapprehend the requirements of due process to be afforded Petitioner; being minimally the right to participate in the proceedings “ at a meaningful time and in a meaningful manner” . Armstrong v. Manzo, 380 U.S. 545, 552 (1965). Plaintiff’s now undoubtedly realize the error in this respect, which was forced by them in the District Court, and hope to gloss over the problem by saying that now Petitioner will be able to present “ additional evidence” . Without all prior orders of the Court being vacated and the proceedings being recommenced on all issues, however, the denial of Petitioner’s rights o f procedural due process of law will remain unvindicated and unrespected. 5 time, this Court should, notwithstanding, grant Certiorari and summarily vacate all prior findings and orders of the District Court; remanding the case for further proceedings, with instruc tions as to the scope thereof and the treatment to be accorded Petitioner School districts. ^ CONCLUSION For the foregoing reasons, and for the reasons stated in the Petitions for Writ of Certiorari, it is respectfully submitted that Certiorari be granted to review the judgment and opinions of the Courts below. Respectfully submitted, HILL, LEWIS, ADAMS, GOODRICH & TAIT Ry Is/ DOUGLAS H. WEST Douglas H. West R v - Is/ THOMAS E. COULTER Thomas E. Coulter Attorneys for the Grosse Point e School System 3700 Penobscot Building Detroit, Michigan 48226 962-6485 Dated: October 31, 1973 Should this Court decline full review at this time, it should also be made aware of an additional problem which may be an appropriate subject in an Order of Remand. In their brief to the Court of Appeals, Petitioner school districts asserted that the District Court was without jurisdiction to order implementation of a Metropolitan Plan o f Desegregation for the reason that the granting of such relief would necessarily constitute the enjoining, as a result of the unconstitutionality thereof, o f the enforcement, operation or execution of certain provisions of the Michigan Constitution and statutes of statewide application, in pursuance of which all independent Michigan school districts are organized and operated. The Court o f Appeals, however, chose to totally ignore this problem notwithstanding the provisions o f 28 U.S.C. §2281 et seq, requiring the convening o f a District Court of three judges. IN THE SUPREME COURT OF THE UNITED STATES October Term, 1973 No. 73-434 WILLIAM G. MILLIKEN, et al, v Petitioners, RONALD BRADLEY, et al, Respondents. PETITIONERS’ REPLY FRANK J. KELLEY Attorney General Robert A . Derengoski Solicitor General Eugene Krasicky Gerald F. Young George L. McCargar Assistant Attorneys General Attorneys for Petitioners W illiam G. Milliken, et al. Business Address: 750 Law Building 525 W est Ottawa Street Lansing, M ichigan 48913 PRINTED B Y S PE A K E R —H IN E S A N D T H O M A S , IN C ., L A N S IN G , M IC H IG A N ----- 1 9 7 3 1 TABLE OF CONTENTS Argument ______________________________________________ 1 Conclusion ______________________________________________ 5 CITATIONS Gillespie v United States Steel Co, 379 US 148, 154 (1964) __________________________________________ Higgins v Board o f Education o f the City o f Grand Rapids, Michigan, (W D CA 6386), Slip Opinion of Judge Albert J. Engel, July 18, 1973 -------------- -4 28 USC 1 2 9 2 (b )__________________________________________ 1 Rule 54(b) F R Civ P 1 — 1 — IN THE SUPREME COURT OF THE UNITED STATES October Term, 1973 No. 73-434 WILLIAM G. MILLIKEN, et al, v RONALD BRADLEY, et al, Petitioners, Respondents. PETITIONERS’ REPLY ARGUMENT Respondents, Bradley, et al, attempt to persuade this Court to refrain from reviewing this case on the basis that the orders below are interlocutory. Nothing could be further from the truth. In its order dated July 20, 1972, the District Court determined as final, under Rule 54(b) o f F R Civ P, its Ruling on Issue o f Segregation, its Findings o f Fact and Conclusions o f Law on Detroit-Only Plans o f Desegre gation, its Ruling on Propriety o f Considering a M etropoli tan Remedy, and the Ruling for Desegregation Area and Development o f Plans, among others, and certified as con trolling questions o f law the issues presented therein to the Court o f Appeals, under the provisions o f 28 USC 1292(b). (113a) Dl The Court o f Appeals affirmed the Ruling on Issue o f Segregation and the Findings of Fact rtf’ Hereafter references to the Jo in t A ppendix filed heretofore will he indicated by page num bers enclosed in parentheses. -2— and Conclusions o f Law on Detroit-Only Plans o f Desegre gation, and affirm ed in principle the Ruling on Propriety o f a M etropolitan Rem edy and the Ruling on Desegregation Area and Development o f Plans, but vacated the same for non-joinder o f affected school districts as necessary parties. (189a-190a) On these questions, controlling and fundamental to the further conduct o f this case, the decision o f the Court o f Appeals is final and binding upon petitioners unless re viewed now by this Court and reversed. Gillespie v United States Steel Co, 379 US 148,154 (1964). See also dissenting opinion o f Judge W eick. (206a-207a). Respondents, Bradley, et al, suggest that the newly added school districts and the petitioner intervening school districts may, upon proper s h o w i n g , present evidence going to the violation and sufficiency o f the Detroit-Only remedy if the District Court chooses to admit such evi dence. Yet, in their amended complaint to conform to the evidence, paragraphs 10, et seq, they assert that the Detroit [3] Respondents do no t reveal th e ir definition of the phrase “upon p roper showing.” D ue process, a t a minimum, requires th a t a de fendant school d is tr ic t he given notice of the charges against it, the r ig h t to he presen t by counsel, the r ig h t to offer evidence, the r ig h t to cross-examine opposing w itnesses and the r ig h t to be heard on a ll issues—fac tu a l and legal—th a t affects it. The exercise ot these rig h ts is not dependent “upon a proper showing,” regardless of how th is te rm is defined. I t is precisely these righ ts that are denied the added and petitioner intervening school d istric ts hy the C ourt of A ppeals’ affirm ance of the D is tr ic t C ourt’s Rulings on the Issue of Segregation and “D etroit-O nly” p lans of desegregation (178a) and the affirm ance in princip le of th e D is tric t Court’s Exil ing on P ro p rie ty of M etropolitan Remedy (177a). The g ra tu itous, undefined phrase “upon a p roper showing” is dissem bling in tw o respects: (1) i t conceals the lack of due process in the D is tr ic t Court, and (2) i t suggests the existence of factual issues which, in fact, a re foreclosed by the C ourt of Appeals affirm ance of the D is tr ic t C ourt’s rulings. — 3— school district is segregated and a multi-district remedy is required “ wholly apart from the actions of the suburban defendants or any of them.” Thus, unless this Court grants certiorari and reverses and remands the decision of the Court of Appeals, the suggestion of respondents, Bradley, et al, is “wholly illusory with respect to the issues of segregation, the ‘Detroit-Only plan’ and the ‘ Metro politan plan’, as the opinion expressly excludes these issues from reconsideration upon the remand.” Opinion of Judge Welch. (206a) Even though all of the school districts in the tri-county area of Wayne, Macomb and Oakland, with the exception of Pontiac school district, are now parties in this action, the decision of the Court of Appeals and Amended Complaint to Conform to Evidence of respondents, Bradley, et al, fore close litigation of any factual issue as a predicate to multi- district relief. The legal predicates, segregation, insuffi ciency of a Detroit-Only plan and propriety of a. multi district remedy have been finally and adversely determined. The multi-district scope of the remedy has been determined. The multi-district form of the remedy has been determined. Before hearings in the District Court commence and these districts are put to the expense o f marshaling their efforts to hearings necessarily limited by the decision o f the Court o f Appeals to the extent o f the multi-district remedy, and such other issues as the District Court by grace may permit, as contrasted with fulfilling their pri mary mission o f educating resident children within each district, this Court should grant certiorari, receive briefs and hear oral arguments to dispose o f the paramount is sues of constitutional law raised by the petitions for certiorari. Respondents, Bradley, et al, at p 3, footnote 2, acknowl- 4- edge and unsuccessfully attempt to paper over the lack of fundamental due process afforded the intervening and added school district defendants herein. Due process is not the opportunity, dependent upon the grace o f the trial judge, to relitigate issues already finally and adversely determined by the trial court and the Court o f Appeals, as proposed by respondents. Rather, due process is the right to notice and opportunity to be heard, as a matter of right, at a meaningful stage of the proceedings. (212a) (235a- 236a) (239a-240a) The proper procedure, where a multi-school district remedy is sought, is joinder o f all potentially affected school districts, with full rights o f participation, prior to the initial trial on the merits. See Higgins v Board of Educa tion of the City of Grand Rapids, Michigan, (W D, OA 6386), Slip Opinion o f Judge A lbert J. Engel, July 18, 1973, where this procedure was employed. Respondents, Bradley, et al, are seeking- a massive multi school district remedy involving the expensive transporta tion o f school children across school district and county lines, together with faculty reassignment and major altera tions in the present legal and administrative arrangements governing Michigan school districts, all for the purpose of some artificial racial balance. The children, parents and school officials in each affected school district will bear the full burden o f implementing respondents’ social goal. Thus, at a minimum, these hundreds o f thousands of people deserve a fair opportunity to be heard on all issues. A m ajor reason that the American people com ply with un popular federal court orders is that they view the federal judicial process as a fundamentally fair process. Here, as to the affected school districts, simple fairness requires full opportunity to be heard on all issues, as a matter of right, not of grace. (240a) Otherwise the proceedings remain fatally defective. CONCLUSION For the foregoing reasons, a w rit o f certiorari should issue to review the decision o f the Sixth Circuit rendered herein on June 12, 1973. Respectfully submitted, FRANK J. KELLEY Attorney General Robert A. Derengoski Solicitor General Eugene Krasicky Gerald F. Young George L. McCargar Assistant Attorneys General Attorneys for Petitioners W illiam G. Milliken, et al. Business A ddress: 750 Law Building 525 W est Ottawa Street Lansing, M ichigan 48913 /~S r \ IN THE SUPREME COURT OF THE UNITED STATES October Term, 1973. No. 73-434 WILLIAM G. MILLIKEN, et al, v. RONALD G. BRADLEY, et al. Petitioners, O n W r i t O f C e r t i o r a r i T o T h e U n i t e d S t a t e s C o u r t O f A p p e a l s F o r T h e S i x t h C i r c u i t . 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 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 .......................................................... ... 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 examined .................................................... 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 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 are a....................................... 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 Ill Page IV. CONCLUSION 89 IV TABLE OF CITATIONS CASES 1$. 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 (1969)........ 20,21,47,51,53, 55, 57,62,68 Allen v. Mississippi Commission of Law Enforcement, 424 F2d 285 (CA 5, 1970)..................................................... 39 Attorney General, ex rel Kies v. Lowrey, 131 Mich 639; 92 NW 289 (1902), aff’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; 1 57 NW 2d 213 (1968)................... 46 Blissfield Community Schools District v. Strech, 346 Mich 186; 77 NW 2d 785 (1956) .............................................. 34 Board o f Education of City of Detroit v. Lacroix, 239 Mich 46;214NW 239 (1927) .................................................. 34 Bradley x. Milliken, 338 F Supp 582 (ED Mich 1971)......... 1 Bradley v. Milliken, 345 F Supp 914 (ED Mich 1972) ......... 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,H Bradley v. Milliken, 484 F 2d 215 (1973)............................. ' 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 L Ed 873 (1954) .......................................................... 25,89 Cleaver v Board of Education of 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 (1972)....................... 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 Term, 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 (EDTenn, 1972) ...................................................... 62 Goss v Board of 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 L Ed 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 S Ct 1226; 12 L Ed 2d 256 (1964) ___ 42, 55 Hadley v Junior College District of Metropolitan Kansas City, 397 US 50; 90 S Ct 791; 25 L Ed 2d 45 (1970) .............. 40 Hiers v Detroit Superintendent o f Schools, 316 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 SCt 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 of Education o f the School District o f the City of Flint, 6 Mich App 364; 149 NW 2d 239 (1967) . . 82 VI is Munro v Elk Rapids Schools, 383 Mich 661; 178 NW 2d 450 (1970), on reh 385 Mich 618, 189 NW 2d 224 (1971) .. §] Northcross v Board o f Education o f Memphis, 420 F2d 546 (CA 6, 1969), aff’d in part and remanded in 397 US 232’ 90 S Ct 891; 25 L Ed 2d 246 (1970)........................... 22,61 Northcross v Board o f Education o f Memphis,___F2d___, No. 73-1667, 73-1954, Slip Op, (1973)......................... ’ 61 Parden 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, 14MichApp 109; 165 NW 2d 464,(1968) .................................................................... 80i8i Pierce v Society o f Sisters, 268 US 510; 45 S Ct 571 • 69 L Ed 1070 (1925).......................... ............................................ 88 Piessy 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 of 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), aff’d on appeal, 404 US 1027; 92 S Ct 707;30 L Ed 2d 723 (1972). 20, 23, 36, 58, 65, 66 Sterling v Constantin, 287 US 378; 53 S Ct 190; 77 L Ed 375 (1932) ............................................................................. 19 Swann v Chariot te-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 of Education o f Detroit, 18 Mich 399 (1869)..........................................................5, 82 Tinker v Des Moines Independent School District, 393 US 503; 89 S Ct 733; 21 L Ed 2d 731 (1969)........................ 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 L Ed 2d 51 (1972)___ 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) ...................................................................40,66 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 1 2 5 4 ( 1 ) .................................................................................. 2 FR Civ. P 1 9 .............................................................................................. 64 FR Civ. P 41(b)..................................................................... 13 Michigan Constitution of 1908: art 11, § 2 ........................................................................................... 4, 9 viii Michigan 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 Page Michigan Public Acts: 1842 PA 70 ............................................................ 4,8,65,69 1937 PA 306 ................................................................... 4,34 1943 PA 88 ..................................................................... 36 1947 PA 336 ....................................................................4,78 1949 PA 231 ....................................................................4,34 1955 PA 269 .................................... 4, 8, 9, 29, 33, 37, 38, 67 78,79,80,81,82,83,84, 87 1957 PA 312 ...............................................................4,31,32 1962 PA 175 ....................................................................4,34 1964 PA 289 ................................................................... 4,81 1965 PA 379 ................................................................... 4 1967 PA 239 ................................................................... 4,81 1968 PA 112 ................................................................... 46 1968 PA 239 ................................................................. 4 1968 PA 316 ................................................................... 29 1969 PA 22 ..................................................................... 31 1969 PA 244 ................................................4,38,39,40,69 IX Page 1969 PA 306 ....................................................................4,36 1970 PA 48 ...................................... 4 ,6,7,11,38,39,40,69 1971 PA 23 ................................................................. 29,86 1971 PA 171 .................................................................... 41 1972 PA 258 ........................................................4,30,32,86 1973 PA 101 ..............................................................4,30,86 Miscellaneous Bulletin 1012, Michigan Department of Education, December, 1970 ........................................................ 26, 28 Michigan Statistical Abstract 1972 (9th E d .).................... 10 Statistical Abstract of United States 1972 (93rd Ed.) . . . . 10 A Description and Evaluation of Section 3 Programs in Michigan 1969-1970, Michigan Department of Education, 1970, Appendix B ...................................... 31 1 IN TH E SUPREME C O U R T O F T H E U N ITE D STA TE S October Term , 1 9 7 3 . N o. 7 3 -4 3 4 . W IL L IA M G . M IL L IK E N , et al„ vs. R O N A L D G. B R A D L E Y , et al. Petitioners, O n W r i t o f C e r t i o r a r i t o t h e U n i t e d S t a t e s C o u r t o f A p p e a l s f o r t h e S i x t h C i r c u i t BR IEF F O R PETITIO N ERS OPINION S A N D O R D E R S BELO W 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. U1 Other opinions delivered in the Courts below are: United States District Court for the Eastern District o f 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). ^ 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 o f 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-107a). 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-la 301). United States Court o f 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). JURISDICTIO N 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). C O N S T IT U T IO N A L A N D S T A T U T O R Y PR O VISIO N S IN V O L V E D 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.” Amendments, 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 11, § 2 Constitution of 1963: art 4, § 33; art 5, § § 19 and 31; art 8, § § 2 and 3; art 9, § § 6, 1 1 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; 1947 PA 336, § 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. Q U ESTIO N S PRESEN TED 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? S T A T E M E N T O F TH E CA SE 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. t2l The circumstances and pro ceedings by which this has come to pass are set forth hereafter. 13I The separation of the races in the public schools of Michigan has been prohibited by Michigan law since at least 1869. [4] [2i 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 o f Desegregation Plan (97a) and the Court o f 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 o f the public school children in the State. [31 Petitioners Milliken, Kelley, State Board o f 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 (1 8 6 9 ). 6 I. The Com plaint Plaintiffs commenced this class action by filing a complaint on August 18, 1970. (2a-l 6a). 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. ^ The majority opinion o f the Court o f Appeals suggested and authorized the amended complaint. (178a). Plaintiffs made no effort to amend their complaint prior to the Court o f 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 o f 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 1842,161 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.” ^ With regard to plaintiffs’ claims that the Detroit public schools are a de jure segregated system, the plenary power to 161 1842 Laws o f Michigan, No. 70, § §1 and 5. (55aa). 1̂ 1 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 o f Education and the Superintendent o f 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, “ [l]eadership 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 o f 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, havinga M ich ig a n S ta tis t ica l A b s t r a c t , 1 9 7 2 (9 t h e d .) . T h is area is approx im ately the s ize o f th e sta te o f D e la w a re (2 ,0 5 7 sq u a re m ile s ) , m o r e th a n h a lf again th e s ize o f th e sta te o f R h o d e Islan d ( 1 ,2 1 4 sq u a re m ile s ) an d a lm o s t 3 0 times th e s ize o f th e D istr ic t o f C o lu m b ia (6 7 sq u a re m ile s ). S ta tis t ica l A bstract o f U n ited S ta tes , 1 9 7 2 (9 3 r d e d .) . 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 12 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). Plaintiffs, 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. [91 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 ot Wayne, Oakland and Macomb outside of the City of Detroit. (Ila69). 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 t9 J F r o m t im e t o t im e d u r in g th e c o u r s e o f th e tria l a t te m p ts w e re m ade by th e p la in t if fs a n d b y th e d e fe n d a n t - in t e r v e n o r , D e n is e M a g d o w s k i, et al, to b r o a d e n th e s c o p e o f th e tria l t o a f f e c t , as t o p o s s ib le r e m e d y , s c h o o l districts n o t p a r tie s in th is ca u s e , l o c a t e d o u t s id e o f t h e b o u n d a r ie s o f th e Detroit s c h o o l s y s te m . F r o m th e r e m a rk s o f th e D is tr ic t C o u r t , it is c lea r that he also u n d e r s t o o d w h at is p a te n t in th e p le a d in g s , th at th e issu e w as w h eth er the D e tro it S c h o o l D istr ic t w as a se g re g a te d s y s te m qua th e D e tro it public s c h o o ls a n d n o t w ith r e s p e c t t o a n y o t h e r s c h o o l d is tr ic t w ith in th e State of M ich ig a n . Illu stra tive c o m m e n t s b y th e D is tr ic t C o u r t f o l l o w : “ W ell, I d o n ’ t k n o w w h e th e r fo r t u n a t e ly o r u n fo r tu n a te ly th is lawsuit is l im ite d t o th e C ity o f D e tro it a n d th e s c h o o l s y s te m , so that we’re o n ly c o n c e r n e d w ith th e c i t y i t s e l f an d w e are n o t ta lk in g ab out the m e tr o p o lit a n a r e a .” (1 l a 4 1). “ 1 h o p e , M r. F la n n e ry , that is n o t a th re a t b e c a u s e 1 am having enough t o d o w ith m y l im ite d ju r is d ic t io n in th is ca se , a n d I am n o t on e for e x p a n d in g i t . ” (U a 4 4 ) . H o w e v e r , as th e tria l p r o g r e s s e d , th e p e r c e p t io n o f th e D istr ic t C ou rt changed in pu rsu it o f a m u lt i-d is tr ic t r e m e d y . ( R 3 5 3 7 , 4 0 0 3 , 4 0 0 4 ; 2 0 a ) 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). (Ial 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.! 10] (HIa86-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 in 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 of 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 district 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). T h e ra t io n a le f o r th is p o s i t io n is f o u n d in A & N Club v Great American Insurance Com pany, 4 0 4 F 2 d 1 0 0 , 1 0 3 -1 0 4 (C A 6 , 1 9 6 8 ) . I f a d e fendant p r o c e e d s in t h e ca se a fte r m a k in g a F R C iv P 4 1 ( b ) m o t i o n , h e w a iv e s his right t o a lle g e e r ro r o n th e m o t i o n ’ s d is p o s it io n o n ly in lig h t o f th e e v i dence in t r o d u c e d u p t o th e p o in t o f th e m o t io n . 1 4 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, 1972. 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 1 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). * * * 1 6 “ 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 su p p o rt 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 fa cu lty in the Detroit public schools (23a-33a), the Order required faculty and staff reassignment among the 53 districts. (102a-103a). “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, later increased to 11, and charged it with the responsibility of preparing and submitting a desegregation plan in accordance with the provisions of the ruling. (99a). On July 1 1, 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 into 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. (Ia 287). On September 6, 1973, the District Court ordered the joinder ot all of the school districts in Wayne, Oakland and Macomb Counties that were not parties to the suit, except the Pontiac School District. (Ia 300). On or about September 4, 1973, plaintiffs filed an amended complaint to conform to evidence and prayer for relief. (Ia 291 - Ia 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 15 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 1 9 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). In re State of 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 limited 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 of 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 (D NJ, 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; 92 S Ct 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 of Education of 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 of 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 inNorthcrossv Board of Education, 420 F2d 546 (CA6, 1969), affd in part and remanded in 397 US 232; 90S 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). 2 4 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 of 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.” (151 a-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. Ruling (5 ) - transportation o f Carver School District’s high school students. 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 1950’s. (152a, 137a-138a). Here, it must he 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). 2 6 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 o f 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. 2 9 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. (15 la-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 Protection Clause under the applicable rational basis test, Rodriguez, supra. See also, Mich Const 1963, art 9, § 6 and § 11 for the constitutional outline of Michigan’s system of school finan ce. 1111 (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. [ I l l 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 o f operating tax effort, thus making expenditures per pupil primarily a function o f the willingness of the voters in each school district to tax themselves for school purposes. See Sec tion 21(1) o f 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 77-78.112J In the 1969-70 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 E 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 ] In Higgins, 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 A 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 'ave failed to establish the other allegations in plaintiffs’ complaint, as amen- c . as to the Grand Rapids Board o f Education or as to any other defend ants in the case.” Slip opinion, p 103. Thus, in Higgins, supra, plaintiffs’ e aims of de jure conduct against the defendants Milliken, et al, not unlike tose made herein, were found wholly lacking in merit. 3 2 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, f 131 Moreover, in Keyes, supra, 93 S Ct, 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. 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 jure 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 711 through 724 °f the same statute laying out the condemnation procedure for 34 school districts generally. (32aa, 51aa). See also Board of Educa tion o f the City o f Detroit v Lacroix, 239 Mich 46; 214 NW 239 (1927). Cleaver v Board of Education of City o f Detroit, 263 Mich 301; 248 NW 629 (1933). Blissfield Community Schools Districtv 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, artl 1, § 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 51 a). 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 of Education, 444 F2d 6 (CA 4, 1971), vacating portions of the District Court’s order directed at the state defendants therein for the reason that, under state law, such defendants lacked any lawful authority to prescribe school attendance plans for local school districts. As the North Carolina State Board of Education lacked authority, under state law, to prescribe school attendance plans for local school districts, so here the 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, 115, 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 S Ct,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, IVa 260). D. Ruling (2) — the effect o f section 12 of 1970 PA 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, 3 9 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 of 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). However, 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, f14l 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. T he C ou rt o f A p p e a ls , at 4 3 3 F 2 d 8 9 7 , 9 0 4 , supra, s ta te s th a t t h e d e fendants d e fe n d e d S e c t io n 1 2 o n th e m e r its in s u ch C o u r t . T h a t is s im p ly n o t accurate. W hile th e b r i e f o f d e fe n d a n ts M il l ik e n , e t a l, d id d is cu ss th e c o n stitutional q u e s t io n w ith r e fe r e n c e t o th e fir s t s e n te n c e o f S e c t io n 1 2 , it d id so on ly w ith in th e l im ite d c o n t e x t o f a ssessin g th e p r o b a b i l i t ie s o f p la in t i f fs ’ success o n th e m e r its , u p o n r e m a n d a n d h e a r in g , as a f a c t o r in e v a lu a tin g th e single q u e s tio n o f a b u s e o f d is c r e t io n b y th e tr ia l ju d g e . A s t b th e s e c o n d sentence o f S e c t io n 1 2 , t h e b r i e f o f d e fe n d a n ts M ill ik e n , et a l, d id n o t a d d ress itself at all t o th e c o n s t i t u t io n a l q u e s t io n , s in ce it w a s n o t o p e r a t iv e u n til January 1, 1 9 7 1 , b u t d id in f o r m th e C o u r t o f A p p e a ls th a t it w a s th e ir p o s i tion that su ch s e n te n c e w as d i r e c t o r y , n o t m a n d a t o r y , w h e n read in ligh t o f other u n rep ea led s t a t u t o r y s e c t io n s re la t in g t o th e d is c r e t io n a r y a u th o r it y o f boards o f e d u c a t io n t o e s ta b lish a t te n d a n c e areas. Hiers v D etroit Superin tendent o f Schools, supra, 3 7 6 M ic h , at 2 3 5 . 4 0 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 of the City of 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 “ [r] egions 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, 397 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 4 1 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. (la 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 891, 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. Ruling (1) — Detroit Board of Education an agency of the State o f Michigan 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 4 2 majority opinion on rehearing, did not contain the caveat at 115a 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. (Ia 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, 1213; 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.” (21 5a). 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-IIIa 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 of 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 ibis 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. 45] H. THE RULING OF THE COURT OF APPEALS THAT A DETROIT-ONLY DESEGREGATION PLAN COULD NOT R E M E D Y THE UNCONSTITUTIONAL SEGREGATION FOUND IN THE DETROIT SCHOOL SYSTEM IS NOT SUPPORTED BY THE RECORD AND IS CLEARLY ERRO- NEOUS AS A M ATTER OF LAW. A. The lower courts rejected the constitutional concept of a unitary school system within Detroit for the socio logical concept o f 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 of New Kent 14 14 5 J it is t h e p o s i t io n o f th e d e fe n d a n ts M ill ik e n , et a l, as it has been t h r o u g h o u t th is l i t ig a t io n , th a t e v id e n c e o f a lle g e d ra c ia l d iscr im in ation in h o u s in g b y a n y o n e o t h e r th a n t h e n a m e d d e fe n d a n ts is irre lev a n t and inad m iss ib le in a s c h o o l d e s e g re g a t io n ca se . (I I a 9 - 1 0 ) Swann v Charlotte- Mecklenburg Board o f Education, su p ra , 4 0 2 U S , at 2 2 -2 3 (1 9 7 1 ) . Further, w h ile th e tr ia l c o u r t o p in io n s c o n t a in s w e e p in g g e n e r a liz a t io n s a b o u t racial d is c r im in a t io n in h o u s in g , t h e y c o n t a in n o c o n c r e t e r e fe r e n c e s t o an y alleged a cts o f ra c ia l d is c r im in a t io n in h o u s in g b y a n y o f t h e d e fe n d a n ts M illiken, et al. (S e e , f o r e x a m p le , 2 3 a -2 4 a ) . T h e r e a s o n is th a t th e r e is n o th in g in the r e c o r d t o s u p p o r t a n y s p e c i f i c f in d in g s o f ra c ia l d is c r im in a t io n in housing as t o th e s e d e fe n d a n ts . F u r th e r , u n d e r M ich ig a n la w , p e rs o n s a lle g e d ly discrimin a te d again st in p r iv a te h o u s in g m a y s e e k r e l ie f f r o m t h e sta te C ivil Rights C o m m is s io n a n d t h e sta te c o u r t s . S e e M ich C o n s t 1 9 6 3 , art 5 , § 2 9 , Beech Grove Investment Company v Civil Rights Commission, 3 8 0 M ich 4 0 5 ; 157 N W 2 d 2 1 3 ( 1 9 6 8 ) . 1 9 6 8 P A 1 1 2 , M C L A 5 6 4 .1 0 1 et seq.; M S A 26.1300 ( 1 0 1 ) e t se q . (2 a a , 3 a a ). 47 County, supra, 391 US, at 436; Alexander v Holmes County Board of Education, supra, 396 US, at 20; and Swann v Charlotte- Mecklenburg 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. Defendants 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’ witnesses. (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 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 the many other factors relating to school construction decisions. 5 0 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 if a metropolitan plan is adopted. (Emphasis added.) * * * “ 6. The plan does not lend itself as a building block fora 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 llight oi Whites 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 5 2 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;’ That is why I was interested in the projections of the student population of the city. We end up with student population of Detroit of 80 to 85 percent black. How do you integrate, or, if I find segregation, to put it 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- 5 3 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. (19la-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, The teachings of 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 / 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 of 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 1 1, 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 Court 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 1 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. * * * 5 6 “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 accomplished 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. 5 7 C. The teachings of Green, Alexander and Swann, were unheeded and 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 Court has consistently required majority black school systems to convert to unitary school systems without regard to achieving racial balance among such 5 9 majority black school systems 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 of City of 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 of 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, affirmed 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 of 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 of Education, City of 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 mm times the size of the District of Columbia. Z v /A /y 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. THE DECISION OF THE LOWER COURTS THAT A MUL- TI-SCHOOL DISTRICT REMEDY IS CONSTITU TIONALLY PERMISSIBLE HEREIN IS MANIFESTLY ER RONEOUS. A. Scope of multi-district remedy decreed below and sought on remand by plaintiffs’ amended complaint. 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, 101a-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-107a, IVa 18). 6 4 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 6 5 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 of Detroit was approximately 90% white, thus negating any possible inference that the city and school district boundaries were made coterminous for the purpose of separating people or school children on the basis of race. (21a). In Spencer v Kugler, supra, plaintiffs challenged the 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 6 6 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 Gomillionv 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. 12, 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. 6 7 C. This massive m ulti-school district remedy is not support ed by any de jure conduct o f any o f 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-175a). 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, 15.3491. (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 pnnciples concerning school desegregation remedies unanimously enunciated by this Court in Swann, 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 6 8 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, Alexander, 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 m ulti-school district remedy is not sup ported by any conduct o f defendants Milliken, et al, with the purpose and present causal effect o f 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 HI 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 6 9 in school finance among school districts give rise to no constitu tional violation. Rodriguez, supra. The former Carver School District area has 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). (21a). 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. The multi-district relief decreed below is for the sole purpose o f racial balance within a tri-county 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. Tire 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 [t]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.” 7 2 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 effective 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 of 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? Yes.A. 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 of 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.” (101 a-102a). PX P.M. 12 (Va 111-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 50.8% black pupils Hamtramck 28.7% black pupils Highland Park 85.1% black pupils Inkster 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, f 16J 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 attem pt by the appellate m ajority 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 Although the trial court, based on 30 specific findings, found node 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). T h u s , 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 o f educa tion with whom they have no contractual relationship. See section 5 6 9 oft® 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. 7 9 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-105a). 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-51 aa). 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. 80 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 of 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 of 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, p̂ra, 376 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 85 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 rel Workman v Board of Education of 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 of Education o f the City of Grand Rapids, Michigan, supra, against the plaintiffs on the issue of pupil segregation also attests to this fact. Mason v Board of 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 Court has consistently recognized both the impor tance of local control over public education and the integrity of local political 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 o f the sch oo l districts to be a ffected outside Detroit have heretofore always exercised such local con trol. 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-l 77a). (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 then- 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-51aa). 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. 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. 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.” £17] (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 example, in 1972-73 the legislature appropriated $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 £171 xhe 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. Tire 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. The lower courts denied fundamental due process to the affected school districts other than Detroit. 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 unposed 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 Krasicky 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 ! IN THE SUPREME COURT OF THE UNITED STATES October Term, 1973 No. 73-434 WILLIAM G. MILLIKEN, et al, v. RONALD G. BRADLEY, et al, Petitioners, Respondents. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT APPENDIX TO 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 Business Address: 750 Law Building 525 West Ottawa Street Lansing, Michigan 48913 1 IN D E X TO A P P E N D IX T O BR IEF OF PETITIO N ER S M IL L IK E N ET A L Page Michigan Constitution of 1908 ........................................ laa Michigan Constitution of 1963 ........................................ laa 1955 PA 269, as amended, MCLA 340.1 et seq.; MSA 15.3001 et seq. (The School Code of 1955).................. 6aa 1842 PA 70 ...................................................................... 52aa 1969 PA 244 .................................................................... 52aa 1970 PA 48 ..................................................................... 54aa 1964 PA 289 .................................................................... 58aa 1967 PA 239 ................................................................... 64aa 1937 PA 306, § 1 ............................................................. 68aa 1949 PA 231, §1 .................................................................. 69aa 1962 PA 175, § 1 .................................................................. 70aa 1968 PA 239, §1 .................................................................. 71aa 1957 PA 312, §34 ........................................................... 72aa 1972 PA 258, §18 ............................................................. 73aa 1972 PA 258, §21 ............................................................. 74aa 1973 PA 101, §21(1) .......................................................... 74aa 1972 PA 258, §51 ............................................................. 75aa 1973 PA 101, §51 ............................................................. 75aa 1947 PA 336, §15, as added by 1965 PA 379 ..................... 76aa 1969 PA 306, §46, as amended by 1971 PA 171 ..................77aa laa CONSTITUTION OF 1908 ARTICLE XI. EDUCATION. Superintendent of public instruction; election; term ; duties; com pensation. | Sec. 2.A superintendent of public instruction shall be elected at the regular election j to be held on the first Monday in April, nineteen hundred nine, and every second year i thereafter. He shall hold office for a period of two years from the first day of July fol lowing his election and until his successor is elected and qualified. He shall have gen- j era!supervision of public instruction in the state. He shall be a member and secretary | of the state board of education. He shall be ex-officio a member of all other boards | having control of public instruction in any state institution, with the right to speak but | not to vote. His duties and compensation shall be prescribed by law. HISTORY: See Const. 1S50, 13. 1, S. 1; 9. 1. STATE BOARD OF EDUCATION: See See. 6 , Art. XI of this constitution. — ^ > CONSTITUTION OF MICHIGAN OF 1 963 ARTICLE 4 Legislative Branch > General appropriation bills; priority, statem ent of estim ated revenue. Sec. 31. The general appropriation bills for the succeeding fiscal period covering items set forth in the budget shall be passed or rejected in either house o f the legisla ture before that house passes any appropriation bill for items not in the budget except hills supplementing appropriations for the current fiscal year’s operation. Any bill re quiring an appropriation to carry out its purpose shall be considered an appropriation I 11 ' ®ne °f the general appropriation bills as passed bv the legislature shall contain an itemized statment of estimated revenue bv major source in each operating fund for the ensuing fiscal period, the total of which shall not be less than the total of all appropria tions made from each fund in the general appropriation bills as passed. HISTOKY: New Section. & “ 1 1: 2aa Bills passed; approval by governor or veto , reconsideration by legislature, Sec. 33. Every bill passed by the legislature shall be presented to the governor! fore it becomes law, and the governor shall have 14 days measured in hours andi utes from the time of presentation in which to consider it. If he approves, hesht within that time sign and file it with the secretary of state and it shall become law.I he does not approve, and the legislature has within that time finally adjourned these sion at which the bill was passed, it shall not become law. If he disapproves, and I legislature continues the session at which the bill was passed, he shall return it wills such 14-day period with his objections, to the house in which it originated. Thatlios shall enter such objections in full in its journal and reconsider the bill. If two-thirds! the members elected to and serving in that house pass the bill notwithstandingt l i e i jcctions of the governor, it shall be sent with the objections to the other house form consideration. The bill shall become law if passed by two-thirds of the members eh j ted to and serving in that house. The vote of each house shall be entered in the jomta with the votes and names of the members voting thereon. If anv bill is not returned1! the governor within such 14-dav period, the legislature continuing in session, it sill become law as if he had signed it. HISTORY: See Const. 190S. V, 36. ARTICLE 5 Executive Branch Disapproval of items in appropriation bills. Sec. 19. The governor may disapprove any distinct item or items appropriating o®1 eys in any appropriation bill. The part or parts approved shall become law, andtt item or items disapproved shall be void unless re-passed according to the method pit- scribed for-the passage of other bills over the executive veto. HISTORY: See Const. 1908, V, 37. Civil rights comm ission; m em bers, term , duties, appropriation. Sec. 29. There is hereby established a civil rights commission which shall consistt eight persons, not more than four of whom shall be members of the same politic* party, who shall be appointed by the governor, by and with the advice and consent' the senate, for four-year terms not more than two of which shall expire in the s» year. It shall be the duty of the commission in a manner which may be prescribed law to investigate alleged discrimination against any person because of religion. »■' color or national origin in the enjovment of the civil rights guaranteed by law an this constitution, and to secure the equal protection of such civil rights without« discrimination. The legislature shall provide an annual appropriation’ for the effect!' operation of the commission. ! Rules and regulations; hearings, orders. The commission shall have power, in accordance with the provisions of this consu lt tution and of general laws governing administrative agencies, to promulgate rules and k regulations for its own procedures, to hold hearings, administer oaths, through court d authorization to require the attendance of witnesses and the submission of records, to ss take testimony, and to issue appropriate orders. The commission shall have other pow- I ers provided bv law to carry out its purposes. Nothing contained in this section shall > he construed to diminish the right of, any party to direct and immediate legal or equi- isj table remedies in the courts of this state. A ppeals. Appeals from final orders of the commission, including cease and desist orders and refusals to issue complaints, shall be tried de novo before the circuit court having juris- f diction provided be law. i HISTORY: New Section. ARTICLE 8 Education free public elementary and secondary schools; discrimination. Sec. 2. The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law. Ever)' school district shall provide for the ed ucation of its pupils without discrimination as to religion, creed, race, color or national origin. Nonpublic schools, prohibited aid. No public monies or property shall be appropriated or paid or any public credit uti- ued, by the legislature or any other political subdivision or agency of the state di- rectly or indirectly to aid or maintain any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school. Xo payment, credit, tax benefit, ex- omption or deductions, tuition voucher, subsidy, grant or loan of public monies or i P‘°Perty shall be provided, directly or indirectly, to support the attendance of any stu- e,it or the employment of any person at any such nonpublic school or at any location institution where instruction is offered in whole or in part to such nonpublic school ^ etj|s- The legislature may provide for the transportation of students to and from 0R1 Am. proposed by initiative petition;ratified at general election on Nov. 3,1970. See Const. 1903, XI, 9. Invalid provision, see p. 50. , te board of education; duties. ec' Leadership and general supervision over all public education, including adult instructional programs in state institutions, except as to institutions of on granting baccalaureate degrees, is vested in a state board of educa- rve as the general planning and coordinating body for all public educa- d̂iication and .^er educati It shall se 4aa State board of education; duties. See. 3. Leadership and general supervision over all public education, including add education and instructional programs in state institutions, except as to institutions of higher education granting baccalaureate degrees, is vested in a state board of educa tion. It shall serve as the general planning and coordinating body for all public educa tion, including higher education, and shall advise the legislature as to the financial re quirements in connection therewith. I Superintendent of public instruction; appointment, powers, duties. The state board of education shall appoint a superintendent of public instruction whose term of office shall be determined by the board. He shall be the chairman of lb board without the right to vote, and shall be responsible for the execution of its poll cies. He shall be the principal executive officer of a state department of education which shall have powers and duties provided by law. . State board of education; m em bers, nom ination, election, term. The state board of education shall consist of eight members who shall be nominate! by party conventions and elected at large for terms of eight years as prescribed by k The governor shall fill any vacancy by appointment for the unexpired term. The govt ernor shall be ex-officio a member of the state board of education without the rightte j vote. > Boards of institutions of higher education, limitation. The power of the boards of institutions of higher education provided in this const: tution to supervise their respective institutions and control and direct the expenditure of the institutions’ funds shall not be limited by this section. HISTORY: See Const. 1909, XI, 2, 6 . ARTICLE 9 Finance and Taxation 1 5 mill limitation. Sec. 6. Except as otherwise provided in this constitution, the total amount of gened ad valorem taxes imposed upon real and tangible personal property for all purposes: any one year shall not exceed 15 mills on each dollar of the assessed valuation of pr0P erty as finally equalized. Under procedures provided by law, which shall guarantee tin right of initiative, separate tax limitations for any county and for the townships and or school districts therein, the aggregate of which shall not exceed 18 mills on each doy of such valuation, may be adopted and thereafter altered by the vote of a majority 1 the qualified electors of such county voting thereon, in lieu of the limitation herein* fore established. These limitations may be increased to an aggregate of not to excet 50 mills on each dollar of valuation, for a period of not to exceed 20 years at any1;; time, if approved by a majority of the electors, qualified under Section 6 of Article of this constitution, voting on the question. 5aa Nonapplication of lim itation. T h e f o r e g o i n g l i m i t a t i o n s s h a l l n o t a p p l y t o t a x e s i m p o s e d f o r t h e p a y m e n t o f p r i n c i pal a n d i n t e r e s t o n b o n d s o r o t h e r e v i d e n c e s o f i n d e b t e d n e s s o r f o r t h e p a y m e n t o f a s sessm e nts o r c o n t r a c t o b l i g a t i o n s i n a n t i c i p a t i o n o f w h i c h b o n d s a r e i s s u e d , w h i c h taxes m a v b e i m p o s e d w i t h o u t l i m i t a t i o n a s t o r a t e o r a m o u n t ; o r t o t a x e s i m p o s e d f o r any o t h e r p u r p o s e b y a n y c i t y , v i l l a g e , c h a r t e r c o u n t y , c h a r t e r t o w n s h i p , c h a r t e r a u th o rity o r o t h e r a u t h o r i t y , t h e t a x l i m i t a t i o n s o f w h i c h a r e p r o v i d e d b y c h a r t e r o r b y general l a w . School districts in 2 or m ore counties. In a n y s c h o o l d i s t r i c t w h i c h e x t e n d s i n t o t w o o r m o r e c o u n t i e s , p r o p e r t y t a x e s a t t h e highest r a t e a v a i l a b l e i n t h e c o u n t y w h i c h c o n t a i n s t h e g r e a t e s t p a r t o f t h e a r e a o f t h e district m a y b e i m p o s e d a n d c o l l e c t e d f o r s c h o o l p u r p o s e s t h r o u g h o u t t h e d i s t r i c t . 1USTOKV: See Const. 1908, X, 21. State school aid fund, source and distributfon. S ec. 1 1 . T h e r e s h a l l b e e s t a b l i s h e d a s t a t e s c h o o l a i d f u n d w h i c h s h a l l b e u s e d e x c l u sively f o r a i d t o s c h o o l d i s t r i c t s , h i g h e r e d u c a t i o n a n d s c h o o l e m p l o y e e s r e t i r e m e n t system s, as p r o v i d e d b v l a w . O n e - h a l f o f a l l t a x e s i m p o s e d o n r e t a i l e r s o n t a x a b l e s a le s at r e ta il o f t a n g i b l e p e r s o n a l p r o p e r t y , a n d o t h e r t a x r e v e n u e s p r o v i d e d b y l a w , s h a l l he d e d i c a t e d t o t h i s f u n d . P a y m e n t s f r o m t h i s f u n d s h a l l b e m a d e i n f u l l o n a s c h e d uled b a s is , a s p r o v i d e d b v l a w . HISTORY: New Section. Payments from state treasu ry . S e c . 1 7 . N o m o n e y s h a l l b e p a i d o u t o f t h e s t a t e t r e a s u r y e x c e p t i n p u r s u a n c e o f a p p r o p r ia tio n s m a d e b y l a w . HISTORY: See Const. 1908. X. 16. 6aa A c t 2 6 9 , 1 9 5 5 , p . 4 7 5 ; E f f . J u l . 1 . A N A C T t o p r o v i d e a s y s t e m o f p u b l i c i n s t r u c t i o n a n d p r i m a r y s c h o o l s ; t o p rov id e f o r t h e c l a s s i f i c a t i o n , o r g a n i z a t i o n , r e g u l a t i o n a n d m a i n t e n a n c e o f s c h o o l s a n d school d i s t r i c t s ; t o p r e s c r i b e t h e i r r i g h t s , p o w e r s , d u t i e s a n d p r i v i l e g e s ; t o p r o v i d e f o r regis t r a t i o n o f s c h o o l d i s t r i c t s , a n d t o p r e s c r i b e p o w e r s a n d d u t i e s w i t h r e s p e c t th e re to ; to p r o v i d e f o r a n d p r e s c r i b e t h e p o w e r s a n d d u t i e s o f c e r t a i n b o a r d s a n d o f f i c i a l s ; to pre s c r i b e p e n a l t i e s ; a n d t o r e p e a l c e r t a i n a c t s a n d p a r t s o f a c t s . ' The People o f the State o f Michigan enact: P A R T 1 . C H A P T E R 1 . C L A S S I F I C A T I O N . 340.1 School code of 1955; short title. S e c . 1 . T h i s a c t s h a l l b e k n o w n a n d m a y b e c i t e d a s “ T h e s c h o o l c o d e o f 1 9 5 5 ” . HISTORY: New 1953, p. 475, Act 269, Eff. Jul. 1. CITED IN OTHER SECTIONS: Sections 340.1 to 340.984 are cited in §§ 388.650, 388.681, and 389.81. 3 4 0 .2 School districts; organization. S e c . 2. H e r e a f t e r , e x c e p t a s o t h e r w i s e p r o v i d e d i n t h i s a c t , e a c h a n d e v e r y school d i s t r i c t s h a l l b e o r g a n i z e d a n d c o n d u c t e d a s : 1 . A p r i m a r y s c h o o l d i s t r i c t ; o r 2 . A s c h o o l d i s t r i c t o f t h e f o u r t h c l a s s ; o r 3 . A s c h o o l d i s t r i c t o f t h e t h i r d c l a s s ; o r 4 . A s c h o o l d i s t r i c t o f t h e s e c o n d c l a s s ; o r 5 . A s c h o o l d i s t r i c t o f t h e f i r s t c l a s s . HISTORY: New 1955, p. 475, Act 269, EH. Jul. 1. 340.3 Same; loss of organization, apportionment of territory. [M.S.A. 15.3003] Sec. 3. Any school district shall lose its organization whenever there are not enough persons in such district qualified under the law to hold district offices or who will accept such offices. Upon the happening of either condition, the county board of education of the county containing the district shall declare by resolution such district dissolved and shau > immediately attach the territory thereof, in whole or in part, to other districts already organized and make an equitable distribution of the money, property and other material belonging to such district among the districts to which the territory thereof shall be attached. Provided, That if the district extends into more than 1 county, the county boards of edu- cation of all such counties shall meet jointly and sit as a single board for the dissolution of such district. 7aa § 3, as amended by 1964 PA 176 340.3 School districts; disorganization, apportionm ent of territory, taxes. S e c . 3 . A n y s c h o o l d i s t r i c t s h a l l l o s e i t s o r g a n i z a t i o n w h e n e v e r t h e r e a r e n o t e n o u g h p e rson s i n s u c h d i s t r i c t q u a l i f i e d u n d e r t h e l a w t o h o l d d i s t r i c t o f f i c e s o r w h o w i l l a c cept s u c h o f f i c e s . U p o n t h e h a p p e n i n g o f e i t h e r c o n d i t i o n , t h e c o u n t y b o a r d o f e d u c a tion o f t h e c o u n t y c o n t a i n i n g t h e d i s t r i c t s h a l l d e c l a r e b y r e s o l u t i o n s u c h d i s t r i c t d i s so lve d a n d s h a l l i m m e d i a t e l y a t t a c h t h e t e r r i t o r y t h e r e o f , i n w h o l e o r i n p a r t , t o o t h e r districts a l r e a d y o r g a n i z e d a n d m a k e a n e q u i t a b l e d i s t r i b u t i o n o f t h e m o n e y , p r o p e r t y and o t h e r m a t e r i a l b e l o n g i n g t o s u c h d i s t r i c t a m o n g t h e d i s t r i c t s t o w h i c h t h e t e r r i t o r y th e re o f s h a l l b e a t t a c h e d . I f t h e d i s t r i c t e x t e n d s i n t o m o r e t h a n 1 c o u n t y , t h e c o u n t v bo ards o f e d u c a t i o n o f a l l s u c h c o u n t i e s s h a l l m e e t j o i n t l y a n d s i t a s a s i n g l e b o a r d f o r the d i s s o l u t i o n o f s u c h d i s t r i c t . T h e p r o p e r t y o f t h e d i s o r g a n i z e d d i s t r i c t s h a l l b e s u b ject to a n y i n c r e a s e i n t h e c o n s t i t u t i o n a l l i m i t a t i o n o n t a x e s w h i c h h a v e b e e n v o t e d b y the e le c to r s o f t h e d i s t r i c t t o w h i c h i t is a t t a c h e d , w h e t h e r t h e v o t e d i n c r e a s e is f o r b u ild in g a n d s i t e p u r p o s e s , g e n e r a l f u n d p u r p o s e s , o r f o r t h e r e t i r e m e n t o f b o n d s e x ce pt it s h a l l r e c e i v e a c r e d i t i n t h e a m o u n t o f a n y l e v y r e m a i n i n g t o b e p a i d o n a n y o u t s t a n d in g d e b t i n t h e d i s o r g a n i z e d d i s t r i c t , w h i c h s h a l l b e p a i d u n t i l d e b t is r e t i r e d and s h a ll a l s o p a y a n a m o u n t e q u a l t o t h e a m o u n t l e v i e d f o r d e b t r e t i r e m e n t b y t h e d is tric t t o w h i c h i t is a t t a c h e d n o t t o e x c e e d 5 m i l l s o n t h e s t a t e e q u a l i z e d v a l u a t i o n i n the d i s o r g a n i z e d d i s t r i c t . A l l o t h e r t a x e s l e v i e d f o r t h e p u r p o s e s o f t h e c o m b i n e d school d i s t r i c t , i n c l u d i n g t a x e s f o r t h e r e t i r e m e n t o f b o n d e d i n d e b t e d n e s s , s h a l l b e sp read o v e r t h e e n t i r e a r e a o f t h e c o m b i n e d d i s t r i c t . Bonded indebtedness; board of trustees of receiving district; taxes; audit. I f a n y d i s o r g a n i z e d d i s t r i c t h a s a b o n d e d i n d e b t e d n e s s t h e d i s t r i c t s h a l l b e a t t a c h e d in w h o le t o a n o t h e r d i s t r i c t b y t h e i n t e r m e d i a t e b o a r d o f e d u c a t i o n . T h e i d e n t i t y o f the d i s t r i c t s h a l l n o t b e l o s t b y v i r t u e o f t h e a t t a c h m e n t , a n d i t s t e r r i t o r y s h a l l r e m a i n as a s e p a r a t e a s s e s s i n g u n i t f o r t h e p u r p o s e o f t h e b o n d e d i n d e b t e d n e s s u n t i l t h e i n d e b te d n e s s h a s b e e n r e t i r e d o r r e f u n d e d . T h e b o a r d o f t h e d i s t r i c t t o w h i c h t h e d i s o r g a n iz e d d i s t r i c t is a t t a c h e d s h a l l c o n s t i t u t e t h e b o a r d o f t r u s t e e s f o r t h e d i s o r g a n i z e d d is tric t h a v i n g t h e b o n d e d i n d e b t e d n e s s , a n d i t s o f f i c e r s s h a l l b e t h e o f f i c e r s f o r t h e d is o r g a n iz e d d i s t r i c t . T h e b o a r d o f t h e d i s t r i c t t o w h i c h t h e d i s o r g a n i z e d d i s t r i c t h a s been a t t a c h e d s h a l l c e r t i f y a n d o r d e r t h e l e v y o f t a x e s f o r s u c h b o n d e d i n d e b t e d n e s s in the n a m e o f t h e d i s o r g a n i z e d d i s t r i c t , s h a l l n o t c o m m i n g l e t h e d e b t r e t i r e m e n t f u n d s of th e d i s o r g a n i z e d d i s t r i c t w i t h t h o s e o f t h e d i s t r i c t t o w h i c h i t h a s b e e n a t t a c h e d , a n d shall d o a l l t h i n g s r e l a t i v e t o t h e b o n d e d i n d e b t e d n e s s r e q u i r e d b y l a w a n d b y t h e term s u n d e r w h i c h t h e i s s u a n c e a n d s a l e o f t h e b o n d s w e r e o r i g i n a l l y a u t h o r i z e d . A l l o th e r t a x e s l e v i e d f o r t h e p u r p o s e s o f t h e c o m b i n e d s c h o o l d i s t r i c t , i n c l u d i n g t a x e s l e v ied f o r t h e r e t i r e m e n t o f b o n d e d i n d e b t e d n e s s , s h a l l b e s p r e a d o v e r t h e e n t i r e a r e a o f the c o m b i n e d d i s t r i c t . I m m e d i a t e l y u p o n t h e a t t a c h m e n t o f a d i s o r g a n i z e d d i s t r i c t t o a n o th e r d i s t r i c t t h e i n t e r m e d i a t e b o a r d s h a l l a u d i t t h e a s s e t s a n d L i a b i l i t i e s o f t h e d i s o r g a n iz e d d i s t r i c t a n d i f a n v c o n s i d e r a b l e d i s c r e p a n c y is f o u n d t h e i n t e r m e d i a t e b o a r d snail o r d e r t h e r e c e i v i n g d i s t r i c t t o p a y t h i s d i s c r e p a n c y . T h e d i s o r g a n i z e d d i s t r i c t s h a l l re p a y f r o m a n y m o n e y s a v a i l a b l e i n c l u d i n g v o t e d m i l l a g e t h a t a m o u n t i n a t i m e t o b e e t e n n i n e d b y t h e i n t e r m e d i a t e b o a r d . WSTOhV: New 1 9 5 5 p 4 - 5 Act ̂ E(f juj Am. 1961, p. 236. Art 176, Imd. Ell. May 19. 8aa i C H A P T E R 3 . S C H O O L D I S T R I C T S O F T H E F O U R T H C L A S S . 340.51 Fourth class districts; reclassification as g raded , township or rural agricultural districts. S e c . 5 1 . E a c h s c h o o l d i s t r i c t o r g a n i z e d a s a g r a d e d , t o w n s h i p o r r u r a l agricultural i s c h o o l d i s t r i c t a t t h e t i m e o f t h e t a k i n g e f f e c t o f t h i s a c t s h a l l b e a s c h o o l d is t r i c t of the I f o u r t h c l a s s s u b j e c t t o r e c l a s s i f i c a t i o n a s h e r e i n a f t e r p r o v i d e d , a n d s h a l l o p e r a t e and be j g o v e r n e d a s s u c h b y t h e p r o v i s i o n s o f t h i s c h a p t e r a n d b y s u c h p r o v i s i o n s o f p a rt 2 of | t h i s a c t a s a r e n o t i n c o n s i s t e n t w i t h t h i s c h a p t e r . HISTORY: New 1955, p. 480, Act 269, Eff. Jul. 1. 340.52 Fourth class districts; reclassification in certain prim ary districts. S e c . 5 2 . A n y p r i m a r y s c h o o l d i s t r i c t h a v i n g a s c h o o l c e n s u s o f m o r e t h a n 7 5 and less t h a n 2 , 4 0 0 c h i l d r e n b e t w e e n t h e a g e s o f 5 a n d 2 0 a s c e r t i f i e d b y t h e s u p e r in te n d e n to l p u b l i c i n s t r u c t i o n , b y a m a j o r i t y v o t e o f t h e q u a l i f i e d v o t e r s p r e s e n t a t a n annual or s p e c i a l m e e t i n g m a y o r g a n i z e a s a f o u r t h c l a s s s c h o o l d i s t r i c t . HISTORY: New 1955, p. 480, Act 269, Eff. Jul. 1:—Am. 1959, p. 451, Act 271, Imd. Eff. Nov. 3. 340.53 Fourth class districts; referendum on reclassification in certain pri-1 m ary districts. S e c . 5 3 . I n e a c h p r i m a r y d i s t r i c t w h i c h s h a l l h e r e a f t e r h a v e a s c h o o l c e n s u s o f more t h a n 7 5 a n d l e s s t h a n 2 , 4 0 0 c h i l d r e n b e t w e e n t h e a g e s o f 5 a n d " 2 0 , ' a s c e r t i f i e d b y the s u p e r i n t e n d e n t o f p u b l i c i n s t r u c t i o n , t h e q u e s t i o n o f o r g a n i z i n g a s a f o u r t h class school d i s t r i c t m a y b e s u b m i t t e d t o t h e s c h o o l e l e c t o r s t h e r e o f a t a n a n n u a l o r s p e c ia l school m e e t i n g f o l l o w i n g t h e a t t a i n m e n t o f s u c h s c h o o l c e n s u s . T h e i n t e n t i o n t o s u b m it the q u e s t i o n o f t h e o r g a n i z a t i o n o f a f o u r t h c l a s s s c h o o l d i s t r i c t s h a l l b e e x p r e s s e d in the n o t i c e o f s u c h a n n u a l o r s p e c i a l m e e t i n g . HISTORY: New 1955, p. 4-80, Act 269, Eff. Jul. 1 Ant. 1959, p. 452, Act 271, Imd. Eff, Nov. 3. 3 4 0 .5 4 Fourth class districts; notice of reclassification. S e c . 5 4 . W h e n e v e r t h e e l e c t o r s o f t h e d i s t r i c t h a v e b y t h e i r v o t e a p p r o v e d the re c l a s s i f i c a t i o n o f a p r i m a r y d i s t r i c t t o a d i s t r i c t o f t h e f o u r t h c l a s s , i t s h a l l b e t h e duty of t h e s e c r e t a r y o f t h e b o a r d t o g i v e n o t i c e o f s u c h r e c l a s s i f i c a t i o n , i n w r i t i n g , to the' c o u n t y s u p e r i n t e n d e n t o f s c h o o l s o f e a c h c o u n t y i n w h i c h t h e d i s t r i c t is s i t u a t e d and to, t h e s u p e r i n t e n d e n t o f p u b l i c i n s t r u c t i o n w i t h i n 1 0 d a y s a f t e r t h e v o t e t h e r e o n . HISTORY: New 1955, p. 480, Act 269, Eff. Jul. 1. 9aa 340.55 Board of education; election, term , qualification, acceptance. Sec. 55. When such change in the organization of the district shall have been voted, the voters at the next annual election or annual meeting shall proceed to elect by bal lot a board of 5 members, 1 member for the term of 1 year, 2 for the term of 2 years, and 2 for the term of 3 years, and annually thereafter a successor or successors to the member or members whose terms of office shall expire. The term of office of a mem ber of the board of any district governed by the provisions of this chapter shall be for 3 years, except in the case of the board elected at the first annual election or annual meeting following reclassification. Successors to the members whose terms expire shall be elected by the school electors of the district, by ballot, at each annual election or annual meeting. The board of the primary district shall continue to be the board for the district until the election and qualification of the new board at tire first annual election or annual meeting following reclassification, and upon the qualification for and acceptance of office pursuant to section 493 of this act by 3 of the newly elected members, the district shall be deemed duly organized. After the annual election or an nual meeting in 1960, tire board of all fourth class school districts operating grades kin dergarten through 12 shall consist of 7 members. At the annual election or annual meeting in 1960, the voters shall elect by ballot for a term of 4 years, 2 board mem bers, and the voters shall elect by ballot for a term of 3 years successors to the mem bers whose terms of office shall expire. At the annual election or annual meeting there after, the voters shall elect for a term of 4 years successors to the members whose terms shall expire. After the rotation is established, not more than 2 members shall be elected in any one year to fill vacancies occurring by expiration of terms. HISTORY: New 1955, p. 481, Act 269, EH. Jul. 1;—Am. 1959, p. 16, Act 16, Elf. Mar. 19, 1960. 340,55a Board of education; school m eetings, adoption of election system , rescission, election of board m em bers. Sec. 55a. In school districts of the fourth class having a school census of less than 600 children there shall be held school meetings rather "than school elections: Pro vided, That the board of education may by resolution determine that school elections rather than school meetings be held within such district, as provided by sections 72 through 76 of this act. Such resolution once adopted mav be rescinded by the board and shall be rescinded upon petition of a majority of the electors of the district, but such rescission shall not be effective as to any election held less than 90 days following the adoption of the resolution to rescind. In fourth class school districts holding school meetings rather than school elections, such meetings shall be called and held at the hmes and in the manner provided bv sections 34 through 37 of this act. At the annual meeting there shall be elected by ballot school board members to succeed those whose h'rms then expire, and to fill vacancies. The school electors present at any annual meeting shall have all of the powers granted to school electors in districts of the fourth (,lass. The president of the hoard of education shall preside, when present, at all meet- m8s of the district, and the secretary of the board, when present, shall act as clerk. HISTORY: Add 1956, p 46!, Act 215. limi. Ell. May 1 :—Am. 1957, p. 90, Act 8 8 , Imd. Ell. May 23. lOaa 340.56 Board of education; nom inating petitions, canvass, withdrawal)1 candidate, ballot form. Sec. 56. Candidates for members of the first and succeeding boards to be elects under this chapter shall be nominated by petition. To obtain the printing of the nan of any candidate for member of the board on the ballot, the candidate shall file not nation petitions with the secretary of the board not later than 4 p.m. on the thirties day prior to the date of the election, unless the thirtieth day falls on a Saturday, Sui day or legal holiday in which case nomination petitions may be served on the secretin up to 4 p.m. on the next secular day. Each petition shall be signed by a numberoi • qualified school electors of the district equal to not less than 1% nor more than 4% ol the total number of votes received by the candidate for member of the board of edu cation who received the greatest number of votes at the last election at which men bers to the board of education were elected but in no case shall such number belts than 20. No elector shall sign petitions for more candidates than are to be elected, Tk petitions shall be in the form prescribed in section 538 of this act except that the peti tion shall refer to qualified school electors rather than registered school electors; Upon the filing of nomination petitions with the secretary of the board, the officii shall canvass the same to ascertain if such petitions have been signed by the requisite number of qualified electors, and for the purpose of determining the validity thereof may cause any doubtful signatures to be checked against the registration records;’ the clerk of any' political subdivision in which the petitions were circulated, or mavis any other method he deems proper for determining the validity of such doubtful signa tures. In case it is determined that the nomination petitions of any candidate do ni comply with such requirements, or if such candidate does not possess the qualifica tions as required by law for membership on the board, it shall be the duty of the secre- tary of the board to notify immediately such candidate of such fact. In the cased; nomination petitions filed on behalf of the secretary' of the board, the treasurer of M board shall perform the duties of the secretary in connection therewith instead of tf«| secretary. After the filing of a nomination petition bv or on behalf of a candidate for member ship on the board, such candidate shall not be permitted to withdraw unless a writtet notice of withdrawal, signed by the candidate, is served on the secretary of the bo® not later than 4 p.m. of the third day after the last day for filing such petition untef the third day falls on a Saturday, Sundav or legal holiday, in which case the notice of withdrawal may be served on the secretary up to 4 p.m. on the next secular day. The secretary of the board shall prepare and have printed an official ballot wlucai shall contain a separate area for each term of office. The ballot shall be substantially the same form as provided in the general election law and the names of all candidate who have been duly nominated for each term of office shall be printed in the prop1 place thereon. In the printing of the ballots, the provisions of the general law of in state for transposing and alternating the positions of the names of candidates on pri mary election ballots shall apply. No partv emblem or designation shall be placed i school election ballots. The head of each section of the ballot shall have printed oni the number of persons to be voted for, and the expiration date of the term involved. HISTORY: New 1955. p. 481, Act 269. EH. Jul 1 Am. 1961, p. 36S, Ael 218, Eft. Sep. 8 :—Am. 1968, p. 133, Act 80, tod. Ef f - ' 1 laa 340.57 Board of education; officers, election; rem oval. Sec. 57. The members of the board shall meet on the second Monday of July suc ceeding their election and annually on the same day thereafter. The members of the hoard shall organize the board by electing a president, a secretary and a treasurer, and for cause mav remove the same from such offices and shall elect others of their num ber in such places. HISTORY: New 1955, p. 481. Ait 289. Eff. Jul. 1;—Am. 1961, p. 30, Act 29, Imd. E(l. May 12;—Am. 1967. p. 247, Act 165. Imd. Eff.}un.3ll. 340.58 Board of education; appointm ent of officers by county board. Sec. 58. Whenever, in anv ease, the board shall fail or neglect to elect the officers of the board as provided in this chapter within 15 davs after the annual election, the county board of education shall appoint the said officers from the members of the board: Provided, That if the district extends into more than 1 county, the county boards of education of all such counties shall meet jointly and sit as a single board for the purpose of appointing the officers. HISTORY: New 1955. p. 482, Act 269, Elf. Jul. 1. 340,59 Treasurer; bond, sureties; exceptions. Sec. 59. Within 30 davs after his appointment, the treasurer of the board shall file with the secretary an official bond in such an amount and form as may be determined by said board, except that when the board treasurer is not directly handling school dis trict money or signing checks no bond is necessary. When the authority for directing the administration of school district money rests with a school district employee, said person and all persons connected therewith shall be bonded. If a surety bond is given, it shall be paid for by the district. HISTORY: New 1955, p. 482* Act 269, Eff.Jul. 1;—Am. 1966, p. 344, Act 255, Imd. Eff. Jul. 11. 340.60 President; duties. Sec. 60. It shall be the duty of the president of the board: Presiding officer at m eetings of board. First, to preside at all meetings of the board; Countersignature of orders. Second, To countersign all orders legally drawn In the secretary upon the treasurer for moneys to be disbursed on behalf of the district; Prosecution of action on treasurer’s bond. Third, To cause an action to be prosecuted in the name of the district on the treas urers bond in case of any breach of anv condition thereof; and Other duties. fourth. To perform such other duties as mav be appropriate to the duties of his of- ice in the management of the schools as the board shall determine. HISTORY: New 1955. p. 4n2. Act 269. Eff. Jul. 1 . 12aa 340,61 Secretary ; duties. Sec. 61. It shall be the duty of the secretary of the board: C lerk at m eetings of board . First, To act as clerk at all meetings of the board; Record of proceedings of board. Second, To record the minutes of all meetings, orders, resolutions and other pro ceedings of the board in proper record books and sign the same; Notice of elections. Third, To give or cause to be given the prescribed notice of the annual election and of any special elections of the district; Annual and other reports. Fourth, To prepare the annual report of the school district and such other reports as may be required by the superintendent of public instruction; O rders, Fifth, To draw and sign orders upon the district treasurer for all moneys to be dis-! bursed by the district, and present such orders to the president to be countersigned by I that officer. Each order shall be properly numbered and dated, shall specify the sources of the funds called for, and the purpose for which and the fund upon which it is drawn; and O ther duties. Sixth, To perform such other duties as are or shall be required by law or by the board. HISTORY: New 1955, p. 4S2, Ac! 269, Eff. JuL 1. 340.62 Treasurer; duties. Sec. 62. It shall be the duty of the treasurer of the board: School m oneys; deposit as designated by board. First, The treasurer shall have the care and custody of all the moneys of the district coming into his hands. He shall deposit all funds of the district with any bank or bank ing corporation or trust company designated by the board and in such proportion and - manner as shall be provided by said board; Paym ent of orders. Second, To pay all orders of the secretary when lawfully drawn and countersigned by the president out of any moneys in his hands belonging to the fund upon which such orders shall be drawn; Receipts and disbursem ents; record. Third, To keep or cause to be kept a record book in which all moneys received and disbursed shall be entered, the sources from which the same have been received, an the person to whom and the objects for which the same have been paid; 13aa Same; report, vouchers. Fourth, To present to the board at the close of the school year a report in writing containing a statement of all moneys received during such year and of each item of disbursement made and exhibit the vouchers therefor if requested by the board, and lie shall maintain a permanent file of said vouchers; and Other duties. Fifth, To perform such other duties as are or shall be required by law or by the board. HISTORY: New 1955, p. 483, Act 269, EH. Jul. 1. 340.63 Board of education m onthly m eetings; special m eeting, notice, service. Sec. 63. The board shall hold 1 regular meeting each month at a time and place to be determined by said board and no notice of such meeting shall be required if the hour and place of such meeting shall have been fixed by resolution of the board and placed, on the records of the secretary of said board. Special meetings of the board may be called by the president of the board, or any 2 members thereof, by serving on the other members a written notice of the time and place of any such special meeting. Service of such notice mav be made by delivering the notice to the members person ally or by leaving the same at each member’s residence w'ith some person of the house hold at least 24 hours before such meeting is to take place, or by depositing the same in a government mail receptacle enclosed in a sealed envelope plainly addressed to such member at his last known residence address at least 72 hours before such meeting is to take place. Such service mav be made by a member of the board or any employee of the board. HISTORY: New 1955, p. 483, Act 269, EH. Jul. 1. 340,64 High schools; establishm ent, election. Sec. 64. When directed by a majority vote of the school electors voting on the ques tion at an annual or special election, the board shall establish a high school and deter mine the qualifications for admission to such high school: Provided, That such vote shall not be required in districts in which high schools have been established at the time of the taking effect of this act, or in the case of the formation of districts by con solidation or annexation where high schools have been established at the time of sue!', consolidation or annexation. HISTORY: New 1955, p. 483, Act 269, Eff. Jul. 1. 340.65 High schools; discontinuance; tuition and transportation. Sec. 65. When directed by a majority vote of the school electors, the board may dis continue the high school in such district. In such event, however, said board shall moke provision to send the pupils of said high school to the high school of another dis trict or districts. When such action has been taken, said board shall use the necessary unds to pay the tuition as provided in section 761 of this act and shall provide trans portation for all such pupils. HISTORY: New 1955, p. 45.3, Act 269, Eff. Jul. 1. 14aa 340 .66 Superintendent of schools; adm inistrators; term s, duties. Sec. 66. The board may employ a superintendent of schools who shall meet Ik qualifications prescribed in section 573, and shall employ a superintendent if 121 more teachers are employed. The contract with the superintendent shall be for a ten: fixed by the board not to exceed 3 years. The board may employ assistant superintend ents, principals, assistant principals, guidance directors and other classified administa tors who do not assume tenure in position, for a term fixed bv the board not to exceed 3 years, and shall define their duties. The employment shall be under written contract.. Notification of nonrenewal of contract shall be given in writing at least 90 days pri;: to the contract termination date or the contract is renewed for an additional 1-yra period. The superintendent shall have the following duties: (a) To recommend in writing all teachers necessary for the schools and to suspd any teacher for cause until the board may consider such suspension. (b) To classify and control the promotion of pupils. (c) To recommend to the board the best methods of arranging the course of studs and the proper textbooks to be used. (d) To make reports in writing to the board and to the state board of education® nually, or oftener if required, in regard to all matters pertaining to the educational e terests of the district. (e) To supervise and direct the work of the teachers and other employees oft board. (f) To assist the board in all matters pertaining to the general welfare of the seta ■. and to perform such other duties as the board may determine. (g) To put into practice the educational policies of the state and of the board in®) cordance with the means provided by the board. f HISTORY: New 1955, p. 484, Act 269, Elf. lid. 1;—Am. 1958, p. 117, Act 110, Eff. Sep. 13:—Am. 1966, p. 342, Act 254, Imd. f*Il —Am. 1970, p. 661, Act 247, Imd. Eff. Dec. 30. 340 .67 Discontinuance of schools or g rades; tuition and transportation students. Sec. 67. At an annual or special election, the school electors may vote to discontin r school in the district for the ensuing or current year and direct the board to mataf vision to send the children resident therein to another school or schools; or may'1 to direct the board to make provision to send the children of any grade to ano school or schools. When such action has been taken, the board shall use any ’un s | I cept library or building funds, to pay for the tuition and transportation of all suer | dren. HISTORY: New 1955, p. 484. Act 269, Eff. Jul. 1. 15aa 340.68 Transportation w ithin district; routes. Sec. 68. The board of any fourth class school district may provide for the transporta tion of pupils within the district when authorized by a majority vote of the school elec tors of the district voting on the question at an annual or special election. The board shall designate the routes over which the vehicles are to travel: Provided, however, That in districts in which the board was required by law or authorized by the electors to furnish such transportation at the time this act takes effect, such board shall con tinue such transportation until such authorization is rescinded by a majority of the electors of the district voting on the question at an annual or special election. HISTORY: New 1955, p. 484, Act 269, EH. Jul. 1. 340.69 Transportation and tuition to other districts; resident pupils. Sec. '69. The board may use money in the general fund or funds received from state appropriations for aid to school districts for the purpose of paying tuition and trans portation to another district or districts of resident pupils, even though the grades in which such pupils may be enrolled are maintained within the district. HISTORY: New 1955, p. 484, Act 269, Eff. Jul. 1. 340.70 Number or nam e of school district; changes. Sec. 70. The county board of education shall give a number to each of the fourth class school districts within the county: Provided, That when the territory of the dis trict extends into more than 1 county, such number shall be given by the countv boards of education of all such counties meeting jointly and sitting as a single board. Such number, together with the name of the county or counties in which the district is located, shall be the legal name of such district: Provided further, That the board of any fourth class school district may by resolution adopt a distinctive name for such school district and such name, after being approved by the county board of education as not being in conflict with the name of another district, together with the name of the county or counties into which the school district extends, shall be the legal name of such school district for all purposes. The board may in like manner change die name 0 n>e district. The adoption of a distinctive name or the change in name of any dis- tnct shall have no effect upon existing obligations incurred in the former name of the district or on the ownership of any real or personal property. HISTORY: New 1955, p. 485, Act 269, Eff. Jul. 1. 340.71 Board of education; officers, sa laries. Sec. 71. The salaries of members of the board shall be determined by the school eectors of the district at the annual election. The electors may provide for a different l. ary for the office of secretary and the office of treasurer of the board. A salary once 1 by the electors shall remain the same until changed by the electors at an annual e ection: Provided, That the salary of any member of the board shall not be increased nor shall the salary of any member be decreased after his election or apjrointment. HISTORY: New 1955, p. 485, Act 269, Eff. Jul. 1. 16aa 3 4 0 . 7 2 F o u r t h c l a s s s c h o o l d i s t r i c t s ; e l e c t i o n , t i m e . [ M . S . A . 1 5 . 3 0 7 2 ] S e c . 7 2 . T h e a n n u a l e l e c t i o n o f e a c h s c h o o l d i s t r i c t o f t h e f o u r t h class s h a l l b e h e l d o n t h e s e c o n d M o n d a y i n J u n e , u n l e s s t h e s c h o o l d i s t r i c t b o a r d d e t e r m i n e s t o h o l d i t s e l e c t i o n a t t h e s a m e t i m e a n d i n c o n j u n c t i o n w i t h a c i t y e l e c t i o n a s p r o v i d e d i n s e c t i o n 6 4 4 k o f A c t N o . 1 1 6 o f th e P u b l i c A c t s o f 1 9 5 4 , a s a d d e d , b e i n g s e c t i o n 1 6 8 . 6 4 4 k o f t h e C o m p i l e d L a w s o f 1 9 4 8 . 3 40 .73 Special school elections; request, notice, scope. S e c . 7 3 . S p e c i a l e l e c t i o n s m a y b e c a l l e d b y t h e b o a r d , a n d t h e b o a r d s h a ll call spe c i a l e l e c t i o n s o n t h e w r i t t e n r e q u e s t o f 5 % o r m o r e o f t h e s c h o o l e l e c t o r s o f t h e district b u t n o t l e s s t h a n 2 5 e l e c t o r s . S u c h e l e c t i o n s h a l l b e c a l l e d b y g i v i n g t h e r e q u i r e d legal n o t i c e a n d s h a l l b e h e l d i n n o t l e s s t h a n 1 0 n o r m o r e t h a n 1 5 d a y s f r o m t h e tim e the w r i t t e n r e q u e s t i s r e c e i v e d ; b u t n o s p e c i a l e l e c t i o n s h a l l b e c a l l e d u n l e s s t h e questions t o b e v o t e d u p o n a r e w i t h i n t h e l a w f u l a u t h o r i t y o f t h e e l e c t o r s t o d e c i d e , a n d n o busi n e s s s h a l l b e t r a n s a c t e d a t a s p e c i a l e l e c t i o n u n l e s s t h e s a m e s h a l l b e s t a t e d i n the no t i c e o f s u c h e l e c t i o n . I n a r e g i s t r a t i o n s c h o o l d i s t r i c t , t h e e l e c t i o n s h a l l b e h e l d in not l e s s t h a n 6 0 d a y s f r o m t h e t i m e t h e w r i t t e n r e q u e s t i s r e c e i v e d . HISTORY: New 1955, p. 485, Act 269, EH. Jul. 1;—Am. 1963, p. 221, Act 157, EH. Sep. 6 . 3 4 0 .7 4 Notice of election; publication, posting, contents. S e c . 7 4 . T h e b o a r d s h a l l d e t e r m i n e t h e t i m e a n d p l a c e o f h o l d i n g a n y a n n u a l or spe c i a l e l e c t i o n , a n d n o t i c e o f s u c h t i m e a n d p l a c e s h a l l b e g i v e n b y t h e s e c r e t a r y b y caus i n g n o t i c e t h e r e o f t o b e p o s t e d i n n o t l e s s t h a n 5 o f t h e m o s t p u b l i c p l a c e s i n the dis t r i c t a t l e a s t 6 d a y s p r e v i o u s t o s u c h e l e c t i o n , 1 c o p y o f w h i c h n o t i c e f o r e a c h election s h a l l b e p o s t e d o n t h e s c h o o l g r o u n d s o n o r n e a r t h e f r o n t e n t r a n c e o f e a c h school in t h e d i s t r i c t . T h e n o t i c e o f e l e c t i o n s h a l l s p e c i f y t h e d a y , h o u r s a n d p l a c e o f th e elec t i o n , t h e o f f i c e s t o b e f i l l e d a t s u c h e l e c t i o n , i f a n y , t h e n a m e s o f a l l c a n d i d a t e s who h a v e b e e n d u l y n o m i n a t e d f o r e a c h o f f i c e t o b e v o t e d u p o n , a n d t h e s u b s t a n c e of all s p e c i a l m a t t e r s , i f a n y , t o b e v o t e d u p o n . HISTORY: New 1955, p. 485, Act 269, Eff. Jul. 1. 340.75 Questions at annual elections; subm ission procedure. S e c . 7 5 . U p o n a w r i t t e n r e q u e s t o f a n u m b e r e q u a l t o 5 % o f t h e r e g i s t e r e d school e l e c t o r s o f a d i s t r i c t , b u t n o t l e s s t h a n 2 5 s c h o o l e l e c t o r s , m a d e n o t le s s t h a n 20 nor m o r e t h a n 4 0 d a y s p r i o r t o t h e a n n u a l e l e c t i o n , t h e b o a r d s h a l l i n c l u d e i n t h e notice o t h e a n n u a l e l e c t i o n s u c h q u e s t i o n s s u b m i t t e d i n t h e r e q u e s t a s m a y l a w f u l l y b e vote u p o n b y t h e e l e c t o r s a n d s h a l l s u b m i t s u c h q u e s t i o n s t o t h e e l e c t o r s a t t h e annual elec t i o n . HISTORY: New 1955, p. 486, Act 269, EH. Jul. 1;—Am. 1965, p. 739, Act 375, Imd. EH. Jul. 23. 17aa 340.76 Elections; polls, tim e, ballots, board of election inspectors. Sec. 7 6 . A t e a c h a n n u a l o r s p e c i a l e l e c t i o n , t h e p o l l s o f e l e c t i o n s h a l l b e k e p t o p e n a t least 7 c o n s e c u t i v e h o u r s . A l l q u e s t i o n s s h a l l b e v o t e d u p o n b y b a l l o t a n d a p r o p e r p o l l list shall b e k e p t . T h e b o a r d s h a l l a p p o i n t s c h o o l e l e c t o r s o f t h e d i s t r i c t i n t h e n u m b e r it deem s s u f f i c i e n t t o a c t a s a b o a r d o f e l e c t i o n i n s p e c t o r s a t e a c h e l e c t i o n . M e m b e r s o f the b o a r d o f e d u c a t i o n m a y s e r v e o n a n y s u c h b o a r d o f e l e c t i o n i n s p e c t o r s , u n l e s s t h e y are c a n d id a te s a t s u c h e l e c t i o n . E a c h m e m b e r o f t h e b o a r d o f e l e c t i o n i n s p e c t o r s s h a l l take th e c o n s t i t u t i o n a l o a t h o f o f f i c e b e f o r e e n t e r i n g u p o n h i s d u t i e s . HISTORY: New 1955, p. 486, Act 269, Eff. Jul. 1;—Am. 1961, p. 369, Act 218, Eff. Sep. 8 . 340.77 Board of education property and site; acquisition, purpose; han dling of property, nonexem ption from taxation. Sec. 7 7 . T h e b o a r d o f a n y s c h o o l d i s t r i c t g o v e r n e d b y t h e p r o v i s i o n s o f t h i s c h a p t e r is a u t h o r iz e d t o l o c a t e , a c q u i r e , p u r c h a s e o r l e a s e i n t h e n a m e o f t h e d i s t r i c t s u c h s i t e or sites w i t h i n o r w i t h o u t t h e d i s t r i c t f o r s c h o o l h o u s e s , l i b r a r i e s , a d m i n i s t r a t i o n b u i l d ings, a g r i c u l t u r a l f a r m s , a t h l e t i c f i e l d s a n d p l a y g r o u n d s , a s m a y b e n e c e s s a r y ; t o p u r chase, le a s e , a c q u i r e , e r e c t o r b u i l d a n d e q u i p s u c h b u i l d i n g s f o r s c h o o l o r l i b r a r y o r a d m in is tra tio n o r f o r u s e i n c o n n e c t i o n w i t h a g r i c u l t u r a l f a r m s , a t h l e t i c f i e l d s a n d p la yg ro u n d s , a s m a y b e n e c e s s a r y ; t o p a y f o r t h e s a m e o u t o f t h e f u n d s o f t h e d i s t r i c t p ro vide d f o r t h a t p u r p o s e ; t o s e l l , e x c h a n g e o r l e a s e a n y r e a l o r p e r s o n a l p r o p e r t y o f the d is tr ic t w h i c h is n o l o n g e r r e q u i r e d t h e r e b y f o r s c h o o l p u r p o s e s , a n d g i v e p r o p e r deeds o r o t h e r i n s t r u m e n t s p a s s i n g t i t l e t o t h e s a m e a n d t o d e d i c a t e o r s e l l a n d c o n v e y land f o r h i g h w a y p u r p o s e s t o t h e s t a t e o r a n y a g e n c y o r i n s t r u m e n t a l i t y t h e r e o f , i n cluding s p e c i f i c a l l y m u n i c i p a l i t i e s a n d b o a r d s o f c o u n t y r o a d c o m m i s s i o n e r s , w h e n such a c tio n d o e s n o t d i v i d e s a i d s c h o o l p r o p e r t y i n t o 2 o r m o r e s e p a r a t e p a r c e l s . A n y real p r o p e r t y o w n e d b y a s c h o o l d i s t r i c t w h i c h is l e a s e d t o a n y p r i v a t e i n d i v i d u a l , a s s o ciation o r c o r p o r a t i o n s h a l l n o t b e e x e m p t f r o m p r o p e r t y t a x a t i o n d u r i n g t h e t e r m o f such lea se . HISTORY: New 1955, p. 486, Act 269, Eff. lul. I;—Am. 1956, p. 229, Act 119, Imd. Eff. Apr. 13;—Am. 1959, p. 118, Act 115, Eff. Mar. 19, ]S60i-Am. 1963, p. 295, Act 208, Imd. Eff. May 15. § 77a, as added by 1968 PA 316 340.77a Fourth class districts; borrowing power. [ M .S .A . 1 5 .3 0 7 7 ( 1 ) ] Sec. 77a. The board of a school district of the fourth class operating a K-12 program tos the power and duty: Temporary purposes. M To borrow, subject to the provisions of Act No. 202 of the Public Acts of 1943, as amended, being sections 131.1 to 138.2 of the Compiled Laws of 1948, for temporary 001 Purposes such sums of money and on such terms as it deems desirable and to give Mtes of the district therefor, except that no such loan shall be made for any sum which ®ceeds the amount which has been voted by the board or the qualified electors of the 18aa Long-term loans; bonds; purposes; limitations. (b) To borrow, subject to the provisions of Act No. 202 of the Public Acts of Ml as amended, such sums of money as it deems necessary to purchase sites for buildings, playgrounds, athletic fields or agricultural farms, and to purchase or erect and equip any building which it is authorized to purchase and erect, or to make any permanent im provement which it is authorized to make, and to accomplish this by the issue and sale ol bonds of the school district in such form or on such terms as the board deems advisable or by any other reasonable means. No loan shall be made and no bonds shall be issued! for a longer term than 30 years nor for any sum which, together with the total outstanding' indebtedness of the district, shall exceed 5% of the assessed valuation of the taxable property within the district, unless the proposition of making such loans or of issuing bonds has been submitted to a vote of the school tax electors of the district at a general or special school election and approved by the majority of the electors voting on the question. In such case loans may be made or bonds may be issued for the purposes hereinbefore set forth in an amount equal to that provided by chapter 12 of part 2. § 77a, as amended b y 1972 PA 197 • 9 4 0 . 7 7 a F o u r t h c l a s s d i s t r i c t s ; b o r r o w i n g p o w e r . [ M . S . A . 1 5 . 3 0 7 7 ( 1 ) ] S e c . 7 7 a . T h e b o a r d o f a s c h o o l d i s t r i c t o f t h e f o u r t h c l a s s o p e ra tin g a K - 1 2 p r o g r a m h a s t h e p o w e r a n d d u t y : T e m p o r a r y p u r p o s e s . ( a ) T o b o r r o w , s u b j e c t t o t h e p r o v i s i o n s o f A c t N o . 2 0 2 o f t h e P u b l i c Acts o f 1 9 4 3 , a s a m e n d e d , b e i n g s e c t i o n s 131.1 t o 1 3 8 . 2 o f t h e C o m p i l e d Lawsol 1 9 4 8 , f o r t e m p o r a r y s c h o o l p u r p o s e s s u c h s u m s o f m o n e y a n d o n s u c h terms as i t d e e m s d e s i r a b l e a n d t o g i v e n o t e s o f t h e d i s t r i c t t h e r e f o r , e x c e p t that ns s s u c h l o a n s h a l l b e m a d e f o r a n y s u m w h i c h e x c e e d s t h e a m o u n t w h i c h has beet v o t e d b y t h e b o a r d o r t h e q u a l i f i e d e l e c t o r s o f t h e d i s t r i c t . 19aa L o n g - t e r m l o a n s ; b o n d s ; p u r p o s e s ; l i m i t a t i o n s . (b) T o b o r r o w , s u b j e c t t o t h e p r o v i s i o n s o f A c t N o . 2 0 2 o f t h e P u b l i c A c t s of 1 9 4 3 , a s a m e n d e d , s u c h s u m s o f m o n e y a s i t d e e m s n e c e s s a r y t o p u r c h a s e s i t e s for b u i l d i n g s , p l a y g r o u n d s , a t h l e t i c f i e l d s o r a g r i c u l t u r a l f a r m s , a n d t o p u r c h a s e or e re c t a n d e q u i p a n y b u i l d i n g w h i c h i t i s a u t h o r i z e d t o p u r c h a s e a n d e r e c t , or to m a k e a n y p e r m a n e n t i m p r o v e m e n t w h i c h i t i s a u t h o r i z e d t o m a k e , a n d to a c c o m p l i s h t h i s b y t h e i s s u e a n d s a l e o f b o n d s o f t h e s c h o o l d i s t r i c t i n s u c h form o r o n s u c h t e r m s a s t h e b o a r d d e e m s a d v i s a b l e , o r b y a n y o t h e r r e a s o n a b l e m eans. N o l o a n s h a l l b e m a d e a n d n o b o n d s s h a l l b e i s s u e d f o r a l o n g e r t e r m than 3 0 y e a r s n o r f o r a n y s u m w h i c h , t o g e t h e r w i t h t h e t o t a l o u t s t a n d i n g b o n d e d i n d e b t e d n e s s o f t h e d i s t r i c t , s h a l l e x c e e d 5 % o f t h e s t a t e e q u a l i z e d v a lu a tio n o f t h e t a x a b l e p r o p e r t y w i t h i n t h e d i s t r i c t , u n l e s s t h e p r o p o s i t i o n o f m a k in g s u c h l o a n s o r o f i s s u i n g b o n d s h a s b e e n s u b m i t t e d t o a v o t e o f t h e school t a x e l e c t o r s o f t h e d i s t r i c t a t a g e n e r a l o r s p e c i a l s c h o o l e l e c t i o n a n d a p p r o v e d b y t h e m a j o r i t y o f t h e e l e c t o r s v o t i n g o n t h e q u e s t i o n . I n s u c h c a s e loans m a y b e m a d e o r b o n d s m a y b e i s s u e d f o r t h e p u r p o s e s h e r e i n b e f o r e s e t forth i n a n a m o u n t e q u a l t o t h a t p r o v i d e d b y c h a p t e r 1 2 o f p a r t 2 . 340.77b Remodeling; use o f bond proceeds; approval; definition. [ M . S . A . 1 5 . 3 0 7 7 ( 2 ) ] Sec. 77b. All or any portion of the proceeds from the sale of school district bpnds may be expended for the remodeling o f existing school buildings of the district when in the judgment o f the board o f education of the school district the remodeling will contribute positively to the health, security' or welfare of the pupils o f the school district if such uses are approved by die superintendent of public instruction if the bonds are qualified bonds as defined by section 3 of Act No. 10S of the Public Acts of 196i—er_hyL_the municipal finance commission if the bonds have not been so qualified. Remodeling means the alteration or construction of structural components of buildings, including walls, roofs, partitions, hallways, stairways and means of egress and the replacement, relocation or reconstruction o f heating, ventilat- mg, incineration, electrical, security and sanitary sy'-stems. 20aa C H A P T E R 4 . S C H O O L D I S T R I C T S O F T H E T H I R D C L A S S . 340.101 Third class district; continuance, reclassification. S e c . 1 0 1 . E a c h s c h o o l d i s t r i c t o r g a n i z e d a s a s c h o o l d i s t r i c t o f t h e t h i r d class at the t i m e o f t h e t a k i n g e f f e c t o f t h i s a c t s h a l l c o n t i n u e t o b e a s c h o o l d i s t r i c t o f th e third c l a s s s u b j e c t t o r e c l a s s i f i c a t i o n a s h e r e i n a f t e r p r o v i d e d a n d b e g o v e r n e d b y th e provi s i o n s o f t h i s c h a p t e r a n d b y s u c h p r o v i s i o n s o f p a r t 2 o f t h i s a c t a s a r e n o t inconsistent w i t h t h i s c h a p t e r . HISTORY: New 1955, p. 486, Act 269, EH. Jul. 1. 34 0 .1 0 2 Third class districts; reclassification in certain fourth class districts. S e c . 1 0 2 . T h e b o a r d o f a n y f o u r t h c l a s s s c h o o l d i s t r i c t h a v i n g a s c h o o l census of m o r e t h a n 2 , 4 0 0 a n d l e s s t h a n 3 0 , 0 0 0 c h i l d r e n b e t w e e n t h e a g e s o f 5 a n d 2 0 , as certi f i e d b y t h e s u p e r i n t e n d e n t o f p u b l i c i n s t r u c t i o n , m a y s u b m i t t h e q u e s t i o n o f becoming a d i s t r i c t o f t h e t h i r d c l a s s t o a v o t e o f t h e e l e c t o r s o f s u c h d i s t r i c t a t a n y annual or s p e c i a l e l e c t i o n . T h e v o t e u p o n t h e q u e s t i o n s h a l l b e b y b a l l o t w h i c h s h a l l b e in sub s t a n t i a l l y t h e f o l l o w i n g f o r m : “ S h a l l ..............................................................................( n a m e o f s c h o o l d i s t r i c t ) b e r e c l a s s i f i e d a n d becom e a s c h o o l d i s t r i c t o f t h e t h i r d c l a s s ? Y e s □ N o □ ” I f a m a j o r i t y o f t h e s c h o o l e l e c t o r s v o t i n g o n t h e q u e s t i o n v o t e i n f a v o r o f becoming a d i s t r i c t o f t h e t h i r d c l a s s , t h e n s u c h r e c l a s s i f i c a t i o n s h a l l t a k e i m m e d i a t e e f f e c t . HISTORY: New 1955, p. 486, Act 269, Eff. Jul. 1;—Am. 1959, p. 452, Act 271, Imd. EH. Nov. 3. 340 .10 3 Third class districts; election and reclassification. S e c . 1 0 3 . W h e n e v e r t h e b o a r d o f a d i s t r i c t o f t h e f o u r t h c l a s s h a v i n g a s c h o o l census o f m o r e t h a n 2 , 4 0 0 a n d l e s s t h a n 3 0 , 0 0 0 c h i l d r e n b e t w e e n t h e a g e s o f 5 a n d 2 0 , as cer t i f i e d b y t h e s u p e r i n t e n d e n t o f p u b l i c i n s t r u c t i o n , is p r e s e n t e d w i t h a p e t i t i o n signed b y n o t l e s s t h a n 3 0 0 s c h o o l e l e c t o r s o f t h e d i s t r i c t t o s u b m i t t h e q u e s t i o n o f becoming a t h i r d c l a s s d i s t r i c t t o a v o t e o f t h e e l e c t o r s a t a s p e c i a l e l e c t i o n o r t h e n e x t annual e l e c t i o n , t h e b o a r d s h a l l p r o c e e d t o c a l l s u c h s p e c i a l e l e c t i o n o r s u b m i t t h e question to a v o t e o f t h e e l e c t o r s a t t h e n e x t a n n u a l e l e c t i o n . I f s u c h p e t i t i o n is p r e s e n t e d within 9 0 d a y s , b u t n o t l e s s t h a n 2 0 d a y s b e f o r e t h e t i m e o f t h e a n n u a l e l e c t i o n , s u c h question s h a l l b e s u b m i t t e d a t t h e a n n u a l e l e c t i o n , e v e n t h o u g h t h e p e t i t i o n m a y r e q u e s t a spe c i a l e l e c t i o n . I f t h e b o a r d is p e t i t i o n e d t o s u b m i t t h e q u e s t i o n a t a s p e c i a l e le c tio n an s u c h p e t i t i o n is p r e s e n t e d 9 1 o r m o r e d a y s b e f o r e t h e a n n u a l e l e c t i o n , t h e boards c a l l s u c h e l e c t i o n t o b e h e l d w i t h i n 3 0 d a y s f r o m t h e t i m e s u c h p e t i t i o n is presente s u c h p e t i t i o n is p r e s e n t e d l e s s t h a n 2 0 d a y s b e f o r e t h e t i m e o f t h e a n n u a l election s u c h q u e s t i o n s h a l l b e s u b m i t t e d a t a s p e c i a l e l e c t i o n h e l d n o t m o r e t h a n 3 0 days t h e a n n u a l e l e c t i o n . HISTORY: New 1955, p. 487, Act 269, Eff. Jul. 1:—Am. 1959, p. 452, Act 271, Imd. Eff. Nov. 3. 3 40 .10 4 R epealed . 1 959 , p . 45 3 , Act 271 , Imd. Eff. Nov. 3. Section provided for determination of population in third class districts. 21aa 340.105 Third class districts; notice of reclassification. Sec. 1 0 3 . W h e n e v e r t h e e l e c t o r s o f t h e d i s t r i c t h a v e b y t h e i r v o t e a p p r o v e d t h e r e classification o f a f o u r t h c l a s s d i s t r i c t t o a d i s t r i c t o f t h e t h i r d c l a s s , i t s h a l l b e t h e d u t y of the s e c r e t a r y o f t h e b o a r d t o g i v e n o t i c e o f s u c h r e c l a s s i f i c a t i o n , i n w r i t i n g , t o t h e county s u p e r i n t e n d e n t o f s c h o o l s o f e a c h c o u n t y i n w h i c h t h e d i s t r i c t is s i t u a t e d a n d t o the s u p e r i n t e n d e n t o f p u b l i c i n s t r u c t i o n w i t h i n 1 0 d a y s o f t h e v o t e t h e r e o n . HISTORY: New 1955, p. 487, Act 269, Eff. Jul. 1. 340.106 Third class district nam e; changes. Sec. 1 0 6 . E a c h s c h o o l d i s t r i c t o r g a n i z e d a n d o p e r a t i n g u n d e r t h e p r o v i s i o n s o f t h i s chapter s h a ll b e d e s i g n a t e d a n d k n o w n a s t h e “ S c h o o l D i s t r i c t o f t h e ......................................... ( h e r e insert th e n a m e o f t h e c i t y o r v i l l a g e o r t o w n s h i p i n w h i c h t h e w h o l e o r a p a r t o f s a i d school d i s t r i c t is s i t u a t e d ) ” , a n d s u c h d e s i g n a t i o n , t o g e t h e r w i t h t h e n a m e o f t h e county o r c o u n t i e s i n t o w h i c h t h e d i s t r i c t e x t e n d s , s h a l l b e t h e l e g a l n a m e o f s u c h d i s trict fo r a ll p u r p o s e s : P r o v i d e d , T h a t t h e b o a r d o f a n y t h i r d c l a s s s c h o o l d i s t r i c t m a y by r e s o lu tio n a d o p t a d i s t i n c t i v e n a m e f o r s u c h s c h o o l d i s t r i c t a n d s u c h n a m e , a f t e r b e ing a p p r o v e d b y t h e c o u n t y b o a r d o f e d u c a t i o n a s n o t b e i n g i n c o n f l i c t w i t h t h e n a m e of a n o th e r d i s t r i c t , t o g e t h e r w i t h t h e n a m e o f t h e c o u n t y o r c o u n t i e s i n t o w h i c h t h e school d i s t r i c t e x t e n d s , s h a l l b e t h e l e g a l n a m e o f s u c h s c h o o l d i s t r i c t f o r a l l p u r p o s e s . The b o a r d m a y i n l i k e m a n n e r c h a n g e t h e n a m e o f t h e d i s t r i c t . T h e a d o p t i o n o f a d i s tinctive n a m e o r t h e c h a n g e i n n a m e o f a n y d i s t r i c t s h a l l h a v e n o e f f e c t u p o n e x i s t i n g obligations i n c u r r e d i n t h e f o n n e r n a m e o f t h e d i s t r i c t o r o n t h e o w n e r s h i p o f a n y r e a l or p e rs o n a l p r o p e r t y . HISTORY. New 1955, p. 457, Act 269, Eff. Jul. 1. 340.107 Board of education; m em bership , term , election, vacancies, term extension. Sec. 1 0 7 . I n e a c h s c h o o l d i s t r i c t o f t h e t h i r d c l a s s , t h e b o a r d s h a l l c o n s i s t o f 7 m e m bers e le c te d f r o m t h e d i s t r i c t a t l a r g e a n d t h e i r t e r m s a r r a n g e d s o t h a t 2 o f t h o s e e l e c - led m e m b e r s s h a l l s e r v e f o r 1 y e a r , 2 f o r 2 y e a r s , 2 f o r 3 y e a r s , a n d 1 f o r 4 y e a r s ; t h e r e after, a t t h e n e x t s c h o o l e l e c t i o n i m m e d i a t e l y p r e c e d i n g t h e e x p i r a t i o n o f t h e respective t e r m s o f t h e s e o f f i c e r s , t h e i r s u c c e s s o r s s h a l l b e e l e c t e d t o s e r v e f o r t e r m s o f I years a n d u n t i l t h e i r s u c c e s s o r s a r e e l e c t e d a n d q u a l i f i e d . W h e n a n y s c h o o l d i s t r i c t of the f o u r t h c la s s b e c o m e s a s c h o o l d i s t r i c t o f t h e t h i r d c l a s s b y a v o t e o f t h e e l e c t o r s , additio nal m e m b e r s s h a l l b e e l e c t e d t o t h e b o a r d o f e d u c a t i o n a s p r o v i d e d u n d e r s e c - to n 3 34 o f t h i s a c t . A n y s c h o o l d i s t r i c t o f t h e t h i r d c l a s s m a y h o l d i t s e l e c t i o n b i e n - "ially a t t h e s a m e t i m e t h a t t h e c i t y o r v i l l a g e e l e c t i o n is h e l d . T h e b o a r d s h a l l d e t e r - m*ne w h e t h e r t h e d i s t r i c t s h a l l h o l d i t s e l e c t i o n a t t h e t i m e o f t h e c i t y o r v i l l a g e ejection. I f t h e s c h o o l d i s t r i c t h o l d s i t s e l e c t i o n a t t h e s a m e t i m e o f t h e c i t y o r v i l l a g e election, t h e t e r m o f o f f i c e s h a l l b e f o r 6 y e a r s . T w o o f t h e m e m b e r s o f t h e b o a r d s h a l l serve f o r 2 y e a r s , 2 f o r 4 v e a r s , a n d 3 f o r 6 y e a r s . A t t h e n e x t s c h o o l e l e c t i o n i m m e d i ately p r e c e d i n g t h e e x p i r a t i o n o f t h e r e s p e c t i v e t e r m s o f t h e s e o f f i c e r s , t h e i r s u c c e s s o r s s'all b e e l e c t e d t o s e r v e f o r t e r m s o f 6 y e a r s a n d u n t i l t h e i r s u c c e s s o r s a r e e l e c t e d a n d q u alifie d. I n c a s e t h e b o a r d o f a n y s c h o o l d i s t r i c t i n w h i c h t h e m e m b e r s o f t h e b o a r d are e le c te d f o r a 6 y e a r t e r m o f o f f i c e , b y a m a j o r i t y v o t e , p r o v i d e s t h a t t h e t e r m o f o f - lte m e m b e r s o f t h e b o a r d s h a l l b e f o r 4 y e a r s , t h e n i n a n y s u c h s c h o o l d i s t r i c t , n o t - I I l a n d i n g t h e p r o v i s i o n s o f t h i s s e c t i o n t o t h e c o n t r a r y , t h e t e r m o f o f f i c e o f i n e m - >ers o f t h e b o a r d s h a l l b e f o r 4 y e a r s . T h e p r e s e n t m e m b e r s o f t h e b o a r d s h a l l s e r v e 22aa t h e b a l a n c e o f t h e i r r e s p e c t i v e u n e x p i r e d t e r m s . T h e b o a r d , i n d e t e r m i n i n g th a t m em b e r s o f t h e b o a r d s h a l l s e r v e f o r 4 y e a r t e r m s , s h a l l p r o v i d e i n t h e r e s o l u t i o n that elec t i o n s t h e r e a f t e r s h a l l b e h e l d o n t h e s e c o n d M o n d a y i n J u n e , a s p r o v i d e d i n section I I o f t h i s a c t , a n d s h a l l p r o v i d e f o r a s y s t e m o f r o t a t i o n o f t e r m s o f o f f i c e w h ic h is is e q u a l a s m a y b e a n d s h a l l f a i r l y a d j u s t t h e l e n g t h o f t e r m s a n d t h e n u m b e r o f m em ta t o b e e l e c t e d a n n u a l l y u n t i l t h e r o t a t i o n is e s t a b l i s h e d . A f t e r t h e r o t a t i o n is established b u t n o t m o r e t h a n 8 y e a r s a f t e r t h e a d o p t i o n o f t h e r e s o l u t i o n , n o t m o r e t h a n 2 met I b e r s s h a l l b e e l e c t e d i n a n y o n e y e a r t o f i l l v a c a n c i e s o c c u r r i n g b y e x p i r a t i o n o f terms. I f a n y p e r s o n e l e c t e d f a i l s t o t a k e t h e o a t h o f o f f i c e w i t h i n 1 0 d a y s a f t e r service oi n o t i c e o f h i s e l e c t i o n , o r i f a v a c a n c y o c c u r s a s p r o v i d e d i n s e c t i o n 4 9 4 o f th is act, the v a c a n c y s h a l l b e f i l l e d b y a n e l e c t i o n b y a m a j o r i t y o f t h e r e m a i n i n g m e m b e r s of t ie b o a r d u n t i l t h e n e x t s c h o o l e l e c t i o n , w h e n t h e v a c a n c y s h a l l b e f i l l e d b y a n election foe t h e r e m a i n d e r o f t h e t e r m o f t h e f o r m e r m e m b e r . W h e r e t h e b o a r d o f e d u c a tio n ofi s c h o o l d i s t r i c t o f t h e t h i r d c l a s s h a s v o t e d t o h o l d e l e c t i o n s b i e n n i a l l y a t t h e same time < a s t h e s t a t e s p r i n g b i e n n i a l e l e c t i o n a n d t h e c i t y o r v i l l a g e e l e c t i o n is n o t h e ld on t i t s a m e d a t e , s u c h b o a r d o f e d u c a t i o n m a y d e t e r m i n e t o h o l d i t s b i e n n i a l e le c tio n a t tie s a m e t i m e a s t h e c i t y o r v i l l a g e e l e c t i o n i n 1 9 6 6 a n d b i e n n i a l l y i n t h e e v e n n um be d y e a r s t h e r e a f t e r . T h e t e r m s o f o f f i c e o f t h e p r e s e n t m e m b e r s o f s u c h b o a r d o f educi t i o n e x p i r i n g i n 1 9 6 5 , 1 9 6 7 a n d 1 9 6 9 , a r e e x t e n d e d u n t i l t h e i r s u c c e s s o r s a re elected a n d q u a l i f i e d a t t h e c i t y o r v i l l a g e b i e n n i a l e l e c t i o n h e l d i n 1 9 6 6 , 1 9 6 8 a n d 1970, re ̂ s p e c t i v e l y . HISTORY: New 1955, p. 487, Act 269. EH. Jul. 1;—Am. 1958, p. 233, Act 195, Efl. Sep. 13;—Am. 1965, p. 81, Act 49, Imd. Eff.Jun.1 340 .10 8 Board of education; annual election, time. S e c . 1 0 8 . T h e r e g u l a r a n n u a l s c h o o l e l e c t i o n i n e a c h s c h o o l d i s t r i c t o f t h e th ird das s h a l l b e h e l d o n t h e s e c o n d M o n d a y i n J u n e b y t h e b o a r d . T h e m e m b e r s o f the board' i n a l l s c h o o l d i s t r i c t s o f t h e t h i r d c l a s s h e r e u n d e r s h a l l b e e l e c t e d a t t h e r e g u la r annual s c h o o l e l e c t i o n a n d t h e i r t e r m s s h a l l b e g i n o n J u l y f i r s t , f o l l o w i n g t h e i r e l e c t i o n . HISTORY; New 1955, p. 488, Act 269, Eff. Jul. 1. CITED IN OTHER SECTIONS; The above section is cited in $ 36934. 3 40 .10 9 Board of education; special election, notice, prerequisites. S e c . 1 0 9 . S p e c i a l e l e c t i o n s m a y b e c a l l e d b y t h e b o a r d i n a n y s c h o o l d is tr ic t of the t h i r d c l a s s h e r e u n d e r a t s u c h t i m e s a n d p l a c e s i n s u c h d i s t r i c t a s t h e y s h a ll designate | a n d i t s h a l l b e t h e d u t y o f s u c h b o a r d t o c a l l s u c h a n e l e c t i o n o n r e c e i p t o f th e written r e q u e s t o f n o t l e s s t h a n 10% o f t h e r e g i s t e r e d s c h o o l e l e c t o r s o f t h e d i s t r i c t qualify : v o t e u p o n t h e q u e s t i o n b y g i v i n g t h e n o t i c e h e r e i n a f t e r p r e s c r i b e d . N o s p e c ia l election s h a l l b e c a l l e d u n l e s s t h e q u e s t i o n t o b e v o t e d o n a n d d e c i d e d t h e r e a t m a y b e de c c b y t h e q u a l i f i e d s c h o o l e l e c t o r s , a n d a l l q u e s t i o n s t o b e s u b m i t t e d a t s u c h elections a; b e s t a t e d b r i e f l y i n t h e n o t i c e t h e r e o f . HISTORY: New 1955, p. 488, Act 269, Eff. Jul. 1. , 340 .11 0 Board of education; registered elections. S e c . 1 1 0 . A 0 s c h o o l d i s t r i c t s o f t h e t h i r d c l a s s s h a l l b e r e g i s t r a t i o n d is tr ic t s an * e l e c t i o n s t h e r e i n s h a l l b e g o v e r n e d b y t h e p r o v i s i o n s o f c h a p t e r 8 o f p a r t 2 o f this a * HISTORY: New 1955, p. 48S, Act 269, Eff. Jul. 1. 23aa 340.111 Board of education; m eetings, officers, quorum , record. Sec. 111. The members of the board of any district of the third class hereunder elec ted at the first election held under this chapter shall meet on or before the second Monday of July succeeding their election and annually on the same day thereafter, and organize the board by electing a president, a vice-president, a secretary and a treasurer. The president and vice-president shall be members of the board, but the secretary' and treasurer need not be members. The board shall hold regular meetings on the second Monday of each month, or at such other times as it may by resolution or bylaws provide. The board may in its bylaws provide for calling and holding special meetings. A majority of the board shall constitute a quorum and it shall keep a proper record of all its proceedings. HISTORY: New 1955, p. 488, Act 269, Eff. Jul. 1;—Am. 1958, p. 71, Act 6 6 , EH. Sep. 13;—Am. 1967, p. 247, Act 185, Imd. Eft. Jun. 30. f 340.112 Board of education; treasu rer, secre tary ; duties, sa larie s, bonds. Sec. 112. The treasurer of the board shall keep the funds of the district, except that the board may place responsibility for the administration of school district money with the school district business manager; keep proper books of account thereof; keep an interest account of the interest received from all school funds belonging to the district and credit all interest received thereon to the funds; pay out the funds belonging to the school district for the purposes specified by law, or, in the case of gifts or dona tions for the purposes for which the money is given or donated, on a proper order signed by the secretary and countersigned by the president of the board; and perform such other duties as the board may in its bylaws prescribe. The board may prescribe the duties of the secretary' and provide for the salary to be paid the secretary and treasurer thereof and may require proper bonds from such officers, except that when the board treasurer is not directly handling school district money or signing checks no bond is necessary, and where the authority for the administration of school district money rests with the school district business manager, he and all persons connected therewith shall be bonded. No member of the board or officer thereof, except the sec retary and treasurer, shall receive any compensation for any service rendered the dis trict, unless authorized by the qualified electors of the district. The salary of any mem ber of the board shall not be increased nor shall the salary of any member be decreased after his election or appointment. HISTORY: New 1955, p. 489, Act 269, Eff. Jul. 1;—Am. 1966, p. 344, Act 255, Imd. Eff. JuL 11. 340.113 Board of education; pow ers, duties. Sec. 113, The board of any school district of the third class hereunder shall have the powers and duties: 24aa Sites for schoolhouses, lib raries, farm s, athletic fields and playground;; buildings, property. (a) To locate, acquire, purchase or lease in the name of the district such site or sites within or without the district for schoolhouses, libraries, administration buildings, agri cultural farms, athletic fields and playgrounds, as may be necessary; to purchase, lease, acquire, erect, or build and equip such buildings for school or library or administration or for use in connection with agricultural farms, athletic fields and playgrounds, as may be necessary; to pay for the same out of the funds of the district provided for that purpose; to sell, exchange or lease, subject to the provisions of section 354 of this act, any real or personal property of the district which is no longer required thereby for school purposes, and to give proper deeds, bills of sale or other instruments passing ti tle to the same; Condem nation proceedings. (b) To institute and maintain proceedings in the proper court for the condemnation of private property for public use for all purposes for which said board is authorized by law to acquire and hold property, when said board shall have first declared the tak ing necessary for such use and that the same is for the use and benefit of the public. When the board shall have made such declaration, such condemnation proceedings may be instituted and conducted in the court specified and in the manner provided by the general school laws of the state relating to the condemnation of private property for public use, or may be brought under the terms of Act No. 149 of the Public Acts of 1911, as amended, being sections 213.21 to 213.41, inclusive, of the Compiled Laws of 1948, or any. other appropriate state law. HISTORY: New 1955, p. 489, Act 269, Eff. Jul. 1;—Am. 1957, p. 127, Act 108, Imd. EH. May 24. 3 40 .11 4 Board of education; educational activities. Sec. 114. The board of any school district of the third class hereunder shall have the powers and duties; , G rad es, schools, departm ents, courses of study. (a) To establish and carry on such grades, schools and departments or courses of study as it shall deem necessary or desirable for the maintenance and improvement of public education; Agricultural, trade and other vocational schools. (b) To establish, equip and maintain agricultural, trade and other vocational schools, and, if deemed necessary by such board, to acquire land outside the limits of the said school district therefor; and to have general control thereover for school purposes. HISTORY: New 1955, p. 489, Act 269, Eff. Jul. 1. 27aa liave been submitted first to a vote of the school tax electors of the district at 1 a general or special school election and approved by the majority of the electors actually voting on the same. In such case loans may be made or bonds may be issued for the purposes hereinbefore set forth in an amount equal to that pro vided by chapter 12 of part 2. i 340,115a Remodeling; use of bond proceeds; approval; definition. ' [ M . S . A . 1 5 . 3 1 1 5 ( 1 ) ] Sec. 115a. All or any portion of the proceeds from the sale of school district bonds may be expended for the remodeling of existing school buildings of the district when in the judgment of the board of education of the school district the remodeling will contribute positively to the health, security or , welfare of the pupils of the school district if such uses are approved by the superintendent of public instruction if the bonds are qualified bonds as defined by section 3 of Act No. 10S of the Public Acts of 1961 or by the municipal finance commission if the bonds have not been so qualified. Re modeling means the alteration or construction of structural components ol buildings, including walls, roofs, partitions, hallways, stairways and means of egress and the replacement, relocation or reconstruction of heating, ven tilating, incineration, electrical, security and sanitary systems. 340.116 Board of education; property, care, custody, sanitation, medical inspection; school term . Sec. 116. The board of any school district of the third class hereunder shall have the 1 powers and duties: (a) To have the care and custody of all school property and to provide suitable school privileges, sanitary conditions, and medical inspection for the schools of the dis- 1 trict; (b) To fix the length of time school shall be.kept in all of the schools of the district, which shall not be less than 180 days. HISTORY: New 1955, p. 490, Act 269, Eff.juL 1. 340.117 Board of education; lib rary , m useum , em ployees. Sec. 117, The board of any school district of the third class hereunder shall have the powers and duties: To establish and maintain or continue a library and museum, which institutions may be separately operated if desired, for the public schools of the district, if it shall deem it advisable to do so, and to provide for its or their care and management. For this pur pose, said board mav appoint librarians and hire other employees for such library and museum and fix their salaries, may purchase such books and apparatus as may be nec- Ksary> and may include in the general budget for the purpose of the schools such sums as may be necessary for building for, and for the maintenance and support of, any li- lrary and museum established, and such board may appoint a hoard of library com missioners and a board of museum commissioners of not to exceed 7 persons, which oards shall be separate boards if such board of education so directs. Members of the ’oard of education shall not be eligible to membership on such boards. Such board or ’°ards shall have control and direction of the public library or libraries and museum or museums in such district subject to the approval of the board of education therein, ?ni . ̂keep a correct record of its or their proceedings. All moneys for any such li- maries, including the fines devoted by law for the maintenance of district or school li- 28aa braries in such district, which when collected shall be paid to the treasurer of the board of education therein, shall be kept by said treasurer and paid out by him on the order of the board of library commissioners approved by the secretary of the board of education. HISTORY: New 1955, p. 490, Act 269, EH. Jul. 1. 340.118 Board of education; school census, annual report, business man ager. Sec. 118. The board of any school district of the third class hereunder shall have the powers and duties: (a) To provide for the taking of a school census as required by law; (b) To make an annual report to the superintendent of public instruction at such time and in such form as he may prescribe; (c) To appoint in its discretion, a business manager for the school district and fix his compensation. HISTORY: New 1955, p. 491, Act 269, EH. Jul. 1. 340 .11 9 Board of education; superintendent and adm inistrators; term, duties. Sec. 119. The board of any school district of the third class shall have the powers and duties: To contract with, appoint and employ a suitable person, not a member of the board, as superintendent of schools, who shall meet the requirements prescribed in section 573, and who shall hold his office for a term fixed by the board and not to exceed 5 years. The board may contract with, appoint an employ suitable persons, not members of the board, as assistant superintendents, principals, assistant principals, guidance di rectors, and other classified administrators who do not assume tenure in position, fora term fixed by the board not to exceed 3 years and shall define their duties. The em ployment shall be under written contract, Notification of nonrenewal of contract shall be given in writing at least 90 days prior to the contract termination date or the con tract is renewed for an additional 1-year period. The superintendent shall have powers and duties as follows: (a) To put into practice the educational policies of the state and of the board in ac cordance with the method provided by the board. (b) To recommend in writing all teachers necessary for the schools and to suspend any teacher for cause until the board may consider such suspension. (c) To classify and control the promotion of pupils. (d) To recommend to the board the best methods of arranging the course of studs and the proper textbooks to be used. (e) To make reports in writing to the board and to the state board of education an nually or oftener if required, in regard to all matters pertaining to the educational in terests of the district. (f) To supervise and direct the work of the teachers and other employees of the board. (g) To assist the board in all matters pertaining to the general welfare of the school and to perform such other duties as the board may determine. HISTORY: New 1955, p. 491, Act 269, EH. Jul. 1;—Am. 1966, p. 343. Act 254, Imd. EI1. Jul. 11:—Am. 1970. p. 662, Act 247. imd.H .30. 29aa 340.120 Board of education; school tax levy ; apportionm ent. Sec. 120. The board of any school district of the third class hereunder shall have the powers and duties: To make an estimate annually on a day to be determined bv the board of the amount of taxes deemed necessary for the ensuing year for the purpose of expenditure within the power of the board, which estimate shall specify the amounts required for the different objects, and to report the same as the regular school tax levy for such dis trict to the proper assessing officer or officers, who shall apportion the school taxes in the district in the same manner as the other taxes of the city, village or township are apportioned, and the amount so apportioned shall be assessed, levied, collected and returned for each portion of the district in the same manner as the taxes of the citv, village or township including such portion of the district. The board, if the district is extended beyond the limits of any single municipality, shall, within the time provided by law for certifying taxes by township clerks, certify to the board of supervisors all amounts to be raised therein for school purposes. The board of supervisors shall, in ac cordance with law, apportion such school taxes to the several municipalities possessing territory in such district in proportion to the assessed valuation of each municipality within such district, and shall certify tire same to the proper officer thereof. HISTORY: New 1955, p. 491, Act 269, Eff. JuL 1. 340.121 Board of education; duties. See. 121. The.board of any school district of the third class shall have the powers and duties: Payment of school funds. ia) To certify to the treasurer of the district for payment out of the school funds thereof all claims and demands against the board or district, which shall be allowed by the board under such rules and regulations as it may establish. Reports of proceedings, receipts and expenditures. (b) To print and publish immediately after each meeting in.such manner as the board shall decide all proceedings of the board at the meeting and to make and pub lish annually, at the end of the fiscal year, in some daily or weekly newspaper of gen eral circulation in the district, either separately or in connection with the report of the C1‘V or village in which the district or the greater part thereof is situated, a complete report of its receipts and expenditures. Transportation of pupils. (c) To provide adequate facilities for transportation within the district of pupils rom and to their homes when the board deems it advisable. Tuition payments to other districts. (d) To use money in the general fund or funds received from state appropriations for *! sc‘M:)ol districts for the purpose of paying tuition and transportation to another lv nct resident pupils, even though the grades in which the pupils may be enrolled are ’"'U'ltained within the district. 30aa Carrying on of public schools. (e) In general to do anything not inconsistent with this act which is necessary for the proper establishment, maintenance, management and carrying on of the public schools of such district. HISTORY: New 1955, p. 492, Act 269, Eff. Jul. 1;—Am. 1961, p. 371, Act 219, Eff. Sep. 8 . 3 40 .12 2 Borrowing pow er. Sec. 122. School districts operating under this chapter shall be governed by Act No, 202 of the Public Acts of 1943, as amended, being sections 131.1 to 138.2, inclusive,of the Compiled Laws of 1948, in force or as the same may hereafter be amended. HISTOHY: New 1955, p. 492, Act 2B9, Elf. Jul. 1. CHAPTER 5. SCHOOL DISTRICTS OF THE SECOND CLASS. PUBLIC ACTS 1955—No. 269. 340.158 Borrowing power, bond issue, approval. [M .S .A . 15.3158] Sec. 158. The board may from time to time, on such terms as it may deem proper, borrow for ‘temporary school purposes not to exceed the amount of unpaid, voted taxes, and, in case of an emergency, the board may borrow in addition thereto an amount not to exceed L? mill on the assessed valuation of the school district and may give the note or bond of the board therefor, which shall be paid from the first school moneys collected thereafter. For the purpose of purchasing sites, erecting schoolhouses and other buildings, and for equipping the same, the board may borrow such sums of money as it may deem necessary and may issue and sell its bonds therefor upon such rates of interest and foe such time and in such amount as it may think proper, and in such form and with suck bonds and coupons signed and countersigned in such manner as it may by resolution direct, but the action of the board authorizing such loan shall first be submitted to the common council, city commission, or other legislative body of the city or to the school tax electors of the district for approval, and no such issue of bonds shall be valid unless the proposal to issue the same shall have been approved by a majority vote of the members- elect of the common council, city commission or legislative body of the city, or be approved by a majority vote of the school tax electors of such city district voting thereon at any election at which the question of approving such an issue of school bonds shall be sû mitted to them by the said board. School districts operating under this chapter shall be governed by Act No. 202 of the Public Acts of 1943, as amended, being sections 131-1 to 138.2, inclusive, of the Compiled Laws of 1948, in force or as the same may hereafter be amended. 31aa 340.158 S a m e ; b o r r o w i n g p o w e r , t e m p o r a r y p u r p o s e s , b o n d s , a p p r o v a l . [ M . S . A . 15.3158] Sec. 158. The board may: (a) Borrow, subject to the provisions of Act No. 202 of the Public Acts of 1943, as amended, being sections 131.1 to 138.2 of the Compiled Laws of 1948, for temporary school purposes such sums of money and on such terms as it may deem desirable and give notes of the district therefor. (b) Borrow, subject to the provisions of Act No. 202 of the Public Acts of 1943, as amended, such sums of money as it may deem necessary to purchase sites for buildings, playgrounds, athletic fields or agricultural farms, and to purchase and erect and equip any buildings which it is authorized to purchase and erect, or to make any permanent improvement which it is authorized to make, and to accomplish this by the issue and sale of bonds of the school district in such form or on such terms as the board may deem advisable, or by any other reasonable' means. No loan shall be made and no bonds shall be issued for a longer term than 30 years nor for any sum which, together with the total outstanding bonded indebtedness of the district, shall exceed 2 % of the state equalized valuation of the taxable property within the district, unless the proposition of making the loans or of issuing bonds has been submitted to a vote of the school tax electors of the district at a general or special school election and approved by the majority of the registered electors actually voting on the same, in which event loans may be made or bonds may be issued for the purposes set forth in an amount equal to that provided by chapter 1 2 of part 2 of this act. § 158, as la s t amended by 1968 PA 316 340.158 S e c o n d c l a s s d i s t r i c t s ; b o r r o w i n g power. [M .S.A . 15.3158] Sec. 158. The board may: Temporary purposes. (a) Borrow, subject to the provisions of Act No. 202 of the Public Acts of 1943, as amended, for temporary school purposes such sums of money and on such terms as it may sem desirable and give notes of the district therefor. Long-term loans; bonds; purposes; limitations. (b) Borrow, subject to the provisions of Act No. 2 0 2 of the Public Acts of 1943, as amended, such sums of money as it may deem necessary to purchase sites for buildings. ygrounds, athletic fields or agricultural farms, and to purchase and erect and equip y buildings which it is authorized to purchase and erect, or to make any permanent ^Pr°vement which it is authorized to make, and to accomplish this by the issue and e of bonds of the school district in such form or on such terms as the board may bn ̂ a<̂v'saLle' or by any other reasonable means. No loan shall be made and no s shall be issued for a longer term than 30 years nor for any sum which, together with c e outstanding bonded indebtedness of the district, shall exceed 5% of the state mat''2™ va'uat*on of the taxable property within the district, unless the proposition of ele t' n8 *oans or °f issuing bonds has been submitted to a vote of the school tax °rs of the district at a general or special school election and approved by the *be registered electors actually voting on the same, in which event loans may be !„, ® or bonds may be issued for the purposes set forth in an amount equal to that provided y cl>aPter 12 of part 2. § 158, as amended by 1962 PA 177 32aa 340 .16 5 Board of education; authority as to sites for school purposes; agri cultural, trade and vocational schools, establishm ent; acquisition of land outside district. S e c . 1 6 5 . T h e b o a r d s h a l l h a v e f u l l p o w e r a n d a u t h o r i t y t o l o c a t e , p u r c h a s e o r lease, i n t h e n a m e o f t h e d i s t r i c t , s u c h s i t e o r s i t e s f o r s c h o o l h o u s e s , a d m i n i s t r a t i o n bu ildin g s, a g r i c u l t u r a l s i t e s , a t h l e t i c f i e l d s a n d p l a y g r o u n d s a s m a y b e n e c e s s a r y o u t o f t h e funds p r o v i d e d f o r t h a t p u r p o s e , a n d m a y m a k e s a l e o f a n y s i t e o r o t h e r p r o p e r t y o f th e dis t r i c t w h i c h is n o l o n g e r r e q u i r e d f o r s c h o o l p u r p o s e s , a n d m a y a l s o e s t a b l i s h , e q u i p and m a i n t a i n a g r i c u l t u r a l , t r a d e a n d o t h e r v o c a t i o n a l s c h o o l s , a n d i f d e e m e d n e c e s s a r y by s u c h b o a r d m a y a c q u i r e l a n d f o r s u c h p u r p o s e o u t s i d e t h e d i s t r i c t l i m i t s . L a n d outside t h e s c h o o l d i s t r i c t s h a l l n o t b e a c q u i r e d u n l e s s a p p r o v e d b y a % v o t e o f a l l m e m b e rs- e l e c t o f t h e b o a r d o f e d u c a t i o n . HISTORY: New 1955, p. 4 9 9 , Act 269, Eff. Jul. 1;—Am. 1970, p. 164, Act 72, Imd. Eff. Jul. 12. C H A P T E R 6 . S C H O O L D I S T R I C T S O F T H E F I R S T C L A S S . 3 40 .19 2 Board of education; body corporate; nam e, pow ers, liabilities; right of em inent dom ain. S e c . 1 9 2 . T h e s a i d b o a r d s h a l l b e a b o d y c o r p o r a t e u n d e r t h e n a m e a n d t i t l e o f “ the b o a r d o f e d u c a t i o n o f t h e s c h o o l d i s t r i c t o f t h e c i t y o f ...................................................” a n d u n d e r that n a m e m a y s u e a n d b e s u e d a n d m a y t a k e , u s e , h o l d , l e a s e , s e l l a n d c o n v e y r e a l pro p e r t y w i t h o u t r e s t r i c t i o n a s t o l o c a t i o n a n d p e r s o n a l p r o p e r t y , i n c l u d i n g p r o p e r t y re c e i v e d b y g i f t , d e v i s e o r b e q u e s t , a s t h e i n t e r e s t o f s a i d s c h o o l s a n d t h e p r o s p e r i t y and w e l f a r e o f s a i d s c h o o l d i s t r i c t m a y r e q u i r e . T h e s a i d b o a r d m a y t a k e a n d h o l d re a l and p e r s o n a l p r o p e r t y f o r t h e u s e o f t h e p u b l i c s c h o o l s w i t h i n a n d w i t h o u t i t s co rp o ra te l i m i t s a n d m a y s e l l a n d c o n v e y t h e s a m e . T h e b o a r d c h o s e n p u r s u a n t t o t h i s chapter s h a l l b e t h e s u c c e s s o r o f a n y s c h o o l c o r p o r a t i o n o r c o r p o r a t i o n s e x i s t i n g w i t h i n t h e lim i t s o f s u c h c i t y o r c i t i e s a n d s h a l l b e v e s t e d w i t h t h e t i t l e t o a l l p r o p e r t y , r e a l a n d per s o n a l , v e s t e d i n t h e s c h o o l c o r p o r a t i o n o f w h i c h i t is t h e s u c c e s s o r . S a i d b o a r d sh all be l i a b l e t o p a y t h e i n d e b t e d n e s s a n d o b l i g a t i o n s o f t h e s c h o o l c o r p o r a t i o n s o f w h i c h it is t h e s u c c e s s o r i n t h e m a n n e r a n d t o t h e e x t e n t p r o v i d e d i n t h i s c h a p t e r . S a i d board s h a l l h a v e p o w e r t o p u r c h a s e , l e a s e , a n d t a k e b y t h e r i g h t o f e m i n e n t d o m a i n a ll pro p e r t y , e r e c t a n d m a i n t a i n o r l e a s e a l l b u i l d i n g s , e m p l o y a n d p a y a l l p e r s o n s , a n d d o all o t h e r t h i n g s i n i t s j u d g m e n t n e c e s s a r y f o r t h e p r o p e r e s t a b l i s h m e n t , m a in te n a n c e , m a n a g e m e n t a n d c a r r y i n g o n o f t h e p u b l i c s c h o o l s a n d f o r t h e p r o t e c t i o n o f other p r o p e r t y o f t h e s c h o o l d i s t r i c t , a n d t o d o a n y t h i n g w h a t e v e r t h a t m a y a d v a n c e th e in t e r e s t s o f e d u c a t i o n , t h e g o o d g o v e r n m e n t a n d p r o s p e r i t y o f t h e f r e e s c h o o l s in salt c i t y , a n d t h e w e l f a r e o f t h e p u b l i c c o n c e r n i n g t h e s a m e , a n d i t s h a l l h a v e a u t h o r i t y to a d o p t b y l a w s , r u l e s a n d r e g u l a t i o n s f o r i t s o w n g o v e r n m e n t a n d f o r t h e c o n t r o l an g o v e r n m e n t o f a l l s c h o o l s , s c h o o l p r o p e r t y a n d p u p i l s . I f p r o p e r t y is s o u g h t t o b e taken b y e m i n e n t d o m a i n , s u c h p r o c e e d i n g s m a y b e b r o u g h t u n d e r t h e t e r m s o f A c t N a o f t h e P u b l i c A c t s o f 1 9 1 1 , a s a m e n d e d , b e i n g s e c t i o n s 2 1 3 . 2 1 t o 2 1 3 . 4 1 o f t h e C o m p i l e d L a w s o f 1 9 4 8 , o r a n y o t h e r a p p r o p r i a t e s t a t e l a w . HISTORY: New 1955, p. 501, Act 269, Eff. Jul. 1;—Am. 1965, p. 723, Act 367, Imd. Eff. Jul. 23. 33aa 340.220a First class district; borrowing power, for temporary school purposes [M.S.A. 15.3220(1)] Sec. 2 2 0 a. The board may; (a) Borrow, subject to the provisions of Act No. 2 0 2 of the Public Acts of 1 9 4 3 as amended, being sections 131.1 to 138.2'of the Compiled Laws of 1948, for temporary school purposes such sums of money and on such terms as it may deem desirable and give notes of the district therefor. Bonds; purposes, terms; limitations. (b) Borrow, subject to the provisions of Act No. 202 of the Public Acts of 1 9 4 3 . as amended, such sums of money as it may deem necessary to purchase sites for buildings, playgrounds, athletic fields or agricultural farms, and to purchase and erect and equip any buildings which it is authorized to purchase and erect, or to make any permanent im provement which it is authorized to make, and to accomplish this by the issue and sale of bonds of the school district in such form or on such terms as the board may deem advisable, or by any other reasonable means. No loan shall be made and no bonds shall be issued for a longer term than 30 years nor for any sum which, together with the total outstanding bonded indebtedness of the district, shall exceed 2% of the state equalized valuation of the taxable property within the district, unless the proposition of making the loans or of issuing bonds has been submitted to a vote of the school tar electors of the district at a general or special school election and approved by the major ity of the registered electors actually voting on the same, in which event loans may be made or bonds may be issued for the purposes set forth in an amount equal to that pro vided by chapter 12 of part 2 of this act. § 220a, as amended by 1968 PA 316 340.22 0a First class districts; borrowing power. [M .S .A . 15.3220(1)] Sec. 220a. The board may: Temporary purposes. (a) Borrow, subject to the provisions of Act No. 202 of the Public Acts of 1943, as amended, for temporary school purposes such sums of money and on such terms as it may deem desirable and give notes of the district therefor. Long-term loans; bonds; purposes; limitations. (b) Borrow, subject to the provisions of Act No. 202 of the Public Acts of 1943, as amended, such sums of money as it may deem necessary to purchase sites for buildings, Paygrounds, athletic fields or agricultural farms, and to purchase and erect and equip any buildings which it is authorized to purchase and erect, or to make any permanent improvement which it is authorized to make, and to accomplish this by the issue and sale Ponds of the school district in such form or on such terms as the board may deem advis- . e’ or by any other reasonable means. No loan shall be made and no bonds shall be ■Wied for a longer term than 30 years nor for any sum which, together with the total out- 5 anding bonded indebtedness of the district, shall exceed 3% of the state equalized valua- wn of the taxable property within the district, unless the proposition of making the loans 0 lssuing bonds has been submitted to a vote of the school tax electors of the district a general or special school election and approved by the majority of the registered c ors actually voting on the same, in which event loans may be made or bonds may be ssued for the purposes set forth in an amount equal to that provided by chapter 12 of § 220a, as added by 1965 PA 29 34aa 3 4 0 . 2 2 0 a F i r s t c l a s s s c h o o l d i s t r i c t s ; b o r r o w i n g p o w e r . [ M . S . A . 1 5 ,3 2 2 0 (1 )1 S e c . 2 2 0 a . T h e b o a r d m a y : ( a ) B o r r o w , s u b j e c t t o t h e p r o v i s i o n s o f A c t N o . 2 0 2 o f t h e Public A c t s o f 1 9 4 3 , a s a m e n d e d , f o r t e m p o r a r y s c h o o l p u r p o s e s s u c h s u m s of m o n e y a n d o n s u c h t e r m s a s i t m a y d e e m d e s i r a b l e a n d g i v e n o t e s o f the d i s t r i c t t h e r e f o r . ( b ) B o r r o w , s u b j e c t t o t h e p r o v i s i o n s o f A c t N o . 2 0 2 o f t h e P u blic A c t s o f 1 9 4 3 , a s a m e n d e d , s u c h s u m s o f m o n e y a s i t m a y d e e m n ece ssary t o p u r c h a s e s i t e s f o r b u i l d i n g s , p l a y g r o u n d s , a t h l e t i c f i e l d s o r a g r ic u lt u r a l f a r m s , a n d t o p u r c h a s e a n d e r e c t a n d e q u i p a n y b u i l d i n g s w h i c h it is a u t h o r i z e d t o p u r c h a s e a n d e r e c t , o r t o m a k e a n y p e r m a n e n t i m p r o v e m e n t w h i c h i t i s a u t h o r i z e d t o m a k e , a n d t o a c c o m p l i s h t h i s b y t h e is s u e and s a l e o f b o n d s o f t h e s c h o o l d i s t r i c t i n s u c h f o r m o r o n s u c h t e r m s as the b o a r d m a y d e e m a d v i s a b l e , o r b y a n y o t h e r r e a s o n a b l e m e a n s . N o loan s h a l l b e m a d e a n d n o b o n d s s h a l l b e i s s u e d f o r a l o n g e r t e r m t h a n 3 0 years n o r f o r a n y s u m w h i c h , t o g e t h e r w i t h t h e t o t a l o u t s t a n d i n g b o n d e d in d e b t e d n e s s o f t h e d i s t r i c t , s h a l l e x c e e d 5 % o f t h e s t a t e e q u a l i z e d v a lu a tio n o f t h e t a x a b l e p r o p e r t y w i t h i n t h e d i s t r i c t , u n l e s s t h e p r o p o s i t i o n o f m a k in g t h e l o a n s o r o f i s s u i n g b o n d s h a s b e e n s u b m i t t e d t o a v o t e o f t h e school t a x e l e c t o r s o f t h e d i s t r i c t a t a g e n e r a l o r s p e c i a l s c h o o l e l e c t i o n a n d ap p r o v e d b y t h e m a j o r i t y o f t h e r e g i s t e r e d e l e c t o r s a c t u a l l y v o t i n g o n the s a m e , i n w h i c h e v e n t l o a n s m a y b e m a d e o r b o n d s m a y b e i s s u e d f o r the p u r p o s e s s e t f o r t h i n a n a m o u n t e q u a l t o t h a t p r o v i d e d b y c h a p t e r 1 2 of p a r t 2 . § 220a, as last amended b y 1 9 7 1 p a 23 P A R T 2 . C H A P T E R 2 . G E N E R A L P O W E R S A N D D U T I E S O F D I S T R I C T S . 3 4 0 .35 2 Body corporate; pow ers, rights, liabilities; presumption. Sec. 352. Every school district shall be a body corporate under the name provided in this act, and may sue and be sued in its name, may acquire and take property, both real and personal, for educational purposes within or without its corporate limits,!)) purchase, gift, grant, devise or bequest, and hold and use the same for such purposes, and may sell and convey the same as the interests of such district mav require, subject to the conditions of this act contained. As such body corporate, every school district shall be the successor of anv school district previously existing within the same territo rial limits and shall be vested with all rights of action, with the title of all property- 35aa real a n d p e r s o n a l , o f t h e d i s t r i c t o f w h i c h i t is t h e s u c c e s s o r , a n d t h e i n d e b t e d n e s s a n d o b lig a tio n s o f t h e d i s t r i c t s u p e r s e d e d s h a l l b e c o m e a n d b e t h e i n d e b t e d n e s s a n d o b l i gations o f t h e s u c c e e d i n g d i s t r i c t , e x c e p t a s o t h e r w i s e p r o v i d e d i n c h a p t e r s 3 , 4 a n d 5 , part 2 o f t h i s a c t . E v e r y s c h o o l d i s t r i c t s h a l l i n a l l c a s e s b e p r e s u m e d t o h a v e b e e n l e gally o r g a n i z e d w h e n i t s h a l l h a v e e x e r c i s e d t h e f r a n c h i s e s a n d p r i v i l e g e s o f a d i s t r i c t for th e t e r m o f 2 y e a r s ; a n d s u c h s c h o o l d i s t r i c t a n d i t s o f f i c e r s s h a l l b e e n t i t l e d t o a l l the r ig h ts , p r i v i l e g e s a n d i m m u n i t i e s , a n d b e s u b j e c t t o a l l t h e d u t i e s a n d l i a b i l i t i e s c o n fe rre d u p o n s c h o o l d i s t r i c t s b y l a w . f HISTORY: New 1955, p. 527, Act 269. Eff. Jul. 1. 340.355 School discrim ination; race , color, intellectual progress. Sec. 3 5 5 . N o s e p a r a t e s c h o o l o r d e p a r t m e n t s h a l l b e k e p t f o r a n y p e r s o n o r p e r s o n s on a c c o u n t o f r a c e o r c o l o r . T h i s s e c t i o n s h a l l n o t b e c o n s t r u e d t o p r e v e n t t h e g r a d i n g of sc h o o ls a c c o r d i n g t o t h e i n t e l l e c t u a l p r o g r e s s o f t h e p u p i l , t o b e t a u g h t i n s e p a r a t e places as m a y b e d e e m e d e x p e d i e n t . HISTORY: New 1955, p. 52S, Act 269, Eff. Jul. 1. C H A P T E R 3 . C O N S O L I D A T I O N O F D I S T R I C T S . 340.401 Consolidation of districts; quota of school age children, classifica tion. S e c . 4 0 1 . A n y 2 o r m o r e s c h o o l d i s t r i c t s , e x c e p t d i s t r i c t s o f t h e f i r s t a n d s e c o n d c l a s s , in w h i c h t h e t o t a l n u m b e r o f c h i l d r e n b e t w e e n t h e a g e s o f 5 a n d 2 0 y e a r s , is 7 5 o r m ore, m a y c o n s o l i d a t e t o f o r m a s i n g l e s c h o o l d i s t r i c t a s h e r e i n a f t e r p r o v i d e d . T h e c o n s o lid a te d d i s t r i c t s o f o r m e d s h a l l b e a d i s t r i c t o f t h e f o u r t h c l a s s o r t h i r d c l a s s , d e p e n d in g u p o n t h e c l a s s i f i c a t i o n i t s p o p u l a t i o n e n t i t l e s i t t o u n d e r t h e p r o v i s i o n o f p a r t 1 o f th is a c t . HISTORY: New 1955, p. 531, Act 269, Eff. Jul. 1 . 340.402 Consolidation of districts; request, app ro val, m odification of pro posal; location in m ore than one county. S e c . 4 0 2 . W h e n e v e r t h e c o u n t y s u p e r i n t e n d e n t o f s c h o o l s s h a l l b e r e q u e s t e d i n w r i t ing b y n o t le s s t h a n 1 0 s c h o o l e l e c t o r s o f e a c h o f 2 o r m o r e d i s t r i c t s t o i n i t i a t e p r o c e e d - mgs f o r t h e c o n s o l i d a t i o n o f t h e s a i d 2 o r m o r e d i s t r i c t s , h e s h a l l r e f e r t h e q u e s t i o n o f c o n s o lid a tin g t h e s a i d d i s t r i c t s t o t h e s u p e r i n t e n d e n t o f p u b l i c i n s t r u c t i o n f o r h i s a p p ro va l: P r o v i d e d , T h a t a r e s o l u t i o n o f t h e b o a r d r e q u e s t i n g s u c h a c t i o n b y t h e c o u n t y s u p e r in t e n d e n t s h a l l h a v e t h e s a m e e f f e c t a s s u c h w r i t t e n r e q u e s t b y t h e e l e c t o r s o f anY d i s t r i c t . T h e s u p e r i n t e n d e n t o f p u b l i c i n s t r u c t i o n s h a l l h a v e a u t h o r i t y t o a p p r o v e or d e n y t h e p r o p o s a l t o i n i t i a t e p r o c e e d i n g s t o e f f e c t u a t e t h e p r o p o s e d c o n s o l i d a t i o n , he m a y r e q u i r e t h a t 1 o r m o r e o f s u c h d i s t r i c t s b e n o t i n c l u d e d i n t h e p r o p o s e d c o n - so d a t i o n . H i s a c t i o n i n t h e m a t t e r s h a l l b e f i n a l . I f t h e s c h o o l d i s t r i c t s p r o p o s e d t o b e c o n s o lid a te d a r e l o c a t e d i n m o r e t h a n 1 c o u n t y , t h e r e q u e s t t o i n i t i a t e c o n s o l i d a t i o n p r o c e e d in g s s h a l l b e a d d r e s s e d t o t h e s u p e r i n t e n d e n t o f t h e c o u n t y c o n t a i n i n g t h e (h * es P o r r i o n o f t h e a s s e s s e d v a l u a t i o n o f t h e p r o p o s e d c o n s o l i d a t e d d i s t r i c t , a n d i t ’ on sh a ll b e c o m e h i s d u t v t o c a r r y o u t t h e p r o c e e d i n g s h e r e i n a f t e r a s s i g n e d t o t h e ount) superintendent. mSTORl: New 19 5 5 . p. 5 3 2 , Act 269. EH. Jul. 1. 36aa 34 0 .4 0 3 Consolidation of districts; petitions, form , circulation, time, return. Sec. 403. Within 30 days of the receipt of the approval of the superintendent of public instruction to the consolidation of 2 or more districts, the county superintend ent of schools shall have petitions prepared for circulation within the affected school districts. Said petitions shall be printed or duplicated and the first page of any petition shall be in the following form: Official Petition No............. consisting o f ..........pages. Expiration date....................... (Signed)............................... County Superintendent of Schools o f .............County, Michigan. To the County Superintendent of Schools o f ...........County, Michigan. W e, the undersigned, qualified (here insert “ registered” in the case of a registration district) electors o f .............................................................................................................................. (Name of School District) hereby petition that you cause the question of consolidating the following school dis tricts to be submitted to the school electors of said districts: Names of school districts to be consolidated to be listed here Signatures of Petitioners Name Address Date of Signing Each additional page of any such petition shall have at or near the top of the page the following: Official Petition N o . ................................ Page N o................................ Expiration date of Petition........................................................... Signature of County Superintendent of Schools............................................................... Each page shall have printed or duplicated the following statement below the space for signature for petitioners: The undersigned hereby certifies that he is a qualified (here insert “registered in the case of a registration district) elector o f ............................................................................. (Name of School District) and that each signature appearing on this page is the genuine signature of the person signing the same and that to his best knowledge and belief each such person was at the time of signing a qualified (here insert “ registered” in the case of a registration dis trict) elector of said school district. Dated th is....................................... day o f .............................. 19........................... Each petition shall be signed by the county superintendent of schools as indicated in the foregoing form before being issued to any person for circulation. Official petitions in the form as above provided shall be given by the county supw intendcnt of schools to anv interested elector of anv of the districts p ro p o se d to “ consolidated. Onlv qualified school electors of the districts in which signatures to i petitions are being sought shall circulate such petitions and the statement appear111!' below the signatures of petitioners shall be dated or signed on each page before re turning such petition to the county superintendent of schools. 37aa Official petitions as above provided shall be returned to the county superintendent of schools on or before the expiration date stated on the petition. The expiration date for filing of petitions shall be the sixtieth day after the receipt by the counts’ superin tendent of schools of the last certification by a city or township clerk as to the number of registered general electors residing in each of the affected school districts as herein after provided, but in no event shall such expiration date be later than 180 days after the date of approval bv the superintendent of public instruction. HISTORY: Now 1955. p. 532. Act 269. Eff. Jul. 1. 340.404 Consolidation of districts; registration of electors. Sec. 404. Immediately upon receipt of the approval of the superintendent of public instruction to the consolidation of 2 or more districts the county superintendent of schools shall request each appropriate city or township clerk to certify to him the number of registered general electors residing in each of the affected school districts and it shall he the duty of any such city or township clerk to make such certification without delay. The number of registered general electors so certified shall be the basis for determining the required number of signatures for calling an election on the ques tion of consolidation as hereinafter provided. In registration districts, signatures of per sons registering after the date of certification by the appropriate city or township clerk shall be valid signatures if such persons are registered at the time of signing a petition: Provided, That such additional registrations shall not affect the number of registered general electors originally certified to by the respective city or township clerks. It is the intent that in registration districts electors in order to be eligible to sign petitions and vote on the question of consolidation shall be registered electors, while in non registration districts registration shall not be a required qualification for signing peti tions or for voting on consolidation. HISTORY: New 1955, p. 533, Act 269, Eff. Jul. 1. 340.405 Consolidation of districts; determ ination of num ber of qualified electors; superintendent of schools. Sec. 405. Upon the filing of such petitions with the county superintendent of schools, said county superintendent shall canvass the same to ascertain the number of qualified electors who have signed the same, and, for the purpose of determining the validity of any doubtful signatures, may cause them to be checked against the registra tion records by the clerk of any political subdivision in which said petitions were circu lated or may use ariv other method he deems proper for determining the validity of such doubtful signatures. In the absence of fraud on the part of the county superin tendent in the determination of the validity of the signatures to any petition or error in the determination of the number of qualified signatures, his determination of the num- her of qualified electors signing each petition shall be final. HISTORY: New 1955, p. .513, Act 269, Elf. Jul. 1. 340.406 Consolidation of districts; calling of elections, prerequisites. Sec. 406. Whenever the county superintendent of schools is presented with peti tions signed by qualified school electors in each district to the number of not less than of the number of registered general electors, as of the date the county superin tendent of schools releases petitions, residing in each district in the case of primary e istricts, and by school electors of not less than 5% of the number of registered general e ectors residing in each district in the case of all other districts, he shall cause the question of consolidating the school districts to form a single school district to be sub- m,!ted to the vote of the electors of the school districts at an election called to be held 1 11n 35 days after the receipt of such petitions. \ c petitions shall be required in the 38aa case of any district operating 12 grades when a resolution adopted by the board of the district requesting consolidation of districts has been filed with the county superin tendent of schools. It shall be the duty of any city or township clerk to certify to the county superintendent of schools the number of registered general electors residing in a school district when so requested by the county superintendent. HISTORY: New 1955, p. 533, Act 269, Eff. Jul. 1;—Am. 1958, p. 234, Act 195, Eff. Sep. 13. 3 4 0 .4 0 7 Consolidation of districts; special election, place. Sec. 407. The question of establishing a consolidated school district shall be submit ted to the school electors at a special election held for such purpose. In voting to form such consolidated school district, each district operating 12 grades shall votesepa-1 rately as a unit and all other school districts to be included in the consolidation shall vote together as a unit. The board shall conduct the election in each school district op erating 12 grades, and the county board of education of the county, the county super intendent of which is required to call the election as herein provided, shall conduct the election for the other districts voting together as a unit: Provided, however, That such elections shall be held on the same dav and during the same hours and that when ever any registration district votes separately as herein provided the provisions ol chapter 8 of part 2 of this act shall apply, but not when such district votes together with 1 or more other districts. HISTORY: New 1955, p. 534, Act 269, Eff. Jul. 1. 340.408 Consolidation of districts; notice of special election, contents, post ing, publication. Sec. 408. The county superintendent shall give notice of the date, place or places, the proposition or propositions to be submitted, and the hours the polls will be open for the special election to the electors of the districts operating less than 12 grades, by causing notice thereof to be posted in 3 or more places in such affected districts not less than 10 days prior to such election and by publication at least once in a newspaper of general circulation in the territory of such districts 10 days or more before the elec tion. The county superintendent shall in writing notify the secretary of each board of each affected district operating 12 grades of tire day and hours for holding such special; election. Upon receipt of such notice, it shall be the duty of each such secretary to ̂ give the statutory notice of the day, place or places, and the hours for holding such election and of the last day of registration in the case of a registration district. Each such secretary shall furnish timely proof of giving such notice to the county superin tendent in the form of affidavits of posting notice or publication, as the. case may be. In the event that a registration district which is required to vote separately is include! in the proposed consolidation, the polls in each election unit shall be open from /: o’clock in the forenoon until 8:00 o’clock in the afternoon, and the county superin tendent shall give the required notice of the day of the election to the secretary of tin board of such registration district at least 35 days prior to the election. HISTORY: New 1955, p. 531, Act 269, Eff. Jul. 1:—Am. 1959, p. 252, Act 177, Eff. Mar. 19. 1960. 39aa 340.409 Consolidation of districts; form of ballot; conduct of election. Sec. 409. The vote on the question of consolidating shall be by printed ballot and shall be in substantially the following form: “Shall all of the territory of the following districts be united to form 1 school dis trict? (Names of school districts to be consolidated to be listed here) Yes ( ) no( r The intermediate school district superintendent shall Supply printed ballots, poll books and other necessary election supplies to the board or boards of election inspec tors of the election unit of the districts operating less than 12 grades. The secretary of the board of each school district operating 12 grades shall have printed ballots pre pared for the election and supply all election materials necessary for said election. The hoard of each such district shall appoint the necessary school electors to the board or boards of election inspectors. The members of the intermediate board of education shall act as the board or boards of election inspectors for the election held in the dis tricts operating less than 12 grades. The intermediate board of education may appoint additional persons to the board or boards of election inspectors, and, if more than 1 place for holding such election is designated by the intermediate school district super intendent, the members of the intermediate board of education shall be apportioned by the intermediate school district superintendent to the boards of election inspectors. In the event that a member of the intermediate board of education or such other per son appointed to a board of election inspectors is unable to be present at the election or is required to leave during the hours the polls are open, the remaining members of such board of election inspectors may appoint another person to fill such vacancy, bach member of a board of election inspectors shall take the constitutional oath of of fice before entering on his duties. Elections shall be canvassed by the board of canvas sers established by section 514a, this being section 340,514a of the Compiled Laws of 1948, and the result shall be certified by the secretary of the board to the intermediate school district superintendent of schools. In the case of a registration district voting separately and in more than 1 precinct, the secretary of the board of canvassers shall file a certified copy of the canvass of the election by the board with the intermediate school district superintendent. The affirmative vote of a majority of the school electors voting on the question in each of the election units, as hereinbefore defined, shall be necessary to effect the consolidation of the districts, and such consolidation shall be come effective as of the day of the election on which the votes were cast. Compensation of election inspectors, payment of expenses. The members of the intermediate board of education and such other inspectors of election acting in the election unit Of the district or districts operating less than 12 grades shall receive the same compensation for conducting such election as is author ized for election inspectors in a general state election. In the event the consolidation becomes effective, all expenses incurred for the election in all election units shall be certified to the board of the consolidated district and it shall be the duty of said board to pay the same out of the funds of the consolidated district. If the proposition to con solidate fails to be approved, as hereinbefore provided, the intermediate board shall determine the expenses of the election held in the election unit operating less than 12 grades and apportion such expenses equally among the several districts of such elec- tlon un>t- It shall be the duty of each such board of education to pay such apportion- meu' 1° the intermediate board of education without delay. "STORY:New 1955, p. 531, Act 269. Klf. Jul. 1 ;—Am. 1963. 2 nd Ex. Ses„ p. 49, Act 39, Irod. Elf. Dec. 27. 40aa 3 4 0 . 4 1 0 Consolidated district; first b o ard , ap p o in tm e n t , acceptance, term, m eeting . Sec. 4 1 0 . Within 1 0 days after the effective date of the consolidation of 2 or more I school districts, the county board of education of the county containing the territoryol' the consolidated district shall appoint qualified electors of the district in the number required by the classification of the district to act as a board for said district. When the territory of a consolidated district extends into more than 1 county, such appoint ment shall be made by the county board of education of each county acting jointly as a single board. Within 7 days after his appointment, each member shall file with the county superintendent an acceptance of the office, accompanied by a written affidavit, setting forth the fact of eligibility as provided in section 4 9 3 of this act. E xcept as hereinafter provided, each member so appointed to the board shall hold o f f ic e until the next annual election, at which time there shall be elected by ballot a new board in accordance with the provisions of chapter 3 or chapter 4 of part 1 of this act for the election of a first board. Within 1 5 days after tire effective date of the consolidation, the county superintendent shall call a meeting of the board appointed by the county board of education, at which meeting the board shall elect a president, a secretary and a treasurer. District election; sa la rie s of board m em bers. If the effective date of the consolidation is between the thirtieth day prior to the an nual election and December 31, the board appointed by the county board shall at its first meeting call a district election to be held within 45 days from the day of the meet ing. At the election, a board of the requisite number of members shall be elected for | such terms as are required for the election of a first board in section 55 or section 101 of this act. The salaries of the members of the board shall be determined by the elec tors of the district at such election in accordance with section 71 or section 112. The election shall be in lieu of the first annual election and the first year of each term of of fice shall extend until the date of taking office following the next succeeding annual election. The board shall hold its first meeting and elect officers as provided in section 57 or section 111 of this act. HISTORY: New 1955, p. 535, Act 269, EH. JuL 1;—Am. 1963, p. 438, Act 248, Imd. EH. Jun. 13. 340.411 Consolidated district; transfer of records, funds, property of origi nal districts. Sec. 411. Within 20 days after the effective date of the consolidation of 2 or more , districts, the board of each of the original districts shall account to the board of the consolidated district for all records, funds and property belonging to said original dis trict and shall turn over the same to the board of the consolidated district. Upon re ceipt of such records, funds and property by the board of the consolidated district, officers of the original district or districts shall be released from liability therefor an their offices terminated. HISTORY: New 1955, p. 53-5. Act 269, Eff. Jul. 1. 41aa 340.412 Consolidated district; indebtedness of original district, retirem ent. S e c . 4 1 2 . I f a n y d i s t r i c t b e c o m i n g p a r t o f t h e c o n s o l i d a t e d d i s t r i c t h a s a b o n d e d i n d e b te d n e s s i n c u r r e d a f t e r D e c e m b e r 8 , 1 9 3 2 , o r h a s o u t s t a n d i n g t a x a n t i c i p a t i o n n o t e s at th e t i m e o f c o n s o l i d a t i o n , t h e i d e n t i t y o f s u c h d i s t r i c t s h a l l n o t b e l o s t b y v i r t u e o f such c o n s o l i d a t i o n a n d i t s t e r r i t o r y s h a l l r e m a i n a s a n a s s e s s i n g u n i t f o r p u r p o s e s o f such b o n d e d i n d e b t e d n e s s a n d s u c h t a x a n t i c i p a t i o n n o t e s u n t i l s u c h i n d e b t e d n e s s h a s been r e t i r e d o r t h e o u t s t a n d i n g b o n d s r e f u n d e d b y t h e c o n s o l i d a t e d d i s t r i c t . T h e b o a rd o f t h e c o n s o l i d a t e d d i s t r i c t s h a l l c o n s t i t u t e t h e b o a r d o f t r u s t e e s f o r s u c h o r i g i nal d i s t r i c t h a v i n g s u c h b o n d e d i n d e b t e d n e s s o r t a x a n t i c i p a t i o n n o t e s a n d t h e o f f i c e r s of th e c o n s o l i d a t e d d i s t r i c t s h a l l b e t h e o f f i c e r s f o r s a i d o r i g i n a l d i s t r i c t . T h e b o a r d o f the c o n s o l i d a t e d d i s t r i c t s h a l l c e r t i f y a n d o r d e r t h e l e v y o f t a x e s f o r s u c h b o n d e d i n d e b te d n e s s a n d t a x a n t i c i p a t i o n n o t e s i n t h e n a m e o f t h e o r i g i n a l d i s t r i c t , s h a l l n o t c o m m in g le t h e d e b t r e t i r e m e n t f u n d s o f t h e o r i g i n a l d i s t r i c t w i t h f u n d s o f t h e c o n s o l i da te d d i s t r i c t , a n d s h a l l d o a l l t h i n g s r e l a t i v e t o s u c h b o n d e d i n d e b t e d n e s s a n d t a x a n tic ip a tio n n o t e s r e q u i r e d b y l a w a n d b y t h e t e r m s u n d e r w h i c h t h e i s s u e a n d s a l e o f the b o n d s a n d t a x a n t i c i p a t i o n n o t e s w e r e o r i g i n a l l y a u t h o r i z e d . A l l o t h e r t a x l e v i e s f o r tlie p u r p o s e s o f t h e c o n s o l i d a t e d s c h o o l d i s t r i c t s h a l l b e s p r e a d o v e r t h e e n t i r e a r e a o f the c o n s o l i d a t e d d i s t r i c t . HISTORY: New 1955, p. 536, Act 269, Eff. Jul. 1;—Am. 1969, p. -296, Act 146, Imd. Eff. JuJ. 31. 340.413 Consolidated district; assum ption of indebtedness. S e c . 4 1 3 . A n y t i m e a f t e r 3 y e a r s f o l l o w i n g t h e c o n s o l i d a t i o n , a n v c o n s o l i d a t e d d i s trict m a y a s s u m e t h e o b l i g a t i o n o f t h e b o n d e d i n d e b t e d n e s s i n c u r r e d a f t e r D e c e m b e r 8 ,1 9 3 2 , o f a n y o r i g i n a l d i s t r i c t b e c o m i n g a p a r t o f t h e c o n s o l i d a t i o n a n d p a y t h e s a m e from t h e p r o c e e d s o f a d e b t r e t i r e m e n t t a x l e v y s p r e a d u n i f o r m l y o v e r t h e t e r r i t o r y o f the c o n s o l i d a t e d d i s t r i c t w h e n e v e r t h e e l e c t o r s o f t h e c o n s o l i d a t e d d i s t r i c t s h a l l h a v e a p p r o v e d a n i n c r e a s e i n t h e l i m i t a t i o n o n t a x e s f o r t h a t p u r p o s e a n d t h e s c h o o l t a x e le cto rs o f t h e d i s t r i c t h a v e a p p r o v e d t h e a s s u m p t i o n o f s u c h b o n d e d i n d e b t e d n e s s . A s s u m p t i o n o f s u c h b o n d e d i n d e b t e d n e s s o f a n o r i g i n a l s c h o o l d i s t r i c t s h a l l n o t o p e r ate to r e l e a s e t h e t e r r i t o r y o f t h e o r i g i n a l d i s t r i c t f o r t h e f i n a l r e s p o n s i b i l i t y o f p a y i n g the o b l i g a t i o n o r t o r e s c i n d t h e i n c r e a s e i n t h e l i m i t a t i o n o n t a x e s p l e d g e d t o t h e b o n d issue o r a v a i l a b l e f o r i t i n t h e o r i g i n a l d i s t r i c t , n o r b e c o n s t r u e d a s s o d o i n g . W h e n t h e b o n d e d i n d e b t e d n e s s o f a n o r i g i n a l d i s t r i c t h a s b e e n s o a s s u m e d , i t s h a l l b e t h e d u t y o f the b o a r d o f t h e c o n s o l i d a t e d d i s t r i c t t o c e r t i f y a n d o r d e r t h e l e v y o f t a x e s f o r s u c h 'o u d e d i n d e b t e d n e s s e q u i v a l e n t i n t e r m s o f m o n e y t o t h o s e r e q u i r e d b y t h e t e r m s u n der w h i c h s u c h i n d e b t e d n e s s w a s o r i g i n a l l y i n c u r r e d , a n d c a r r y o u t a l l p r o v i s i o n s o f t e o r i g i n a l b o n d c o n t r a c t . T h e e l e c t i o n m a y b e h e l d a t a n y t i m e f o l l o w i n g t h e e f f e c - h v e d a t e o f c o n s o l i d a t i o n w h e n e v e r a p r o p o s a l is m a d e t o i n c r e a s e t h e b o n d e d i n d e b t edness o f t h e c o m b i n e d d i s t r i c t . HISTORY: New 1955, p. 536, Act 269, EH. Jul. 1:—Am. 1957, p. 154, Act 135, EH. Sep. 27:—Am. 1959, p. 252, Act 177, EH. Mar. 19, 1960. 42aa 34 0 .4 1 4 Consolidated district; sim ultaneous election on consolidation, in. crease of constitutional debt lim its, assum ption of outstanding bonded in debtedness; petition, procedure. S e c . 4 1 4 . W h e n e v e r t h e p e t i t i o n s f i l e d w i t h t h e c o u n t y s u p e r i n t e n d e n t o f schools ts s e t f o r t h i n s e c t i o n 4 0 3 o f t h i s a c t i n c l u d e a r e q u e s t t h a t t h e q u e s t i o n s o f in c r e a s in g the c o n s t i t u t i o n a l l i m i t a t i o n o n t a x e s o f t h e c o n s o l i d a t e d s c h o o l d i s t r i c t f o r t h e p u r p o s e of p r o v i d i n g a d e b t l e v y f o r t h e b o n d e d i n d e b t e d n e s s i n c u r r e d a f t e r D e c e m b e r 8 ,1 9 3 2 , o f 1 o r m o r e o f t h e d i s t r i c t s t o b e c o m e p a r t o f t h e c o n s o l i d a t i o n a n d o f a s s u m i n g such b o n d e d i n d e b t e d n e s s a n d t h e q u e s t i o n o f i n c r e a s i n g t h e c o n s t i t u t i o n a l l i m i t a t i o n on t a x e s o f t h e c o n s o l i d a t e d s c h o o l d i s t r i c t f o r o p e r a t i n g p u r p o s e s b e s u b m i t t e d to the j e l e c t o r s a t t h e t i m e o f v o t i n g t o f o r m t h e c o n s o l i d a t i o n , i t s h a l l b e t h e d u t y o f the c o u n t y s u p e r i n t e n d e n t t o i n c l u d e s u c h q u e s t i o n f o r t h e v o t e o f t h e e l e c t o r s a t each of t h e e l e c t i o n u n i t s p r o v i d e d i n s e c t i o n 4 0 7 o f t h i s a c t . T i r e s t a t e m e n t o f v o t e s cast on t h e s e q u e s t i o n s s h a l l b e c e r t i f i e d t o t h e c o u n t y s u p e r i n t e n d e n t b y e a c h b o a r d o f elec t i o n i n s p e c t o r s , i n c l u d i n g t h o s e o f a d i s t r i c t v o t i n g i n m o r e t h a n 1 p r e c i n c t : Pro vide d, T h a t o n l y s c h o o l t a x e l e c t o r s s h a l l b e p e r m i t t e d t o v o t e o n t h e q u e s t i o n o f assuming s u c h b o n d e d i n d e b t e d n e s s . T h e c o u n t y b o a r d o f e d u c a t i o n s h a l l m e e t w i t h i n 3 days a f t e r t h e d a y o f t h e e l e c t i o n a n d c a n v a s s t h e s t a t e m e n t s f i l e d b y t h e v a r i o u s election b o a r d s . T h e c o u n t y b o a r d s h a l l b v r e s o l u t i o n d e c l a r e t h e r e s u l t o f t h e e l e c t i o n o n these q u e s t i o n s a n d t h i s r e s o l u t i o n s h a l l b e t h e o f f i c i a l d e c l a r a t i o n o f t h e r e s u l t t h e r e o f . The p r o p o s i t i o n s s h a l l b e d e c l a r e d t o h a v e b e e n a d o p t e d i f t h e c a n v a s s o f t h e v o te s cast s h o w s t h a t a m a j o r i t y o f a l l e l e c t o r s v o t i n g o n e a c h p r o p o s i t i o n v o t e d i n t h e affirm a t i v e : P r o v i d e d , T h a t t h e p r o p o s i t i o n o f f o r m i n g t h e c o n s o l i d a t i o n w a s a d o p t e d at said e l e c t i o n a s h e r e i n b e f o r e s e t f o r t h . T h e p r o p o s i t i o n t o f o r m a c o n s o l i d a t e d d i s t r i c t shall b e d e c l a r e d t o h a v e f a i l e d r e g a r d l e s s o f t h e v o t e t h e r e o n i f t h e p r o p o s i t i o n t o increase t h e l i m i t a t i o n o n t a x e s f o r t h e d e b t l e w , t h e p r o p o s i t i o n t o a s s u m e s u c h b o n d e d in d e b t e d n e s s o r t h e p r o p o s i t i o n t o i n c r e a s e t h e l i m i t a t i o n o n t a x e s o f t h e c o n s o lid a te :, s c h o o l d i s t r i c t f o r o p e r a t i n g p u r p o s e s w a s n o t a p p r o v e d a t s a i d e l e c t i o n . A pproval of m unicipal finance com m ission; form of request for increase of debt limits and consolidation. T h e a p p r o v a l o f d i e m u n i c i p a l f i n a n c e c o m m i s s i o n t o t h e s u f f i c i e n c y o f th e pro p o s e d i n c r e a s e i n t h e l i m i t a t i o n o n t a x e s s h a l l f i r s t b e s e c u r e d b e f o r e t h e p e tit io n s are c i r c u l a t e d w i t h i n t h e d i s t r i c t s t o b e c o n s o l i d a t e d . W h e n e v e r t h e e l e c t o r s a p p ro v e 3 c o n s o l i d a t i o n a n d a n i n c r e a s e i n t h e l i m i t a t i o n o f t a x e s a n d t h e a s s u m p t i o n o f tie b o n d e d i n d e b t e d n e s s o f 1 o r m o r e o f t h e o r i g i n a l d i s t r i c t s a s h e r e i n p r o v i d e d , th e con s o l i d a t e d d i s t r i c t s h a l l a s s u m e t h e o b l i g a t i o n o f s u c h b o n d e d i n d e b t e d n e s s a n a sM p a y t h e s a m e b y s p r e a d i n g a d e b t r e t i r e m e n t t a x u n i f o r m l y o v e r t h e t e r r i t o r y of t n c o n s o l i d a t e d d i s t r i c t , a n d t h e p r o v i s i o n s o f s e c t i o n 4 1 3 o f t h i s a c t s h a l l a p p l y relative to s u c h l e v y , t h e c o n t i n u i n g o b l i g a t i o n s o f s u c h o r i g i n a l d i s t r i c t o r d i s t r i c t s , a n d th e r ig 's a n d r e m e d i e s o f a n y b o n d h o l d e r . T h e r e q u e s t f o r i n c l u d i n g t h e q u e s t i o n o f increasin', t h e c o n s t i t u t i o n a l l i m i t a t i o n o n t a x e s o f t h e c o n s o l i d a t e d s c h o o l d i s t r i c t f o r t h e p u r p * o f p r o v i d i n g a d e b t l e v y f o r t h e b o n d e d i n d e b t e d n e s s i n c u r r e d a f t e r December 1 9 3 2 . o f 1 o r m o r e o f t h e d i s t r i c t s t o b e c o m e p a r t o f t h e c o n s o l i d a t i o n a n d f o r assmn i n g s u c h b o n d e d i n d e b t e d n e s s b y t h e c o n s o l i d a t e d d i s t r i c t s h a l l b e s t a t e d o n th e F ̂ t i o n a f t e r t h e n a m e s o f t h e s c h o o l d i s t r i c t s t o b e c o n s o l i d a t e d , a s s e t f o r t h in sec if' 4 0 3 o f t h i s a c t , i n s u b s t a n t i a l l y t h e f o l l o w i n g f o r m : 43aa “ W e p e t i t i o n t h a t t h e q u e s t i o n o f i n c r e a s i n g t h e c o n s t i t u t i o n a l l i m i t a t i o n o n t a x e s w h ic h m a y b e a s s e s s e d a g a i n s t a l l p r o p e r t y i n t h e c o n s o l i d a t e d s c h o o l d i s t r i c t t o b e fo rm e d a s h e r e i n p e t i t i o n e d b e i n c r e a s e d b y ............................. m i l l s f o r a p e r i o d o f ................................ years, 1 9 . . . . t o 1 9 . . . . , i n c l u s i v e , f o r t h e p u r p o s e o f p a y i n g t h e b o n d e d i n d e b t e d n e s s o f (N a m e o f S c h o o l D i s t r i c t o r D i s t r i c t s ) and t h e q u e s t i o n o f a s s u m i n g a n d p a y i n g s u c h b o n d e d i n d e b t e d n e s s b y t h e p r o p o s e d c o n s o lid a te d d i s t r i c t , a n d W e f u r t h e r p e t i t i o n t h a t t h e q u e s t i o n o f i n c r e a s i n g t h e c o n s t i t u t i o n a l l i m i t a t i o n o n taxes w h i c h m a y b e a s s e s s e d a g a i n s t a l l p r o p e r t y i n t h e c o n s o l i d a t e d s c h o o l d i s t r i c t t o be f o r m e d a s h e r e i n p e t i t i o n e d b e i n c r e a s e d b y ......................... m i l l s f o r a p e r i o d o f ....................... years, 1 9 . . . . t o 1 9 . . . . , i n c l u s i v e , f o r o p e r a t i n g p u r p o s e s , b e s u b m i t t e d t o t h e e l e c t o r s a t the s a m e e l e c t i o n i n w h i c h t h e q u e s t i o n o f c o n s o l i d a t i n g t h e a b o v e d i s t r i c t s is s u b m i t te d .” HISTORY: New 1955, p. 536, Act 269, Eff. Jul. 1 Am. 1963, p. 438, Act 248, tod. Eff. Jun. 13. 340.414b Consolidated district; increase of constitutional debt limits, a s sumption of outstanding bonded indebtedness; petition. S e c . 4 1 4 b . W h e n t h e c o u n t y s u p e r i n t e n d e n t o f s c h o o l s s h a l l f i n d t h a t a l l t h e r e quests i n w r i t i n g o r t h e r e s o l u t i o n s o f t h e b o a r d o r b o a r d s w h i c h h e h a s r e c e i v e d u n d e r the p r o v i s i o n s o f s e c t i o n 4 0 2 o f t h i s a c t r e q u e s t t h a t t h e p r o v i s i o n s o f s e c t i o n 4 1 4 b e i n clu de d w i t h t h e q u e s t i o n o f c o n s o l i d a t i o n , t h e n t h e c o u n t s ' s u p e r i n t e n d e n t o f s c h o o l s shall c a u s e t o h a v e t h e p e t i t i o n s p r o v i d e d i n s e c t i o n 4 0 3 i n c l u d e t h e s e p r o v i s i o n s . HISTORY: Add. 1956, p. 463. Act 215, tad. Elf. May 1. 340.415 Consolidated districts; bonded debt of original district not subject to tax limitation, approval by school tax elector. S e c . 4 1 5 . T h e a u t h o r i t y a n d p r o c e d u r e s p r e s c r i b e d i n t h i s c h a p i t e r f o r t h e a s s u m p tion o f b o n d e d i n d e b t e d n e s s o f d i s t r i c t s p r o p o s i n g c o n s o l i d a t i o n s h a l l a p p l y t o t h e a s s u m p tio n b y t h e c o n s o l i d a t e d d i s t r i c t o f a n y b o n d e d d e b t o f t h e o r i g i n a l d i s t r i c t s ' ' lic h is n o t s u b j e c t t o t h e c o n s t i t u t i o n a l l i m i t a t i o n o n t a x e s : P r o v i d e d , h o w e v e r , T h a t V® <f u e s f ' o n o f i n c r e a s i n g t h e t a x l i m i t a t i o n i n r e s p e c t t o s u c h u n l i m i t e d t a x b o n d e d e it s h a ll n o t b e i n c l u d e d i n t h e p e t i t i o n s f o r c o n s o l i d a t i o n , n o r s h a l l t h e s c h o o l d e c ors b e r e q u i r e d t o a p p r o v e a n i n c r e a s e i n t h e t a x l i m i t a t i o n i n r e s p e c t t o s u c h d e b t . e a s s u m p t i o n o f s u c h u n l i m i t e d t a x b o n d e d d e b t s h a l l b e a p p r o v e d b y t h e s c h o o l t a x s e c to r s a t t h e t i m e o f t h e c o n s o l i d a t i o n e l e c t i o n o r a t a n y t i m e a f t e r 3 y e a r s f o l l o w i n g the c o n s o l i d a t i o n . . . HISTORY: Add. 1956, p. 463, Act 215, Imd. EH. May 1. C H A P T E R 6 . B O A R D S O F E D U C A T I O N ; T E R M S O F O F F I C E ; E L I G I B I L I T Y ; A C C E P T A N C E ; V A C A N C I E S ; F I L L I N G O F V A C A N C I E S . 40.491 Board of education; m em bers, term of office. on n ' 4!9 1 ' ^e r m s ° f o f f i c e o f a l l m e m b e r s o f b o a r d s o f e d u c a t i o n s h a l l c o m m e n c e history. a i K * c o n t l m i e u n t i l t h e i r s u c c e s s o r s a r e e l e c t e d a n d q u a l i f i e d . ■ New 1955, p, 543, Act 269. Eff. Jul. 1;—Am. 1961, p. 30, Act 29. Imd. Eff. Mav 12. 44aa C H A P T E R 9 . B O A R D S O F E D U C A T I O N — G E N E R A L P O W E R S A N D D U T I E S . 340.561 Board of education; public m eetings, record, tem porary officers. S e c . 5 6 1 . A l l b u s i n e s s w h i c h t h e b o a r d o f a n y d i s t r i c t is a u t h o r i z e d t o p e r f o r m shall b e d o n e a t a p u b l i c m e e t i n g o f t h e b o a r d a n d n o a c t s h a l l b e v a l i d u n l e s s v o t e d at a m e e t i n g o f t h e b o a r d b y a m a j o r i t y v o t e o f t h e m e m b e r s e l e c t o f t h e b o a r d and a p r o p e r r e c o r d m a d e o f t h e v o t e . A m e e t i n g i n w h i c h a l l m e m b e r s a r e p r e s e n t , w ith or w i t h o u t p r o p e r n o t i c e , s h a l l b e c o n s i d e r e d a l e g a l m e e t i n g f o r t h e t r a n s a c t i o n o f busi n e s s . M e e t i n g s o f t h e b o a r d s h a l l b e p u b l i c m e e t i n g s a n d n o p e r s o n s h a l l b e excluded t h e r e f r o m . T h e b o a r d m a y h o l d e x e c u t i v e s e s s i o n s , b u t n o f i n a l a c t i o n s h a l l b e ta k e n at a n y e x e c u t i v e s e s s i o n . T h e m i n u t e s o f a l l b o a r d m e e t i n g s m u s t b e s i g n e d b y t h e secre t a r y . I n t h e a b s e n c e o f t h e s e c r e t a r y i n a n y m e e t i n g , t h e p r e s i d e n t s h a l l a p p o i n t a tem p o r a r y s e c r e t a r y w h o s h a l l s i g n t h e m i n u t e s o f t h e m e e t i n g . I n t h e a b s e n c e o f t h e presi d e n t , t h e o t h e r m e m b e r s p r e s e n t s h a l l e l e c t a t e m p o r a r y p r e s i d e n t . . HISTORY: New 1955, p. 549, Act 269, Eff. Jul. 1;—Am. 1959, p. 355, Act 240, Eff. Mar. 19, I960;—Am. 1961, p. 257, Act 181, EH. Sep.8. 3 40 .56 2 Board of education; public records, inspection. S e c . 5 6 2 . T h e b o a r d o f e v e r y d i s t r i c t s h a l l p u r c h a s e a r e c o r d b o o k a n d s u c h other b o o k s , b l a n k s a n d s t a t i o n e r y a s m a y b e n e c e s s a r y t o k e e p a r e c o r d o f t h e p ro c e e d in g s o f t h e b o a r d , t h e a c c o u n t s o f t h e t r e a s u r e r , a n d f o r d o i n g t h e b u s i n e s s o f t h e d is tr ic t in a n o r d e r l y m a n n e r . A l l r e c o r d s o f t h e b o a r d s h a l l b e p u b l i c r e c o r d s a n d s u b j e c t to in s p e c t i o n u n d e r s e c t i o n 7 5 0 . 4 9 2 o f t h e C o m p i l e d L a w s o f 1 9 4 8 . HISTORY: New 1955, p. 550, Act 269, Eff. Jul. 1;—Am. 1959, p. 355, Act 240, Eff. Mar. 19, 1960. 3 4 0 .56 3 Board of education; ta x e s , levy . S e c . 5 6 3 . T h e b o a r d o f e v e r y d i s t r i c t s h a l l v o t e t o l e v y s u c h t a x e s a s m a y b e neces s a r y f o r a l l s c h o o l o p e r a t i n g p u r p o s e s , w h i c h s h a l l i n c l u d e b u t n o t b e l i m i t e d t o school f u r n i s h i n g s a n d a l l a p p u r t e n a n c e s , t h e c a r e o f s c h o o l p r o p e r t y f o r s u c h a l t e r a t i o n s as s h a l l b e n e c e s s a r y t o p l a c e t h e s c h o o l h o u s e i n a s a f e a n d s a n i t a r y c o n d i t i o n , teachers a n d e m p l o y e e s ’ w a g e s , w a t e r s u p p l y , p r e m i u m u p o n i n d e m n i t y b o n d f o r t h e treasurer o f t h e d i s t r i c t , t u i t i o n a n d t r a n s p o r t a t i o n o f t h e p u p i l s , r e c o r d b o o k s a n d b l a n k s , and a l l a p p a r a t u s , e q u i p m e n t a n d m a t e r i a l w h i c h m a y b e n e c e s s a r y i n o r d e r t h a t the s c h o o l s m a y b e p r o p e r l y m a n a g e d a n d m a i n t a i n e d , a n d f o r t h e d e f i c i e n c i e s i n operat i n g e x p e n s e s f o r t h e p r e c e d i n g y e a r , i f a n y . HISTORY: New 1955, p. 550, Act 269, EH. Jui. 1. 3 40 .56 4 Board of education; ta x e s ; se cre ta ry ’s certificate to clerks. S e c . 5 6 4 . T h e s e c r e t a r y o f t h e b o a r d o f e v e r y s c h o o l d i s t r i c t s h a l l f i l e a certified c o p y o f a r e s o l u t i o n o f t h e b o a r d c e r t i f y i n g t h e t a x e s t o b e l e v i e d o n t h e t a x a b l e prop e r t y ' w i t h i n t h e d i s t r i c t a s a p p r o v e d b y t h e e l e c t o r s o f t h e d i s t r i c t o r t h e b o a r d w i t h the c i t y a n d t o w n s h i p c l e r k o f e a c h c i t y a n d t o w n s h i p i n w h i c h t h e t e r r i t o r y o f t h e district is s i t u a t e d o n o r b e f o r e S e p t e m b e r 1 o f e a c h y e a r o r w i t h i n 1 0 d a y s a f t e r t h e annual m e e t i n g i f h e l d i n S e p t e m b e r . HISTORY: New 1955. p. 550. Act 269. EH. Jul. 1;—Am. 1958, p. 48. Act 46, EH. Sep. 13;—Am. I960, p. 138, Act 123. Eff. Am; IT. 4 5 a a 340.566 Board of education; m oney, paym ent, use. S e c . 5 6 6 . N o m o n e y r a i s e d b y t a x s h a l l b e u s e d f o r a n y o t h e r p u r p o s e t h a n t h a t f o r w h ic h i t w a s r a i s e d w i t h o u t t h e c o n s e n t o f a m a j o r i t y o f t h e s c h o o l t a x e l e c t o r s o f t h e d is tr ic t v o t i n g o n t h e q u e s t i o n a t a n a n n u a l o r s p e c i a l m e e t i n g o r e l e c t i o n , a n d n o m o n e y s r e c e i v e d f r o m t h e p r i m a r y s c h o o l f u n d s h a l l b e a p p r o p r i a t e d f o r a n y o t h e r u s e th a n t h e p a y m e n t o f t e a c h e r s ’ w a g e s , t u i t i o n a n d t r a n s p o r t a t i o n o f c h i l d r e n , a s p r o v id e d b y l a w . HISTORY: New 1955. p. 550, Act 269, Eff. Jul. 1. 340.567 Board of education; borrow ing po w er, ta x collection. S e c . 5 6 7 . T h e b o a r d o f e d u c a t i o n o f a n y d i s t r i c t m a y b o r r o w m o n e y i n a n t i c i p a t i o n o f t h e c o l l e c t i o n o f t a x e s i n a c c o r d a n c e w i t h A c t N o . 2 0 2 o f t h e P u b l i c A c t s o f 1 9 4 3 , a s a m e n d e d , b e i n g s e c t i o n s 1 3 1 . 1 t o 1 3 8 . 2 , i n c l u s i v e , o f t h e C o m p i l e d L a w s o f 1 9 4 8 , i n fo rc e o r a s t h e s a m e m a y h e r e a f t e r b e a m e n d e d . HISTORY. New 1955, p. 550, Act 269, Eff. Jul. I. 340.567a Board of education; borrow ing pow ers; school operation ; re p a y ments; notes, issuance, due dates, interest, lim itations; certificate of a p proval; valid ity of note. S e c . 5 6 7 a . S u b j e c t t o t h e r e s t r i c t i o n s p r e s c r i b e d i n t h i s s e c t i o n , t h e b o a r d o f e d u c a tio n o f a n y s c h o o l d i s t r i c t m a y b o r r o w m o n e y a n d i s s u e i t s n o t e o r n o t e s t h e r e f o r , f o r th e p u r p o s e o f s e c u r i n g f u n d s f o r s c h o o l o p e r a t i o n s o r f o r t h e p a y m e n t o f p r e v i o u s lo a ns m a d e f o r s c h o o l o p e r a t i o n s u n d e r t h i s o r a n y o t h e r s t a t u t e , a n d f o r t h e p a y m e n t o f t h e n o t e o r n o t e s h e r e u n d e r s h a l l p l e d g e m o n e y s t o b e r e c e i v e d b y i t f r o m t h e s t a t e sc h o o l a i d f u n d . A n y s u c h n o t e s s h a l l b e t h e f u l l f a i t h a n d c r e d i t o b l i g a t i o n s o f t h e sc h o o l d i s t r i c t a n d s h a l l b e p a y a b l e f r o m t a x l e v i e s o r f r o m a n y u n e n c u m b e r e d f u n d s o f t h e s c h o o l d i s t r i c t i n e v e n t o f t h e u n a v a i l a b i l i t y o r i n s u f f i c i e n c y o f s t a t e a i d f u n d s fo r a n y r e a s o n , i n c l u d i n g t h e i n v a l i d i t y o f a n y s t a t u t e p e r t a i n i n g t h e r e t o . N o t e s i s s u e d u n d e r t h i s s e c t i o n s h a l l b e c o m e d u e o n o r b e f o r e S e p t e m b e r 1 i m m e d i a t e l y f o l l o w i n g th e fis c a l y e a r i n w h i c h t h e y a r e i s s u e d , e x c e p t a s h e r e i n a f t e r p r o v i d e d . N o t e s f r o m tim e t o t i m e i s s u e d i n a n v f i s c a l y e a r s h a l l n o t e x c e e d 1 0 0 % o f t h e d i f f e r e n c e b e t w e e n the t o t a l s t a t e a i d f u n d s a p p o r t i o n e d t o t h e s c h o o l d i s t r i c t f o r s u c h f i s c a l y e a r a n d t h e p o r tio n t h e r e o f a l r e a d y r e c e i v e d o r p l e d g e d , p r o v i d e d t h a t d u r i n g t h e l a s t 3 m o n t h s o f u n v fis c a l y e a r a d d i t i o n a l n o t e s m a y b e i s s u e d p l e d g i n g s t a t e a i d f u n d s f o r t h e n e x t f i s cal y e a r . S u c h a d d i t i o n a l n o t e s s h a l l n o t e x c e e d 1 5 % o f t h e s t a t e a i d f u n d s a p p o r t i o n e d to t h e s c h o o l d i s t r i c t f o r t h e n e x t f i s c a l y e a r o r i f s u c h a p p o r t i o n m e n t h a s n o t y e t b e e n m a d e , t h e n 1 5 % o f t h e a p p o r t i o n m e n t f o r t h e t h e n c u r r e n t f i s c a l y e a r , w h i c h a d d i tio n a l n o t e s s h a l l m a t u r e n o t l a t e r t h a n N o v e m b e r 1 i m m e d i a t e l y f o l l o w i n g t h e i r is s u a n c e . N o t e s i s s u e d u n d e r t h i s s e c t i o n s h a l l b e a r i n t e r e s t a t n o t t o e x c e e d 6 % p e r a n n u m a n d m a y b e m a d e r e d e e m a b l e p r i o r t o m a t u r i t y o n s u c h t e r m s a n d c o n d i t i o n s a s shall b e p r o v i d e d i n t h e n o t e s . T h e i s s u a n c e o f n o t e s u n d e r t h i s a c t s h a l l n o t b e s u b j e c t t0 l* ' e p r o v i s i o n s o f A c t N o . 2 0 2 o f t h e P u b l i c A c t s o f 1 9 4 3 , a s a m e n d e d , b e i n g s e c t i o n s h l b l t o 1 3 8 . 2 o f t h e C o m p i l e d L a w s o f 1 9 4 8 . N o n o t e s s h a l l b e i s s u e d f o r b o r r o w i n g u n d e r t h e p r o v i s i o n s o f t h i s a c t w i t h o u t t h e p r i o r a p p r o v a l o f t h e s u p e r i n t e n d e n t o f p u b lic i n s t r u c t i o n , f o r w h i c h a p p r o v a l a p p l i c a t i o n s h a l l b e m a d e b y t h e s c h o o l d i s t r i c t . 46aa T h e s u p e r i n t e n d e n t o f p u b l i c i n s t r u c t i o n s h a l l i s s u e a c e r t i f i c a t e o f a p p r o v a l w k a s h a l l s h o w t h e a m o u n t f i x e d a s t h e s t a t e a p p r o p r i a t i o n a l l o c a t e d t o t h e s c h o o l distil j f o r t h e p r e s e n t a n d , i f a p p l i c a b l e , f o r t h e n e x t s u c c e e d i n g f i s c a l y e a r a n d a n y payment! r d i s t r i b u t e d t o t h e s c h o o l d i s t r i c t p r i o r t o t h e d a t e o f t h e c e r t i f i c a t e . T h e f a ilu r e of ■ 1 s c h o o l d i s t r i c t t o r e c e i v e a n y s t a t e a p p r o p r i a t i o n s h a l l n o t a f f e c t t h e v a l i d i t y or eii ] f o r c e a b i l i t y o f a n y n o t e i s s u e d u n d e r t h i s s e c t i o n . A s c h o o l d i s t r i c t m a y m a k e m en t h a n 1 b o r r o w i n g u n d e r t h i s s e c t i o n d u r i n g a n y s c h o o l y e a r . N o s c h o o l d is tric t s k i , c o n t e s t t h e v a l i d i t y o f a n y n o t e i s s u e d b y i t u n d e r t h i s s e c t i o n i f i t h a s r e c e i v e d permis s i o n f r o m t h e s u p e r i n t e n d e n t o f p u b l i c i n s t r u c t i o n t o i s s u e t h e s a m e a n d h a s received t h e p r i n c i p a l a m o u n t o f t h e n o t e . N o s c h o o l d i s t r i c t s h a l l m a k e a n y n e w b o r r o w in g un d e r s e c t i o n 2 6 o f A c t N o . 3 1 2 o f t h e P u b l i c A c t s o f 1 9 5 7 , a s a m e n d e d , b e i n g section 3 8 8 . 6 3 6 o f t h e C o m p i l e d L a w s o f 1 9 4 8 , w h i l e t h i s s e c t i o n is i n e f f e c t . HISTORY: Add 1968, p. 556. Act 31C, EH. Nov. 15;—Am. 1969, p. 296, Act 146, Imd. EH. Jul. 31. 3 4 0 .5 6 9 Teacher’s contracts; contents, filing, term ination. S e c . 5 6 9 . T h e b o a r d o f e v e r y d i s t r i c t s h a l l h i r e a n d c o n t r a c t w i t h s u c h d u l y qualified t e a c h e r s a s m a y b e r e q u i r e d . A l l c o n t r a c t s w i t h t e a c h e r s s h a l l b e i n w r i t i n g a n d signed b y a m a j o r i t y o f t h e b o a r d i n b e h a l f o f t h e d i s t r i c t , o r b y t h e p r e s i d e n t a n d secretary o r b y t h e s u p e r i n t e n d e n t o f s c h o o l s o r h i s d e s i g n e e w h e n s o d i r e c t e d a t a m eeting of t h e b o a r d . T h e c o n t r a c t s s h a l l s p e c i f y t h e w a g e s a g r e e d u p o n a n d i n p r i m a r y school d i s t r i c t s s h a l l r e q u i r e t h e t e a c h e r t o k e e p a c o r r e c t l i s t o f t h e p u p i l s , g r a d i n g and the a g e o f e a c h , a t t e n d i n g t h e s c h o o l , a n d t h e n u m b e r o f d a y s e a c h p u p i l is p re s e n t, the a g g r e g a t e a t t e n d a n c e a n d p e r c e n t a g e o f a t t e n d a n c e , a n d t o f i l e t h e s a m e w i t h the s»-' p e r i n t e n d e n t o f t h e i n t e r m e d i a t e d i s t r i c t a n d a t r u e c o p y t h e r e o f w i t h t h e secretary o. t h e b o a r d a t t h e e n d o f t h e s c h o o l y e a r , a n d n o t e a c h e r s h a l l b e e n t i t l e d t o receive his l a s t p a y m e n t f o r h i s s e r v i c e s u n t i l t h e r e p o r t s h a l l b e f i l e d . T h e c o n t r a c t s h a ll be filed w i t h t h e s e c r e t a r y a n d a d u p l i c a t e c o p y o f t h e c o n t r a c t s h a l l b e f u r n i s h e d to the t e a c h e r . N o c o n t r a c t w i t h a n y p e r s o n s h a l l b e v a l i d u n l e s s s u c h p e r s o n shall h o ld a le g a l c e r t i f i c a t e o f q u a l i f i c a t i o n a t t h e t i m e t h e c o n t r a c t u a l p e r i o d s h a l l b e g i n , and all s u c h c o n t r a c t s s h a l l t e r m i n a t e i f t h e c e r t i f i c a t e s h a l l e x p i r e b y l i m i t a t i o n a n d shall not i m m e d i a t e l y b e r e n e w e d , o r i t s h a l l b e s u s p e n d e d o r r e v o k e d b y p r o p e r le g a l author i t y . A n y b o a r d a f t e r a t e a c h e r h a s b e e n e m p l o y e d a t l e a s t 2 c o n s e c u t i v e y e a r s b y the b o a r d m a y e n t e r i n t o a c o n t i n u i n g c o n t r a c t w i t h s u c h t e a c h e r i f t h e t e a c h e r holds a p e r m a n e n t o r l i f e c e r t i f i c a t e . A c o n t i n u i n g c o n t r a c t i s a c o n t r a c t w h i c h s h a ll reman in f u l l f o r c e a n d e f f e c t , a s p r o v i d e d i n t h e r u l e s a n d r e g u l a t i o n s o f t h e b o a r d , u n til t e t e a c h e r r e s i g n s , e l e c t s t o r e t i r e , is r e t i r e d , o r is d i s m i s s e d f o r r e a s o n a b l e a n d jus t cause a f t e r a f a i r h e a r i n g . HISTORY: New 1955, p. Sol. Act 269, EH. Jul. 1;—Am. 1965, p. 15, Act 14, EH. Mar. 31, 1966. 3 4 0 .5 6 9 a Purchase of annuity , contract; payro ll deduction, retroactive e feet. S e c . 5 6 9 a . A t t h e r e q u e s t o f a n e m p l o y e e a n d a s p a r t o f h i s c o m p e n s a t i o n arrange ̂ m e n t , t h e b o a r d o f e d u c a t i o n o f a n y s c h o o l d i s t r i c t m a y p u r c h a s e a n a n n u i t y con ra f o r a n e m p l o y e e f o r r e t i r e m e n t o r o t h e r p u r p o s e s a n d m a y m a k e p a y r o l l allocations^ a c c o r d a n c e w i t h s u c h a r r a n g e m e n t f o r t h e p u r p o s e o f p a y i n g t h e e n t i r e p r e m iu m ^ a n d t o b e c o m e d u e u n d e r t h e a n n u i t y c o n t r a c t . T h e a l l o c a t i o n s h a l l b e m a a e in a m n e r w h i c h w i l l q u a l i f y t h e a n n u i t y p r e m i u m s , o r a p o r t i o n t h e r e o f , f o r t h e b e n e 1 f o r d e d u n d e r s e c t i o n 4 0 3 ( b ) o f t h e c u r r e n t f e d e r a l i n t e r n a l r e v e n u e c o d e o r a n y a l e n t p r o v i s i o n o f s u b s e q u e n t f e d e r a l i n c o m e t a x l a w . T h e e m p l o y e e s h a ll o w n j 47aa annuity contract and his rights thereunder shall be nonforfeitable except for failure to pay premiums. The board of education shall have no liability thereunder because of its purchase of any annuity contracts. This section shall be applied in a nondiscriminatory manner to employees of the school district. Its effect shall be retroactive to October 1, 1961. . HISTORY: Add. 1963, p. 440, Act 248, Imd. Eff. Jun. 13. 340.569b Teachers’ contracts; term ination; substitution of new contract, e f fect. Sec. 569b. At any time, the board of any district, by agreement between the board and a teacher or by agreement between the board and any organization representing the teacher in accordance with Act No. 176 of the Public Acts of 1939, as amended, being sections 423.1 to 423.30 of the Compiled Laws of 1948, may terminate an exist ing contract for the services of the teacher and substitute a new contract which pro vides an increased benefit to the teacher. The new contract shall be binding without regard to any preexisting duties or obligations of either the school board or the teacher under the first contract. HISTORY: Add 1966, p. 106, Act 82, EH. Mar. 10, 1967. 340.569c School building principals; em ploym ent; duties. Sec. 569c. Boards of education may employ an administrator or administrators, usu ally called building principals, and who shall: (a) Supervise the operation and management of the school or schools and property as the board determines for the building principals. (b) Be assigned administrative responsibilities and coordinate instructional leader ship, under the supervision of the superintendent, for the planning, management, op eration and evaluation of the educational program and services. (c) Submit recommendations to the superintendent for the appointment, assign ment, promotion or dismissal of all personnel assigned to his supervision. HISTORY: Add. 1970, p. 661, Act 246, Imd. Eff. Dec. 30. 340.573 Superintendent of schools; qualifications, w a iv er. Sec. 573. Before any person may be employed as a superintendent of schools of any school district, he shall possess at least an earned bachelor’s degree from a college ac ceptable to the state board of education and be the possessor of or be eligible for a teachers certificate or have educational qualifications equivalent thereto in accord- mice with standards determined by the state board of education: Provided, That said state board may waive the requirements of this section for any person employed as su perintendent of schools for the school year 1951-1952, and subsequent years while he continues in such capacity for the same school district. HISTORY: New 1955, p. 552, Act 269, Eff. Jul.l. Assistants, em p lo yees; duties, com pensation. c- °74. Every board may employ such assistants and employees as may be neces- prescribe their duties and fix their compensation. 1UST0M:Newl955.p 552,Ac.269,Eff.Jul.l. . 48aa 340.575 Length of school term; determination, minimum; certification; de duction of state aid; rules. Sec. 575. The board of every district shall determine the length of the school term. The minimum number of days of student instruction shall be not less than 180. Any district failing to hold 180 days of student instruction shall forfeit 1 / 180th of its total state aid appropriation for each day of such failure. Not later than August 1, the board of every district shall certify to the department of education the number of days of stu dent instruction in the previous school year. If the district did not hold at least 180 days of student instruction, the deduction of state aid shall be made in the following fiscal year from the first payment of state aid. Days lost because of strikes or teachers conferences shall not be counted as a day of student instruction. The state board of ed ucation shall establish rules for the implementation of this section. HISTORY: New 1955, p. 552, Act 269, Eff. Jul. 1;—Am. 1967, p. 351, Act 237, Eff. Nov. 2:—Am. 1970, p. 165, Act 72, Imd. Eff. jui. 12, 340.576 Sites, buildings; purchase, lease. Sec. 576. No board shall build a stone or brick schoolhouse upon any site without first having obtained title in fee to the same, or a lease for a period of not less than 99 years, or unless it shall have obtained a lease for a period of not less than 50 years from the United States government or the state of Michigan, or a political subdivision thereof; nor shall any board build a frame schoolhouse on any site for which it does not have a title in fee or a lease for 50 years without securing the privilege of removing the schoolhouse. HISTORY: New 1955, p. 552, Act 269, EH. Jul. 1. 340.576a Building sites; urban renewal program. Sec. 576a. The board of any school district may become a participating member with other units of government and spend building and site funds for the purpose of acquiring a schoolhouse site or an addition of territory to a schoolhouse site through an urban renewal program. HISTORY: Add. 1962, p. 100, Act 111, Imd. EH. Apr. 30. 340.576b Real and personal property acquisition; restriction. [M.S.A. 15.3576(2)] f Sec. 576b. (1) The board of any school district, including any district governed by any special or local act, may acquire any real or personal property for use for school purposes by purchase, land contract, lease, with or without option to purchase, or title retaining contract. Any such district may pay for the same out of any funds of the district which are or may become lawfully available for these purposes. The outstanding balance of all such acquisitions, exclusive of interest, shall not exceed 114% of the equalized assessed value of real and personal property in such school district. 340.576c Equipment; purchase, rental; paym ent; contract. Sec. 576c. The board of any school district, including any school district governe by any special or local act, may acquire by purchase, lease or rental, with or withou option to purchase, any equipment necessary for the operation of the school program, including heating, water heating and cooking equipment for school buildings, and mav pay for such equipment from operating hinds of the district. All heating and coo equipment may be purchased on title retaining contracts, chattel mortgages, or ot form of agreement creating a security interest and pledging in payment moneys in 1 general fund or funds received from the state for aid in support of the public schoo Such contracts shall not be entered into or issued for a longer period than 10 years. HISTORY: Add. 1965, p. +41. Art 263, Imd. EH. Jul. 21:—Add. 1965, p. 739, Art 375, Imd. EH. Jul. 23;—Am. 1967, p. 15 7 , Act '* EH. Jun. 27. 126. Inxl 49aa 340.578 School p ro p erly ; custody, p reservation ; school m anagem ent; rules, regulations. Sec. 578. Every board shall have the general care and custody of the schools and property of the district and make and enforce suitable rules and regulations for the general management of the schools and the preservation of the property of the district. HISTORY: New 1955, p. 553, Act 269, EH. Jul. 1. 340.582 Nonresident pupils; tuition, per capita cost. Sec. 582. The board of any district may admit to the district school nonresident pu pils and shall determine the rates of tuition of such pupils and shall collect the same. Tuition for grades kindergarten to 6, inclusive, shall not exceed 25% more than the op eration cost per capita for the number of pupils in membership in grades kindergarten to 12, inclusive. Tuition for grades 7 to 12, inclusive, shall not exceed 12 V2% more than 115% of the operation cost per capita for the number of pupils in membership in grades kindergarten to 12, inclusive. In districts not maintaining grades above grade 8, the tuition shall not exceed 25% more than the operation cost per capita for the num ber of pupils in membership in grades kindergarten to 8, inclusive. The operation costs and membership so used shall be those of the preceding fiscal year. The per capita cost herein referred to shall not be interpreted to include moneys expended for school sites, school building construction, equipment, payment of bonds, or such other pur poses as shall be determined by the superintendent of public instruction not properly included in operation costs. HISTORY: New 1955, p. 553, Act 269, Eff. Jul. 1;—Am. 1958, p. 235, Aet 195, Elf. Sep. 13. 340.583 G rades, schools, departm ents; courses of study. Sec. 583. Every board shall establish and carry on such grades, schools and depart ments as it shall deem necessary or desirable for the maintenance and improvement of the schools; determine the courses of study to be pursued and cause the pupils attend ing school in such district to be taught in such schools or departments as it may deem expedient: Provided, That a primary district shall not operate any grades above the eighth. HISTORY: New 1955, p. 554, Act 269, Efl. Jul. 1. 340.589 Attendance a reas . Sec. 589. Every board is authorized to establish attendance areas within the school district. HISTORY: New 1955, p. 554, Act 269, Elf. Jul. 1. 50aa 340 .59 4 Buses; purchase, pledge of state a id , regulations. S e c . 5 9 4 . T h e b o a r d o f a n y d i s t r i c t f u r n i s h i n g t r a n s p o r t a t i o n m a y p u r c h a s e buses on t i t l e - r e t a i n i n g c o n t r a c t s o r b y t h e i s s u a n c e o f o b l i g a t i o n s o f t h e d i s t r i c t t h e r e f o r , pledg i n g i n p a y m e n t m o n e y s i n t h e g e n e r a l f u n d o r f u n d s r e c e i v e d f r o m t h e s t a t e f o r aid in t h e s u p p o r t o f t h e p u b l i c s c h o o l s : P r o v i d e d , T h a t s u c h o b l i g a t i o n s i s s u e d f o r th is pur p o s e s h a l l n o t b e i s s u e d f o r a l o n g e r t i m e t h a n t h e e s t i m a t e d p e r i o d o f u s e f u l n e s s o f the b u s e s f o r w h i c h i s s u e d , a s d e t e r m i n e d b y t h e b o a r d , a n d i n n o e v e n t f o r a lo n g e r pe r i o d t h a n 6 y e a r s . HISTORY: New 1955, p. .553. Act 263, EH. Jul. 1. 3 40 .60 5 Scholarships; educational purposes; gifts, custodian, bond. S e c . 6 0 5 . T h e b o a r d o f a n y s c h o o l d i s t r i c t , e x c e p t a p r i m a r y s c h o o l d i s t r i c t , is hereby a u t h o r i z e d t o r e c e i v e , b y a s s i g n m e n t , c o n v e y a n c e , g i f t , d e v i s e o r b e q u e s t , a n y real or p e r s o n a l p r o p e r t y o r a n y i n t e r e s t t h e r e i n , f o r u s e i n m a i n t a i n i n g s c h o l a r s h i p s or for o t h e r e d u c a t i o n a l p u r p o s e s , a n d s u c h b o a r d m a y a c t a s t r u s t e e o r c u s t o d i a n o f such p r o p e r t y . S u c h p r o p e r t y s h a l l b e u s e d b y t h e b o a r d s o l e l y f o r t h e e d u c a t i o n a l purposes f o r w h i c h i t w a s a s s i g n e d , c o n v e y e d , g i v e n , d e v i s e d o r b e q u e a t h e d , , w h e t h e r b y wayol t r u s t o r o t h e r w i s e . T h e t r e a s u r e r o f t h e b o a r d is a u t h o r i z e d , w h e n r e q u i r e d , to give b o n d t o i n s u r e p r o p e r a d m i n i s t r a t i o n o f s u c h p r o p e r t y . HISTORY. New 1955, p. 557. Act 26!), Eft. Jul. 1. 3 4 0 .6 0 9 Board of education; attorney , em ploym ent. S e c . 6 0 9 . T h e b o a r d s h a l l h a v e a u t h o r i t y t o e m p l o y a n a t t o r n e y t o r e p r e s e n t the s c h o o l d i s t r i c t o r b o a r d i n a l l s u i t s b r o u g h t f o r o r a g a i n s t t h e d i s t r i c t , a n d t o render s u c h o t h e r l e g a l s e r v i c e a s m a y b e f o r t h e w e l f a r e o f t h e s c h o o l d i s t r i c t . HISTORY: New 1955. p. 557, Act 269. Eff. Jul I. 3 4 0 . 6 1 3 E x p u l s i o n s o f c h i l d r e n ; h a n d i c a p p e d , e v a l u a t i n g . [ M . S . A . 1 5 . 3 6 1 3 ] S e c . 6 1 3 . T h e b o a r d m a y a u t h o r i z e o r o r d e r t h e s u s p e n s i o n o r e x p u l s i o n f r o m s c h o o l o f a p u p i l g u i l t y o f g r o s s m i s d e m e a n o r o r p e r s i s t e n t d is o b e d i e n c e w h e n i n i t s j u d g m e n t t h e i n t e r e s t s o f t h e s c h o o l m a y d e m a n d i t . I f t h e r e is r e a s o n a b l e c a u s e t o b e l i e v e t h a t t h e p u p i l is h a n d i c a p p e d , a n d t h e l o c a l s c h o o l d i s t r i c t h a s n o t e v a l u a t e d t h e p u p i l i n a c c o r d a n c e w it h r u l e s o f t h e s t a t e b o a r d , t h e p u p i l s h a l l b e e v a l u a t e d i m m e d i a t e l y b y th e i n t e r m e d i a t e d i s t r i c t o f w h i c h t h e l o c a l s c h o o l d i s t r i c t i s c o n s t i t u e n t in a c c o r d a n c e w i t h s e c t i o n 2 9 8 c . 53aa 388.173 Regional boards; size; qualifications; election ; term. [M .S.A . 15.2298(3)] Sec. 3. In each regional district there shall be elected 9 members to the regional board. No person shall be elected who is not a resident of the regional district from which he is elected. The members shall be nominated and elected by the registered and qualified electors of each district as is provided by law for the nomination and election of first class school board members except that signatures required on nominating petitions shall be not less than 500 nor more than 1,000. The members shall be elected for terms of 4 years. Except that of the members elected at the general election in 1970 the 5 members receiving the highest number of votes shall be elected for a term of 4 years and the 4 members receiving the next highest number of votes shall be elected for a term of 2 years. 388.174 First class district board, powers. [M .S.A . 15.2298(4)] Sec. 4. The first class school district board shall retain all the powers and duties now possessed by a first class school district except for those given to a regional school district board under the provisions of this act. 388.175 Regional board, powers. [M .S.A . 15.2298(5)] Sec. 5. Effective upon the commencement of its term of office, the regional school district board, subject to guidelines established by the first class district board, shall have the power to: (1) Employ and discharge a superintendent for the regional school district from a list °r lists of candidates submitted by the district board. (2) Employ and discharge, assign and promote all teachers and other employees of the regional school district, subject to review by the first class school district board, which may overrule, modify or affirm the action of the regional district board. (3) Determine the curriculum, use of educational facilities and establishment of educa tional and testing programs in the regional school district. (4) Determine the budget for the regional school district based upon the allocation of funds received from the first class school district board. 388.176 Employee rights. [M .S.A . 15.2298(6)] Sec. 6. The rights of retirement, tenure, seniority and of any other benefits of any employee transferred to a regional school district or between regional school districts from e first class district shall not be abrogated, diminished or impaired. 388.177 First class district board, functions. [M .S.A . 15.2298(7)] Sec. 7. The first class school district board shall perform the following functions for t e regional school d istric ts: (0 Central purchasing. (2) Payroll. , ^ Contract negotiations for all employees, subject to the provisions of Act No. 336 Law 6 f ^CtS as amended, being sections 423.201 to 423.216 of the Compiled s of 1948, and subject to any bargaining certification and to the provisions of any Active bargaining agreement pertaining to affected employees. ; ' Property management and maintenance. (5) Bonding. (6) Special education programs. / J Allocation of funds for capital outlay and operations to each regional school district. or before November 1, 1970, establish guidelines for the implementation of the provisions of section 5. 54aa 1970 PA 48 , amending 1969 PA 244 388.171a First class school d istrict; board o f education, composition [M .S.A . 15.2298 (la ) ] Sec. la. On or after January 1, 1971, in any first class school district with more than 100,000 student membership, the board membership of the board of education shall be composed of 8 members determined and elected as provided in section 2a plus 5 membas determined and elected as provided in section 3a. 388.172a Regions, description, approval; boundary com m ission; redetermina-1 tion. [M .S.A . 15.2298 (2a)] Sec. 2a. Immediately following the effective date of this 1970 amendatory act or any date on which a school district becomes a first class school district. 8 regions shall bt described in each such first class school district by resolution concurred in by three-fourths of the members elected and serving in each house of the legislature and such regions si described shall be established as regions if and when approved by the superintendent ol public instruction. If a concurrent resolution shall not be approved by three-fourths ol such .members within 7 days of the effective date of this amendatory act cr within 30 day; of any date on which a school district becomes a first class school district a first das; district boundary commission consisting of 3 members appointed by the governor shall determine the boundary lines of such regions within 21 days thereafter if in 1970 or w ithin 30 days thereafter if in any later year. The members of the commission shall receive) compensation of $100.00 per diem per member from the funds appropriated to the dt- partment of education. The boundary lines of such regions shall be redetermined by Hit respective boards of such first class school districts following each federal decennial census but in no event later than April 15 of the first odd numbered year in which regional board members are to be elected following the federal decennial census. In the event ol the failure of such respective boards of such first class school districts to redetermine suet regional boundary lines by such April 15. the state board of education shall convene w ith in 10 days , to make such redetermination and such redetermination of the state board ol education shall be the regional boundary lines until the redetermination is made following > the next succeeding federal decennial census as provided in this section.. Regions shall lit 1, as compact, contiguous and nearly equal in population as practicable. Regional board ; s iz e ; e lection ; qualification ; term. Within each region, there shall be a regional board consisting of 5 members. Tl® members shall be nominated and elected by the registered and qualified electors of each district as is provided by law for the. nomination and election of first class school board ̂ members except that signatures required on nominating petitions shall be not less than 500 nor more than 1,000. Any candidate properly filed for any educational position in any first class school district as of the effective date of this act shall be considered as a qualified candidate under sections 2a and 3a for the 1970 election provided such candidate makes a request, designation and selection to the election officer empowered by law w accept nominating petitions for such office. No person shall be elected who is not a resident of the region from which he is elected. The members shall be elected in I ( general election to be held in November, 1970 and November of 1973 and every 2 yea[! thereafter commencing in 1975. 55aa Election; chairman; vacancy. In the year 1970 regional board members shall be elected in the November general election and candidates for such office shall not be subject to the primary election. In 1970 a person may qualify as a candidate for the election for regional board member by filing the required number of signatures on or prior to 4 p.m., August 18, 1970. In 1970 signa tures of registered electors of the first class district shall be valid without regard to the place of residence of such registered elector. In any year the candidate for regional board member receiving the highest number of votes in each region in the November general election shall be chairman of the regional board and a member of the board of education of his first class school district during his term of office. In case a vacancy occurs for any reason in the combined position of chairman of the regional board and member of the first class school district board of education, the regional board member who received the next highest number of votes in the preceding general election shall assume such combined position. The number of members of each regional board shall be maintained at 5 and vacancies shall be filled from among residents of the region by the remaining board mem bers of such region by a majority vote of those serving. No vacancies shall be filled later than 60 days prior to a primary election at which regional board members are to be nominated. The 5 regional board members elected in each region shall commence their terms of office on January 1 following the election and the members shall serve until their successors are elected and qualified. 388.173a District board; at large members. [M .S.A . 15.2298(3a)] Sec. 3a. Effective January 1. 1971 there shall be S members on the boards of first class school districts elected at large. Members of such boards shall be nominated and elected at the primary and general elections of 1972 and 1974 for 3-year terms commencing on January 1 of the subsequent odd numbered year, 2 each to be elected in 1972 and 1974. In the year 1970 1 board member shall be elected in the November general election for a 3-year term commencing January 1, 1971 and candidates shall not be subject to the primary election. In 1970 a person may qualify as a candidate for the election for first class school district board member by filing nominating petitions containing not less than 500 nor more than 1,000 valid signatures on or before 4 p.m., August 18. 1970. Commencing in 1973 and m aH subsequent odd numbered years, a number of board members equivalent to the number of members whose terms expire on December 31 of such year will be nominated and elected at the primary and general election. Such members so elected shall serve 2-year terms commencing on January 1 of the subsequent even numbered year. To accomplish the provisions of this amendatory act the terms of office of any first class district board members whose terms expire prior to December 31, 1971 shall expire December 31. 1970; the terms of office of such board members whose terms expire between January 1, 1972 and December 31, 1973 shall expire December 31. 1972 and the terms of office of such hoard members whose terms expire between January 1. 1974 and December 31. 1975 shall expire December 31, 1 9 7 4 . Officers; recall petitions; term of office . In any year in which one or more board members of a first class district are commencing a term of office on January 1 the board of such first class district shall redetermine its 56aa selection of officers during the month of January of such year. Petitions to recali a® member or members of the board of education of a first class school district filed and pending before this act becomes effective, or becomes operative in a school district that hereafter becomes a first class school district, may. be withdrawn by the person or organiza tion filing or sponsoring such recall petitions within 10 days after this act becomes effective or 20 days after the act becomes operative in any school district that hereafter becomes i first class school district. Board members of first class school districts who are recalled in accordance with law may be candidates for the same office at the next election for such office at which the recalled member is otherwise eligible. In the case of any school districl that hereafter becomes a first class school district, the term of office of each of the board members then serving in such school district shall expire on the next succeeding December 31 of an odd numbered year, provided however that if the school district becomes! first class school district later than April 1 of an odd numbered year, the term of office of each of its board members shall expire on December 31 of the next succeeding odd numbered year later than the year in which the district became a first class school districl. For any district becoming a first class district S school board members shall be elected in the general election of the odd numbered year in which such terms of office expire . and the S school board members so elected shall commence 2-vear terms on January I of the even numbered year following such general election. Vacancies. In case a vacancy occurs for any reason on the first class district board such vacancy shall be filled by majority vote of all persons serving as regional board and first clas district board members at a meeting called by the president of the first class district board for such purpose. No vacancies shall be filled later than 60 days prior to a primary' election at which first class district board members are to be nominated. Vacancies whicn shall occur prior to the effective date of this act or have occurred in 1970. shall be filled for a term ending December 31. 1972, in the same manner as provided in this section forth election of board members at large in the year 1970 and such positions shall then be filled in the primary and general election of 1972 for a 3-year term. In 1970 the candidate receiving the highest number of votes shall be elected for the 3-year term and the candidates ' receiving the next highest number of votes shall be elected for 2-year terms to fill vacancies. 388.174 Regional board, qualifications, residency. [M .S.A . 15.2298(4)] Sec. 4. A candidate for a regional board must be 21 years of age at the time of filing and must reside in the region in which he becomes a candidate. If his legal residence is moved.from the region during his term of office, it shall constitute a vacating of office 388.175 District board, powers. [M .S.A . 15.2298(5)] Sec. 5. The first class school district board shall retain all the powers and duties non possessed by a first class school district except for those given to a regional board under tie provisions of this act and such other functions as are delegated to the regional boards b) the first class school district board. 388.176 Regional board, powers. [M .S.A . 15.2298(6)] Sec. 6. Effective upon the commencement of its term of office, the regional board subject to guidelines established by the first class district board, shall have the power to: (1) Employ a superintendent for the schools in the region from a list or lists o candidates submitted by the first class district board and to discharge any such regional superintendent. 57aa (2) Employ and discharge, assign and promote all teachers and other employees of the region and schools therein subject to review by the first class school district board, which may overrule, modify or affirm the action of the regional board. (3) Determine the curriculum, use of educational facilities and establishment of edu cational and testing programs in the region and schools therein. (4) Determine the budget for the region and schools therein based upon the allocation of funds received from the first class school district board. 388.177 Employee rights. [M .S.A . 15.2298(7)] Sec. 7. The rights of retirement, tenure, seniority and of any other benefits of any employee transferred to a region or schools therein from the first class district or trans ferred between regions shall not be abrogated, diminished or impaired. 388.178 District board, functions. [M .S.A . 15.2298(8)] Sec. 8. The first class school district board shall perform the following functions for the regions and schools therein: (1) Central purchasing. (2) Payroll. (3) Contract negotiations for all employees, subject to the provisions of Act No. 336 of the Public Acts of 1947, as amended, being sections 423.201 to 423.216 of the Compiled Laws of 1948, and subject to any bargaining certification and to the provisions of any collective bargaining agreement pertaining to affected employees. (4) Property management and maintenance. , (5) Bonding. (6) Special education programs. (7) Allocation of funds for capital outlay and operations for each region and schools therein. (8) Establish or modify guidelines for the implementation of the provisions of section 6. Such guidelines shall include but not be limited to the determination and specifi cation of each regional board’s jurisdiction and may provide for regional board’s jurisdiction wer schools not geographically located within their respective regions. 088.179 .Facilities and accommodations, selection ; employees. [M.S.A. 15.2298(9)] Sec. 9. Facilities and accommodations provided by the first class school district board °c regional boards shall be selected with due consideration for accessibility, economy and u 1 ization of existing facilities. Employees assigned by the first class school district board 0 regional boards at the time of commencement of their functions shall be drawn, to the R ent feasible, from persons employed at such time by the first class school district. 388.180 Board members, compensation. [M .S.A . 15.2298(10)] êc' Regional board members shall be paid a per diem allowance of $20.00 for each e mg of their board attended and first class district board members shall be paid a per such * °Wance $30.00 for each meeting of their board attended, but in neither case shall payments be for meetings in excess of 52 meetings per annum. The chairman of each c ,°na .rĉ sha11 f*e Pa’d for up to 52 regional board meetings attended and up to 52 ” c ass district board meetings attended. 388;181 fnitiative and referendum. [M .S.A . 15.2298(11)] wTh c*ass sc^°°[ districts with 100.000 student membership or more shall «.•e, Same r‘ghts for initiative petition and referendum now granted by law to second ancl third class districts. 58aa 388.182 Attendance provisions, implementation; conditions. [M .S.A . 15.2298(12)] Sec. 12. The implementation of any attendance provisions for the 1970-71 school year determined by any first class school district board shall be delayed pending the date of commencement of functions by the first class school district boards established under the provisions of this amendatory act but such provision shall not impair the right of any such board to determine and implement prior to such date such changes in attendance provisions as are mandated by practical necessity. In reviewing, confirming, establishing or modifying attendance provisions the first class school district boards established under the provisions of this amendatory' act shall have a policy of open enrollment and shall enable students to attend a school of preference but providing priority acceptance, insofar as practicable, in cases of insufficient school capacity, to those students residing nearest the school and to those students desiring to attend the school for participation in vocation ally oriented courses or other specialized curriculum. 388.183 Severability. [M .S.A . 15.2298(13)] Sec. 13. If any portion of this act or the application thereof to any person or cir cumstance shall be found to be invalid by a court, such invalidity shall not affect the re maining portions or applications of this act which can be given effect without the invalid portion or application, and to this end this act is declared to be severable. Repeal. Section 2. Sections 1, 2 and 3 of Act No. 244 of the Public Acts of 1969, being sections i 388.171, 388.172 and 388.173 of the Compiled Laws of 1948, are repealed. A c t 2 8 9 , 1 9 6 4 , p . 5 8 4 ; E f f . A u g . 2 8 . A N A C T t o p r o v i d e f o r t h e s t u d y a n d d e v e l o p m e n t o f p l a n s f o r t h e r e o r g a n iz a tio n o f s c h o o l d i s t r i c t s a n d f o r e l e c t i o n s t o a c c o m p l i s h s a m e ; t o p r o v i d e f o r t h e c r e a tio n of s t a t e a n d i n t e r m e d i a t e r e o r g a n i z a t i o n c o m m i t t e e s ; t o p r e s c r i b e t h e i r p o w e r s and d u t i e s ; t o p r o v i d e f o r h e a r i n g s a n d e l e c t i o n s o n r e o r g a n i z a t i o n p l a n s ; a n d t o prescribe t h e p o w e r s a n d d u t i e s o f t h e s u p e r i n t e n d e n t o f p u b l i c i n s t r u c t i o n . The People o f the State o f Michigan enact: 388.681 Reorganization of school districts; definitions. S e c . 1 . A s u s e d i n t h i s a c t : ( a ) “ R e o r g a n i z a t i o n o f s c h o o l d i s t r i c t s ” m e a n s t h e f o r m a t i o n o f n e w s c h o o l districts, t h e a l t e r a t i o n o f b o u n d a r i e s o f e s t a b l i s h e d s c h o o l d i s t r i c t s , a n d t h e d i s s o l u t i o n o r disor g a n i z a t i o n o f e s t a b l i s h e d s c h o o l d i s t r i c t s t h r o u g h o r b y m e a n s o f a n y o n e o r co m b in a t i o n o f t h e m e t h o d s a s s e t f o r t h i n t h i s a c t . 59aa (b) “ S t a t e c o m m i t t e e ” m e a n s t h e s t a t e c o m m i t t e e f o r t h e r e o r g a n i z a t i o n o f s c h o o l districts c r e a t e d i n t h i s a c t . (c) “ I n t e r m e d i a t e c o m m i t t e e ” m e a n s t h e c o m m i t t e e f o r t h e r e o r g a n i z a t i o n o f s c h o o l districts c r e a t e d i n t h i s a c t . (d) “ P l a n o f r e o r g a n i z a t i o n ” m e a n s a c o n c r e t e p r o p o s a l f o r r e a d j u s t m e n t a n d r e a lig n m e n t o f t h e b o u n d a r i e s o f s c h o o l d i s t r i c t s w i t h i n a n i n t e r m e d i a t e s c h o o l d i s t r i c t area. (e) “ N o n - h i g h s c h o o l d i s t r i c t ” m e a n s a s c h o o l d i s t r i c t p r e s e n t l y o p e r a t i n g l e s s t h a n a k in d e r g a r t e n t h r o u g h t w e l f t h g r a d e p r o g r a m . (f) “ S c h o o l c o d e ” m e a n s A c t N o . 2 6 9 o f t h e P u b l i c A c t s o f 1 9 5 5 , a s a m e n d e d , b e i n g sections 3 4 0 . 1 t o 3 4 0 . 9 8 4 o f t h e C o m p i l e d L a w s o f 1 9 4 8 . HISTORY: New 1964, p. 584, Act 289, Eff. Aug. 28. CITED IN OTHER SECTIONS: Sections 358.681 to 388.693 are cited in 340.352a and 388.711. 388.682 State com m ittee for reorganization of school districts; appoint ments, distribution; vacan cies, com pensation. S e c . 2 . T h e r e is c r e a t e d , f o r t h e t e r m o f t i m e n e c e s s a r y t o c o m p l e t e t h e r e q u i r e ments o f t h i s a c t , a s t a t e c o m m i t t e e f o r t h e r e o r g a n i z a t i o n o f s c h o o l d i s t r i c t s , a p p o in te d b y t h e g o v e r n o r , a n d c o m p o s e d o f 7 m e m b e r s , a t l e a s t 1 o f w h o m s h a l l r e p r e sent t h e U p p e r P e n i n s u l a , 1 t h e a r e a a b o v e t h e B a y C i t y - M u s k e g o n l i n e , a n d 5 s h a l l b e a p p o in te d i n s u c h m a n n e r a s t o r e p r e s e n t f a i r l y t h e r e m a i n d e r o f t h e s t a t e . T h e s u p e r in te n d e n t o f p u b l i c i n s t r u c t i o n s h a l l b e t h e n o n v o t i n g c h a i r m a n o f t h e c o m m i t t e e . V a cancies s h a l l b e f i l l e d b y a p p o i n t m e n t o f t h e g o v e r n o r . M e m b e r s o f t h e s t a t e c o m m i t tee s h a ll s e r v e w i t h o u t c o m p e n s a t i o n . T h e m e m b e r s o f t h e c o m m i t t e e s h a l l b e a p p o in te d w i t h i n 6 0 d a y s a f t e r t h e e f f e c t i v e d a t e o f t h i s a c t . HISTORY: New 1964, p. 585, Act 289, EH. Aug. 28. 388.683 State reorganization com m ittee; officers, records, m eetings, quo rum. S ec. 3 . W i t h i n 9 0 d a y s a f t e r t h e e f f e c t i v e d a t e o f t h i s a c t , t h e s t a t e c o m m i t t e e s h a l l o rg a n ize b y e l e c t i n g a v i c e - c h a i r m a n a n d a s e c r e t a r y . T h e v i c e - c h a i r m a n s h a l l a c t a s ch a irm a n a t t h e r e q u e s t o f t h e s u p e r i n t e n d e n t o f p u b l i c i n s t r u c t i o n . T h e s e c r e t a r y . I* ^ e e P t h e r e c o r d s o f o f f i c i a l c o m m i t t e e m e e t i n g s a n d p r e p a r e a n d d i s t r i b u t e m a t e rials as r e q u e s t e d b y t i r e s t a t e c o m m i t t e e . M e e t i n g s o f t h e c o m m i t t e e s h a l l b e h e l d opon t h e c a l l o f t h e c h a i r m a n o r a n y 3 o f t h e m e m b e r s t h e r e o f . F i v e m e m b e r s , w h i c h may i n c l u d e t h e s u p e r i n t e n d e n t o f p u b l i c i n s t r u c t i o n , c o n s t i t u t e a q u o r u m . HISTORY: New 1964, p. 585. Act 289, EH. Aug. 28. 388.684 School district reorganization program; surveys, approval of pro posals, reports. '*e c - 4 - T h e s t a t e c o m m i t t e e s h a l l : . (j*) W i t h i n 1 2 m o n t h s a f t e r t h e e f f e c t i v e d a t e o f t h i s a c t , d e v e l o p p o l i c i e s , p r i n c i p l e s ,(jj P r o c e d u r e s f o r a s t a t e w i d e s c h o o l d i s t r i c t r e o r g a n i z a t i o n p r o g r a m p l a n n e d s o t h a t p areas m a y b e c o m e p a r t o f a s c h o o l d i s t r i c t o p e r a t i n g o r d e s i g n e d t o o p e r a t e a t l e a s t ibis', CS‘ n o c a s e c a n a n i n t e r m e d i a t e d i s t r i c t c o m m i t t e e p l a n b e s u b m i t t e d u n d e r W ^ l c ^ W 0 l , l (l r e q u i r e t h e m e r g e r o f 2 o r m o r e s c h o o l d i s t r i c t s o f t h e t h i r d c l a s s 'h ' c r . T h e r e s h a l l b e c r e a t e d n o l e s s t h a n 5 0 0 s c h o o l d i s t r i c t s o p e r a t i n g 1 2 g r a d e s . Irili' t /rCCt area s u r v e y s a n d d e v e l o p a m a n u a l o f p r o c e d u r e t o b e p r i n t e d a n d d i s - 11 u > t o a l l i n t e r m e d i a t e d i s t r i c t s u p e r i n t e n d e n t s o f s c h o o l s . 60aa ( c ) P e r f o r m e i t h e r b v i t s e l f o r b y i t s a u t h o r i z e d r e p r e s e n t a t i v e a n y o r a l l o f t h e duties r e q u i r e d b y t h i s a c t t o b e p e r f o r m e d b y t h e i n t e r m e d i a t e s c h o o l d i s t r i c t su p e rin te n d - c ' i t , t h e i n t e r m e d i a t e d i s t r i c t b o a r d o f e d u c a t i o n , t h e i n t e r m e d i a t e d i s t r i c t co m m ittee, o r t h e p r o b a t e j u d g e o r j u d g e s , i n c a s e o f f a i l u r e b y a n y o r a l l o f t h e m t o p e r f o r m these d u t i e s . ( d ) R e v i e w a n d a p p r o v e o r r e j e c t i n t e r m e d i a t e d i s t r i c t p l a n s w i t h i n 6 0 d a y s a fte r re c e i p t o f p l a n s f r o m t h e i n t e r m e d i a t e d i s t r i c t c o m m i t t e e s . ( e ) R e p o r t t o e a c h i n t e r m e d i a t e d i s t r i c t t h e a c c e p t a n c e o r r e j e c t i o n o f t h e proposed p l a n s w i t h r e c o m m e n d a t i o n s f o r c h a n g e s . ( f ) P r e s e n t a p r o g r e s s r e p o r t o n r e o r g a n i z a t i o n u n d e r t h i s a c t t o t h e s t a t e legislature o n o r b e f o r e M a r c h 1 o f e a c h y e a r . HISTOHY: New 19&4, p. 585, Act 289, EH. Aug. 28. 388 .68 5 Interm ediate district com m ittee for reorgan ization of school dis tricts; m em bership , election, vacan cies, organization . S e c . 5 . ( 1 ) A c o m m i t t e e s h a l l b e o r g a n i z e d i n e a c h i n t e r m e d i a t e d i s t r i c t i n th e state t o b e k n o w n a s t h e i n t e r m e d i a t e d i s t r i c t c o m m i t t e e f o r t h e r e o r g a n i z a t i o n o f school d i s t r i c t s . T h e i n t e r m e d i a t e d i s t r i c t s u p e r i n t e n d e n t o f s c h o o l s s h a l l b e n o n v o t i n g chair m a n o f t h e i n t e r m e d i a t e d i s t r i c t c o m m i t t e e , a n d h e s h a l l p r e s i d e o v e r a l l m e e tin g s ol t f i e i n t e r m e d i a t e d i s t r i c t c o m m i t t e e . T h e i n t e r m e d i a t e d i s t r i c t c o m m i t t e e s h a ll com p l e t e t h e r e q u i r e m e n t s o f t h i s a c t a n d c o m p l y w i t h t h e r e q u e s t s m a d e b y th e state c o m m i t t e e . T h e r e s h a l l b e 1 8 m e m b e r s o n t h e i n t e r m e d i a t e d i s t r i c t c o m m i t t e e e a c h o f whom s h a l l b e a r e g i s t e r e d r e s i d e n t e l e c t o r . I n i n t e r m e d i a t e d i s t r i c t s c o n t a i n i n g n o district o p e r a t i n g 1 2 g r a d e s o r m o r e a n d i n i n t e r m e d i a t e d i s t r i c t s c o n t a i n i n g n o non-high s c h o o l d i s t r i c t s t h e c o m m i t t e e s h a l l c o n s i s t o f 1 3 m e m b e r s . ( 2 ) M e m b e r s o f t h e i n t e r m e d i a t e d i s t r i c t c o m m i t t e e s h a l l b e c h o s e n a s f o l l o w s : ( a ) T h e i n t e r m e d i a t e b o a r d o f e d u c a t i o n s h a l l a p p o i n t 3 o f i t s m e m b e r s t o serve on t h e c o m m i t t e e . ( b ) T h e i n t e r m e d i a t e d i s t r i c t s u p e r i n t e n d e n t o f s c h o o l s , b y n o t i c e s e n t b y m a i l , shall c a l l a m e e t i n g o f t h e b o a r d s o f e d u c a t i o n o f a l l s c h o o l d i s t r i c t s o p e r a t i n g a p r o g r a m ol 1 2 g r a d e s o r m o r e i n t h e i n t e r m e d i a t e d i s t r i c t . T h e m e e t i n g s h a l l b e h e l d a t s o m e con v e n i e n t p l a c e w i t h i n t h e i n t e r m e d i a t e d i s t r i c t w i t h i n 6 0 d a y s a f t e r t h e e f f e c t i v e date of t h i s a c t . T h e i n t e r m e d i a t e d i s t r i c t s u p e r i n t e n d e n t s h a l l a c t a s c h a i r m a n o f th is meet i n g , a n d t h e b o a r d m e m b e r s s h a l l e l e c t b y b a l l o t 5 p e r s o n s t o s e r v e o n t h e in te rm e d iate d i s t r i c t c o m m i t t e e n o t m o r e t h a n 2 o f w h o m s h a l l b e f r o m a n y o n e c o n s t i t u e n t district, u n l e s s t h e r e a r e f e w e r d i s t r i c t s t h a n t h e r e a r e p o s i t i o n s t o f i l l . T h e 5 p e r s o n s receiving t h e h i g h e s t n u m b e r o f v o t e s s h a l l b e d e c l a r e d e l e c t e d . N o p e r s o n m a y b e e le c te d to or s e r v e o n t h e c o m m i t t e e w h o is a n e m p l o y e e o f a n y c o n s t i t u e n t s c h o o l d i s t r i c t o r of the i n t e r m e d i a t e s c h o o l d i s t r i c t . T h e c h a i r m a n s h a l l a p p o i n t 3 o r m o r e t e l l e r s t o conduct t h e e l e c t i o n a n d t o c a n v a s s t h e v o t e . W h e n e v e r n o t m o r e t h a n 2 o f t h e 5 m e m b e r s to t o s e r v e o n t h e c o m m i t t e e , t h e r e m a i n i n g m e m b e r s s h a l l f i l l t h e v a c a n c y fr o m » s a m e c o n s t i t u e n t d i s t r i c t i n w h i c h t h e v a c a n c y o c c u r s . W h e n e v e r 3 o r m o r e vacancies o c c u r a t t h e s a m e t i m e , t h e v a c a n c i e s s h a l l b e f i l l e d i n t h e s a m e m a n n e r a s t h e origins c o m m i t t e e m e m b e r s w e r e e l e c t e d . 61aa (c) T h e i n t e r m e d i a t e d i s t r i c t s u p e r i n t e n d e n t o f s c h o o l s , b y n o t i c e s e n t b y m a i l , s h a l l call a m e e t i n g o f t h e b o a r d s o f e d u c a t i o n o f a l l s c h o o l d i s t r i c t s o p e r a t i n g l e s s t h a n a tw e lv e -g ra d e p r o g r a m i n t h e i n t e r m e d i a t e d i s t r i c t . T h e m e e t i n g s h a l l b e h e l d a t s o m e co nvenient p l a c e w i t h i n t h e i n t e r m e d i a t e d i s t r i c t w i t h i n 6 0 d a y s a f t e r t h e e f f e c t i v e date o f t h i s a c t . T h e i n t e r m e d i a t e d i s t r i c t s u p e r i n t e n d e n t s h a l l a c t a s c h a i r m a n o f t h i s meeting, a n d t h e b o a r d m e m b e r s s h a l l e l e c t b y b a l l o t 5 p e r s o n s t o s e r v e o n t h e i n t e r mediate d i s t r i c t c o m m i t t e e n o t m o r e t h a n 2 o f w h o m s h a l l b e f r o m a n y o n e c o n s t i t u ent d is tr ic t , u n l e s s t h e r e a r e f e w e r d i s t r i c t s t h a n t h e r e a r e p o s i t i o n s t o b e f i l l e d . T h e 5 persons r e c e i v i n g t h e h i g h e s t n u m b e r o f v o t e s s h a l l b e d e c l a r e d e l e c t e d . N o p e r s o n may b e e l e c t e d t o o r s e r v e o n t h e c o m m i t t e e w h o is a n e m p l o y e e o f a n y c o n s t i t u e n t school d i s t r i c t o r o f t h e i n t e r m e d i a t e s c h o o l d i s t r i c t . T h e c h a i r m a n s h a l l a p p o i n t 3 o r more te lle r s t o c o n d u c t t h e e l e c t i o n a n d t o c a n v a s s t h e v o t e . W h e n e v e r n o t m o r e t h a n 2 of th e 5 m e m b e r s f a i l t o s e r v e o n t h e c o m m i t t e e , t h e r e m a i n i n g m e m b e r s s h a l l f i l l the v a c a n c y f r o m t h e s a m e c o n s t i t u e n t d i s t r i c t i n w h i c h t h e v a c a n c y o c c u r s . W h e n ever 3 o r m o r e v a c a n c i e s o c c u r a t t h e s a m e t i m e , t h e v a c a n c i e s s h a l l b e f i l l e d i n t h e same m a n n e r a s t h e o r i g i n a l c o m m i t t e e m e m b e r s w e r e e l e c t e d . (d) T h e i n t e r m e d i a t e d i s t r i c t s u p e r i n t e n d e n t o f s c h o o l s , b y n o t i c e s e n t b y l e t t e r , shall n o t i f y t h e p r o b a t e j u d g e o f t h e a r e a , w h o , w i t h i n 6 0 d a y s a f t e r t h e e f f e c t i v e d a t e of this a c t , s h a l l a p p o i n t 5 m e m b e r s t o t h e c o m m i t t e e f a i r l y r e p r e s e n t i n g a l l a r e a s o f the i n t e r m e d i a t e d i s t r i c t . T h e q u a l i f i c a t i o n s o f t h e s e m e m b e r s s h a l l b e t h e s a m e a s those o f t h e o t h e r m e m b e r s o f t h e c o m m i t t e e . T h e p r o b a t e j u d g e s h a l l f i l l a l l v a c a n c i e s that m a y o c c u r a m o n g h i s a p p o i n t e e s . I n a n y i n t e r m e d i a t e d i s t r i c t w h e r e t h e r e a r e 2 o r more p r o b a t e j u d g e s t h e j u d g e s a c t i n g j o i n t l y s h a l l m a k e t h e a p p o i n t m e n t s . (3) O r g a n i z a t i o n o f t h e i n t e r m e d i a t e d i s t r i c t c o m m i t t e e s h a l l b e c o m p l e t e d i n e a c h district w i t h i n 6 m o n t h s a f t e r t h e e f f e c t i v e d a t e o f t h i s a c t . I f a n i n t e r m e d i a t e d i s t r i c t co m m itte e h a s n o t b e e n o r g a n i z e d w i t h i n 6 m o n t h s , t h e s t a t e c o m m i t t e e s h a l l a p p o i n t the m e m b e r s w i t h i n 6 0 d a y s t h e r e a f t e r . I n w h i c h e v e n t t h e s a m e l i m i t a t i o n s s h a l l a p ply as p r o v i d e d i n t h i s s e c t i o n . HISTORY: New 1964, p. 585, Act 289, Eft. Aug. 28. : 388.686 Interm ediate district reorganization com m ittee; m eetings, re cords, district reorganization p lan , hearings, ap p ro va l, revision , d issolu tion of committee. Sec. 6 . E a c h i n t e r m e d i a t e d i s t r i c t c o m m i t t e e s h a l l e l e c t a s e c r e t a r y w h o s h a l l k e e p fhe m in u te s a n d r e c o r d s o f a l l o f f i c i a l m e e t i n g s . M e e t i n g s s h a l l b e h e l d u p o n t h e c a l l o f the c h a i r m a n o r a n y 3 m e m b e r s o f t h e c o m m i t t e e . A m a j o r i t y o f t h e c o m m i t t e e s h a l l constitute a q u o r u m . T h e i n t e r m e d i a t e d i s t r i c t c o m m i t t e e s h a l l f o l l o w t h e p r o c e d u r e guide p r o v i d e d b y t h e s t a t e c o m m i t t e e a n d p r e p a r e a d i s t r i c t r e o r g a n i z a t i o n p l a n , which s h a ll b e s u b m i t t e d t o t h e s t a t e c o m m i t t e e f o r i t s a p p r o v a l o r d i s a p p r o v a l . T h e P an sh a ll p r o v i d e f o r t h e r e o r g a n i z a t i o n o f s c h o o l d i s t r i c t s w i t h i n t h e i n t e r m e d i a t e d i s trict so t h a t a l l a r e a s o f t h e d i s t r i c t m a y b e c o m e a p a r t o f a s c h o o l d i s t r i c t o p e r a t i n g o r esig ne d t o o p e r a t e a t l e a s t 1 2 g r a d e s ,. T h e i n t e r m e d i a t e d i s t r i c t c o m m i t t e e s h a l l h o l d least 1 p u b l i c h e a r i n g r e g a r d i n g t h e p l a n b u t m a y h o l d a s m a n y m o r e a s i t d e e m s accessary. H e a r i n g s s h a l l b e a d v e r t i s e d b v p u b l i c a t i o n a t l e a s t o n c e i n a n e w s p a p e r o f hCneral c i r c u l a t i o n i n t h e d i s t r i c t s 1 0 d a y s o r m o r e b e f o r e t h e s c h e d u l e d h e a r i n g . T h e " ite r n ie d ia te d i s t r i c t p l a n f o r r e o r g a n i z a t i o n s h a l l b e s u b m i t t e d t o t h e s t a t e c o m m i t t e e 62aa f o r i t s c o n s i d e r a t i o n w i t h i n 9 m o n t h s a f t e r r e c e i v i n g t h e m a n u a l o f p r o c e d u r e f r o m the s t a t e c o m m i t t e e . I f t h e i n t e r m e d i a t e d i s t r i c t p l a n is a p p r o v e d b y t h e s t a t e c o m m it te e , t h e p l a n s h a l l b e s u b m i t t e d t o t h e e l e c t o r s a s p r o v i d e d i n s e c t i o n 7 o f t h i s a c t . I f an in t e r m e d i a t e d i s t r i c t p l a n is r e j e c t e d b y t h e s t a t e c o m m i t t e e , a r e v i s e d p l a n s h a ll be sub- r m t t e d b y t h e i n t e r m e d i a t e d i s t r i c t c o m m i t t e e w i t h i n 9 0 d a y s a f t e r r e c e i p t o f th e rejec t i o n o f t h e o r i g i n a l p l a n . I f t h e r e v i s e d p l a n is n o t a c c e p t e d " b y t h e s t a t e c o m m i t t e e , tie s t a t e c o m m i t t e e s h a l l s u b m i t a p l a n f o r t h e r e o r g a n i z a t i o n o f t h e s c h o o l d i s t r i c t s in the i n t e r m e d i a t e s c h o o l d i s t r i c t a n d t h e i n t e r m e d i a t e c o m m i t t e e s h a l l a l s o s u b m i t a pllt f o r t h e r e o r g a n i z a t i o n o f t h e s c h o o l d i s t r i c t s i n t h e i n t e r m e d i a t e s c h o o l d i s t r i c t . Th e in t e r m e d i a t e s c h o o l d i s t r i c t b o a r d s h a l l s u b m i t b o t h p l a n s t o t h e e l e c t o r s o f t h e interme d i a t e s c h o o l d i s t r i c t a n d t h e p l a n r e c e i v i n g t h e l a r g e r n u m b e r o f v o t e s s h a l l b e submit t e d t o t h e q u a l i f i e d e l e c t o r s o f t h e i n t e r m e d i a t e s c h o o l d i s t r i c t i n a c c o r d a n c e w ith the r e q u i r e m e n t s o f m e t h o d 2 p r o v i d e d i n s e c t i o n 7 o f t h i s a c t . F o l l o w i n g t h i s e le c tio n , the i n t e r m e d i a t e c o m m i t t e e s h a l l b e d i s s o l v e d a n d t h e r e q u i r e m e n t s o f t h i s a c t shall have b e e n m e t a n d n o f u r t h e r p l a n s s h a l l b e r e - s u b m i t t e d f o r 5 y e a r s b y e i t h e r th e state c o m m i t t e e o r t h e i n t e r m e d i a t e d i s t r i c t . T h e i n t e r m e d i a t e d i s t r i c t c o m m i t t e e shall also ! b e d i s s o l v e d o n c o m p l e t i o n a n d a c c e p t a n c e o f t h e p l a n b y t h e s t a t e c o m m i t t e e and the v o t e o r v o t e s o n t h e p l a n b y t h e e l e c t o r s o f t h e p r o p o s e d s c h o o l d i s t r i c t . Ha STORY: New 1964, p. 586, Act 289, Eff. Aug. 28. 3 8 8 .6 8 7 Optional election m ethods for adoption of reorganization plans; conduct. S e c , 7 . N o t l e s s t h a n 9 0 d a y s n o r m o r e t h a n 6 m o n t h s f o l l o w i n g a p p r o v a l o f a n inter m e d i a t e d i s t r i c t p l a n a s p r o v i d e d i n s e c t i o n 6 o f t h i s a c t e l e c t i o n s s h a l l b e h e l d accord i n g t o o n e o f 2 m e t h o d s . T h e i n t e r m e d i a t e d i s t r i c t c o m m i t t e e s h a l l d e t e r m i n e which e l e c t i o n m e t h o d s h a l l b e u s e d . M e t h o d 1 . T h e e n t i r e a r e a e n c o m p a s s e d b y t h e i n t e r m e d i a t e d i s t r i c t p l a n shall vote a s a u n i t o n t h e q u e s t i o n : “ S h a l l t h e a p p r o v e d r e o r g a n i z a t i o n p l a n f o r t h e ...................h t e r m e d i a t e d i s t r i c t b e a d o p t e d ? Y e s ( ) No()” \ I f a m a j o r i t y o f t h e q u a l i f i e d e l e c t o r s p r e s e n t a n d v o t i n g a p p r o v e t h e p l a n i t shall be d e c l a r e d a d o p t e d a n d s h a l l b e c o m e e f f e c t i v e t h r o u g h o u t t h e a r e a o n t h e d a te of the e l e c t i o n i f t h e e l e c t i o n is h e l d a f t e r A p r i l 3 0 b u t b e f o r e S e p t e m b e r 1 . T h e effective d a t e s h a l l b e J u l y 1 f o l l o w i n g i f t h e e l e c t i o n is h e l d a f t e r A u g u s t 3 1 b u t b e f o r e M a y 1. j M e t h o d 2 . T h e p r o p o s e d d i s t r i c t s p r o v i d e d f o r i n t h e a p p r o v e d p l a n s h a ll vo te by p r o p o s e d d i s t r i c t s o n t h e q u e s t i o n : “ S h a l l t h e a p p r o v e d r e o r g a n i z a t i o n p la n f o r a pro p o s e d l o c a l d i s t r i c t ...................... w i t h i n t h e i n t e r m e d i a t e d i s t r i c t o f .....................b e a d o p t e d ? Y e s ( ) No( )” I f a m a j o r i t y o f t h e q u a l i f i e d e l e c t o r s p r e s e n t a n d v o t i n g i n a p r o p o s e d d is tric t ap p r o v e t h e p l a n f o r t h a t p r o p o s e d d i s t r i c t i t s h a l l b e d e c l a r e d a d o p t e d a n d s h a ll become e f f e c t i v e t h r o u g h o u t t h e p r o p o s e d d i s t r i c t o n t h e d a t e o f t h e e l e c t i o n i f t h e election is h e l d a f t e r A p r i l 3 0 b u t b e f o r e S e p t e m b e r 1 . T h e e f f e c t i v e d a t e s h a l l b e J u l y 1 i n g i f t h e e l e c t i o n is h e l d a f t e r A u g u s t 3 1 b u t b e f o r e M a y 1 . 63aa I f e l e c t i o n m e t h o d n u m b e r 1 is a d o p t e d b y t h e i n t e r m e d i a t e d i s t r i c t c o m m i t t e e a n d if the q u e s t i o n v o t e d o n f a i l s t o o b t a i n a n a f f i r m a t i v e m a j o r i t y , t h e n a n o t h e r e l e c t i o n using m e t h o d n u m b e r 2 s h a l l b e h e l d n o t l e s s t h a n 9 0 d a y s n o r m o r e t h a n 6 m o n t h s a lte r°th e d a t e o f t h e f i r s t e l e c t i o n . T h e r e s u l t s o f t h i s e l e c t i o n u s i n g m e t h o d n u m b e r 2 shall b e f i n a l a n d t h e r e q u i r e m e n t s o f t h i s a c t s h a l l h a v e b e e n m e t . I f t h e i n t e r m e d i a t e d i s t r i c t p l a n p r o v i d e s t h a t t h e b o u n d a r i e s o f a n e x i s t i n g s c h o o l district s h a l l r e m a i n t h e s a m e s u c h d i s t r i c t s h a l l n o t p a r t i c i p a t e i n a n e l e c t i o n h e l d u n der e it h e r m e t h o d n u m b e r 1 o r m e t h o d n u m b e r 2 . I f t h e e l e c t i o n is h e l d u n d e r m e t h o d n u m b e r 1 , t h e p l a n t o b e v o t e d o n s h a l l n o t cause a n e x i s t i n g s c h o o l d i s t r i c t t o b e d i v i d e d b e t w e e n 2 i n t e r m e d i a t e d i s t r i c t s b u t p r o p e r ty t r a n s f e r s m a y b e m a d e l a t e r a c c o r d i n g t o t h e p r o v i s i o n s o f c h a p t e r 5 , p a r t 2 of th e s c h o o l c o d e . T h e p l a n m a y p r o v i d e f o r d i v i s i o n o f d i s t r i c t s w i t h i n a n i n t e r m e d i ate d i s t r i c t . I f a n d w h e n v o t i n g m e t h o d n u m b e r 2 is u s e d , t h e p l a n s h a l l n o t c a u s e a n e x i s t i n g school d i s t r i c t t o b e d i v i d e d b e t w e e n 2 p r o p o s e d l o c a l d i s t r i c t s w i t h i n t h e i n t e r m e d i a t e unit b u t p r o p e r t y t r a n s f e r s m a y b e m a d e l a t e r a c c o r d i n g t o c h a p t e r 5 , p a r t 2 o f t h e school c o d e . N o p r o p e r t y t r a n s f e r s s h a l l b e m a d e a f t e r t h e a p p r o v a l o f t h e i n t e r m e d i a t e d i s t r i c t plan b y t h e s t a t e c o m m i t t e e u n t i l a f t e r t h e e l e c t i o n s p r o v i d e d f o r i n t h i s s e c t i o n h a v e been h e l d . T h e q u e s t i o n o f a s s u m p t i o n o f b o n d e d i n d e b t e d n e s s s h a l l n o t b e i n c l u d e d i n a n y election h e l d u n d e r t h e p r o v i s i o n s o f t h i s a c t b u t t h e p r o v i s i o n s o f s e c t i o n s 4 1 2 a n d 4 1 3 of th e s c h o o l c o d e r e g a r d i n g a s s u m p t i o n o f d e b t s h a l l a p p l y . T h e q u a l i f i c a t i o n s o f e l e c t o r s s h a l l b e t h e s a m e a s n o w p r o v i d e d i n t h e s t a t u t e s f o i votes o n c o n s o l i d a t i o n a n d a n n e x a t i o n a n d t h e p r o v i s i o n s o f t h e g e n e r a l e l e c t i o n l a w s shall a p p l y . T h e b o a r d o f e d u c a t i o n o f t h e i n t e r m e d i a t e s c h o o l d i s t r i c t s h a l l c o n d u c t t h e e l e c t i o n or e le c tio n s p r o v i d e d f o r i n t h i s s e c t i o n a c c o r d i n g t o t h e g e n e r a l e l e c t i o n l a w s a n d a c co rd in g t o c h a p t e r s 7 a n d 8 o f p a r t 2 o f t h e s c h o o l c o d e . HISTORY: New 1964, p. 587, Act 289, EH. Aug. 28. 388.688 Classification of districts form ed. S e c . 8 . D i s t r i c t s f o r m e d u n d e r t h e p r o v i s i o n s o f t h i s a c t s h a l l b e c l a s s i f i e d a s s e c o n d , third o r f o u r t h c l a s s d i s t r i c t s d e p e n d i n g u p o n t h e s c h o o l c e n s u s a s p r o v i d e d f o r i n c h a p te rs 3 , 4 a n d 5 , p a r t 1 o f t h e s c h o o l c o d e . HISTORY: New 1964, p. 588, Act 289, EH. Aug. 28. 388.689 Consolidation, annexation or division of districts. S e c . 9 . A f t e r t h e e f f e c t i v e d a t e o f t h i s a c t , t h e s u p e r i n t e n d e n t o f p u b l i c i n s t r u c t i o n , w h e n r e q u e s t e d t o a p p r o v e a c o n s o l i d a t i o n , a n n e x a t i o n o r d i v i s i o n o f a d i s t r i c t , s h a l l give c a r e f u l c o n s i d e r a t i o n t o t h e p r o g r e s s o f t h e i m p l e m e n t a t i o n o f t h e r e q u i r e m e n t s of th is a c t . HISTORY: New 1964, p. 588, Act 289. Eff. Aug. 28. 64aa 3 88 .69 0 School aid ; apportionm ent. S e c . 1 0 . S c h o o l d i s t r i c t s f o r m e d u n d e r t h e p r o v i s i o n s o f t h i s a c t s h a l l b e e n title d to a n d r e c e i v e f i n a n c i a l a i d f r o m t h e s t a t e i n t h e m a n n e r p r o v i d e d b y l e g i s l a t i v e appro p r i a t i o n f o r s c h o o l a i d p u r p o s e s e x c e p t t h a t t h e a p p o r t i o n m e n t s o f s t a t e a i d d u e any s c h o o l d i s t r i c t f o r m e d u n d e r t h i s a c t i n t h e 2 f i s c a l y e a r s n e x t f o l l o w i n g re o rg a n iza tio n s h a l l n o t b e l e s s t h a n t h e a g g r e g a t e o f s t a t e a i d w h i c h w o u l d h a v e b e e n d u e propor t i o n a t e l y t o t h e c o m p o n e n t d i s t r i c t s p r i o r t o t h e r e o r g a n i z a t i o n . I t s h a l l b e t h e duty of t h e s u p e r i n t e n d e n t o f p u b l i c i n s t r u c t i o n i n m a k i n g a p p o r t i o n m e n t s o f s t a t e a id to ad j u s t t h e a m o u n t o f s t a t e a i d d u e e a c h s u c h s c h o o l d i s t r i c t a c c o r d i n g l y . HISTORY: New ISM, p. 5SS, Act 2S9, Eff. Aug. 28. 388.691 Board of education of new ly-form ed district. S e c . 1 1 . W h e r e t h e p r o p o s e d d i s t r i c t i n v o l v e s e x p a n s i o n o f t h e b o u n d a r i e s o f an ex i s t i n g t w e l v e - g r a d e d i s t r i c t b v a d d i t i o n o f n o n - t w e l v e - g r a d e t e r r i t o r y t h e b o a r d of edu c a t i o n o f t h e t w e l v e - g r a d e d i s t r i c t s h a l l c o n t i n u e a s t h e b o a r d o f t h e e n l a r g e d district. W h e r e t h e p r o p o s e d d i s t r i c t i n v o l v e s t h e m e r g e r o f 2 o r m o r e t w e l v e - g r a d e districts w i t h o r w i t h o u t t h e a d d i t i o n o f n o n - t w e l v e - g r a d e t e r r i t o r y , o r w h e r e t h e p r o p o s e d dis t r i c t i n v o l v e s m e r g e r o f n o n - t w e l v e - g r a d e d i s t r i c t s i n t o a n e w t w e l v e - g r a d e district a b o a r d o f e d u c a t i o n f a i r l v r e p r e s e n t i n g a l l a r e a s o f t h e n e w d i s t r i c t s h a l l b e appointed b v t h e i n t e r m e d i a t e d i s t r i c t b o a r d t o s e r v e u n t i l a n e w b o a r d is e l e c t e d a s p ro vid e d in s e c t i o n 4 1 0 o f t h e s c h o o l c o d e . HISTORY: New 1964, p. 588, Act 289. EH. Aug. 28. 388 .69 2 Board of education of district losing identity; records, property. S e c . 1 2 , T h e b o a r d s o f e d u c a t i o n o f a n y d i s t r i c t w h i c h l o s e i d e n t i t y s h a l l tu r n over t h e i r b o o k s , r e c o r d s , f u n d s a n d p r o p e r t y t o t h e n e w b o a r d w i t h i n 1 0 d a y s a f t e r the ef f e c t i v e d a t e o f t h e r e o r g a n i z a t i o n . I f a n y e x i s t i n g d i s t r i c t is d i v i d e d , t h e intermediate d i s t r i c t b o a r d , o r b o a r d s , s h a l l s p e c i f y t h e d i v i s i o n o f a s s e t s a n d l i a b i l i t i e s . HISTORY: New 1964, p. 589, Act 289, EH. Aug. 28. 3 88 .69 3 Final report; term ination of act. S e c . 1 3 . T h e s t a t e c o m m i s s i o n s h a l l m a k e a f i n a l r e p o r t t o t h e s t a t e le g i s l a t u r e on or b e f o r e S e p t e m b e r 1 , 1 9 6 8 , a n d t h i s a c t s h a l l e x p i r e o n t h e d a t e o f f i l i n g t h e final re p o r t . HISTORY: New 1964, p. 589. Act 289, Eff. Aug. 28. A c t 2 3 9 , 1 9 6 7 , p . 3 5 2 ; I m d . E f f . J u l . 1 2 . A N A C T t o p r o v i d e r e c o g n i t i o n o f a s t a t e o f e m e r g e n c y i n c e r t a i n s c h o o l districts in t h e s t a t e ; t o p r o v i d e f o r c o n t i n u a n c e o f t h e s t a t e c o m m i t t e e o n r e o r g a n i z a t i o n o s c h o o l d i s t r i c t s ; a n d t o p r o v i d e c e r t a i n p o w e r s a n d d u t i e s o f t h e s t a t e b o a r d o f e * t i o n i n c o n n e c t i o n t h e r e w i t h . 65aa The People o f the State o f Michigan enact: 388.71 1 Reorganization of school districts; determ ination of em ergency. Sec. 1 . T h e s t a t e c o m m i t t e e f o r t h e r e o r g a n i z a t i o n o f s c h o o l d i s t r i c t s , c r e a t e d b y A c t No. 289 o f t h e P u b l i c A c t s o f 1 9 6 4 , b e i n g s e c t i o n s 3 8 8 . 6 8 1 t o 3 8 8 . 6 9 3 o f t h e C o m p i l e d Laws o f 1 9 4 8 s h a l l d e t e r m i n e t h e e x i s t e n c e o f a n e m e r g e n c y w a r r a n t i n g i m m e d i a t e r e organization w i t h i n a n y p r i m a r y s c h o o l d i s t r i c t o r s c h o o l d i s t r i c t o f t h e f o u r t h c l a s s n o t reorganized u n d e r t h e p r o v i s i o n s o f A c t N o . 2 8 9 o f t h e P u b l i c A c t s o f 1 9 6 4 . HISTORY: New 1967, p. 352, Act 239, Imd. EH. Jul. 12. CITED IN OTHER SECTION'S: Sections 388.711 to 388.720a are cited in § 388.628a. 388.7 1 2 Emergency school district; reorgan ization ; app licab ility ; determ i nation of em ergency. Sec. 2 . T h i s a c t a p p l i e s o n l y t o s c h o o l d i s t r i c t s l y i n g w h o l l y i n , o r t h e m a j o r p a r t o f the te rrito ry o f w h i c h l i e s w h o l l y i n , a c o u n t y h a v i n g a p o p u l a t i o n o f m o r e t h a n 1 , 0 0 0 , - 1090, T h e b o a r d o f e d u c a t i o n o r 5 % o f t h e s c h o o l e l e c t o r s , b u t n o t l e s s t h a n 5 e l e c t o r s i n : a primary s c h o o l d i s t r i c t o r l e s s t h a n 2 5 e l e c t o r s i n a s c h o o l d i s t r i c t o f t h e f o u r t h c l a s s , of any p r i m a r y s c h o o l d i s t r i c t o r s c h o o l d i s t r i c t o f t h e f o u r t h c l a s s n o t r e o r g a n i z e d u n f a the p r o v i s i o n s o f A c t N o . 2 8 9 o f t h e P u b l i c A c t s o f 1 9 6 4 , m a y p e t i t i o n t h e s t a t e board o f e d u c a t i o n t o d e t e r m i n e i f a n e m e r g e n c y w a r r a n t i n g i m m e d i a t e r e o r g a n i z a tion exists w i t h i n t h e d i s t r i c t . HISTORY: New 1967, p. 352, Act 239, lmd. Elf. Jul. 12;—Am. 1968, p. 192, Act 130, Imd. EH. Jun. 11. ,388.713 Determination of em ergency; hearing . Sec. 3 . U p o n r e c e i p t o f t h e p e t i t i o n , t h e s t a t e c o m m i t t e e s h a l l c o n d u c t , o r c a u s e t o be c o n d u c te d , a n i m p a r t i a l s t u d y t o d e t e r m i n e i f a n e m e r g e n c y e x i s t s . W i t h i n 2 0 d a y s following p u b l i c a t i o n o f t h e r e s u l t s o f t h e s t u d y , a m e m b e r o f t h e s t a t e c o m m i t t e e , o r Ike se cre ta ry d e s i g n a t e d b y t h e c o m m i t t e e , s h a l l h o l d a h e a r i n g i n t h e d i s t r i c t . N o t i c e of the tim e a n d p l a c e o f t h e h e a r i n g s h a l l b e g i v e n t h e v o t e r s o f t h e d i s t r i c t a n d t h e s u perintendent o f t h e i n t e r m e d i a t e s c h o o l d i s t r i c t t o w h i c h t h e d i s t r i c t is c o n s t i t u e n t . | ® STORY: New 1967, p. 352, Act 239, Imd. EH. Jul. 12. 388.714 Reorganization committee; findings, contents. See. 4 . W i t h i n 2 0 d a y s f o l l o w i n g r e c e i p t o f a t r a n s c r i p t o f t h e h e a r i n g , t h e s t a t e committee s h a ll m a k e a f i n d i n g r e l a t i v e t o t h e e x i s t e n c e o f a c o n d i t i o n o r c o n d i t i o n s warranting i m m e d i a t e r e o r g a n i z a t i o n o f t h e d i s t r i c t . T h e f i n d i n g s h a l l i n c l u d e c o n s i d eration o f t h e a d e q u a c y o f t h e d i s t r i c t t o p r o v i d e t h e f o l l o w i n g : (a) A n e d u c a t i o n a l p r o g r a m m e e t i n g s t a n d a r d s e s t a b l i s h e d b y t h e s t a t e d e p a r t m e n t ,° e d uc atio n o r b y a c c r e d i t i n g a g e n c i e s . (b) A p h y s i c a l p l a n t w h i c h c a n c o n t a i n a n a c c e p t a b l e s c h o o l p r o g r a m . (c) T r a n s p o r t a t i o n f o r s t u d e n t s . (d) N e c e s s a i y t a x b a s e . (e) P u p il s e r v i c e s , a d m i n i s t r a t i v e a n d t e a c h i n g s t a f f , a n d a u x i l i a r y s e r v i c e s i n c o m p l i - W n i ^e s p r e s c r i b e d b v t h e d e p a r t m e n t o f e d u c a t i o n . °W : New 1967, p. 353, Act 239, lmd. EH. Jul. 12. 66aa 388.715 Need for im m ediate reorgan ization ; report and recommend* tions. S e c . 5 . U p o n a f i n d i n g b y t h e s t a t e c o m m i t t e e t h a t c o n d i t i o n s i n a s c h o o l districi w a r r a n t i m m e d i a t e r e o r g a n i z a t i o n , t h e s t a t e c o m m i t t e e s h a l l t r a n s m i t i t s rep ort r e c o m m e n d a t i o n s t o t h e s t a t e b o a r d o f e d u c a t i o n . HISTORY: Now 1967. p. 353, Act 239. Imd. Eff. Jul. 12. 3 8 8 .71 6 State com m ittee report and recom m endations; publication; filing of objections and recom m endations; determ ination of state board. S e c . 6 . T h e s t a t e b o a r d o f e d u c a t i o n s h a l l p u b l i s h t h e r e p o r t a n d re c o m m e n da tio n o f t h e s t a t e c o m m i t t e e a n d s h a l l i n v i t e o b j e c t i o n s o r c o m m e n t s t o b e file d with i; w i t h i n 2 0 d a y s f o l l o w i n g p u b l i c a t i o n o f t h e r e p o r t . T h e s t a t e b o a r d t h e n s h a ll consider t h e r e p o r t o f t h e s t a t e c o m m i t t e e , t o g e t h e r w i t h t h e c o m m e n t s a n d o b je c tio n s filed, a n d m a k e a d e t e r m i n a t i o n a s t o e n d o r s e m e n t o f t h e f i n d i n g o f t h e s t a t e c o m m itte e . HISTORY: New 1967, p. 353, Act 239, Imd. Eff. Jul. 12. 38 8 .7 1 7 Attachm ent of territory by an n exatio n ; effective date; conclusiveness. S e c . 7 . T h e s t a t e b o a r d o f e d u c a t i o n , u p o n t h e f i n d i n g t h a t a n e m e r g e n c y warrant' i m m e d i a t e r e o r g a n i z a t i o n o f a s c h o o l d i s t r i c t , s h a l l a t t a c h t h e d i s t r i c t b y an n e xa tio n* d i v i s i o n t o s u c h o t h e r d i s t r i c t o r d i s t r i c t s a s w i l l p r o v i d e t h e m o s t e q u i t a b l e edie t i o n a l o p p o r t u n i t y f o r a l l o f t h e s t u d e n t s o f t h e r e o r g a n i z e d d i s t r i c t a n d shall deter m i n e t h e e f f e c t i v e d a t e o f a t t a c h m e n t . A c t i o n o f t h e s t a t e b o a r d o f e d u c a t i o n shall* f i n a l . F o r t h e 4 f i s c a l y e a r s i m m e d i a t e l y s u b s e q u e n t t o t h e a n n e x a t i o n , t h e receiving d i s t r i c t m a y e l e c t t o c o m p u t e a n d r e c e i v e s t a t e a i d f o r t h a t p o r t i o n o f t h e district an n e x c d b a s e d u p o n t h e p e r p u p i l s t a t e e q u a l i z e d v a l u a t i o n o f t h e a n n e x e d p o r tio n . HISTORY: New 1967, p. 153, Act 239, Imd. Eff. Jul. 12 — Am. 196,5, p. 193, Act 130, Imd. Elf. Jun. 11. 388.71 8 Reorganized school district; bonded indebtedness, levy of foxes, S e c . 8 . I f a d i s t r i c t a t t a c h e d u n d e r t h e p r o v i s i o n s o f t h i s a c t a t t h e t i m e o f reorgaE i z a t i o n . h a s a b o n d e d i n d e b t e d n e s s i n c u r r e d a f t e r D e c e m b e r 8 , 1 9 3 2 , i t s id e n tity sb , n o t b e l o s t a n d i t s t e r r i t o r y s h a l l r e m a i n a s a n a s s e s s i n g u n i t f o r p u r p o s e s of sin b o n d e d i n d e b t e d n e s s u n t i l t h e i n d e b t e d n e s s h a s b e e n r e t i r e d o r t h e o u ts ta n d in g b o n ff r e f u n d e d b y t h e r e o r g a n i z e d d i s t r i c t . T h e b o a r d o f t h e r e o r g a n i z e d d i s t r i c t , or t . b o a r d o f t h e d i s t r i c t w h i c h h a s s u c c e e d e d t o t h e l a r g e s t s h a r e o f t h e s t a t e equalize,. v a l u a t i o n o f t h e a t t a c h e d d i s t r i c t , s h a l l c o n s t i t u t e t h e b o a r d o i t r u s t e e s f o r th e origin* d i s t r i c t h a v i n g b o n d e d i n d e b t e d n e s s a n d t h e o f f i c e r s o f t h e r e o r g a n i z e d o r succcsso d i s t r i c t s h a l l b e t h e o f f i c e r s f o r t h e o r i g i n a l d i s t r i c t . T h e b o a r d o f t h e reorganize * s u c c e s s o r d i s t r i c t s h a l l c e r t i f y a n d o r d e i t h e l e v y ' o f t a x e s f o r t h e b o n d e d in d e b t ^ i n t h e n a m e o f t h e o r i g i n a l d i s t r i c t , s h a l l n o t c o m m i n g l e t h e d e b t r e t i r e m e n t 1111 t h e o r i g i n a l d i s t r i c t w i t h f u n d s o f t h e r e o r g a n i z e d o r s u c c e s s o r d i s t r i c t a n d shal t h i n g s r e l a t i v e t o s u c h b o n d e d i n d e b t e d n e s s r e q u i r e d b y l a w a n d b v t h e t e r m s ' 111 w h i c h t h e i s s u e a n d s a l e o f t h e b o n d s w e r e o r i g i n a l l y a u t h o r i z e d . A l l o t h e r tax o * f o r p u i p o s e s o f t h e r e o r g a n i z e d d i s t r i c t s h a l l b e s p r e a d o v e r t h e e n t i r e a r e a o t t ' e 1 g a n i z e d d i s t r i c t . HISTORY: New 1967, p. 353. Act 239, Imd. Eff. Jul. 12. 67aa 388.71 £ Reorganized school district; assum ption of bonded indebtedness of original school district; effect; certification, levy of ta x e s ; election. Sec. 9 . A n y t i m e a f t e r 3 y e a r s f o l l o w i n g r e o r g a n i z a t i o n , t h e r e o r g a n i z e d d i s t r i c t , o r that d i s t r i c t w h i c h h a s s u c c e e d e d t o t h e l a r g e s t s h a r e o f t h e a t t a c h e d d i s t r i c t ’ s s t a t e e q u a lize d v a l u a t i o n , m a y a s s u m e t h e o b l i g a t i o n o f t h e b o n d e d i n d e b t e d n e s s i n c u r r e d after D e c e m b e r 8 , 1 9 3 2 , o f t h e o r i g i n a l d i s t r i c t w h i c h h a s b e c o m e a p a r t o f t h e r e o r g a n iza tio n a n d p a y t h e s a m e f r o m t h e p r o c e e d s o f a d e b t r e t i r e m e n t t a x l e v y s p r e a d u n ifo rm ly o v e r t h e t e r r i t o r y o f t h e r e o r g a n i z e d o r s u c c e s s o r d i s t r i c t w h e n e v e r t h e e l e c tors o f t h e r e o r g a n i z e d o r s u c c e s s o r d i s t r i c t s h a l l h a v e a p p r o v e d a n i n c r e a s e i n t h e l i m itation o n t a x e s f o r t h a t p u r p o s e a n d t h e s c h o o l t a x e l e c t o r s o f t h e d i s t r i c t h a v e a p proved t h e a s s u m p t i o n o f s u c h b o n d e d i n d e b t e d n e s s . A s s u m p t i o n o f t h e b o n d e d in d e b te d n e s s o f a n o r i g i n a l s c h o o l d i s t r i c t s h a l l n o t r e l e a s e t h e t e r r i t o r y o f t h e o r i g i n a l district f r o m t h e f i n a l r e s p o n s i b i l i t y o f p a y i n g t h e o b l i g a t i o n o r r e s c i n d t h e i n c r e a s e i n the l i m i t a t i o n o n t a x e s p l e d g e d t o t h e b o n d i s s u e o r a v a i l a b l e t o i t i n t h e o r i g i n a l d i s trict, n o r b e c o n s t r u e d a s s o d o i n g . W h e n t h e b o n d e d i n d e b t e d n e s s o f a n o r i g i n a l d i s trict h as b e e n s o a s s u m e d , t h e b o a r d o f t h e r e o r g a n i z e d o r s u c c e s s o r d i s t r i c t s h a l l c e r tify a n d o r d e r t h e l e v y o f t a x e s f o r t h e b o n d e d i n d e b t e d n e s s e q u i v a l e n t i n t e r m s o f m oney t o t h o s e r e q u i r e d b y t h e t e r m s u n d e r w h i c h t h e i n d e b t e d n e s s w a s o r i g i n a l l y i n curred a n d c a r r y o u t a l l p r o v i s i o n s o f t h e o r i g i n a l b o n d c o n t r a c t . T h e e l e c t i o n t o a s sume t h e b o n d e d i n d e b t e d n e s s o f a n a t t a c h e d d i s t r i c t m a y b e h e l d a t a n y t i m e a f t e r 3 years f o l l o w i n g t h e e f f e c t i v e d a t e o f r e o r g a n i z a t i o n w h e n a p r o p o s a l is p l a c e d b e f o r e the s c h o o l t a x e l e c t o r s t o i n c r e a s e t h e b o n d e d i n d e b t e d n e s s o f t h e c o m b i n e d d i s t r i c t . HISTORY: New 1967, p. 3 « , Act 239, Imd. EH. Jul. 12. 388,720 Petitions for em ergency reorgan ization ; interm ediate district su perintendent to furnish; form ; w ho m ay sign; circulation signatures. S ec. 1 0 . T h e i n t e r m e d i a t e d i s t r i c t s u p e r i n t e n d e n t u p o n r e q u e s t s h a l l f u r n i s h a n y sdiool d i s t r i c t w i t h p e t i t i o n s . T h e p e t i t i o n s s h a l l b e p r i n t e d o r d u p l i c a t e d a n d t h e f i r s t page s h a ll b e i n t h e f o l l o w i n g f o r m : P e t i t io n n o ...................................................................... c o n s i s t i n g o f .................................................................. p a g e s . (S ig n e d ) ........................................................................................................................................................................ S u p e r i n t e n d e n t o f i n t e r m e d i a t e d i s t r i c t o f ................................................................................... T o t h e s t a t e c o m m i t t e e o n r e o r g a n i z a t i o n o f s c h o o l d i s t r i c t s , L a n s i n g , M i c h i g a n . W e , t h e u n d e r s i g n e d , q u a l i f i e d ( h e r e i n s e r t “ r e g i s t e r e d ” i n t h e c a s e o f a r e g i s t r a t i o n district) e l e c t o r s o f .................................................................................................................................................................................................................................................... . ( n a m e o f s c h o o l d i s t r i c t ) declare t h a t i n t h e f o l l o w i n g s c h o o l d i s t r i c t t h e r e d o e s e x i s t a n e m e r g e n c y c a l l i n g f o r im m e d ia te r e o r g a n i z a t i o n , a n d w e d o c a l l u p o n t h e s t a t e b o a r d o f e d u c a t i o n t o r e o rg a n ize t h e d i s t r i c t : N a m e o f s c h o o l d i s t r i c t t o b e r e o r g a n i z e d t o b e l i s t e d h e r e ....................................................................................... S ig n a t u r e s o f p e t i t i o n e r s N a m e A d d r e s s D a t e o f s i g n i n g E a c h a d d i t i o n a l p a g e o f a n y s u c h p e t i t i o n s h a l l h a v e a t o r n e a r t h e t o p o f t h e p a g e ihe f o l l o w i n g : Official petition P a g e n o .\ To . S i g n a t u r e o f i n t e r m e d i a t e d i s t r i c t s u p e r i n t e n d e n t E a c h p a g e s h a l l h a v e p r i n t e d o r d u p l i c a t e d t h e f o l l o w i n g s t a t e m e n t b e lo w tie s p a c e f o r s i g n a t u r e f o r p e t i t i o n e r s : T h e u n d e r s i g n e d c e r t i f i e s t h a t h e i s a q u a l i f i e d ( h e r e i n s e r t “ r e g i s t e r e d ” i n the case o f a r e g i s t r a t i o n d i s t r i c t ) e l e c t o r o f ............................................................................................................................................................................. ( n a m e o f s c h o o l d i s t r i c t ) a n d t h a t e a c h s i g n a t u r e a p p e a r i n g o n t h i s p a g e is t h e g e n u i n e s i g n a t u r e o f t h e person | s i g n i n g t h e s a m e a n d t h a t t o h i s b e s t k n o w l e d g e a n d b e l i e f e a c h s u c h p e r s o n was al t h e t i m e o f s i g n i n g a q u a l i f i e d ( h e r e i n s e r t “ r e g i s t e r e d ” i n t h e c a s e o f a registration d i s t r i c t ) e l e c t o r o f t h e s c h o o l d i s t r i c t . D a t e d t h i s ........................................................ d a y o f ............................................................................................................... 1 9 ......................... E a c h p e t i t i o n s h a l l b e s i g n e d b y t h e i n t e r m e d i a t e d i s t r i c t s u p e r i n t e n d e n t as indi- i c a t e d i n t h e f o r e g o i n g f o r m b e f o r e b e i n g i s s u e d t o a n y p e r s o n f o r c i r c u l a t i o n . O n l y q u a l i f i e d s c h o o l e l e c t o r s o f t h e d i s t r i c t s i n w h i c h s i g n a t u r e s t o t h e p e titio n s are b e i n g s o u g h t s h a l l c i r c u l a t e s u c h p e t i t i o n s a n d t h e s t a t e m e n t a p p e a r i n g b e l o w the sig- r . a t u r e s o f p e t i t i o n e r s s h a l l b e d a t e d o r s i g n e d o n e a c h p a g e b e f o r e r e t u r n i n g to the s t a t e c o m m i t t e e . HISTORY: New 1967, p. 354, Act 239, Imd. Eff. Jul. 12. 3 8 8 .7 2 0 a State comm ittee on reorganization of school districts; continue' 1 tion. S e e . 1 0 a . T h e s t a t e c o m m i t t e e o n r e o r g a n i z a t i o n o f s c h o o l d i s t r i c t s s h a l l co n tin u e in e x i s t e n c e f o r p u q o o s e s o f t h i s a c t , n o t w i t h s t a n d i n g a n y e x p i r a t i o n d a t e o t h e r w i s e pro v i d e d b v l a w . HISTORY: Add. 1968, p. 193, Act 130, Imd. Eff. Jun. 11. 388.721 Repealed . 1968, p. 193 , Act 130, Imd. Eff. Jun. 11. Section related to termination of school aid act July 1, 1968. 388.731 Repealed . 1 955 , p. 597, Act 269 , Eff. Jul. 1. Sittii n provided for payment of certain school bonds where a portion of district has l>een annexed to city school district with population- | 250,000 or o\ or. PUBLIC ACTS 1937—No. 306. P u b l i c o r p r i v a t e s c h o o l b u i l d i n g s ; c o n s t r u c t i o n r e g u l a t i o n s and require m e n t s . _ _ , « S e c t i o n 1 . X o s c h o o l b u i l d i n g , p u b l i c o r p r i v a t e , o r a d d i t i o n s t h e r e t o , s > h e r e a f t e r b e e r e c t e d i n t h e s t a t e o f M i c h i g a n e x c e p t i t b e i n c o n f o r m i t y t h e f o l l o w i n g p r o v i s i o n s o f t h i s a c t : , . 1 . T h i s a c t s h a l l a p p l y t o s c h o o l b u i l d i n g s h a v i n g m o r e , t h a n o n e s o If it s h a l l b e d e s i g n e d f o r c l a s s r o o m s i n t h e b a s e m e n t , t h e n t l i e ^ ba se ffl ^ s h a l l be c o n s i d e r e d a s o n e f l o o r . S c h o o l g y m n a s i u m s , s c h o o l cafeterias, s o a u d i t o r i u m s a n d s c h o o l p l a c e s o f a s s e m b l y s h a l l b e s p e c i f i c a l l y i n c l u d e d un t h e p r o v i s i o n s of t h i s act. 69aa 2 . A l l p l a n s a n d s p e c i f i c a t i o n s , f o r b u i l d i n g s u n d e r t h e s c o p e o f t h i s a c t , sh a ll b e p r e p a r e d b y , a n d t h e c o n s t r u c t i o n s u p e r v i s e d b y , a n a r c h i t e c t o r e n g in e e r w h o i s r e g i s t e r e d i n t h e s t a t e o f M i c h i g a n . 3 . A l l w a l l s , f l o o r s , p a r t i t i o n s a n d r o o f s s h a l l b e c o n s t r u c t e d o f f i r e - r e s i s t in g m a t e r i a l s s u c h a s s t o n e , b r i c k , t i l e , c o n c r e t e , g y p s u m , s t e e l o r s i m i l a r f i r e - r e s i s t i n g m a t e r i a l s . A l l s t e e l m e m b e r s s h a l l b e p r o t e c t e d b y a t l e a s t t h r e e - f o u r t h s o f a n i n c h o f f i r e - r e s i s t i n g m a t e r i a l . 4 . No w o o d l a t h o r w o o d f u r r i n g s h a l l b e u s e d . H o w e v e r , t h e s e r e g u l a tio n s s h a l l n o t b e c o n s t r u e d a s p r o h i b i t i n g t h e u s e o f w o o d f l o o r i n g o n m a s o n r y s u b - f l o o r s , o r t h e u s e o f w o o d s l e e p e r s , w o o d c a b i n e t s , o r w o o d t r i m . 5 . E v e r y r o o m e n c l o s i n g a h e a t i n g u n i t s h a l l b e e n c l o s e d b y w a l l s o f f i r e - r e s i s t i n g m a t e r i a l s a n d s h a l l b e e q u i p p e d w i t h a u t o m a t i c a l l y - c l o s i n g f i r e - d o o r s ; a n d s a i d h e a t i n g u n i t s h a l l n o t b e l o c a t e d d i r e c t l y b e n e a t h a c l a s s r o o m : P ro v id e d f u r t h e r , T h a t i n a n y s c h o o l w h e r e n a t u r a l g a s o r a n y o t h e r k in d o f g a s s h a l l b e u s e d f o r h e a t i n g p u r p o s e s s a i d g a s s h a l l b e c h e m i c a l l y t r e a t e d b e f o r e b e i n g u s e d i n s u c h a m a n n e r a s t o g i v e a v e r y d i s t i n g u i s h a b l e o d o r i f a n y l e a k s h o u l d d e v e l o p i n t h e b e a t i n g s y s t e m . 6 . I n g y m n a s i u m s , f i r e p r o o f i n g s m a y b e o m i t t e d f r o m t h e t r u s s e s a n d p u r l i n s i f t h e y a r e m o r e t h a n s i x t e e n f e e t o f f t h e m a i n f l o o r l e v e l ; a l s o , f r o m the s t e e l s u p p o r t s o f t h e r u n n i n g t r a c k . T h e r u n n i n g t r a c k s h a l l b e c o n s t r u c t e d o f w o o d n o t l e s s t h a n t w o i n c h e s t h i c k . I t s h a l l b e t h e d u t y o f t h e a r c h i t e c t o r e n g i n e e r t o p r o v i d e a d e q u a t e e x i t s . I n a l l e a s e s t h e r e s h a l l b e at l e a s t t w o s t a i r w a y s a n d t h e d i s t a n c e f r o m t h e d o o r o f a n y c l a s s o r a s se m b ly r o o m t o a s t a i r w a y o r e x i t s h a l l n o t e x c e e d o n e h u n d r e d f e e t . § 1 , as amended by 1949 PA 231 388.851 Public or private school buildings; construction requirements. [M.S.A. 15.1961] Sec. 1. No school building, public or private, or additions thereto, shall hereafter be erected, remodeled or reconstructed in the state of Michigan except it be in conformity Mth the following provisions: (a) All plans and specifications for buildings shall be prepared by, and the construction supervised by, an architect or engineer who is registered in the state of Michigan. Before e construction, reconstruction or remodeling of any school building or addition thereto is commenced, the written approval of the plans and specifications by the superintendent ol Public instruction or his authorized agent shall be obtained. In the approval of plans and specifications the superintendent of public instruction or his authorized agent shall con- er m addition to the considerations otherwise mentioned in this act the following factors: 0 ) The adequacy and location of the site. (3) The educational usefulness of the building. (3) The provisions for health and safety. set f 6 suPer'nt;en̂ ent ° f public instruction shall publish an informative bulletin which shall this °rt' sc^00' building planning procedures and interpret clearly the provisions of 70aa (b) All walls, floors, partitions and roofs shall be constructed of fire-resisting materials such as stone, brick, tile, concrete, gypsum, steel or similar fire-resisting materials. All steel members shall be protected by at least -K of an inch of fire-resisting material. (c) No wood lath or wood furring shall be used: Provided, however, That these regula tions shall not be construed as prohibiting the use of finished wood flooring, wood door and window frames, wood sash or wood furring and grounds, for the purpose of installing wood trim, panelling, acoustical units or similar facing materials on masonry walls, struc tural steel or concrete ceiling members. (d) Every room enclosing a heating unit shall be enclosed by walls or fire-resisting materials and shall be equipped with automatically closing fire doors; and said heating uml shall not be located directly beneath any portion of a school building or addition thereto which is constructed or reconstructed after the effective date of this act: Provided. That this regulation shall not be construed to require the removal of an existing heating plant from beneath an existing building when an addition to such building is constructed unless the state superintendent of public instruction or his authorized agent, acting jointly with the state fire marshal, shall so require in the interests of public safety: Provided further, That in any school where natural gas or any other kind of gas shall be used for heating purposes said gas shall be chemically treated before being used in such a manner as to give a very distinguishable odor if any leak should develop in the heating system. (e) In gymnasiums, fire-proofings may be omitted from the trusses and purlins if they are more than 16 feet off the main floor level. It shall be the duty of the architect or engineer to provide adequate exits from all parts of school buildings. In all cases there shall be at least 2 stairways and the distance from the door of any class or assembly room to a stairway or exit shall not exceed 100 feet. §1 , as amended by 1962 PA 175 388.851 'P ublic or private school buildings; construction requirements, waiver. [M .S.A . 15.1961] Sec. 1. No school building, public or private, or additions thereto, shall hereafter be erected, remodeled or reconstructed in the state of Michigan except it be in conformity with the following provisions: (a) All plans and specifications for buildings shall be prepared by, and the construc tion supervised by, an architect or engineer who is registered in the state of Michigan. Before the construction, reconstruction or remodeling of any school building or addition thereto is commenced, the written approval of the plans and specifications by the super intendent of public instruction or his authorized agent shall be obtained. The superintendent of public instruction or his authorized agent shall not issue such approval until he has secured in writing the approval of the state fire marshal relative to factors concerning urt safety and of the health department having jurisdiciton relative to factors affecting water supply, sanitation and food handling. The superintendent of public instruction shall publish an informative bulletin wine shall set forth good school building planning procedures and interpret clearly the provisions of this act. The bulletin shall be prepared in cooperation with the state fire marshal ana the state health commissioner and, insofar as requirements for approval of plans are con cerned, shall be consistent with recognized good practice as evidenced by standards adop by nationally recognized authorities in the fields of fire protection and health. 71aa (b) All walls, floors, partitions and roofs shall be constructed of fire-resisting mate rials such as stone, brick, tile, concrete, gypsum, steel or similar fire-resisting material. All steel members shall be protected by at least yi, of an inch of fire-resisting material. (c) No wood lath or wood furring shall be used: Provided, however, That these regulations shall not be construed as prohibiting the use of finished wood flooring, wood door and window frames, wood sash or wood furring and grounds, for the purpose of installing wood trim, panelling, acoustical units or similar facing materials on masonry walls, structural steel or concrete ceiling members. (d) Every room enclosing a heating unit shall be enclosed by walls or fire-resisting materials and shall be equipped with automatically closing fire doors; and said heating unit shall not be located directly beneath any portion of a school building or addition thereto which is constructed or reconstructed after the effective date of this act: Provided, That this regulation shall not be construed to require the removal of an existing heating plant from beneath an existing building when an addition to such building is constructed unless the state superintendent of public instruction or his authorized agent, acting jointly with the state fire marshal, shall so require in the interests of public safety: Provided further, That in any school where natural gas or any other kind of gas shall be used for heating purposes said gas shall be chemically treated before being used in such a manner as to give a very distinguishable odor if any leak should develop in the heating system. (e) In gymnasiums, fire-proofings may be omitted from the trusses and purlins if they are more than 16 feet off the main floor level. It shall be the duty of the architect or engineer to provide adequate exits from all parts of school buildings. In all cases there shall be at least 2 stairways and the distance from the door of any class or assembly room i to a stairway or exit shall not exceed 100 feet. (f) Provisions in subsections (b) through (e) may be waived in writing by the state fire marshal § 1, as la s t amended by 1968 PA 239 388.851 School buildings; construction requirements; waiver. Sec. 1 . N o s c h o o l b u i l d i n g , p u b l i c o r p r i v a t e , o r a d d i t i o n s t h e r e t o , s h a l l b e e r e c t e d , remodeled o r r e c o n s t r u c t e d i n t h e s t a t e e x c e p t i t b e i n c o n f o r m i t y w i t h t h e f o l l o w i n g provisions: (a) A H p l a n s a n d s p e c i f i c a t i o n s f o r b u i l d i n g s s h a l l b e p r e p a r e d b y , a n d t h e c o n s t r u c tion s u p e r v is e d b y , a n a r c h i t e c t o r e n g i n e e r w h o is r e g i s t e r e d i n t h e s t a t e o f M i c h i g a n . Before t h e c o n s t r u c t i o n , r e c o n s t r u c t i o n o r r e m o d e l i n g o f a n y s c h o o l b u i l d i n g o r a d d i tion th e r e to is c o m m e n c e d , t h e w r i t t e n a p p r o v a l o f t h e p l a n s a n d s p e c i f i c a t i o n s b y t h e s u p e rin te n d e n t o f p u b l i c i n s t r u c t i o n o r h i s a u t h o r i z e d a g e n t s h a l l b e o b t a i n e d . T h e s u - p e n n te n d e n t o f p u b l i c i n s t r u c t i o n o r h i s a u t h o r i z e d a g e n t s h a l l n o t i s s u e s u c h a p p r o v a l until he h a s s e c u r e d i n w r i t i n g t h e a p p r o v a l o f t h e s t a t e f i r e m a r s h a l , o r t h e a p p r o p r i ate m u n ic ip a l o f f i c i a l w h e n c e r t i f i c a t i o n a s d e s c r i b e d i n s e c t i o n 3 h a s b e e n m a d e , r e l a t e to f a c t o r s c o n c e r n i n g f i r e s a f e t y a n d o f t h e h e a l t h d e p a r t m e n t h a v i n g j u r i s d i c t i o n re ‘f i v e t o f a c t o r s a f f e c t i n g w a t e r s u p p l y , s a n i t a t i o n a n d f o o d h a n d l i n g . T h e s u p e r i n t e n d e n t o f p u b l i c i n s t r u c t i o n s h a l l p u b l i s h a n i n f o r m a t i v e b u l l e t i n w h i c h , a * 1 f o r t h g o o d s c h o o l b u i l d i n g p l a n n i n g p r o c e d u r e s a n d i n t e r p r e t c l e a r l y t h e p r o - ^sions o f t h i s a c t . T h e b u l l e t i n s h a l l b e p r e p a r e d i n c o o p e r a t i o n w i t h t h e s t a t e f i r e I s 'a l a n d t h e s t a t e h e a l t h c o m m i s s i o n e r a n d , i n s o f a r a s r e q u i r e m e n t s f o r a p p r o v a l o f a re c o n c e r n e d , s h a l l b e c o n s i s t e n t w i t h r e c o g n i z e d g o o d p r a c t i c e a s e v i d e n c e d l-y s ta n d a rd s a d o p t e d b y n a t i o n a l l y r e c o g n i z e d a u t h o r i t i e s i n t h e f i e l d s o f f i r e p r o t e c - tl0n a n d h e a l t h . 7 7 V w a l l s , f l o o r s , p a r t i t i o n s a n d r o o f s s h a l l b e c o n s t r u c t e d o f f i r e - r e s i s t i n g m a t e r i - s sueh as s t o n e , b r i c k , t i l e , c o n c r e t e , g y p s u m , s t e e l o r s i m i l a r f i r e - r e s i s t i n g m a t e r i a l . 72aa A l l s t e e l m e m b e r s s h a l l b e p r o t e c t e d b y a t l e a s t 3 / 4 o f a n i n c h o f f i r e - r e s i s t i n g mate r i a l . ( c ) N o w o o d l a t h o r w o o d f u r r i n g s h a l l b e u s e d . T h e s e r e g u l a t i o n s s h a l l n o t b e con s t r u e d a s p r o h i b i t i n g t h e u s e o f f i n i s h e d w o o d f l o o r i n g , w o o d d o o r a n d w i n d o w frames, w o o d s a s h o r w o o d f u r r i n g a n d g r o u n d s , f o r t h e p u r p o s e o f i n s t a l l i n g w o o d t r im , pa n e l l i n g , a c o u s t i c a l u n i t s o r s i m i l a r f a c i n g m a t e r i a l s o n m a s o n r y w a l l s , s t r u c t u r a l steel or c o n c r e t e c e i l i n g m e m b e r s . ( d ) E v e r y r o o m e n c l o s i n g a h e a t i n g u n i t s h a l l b e e n c l o s e d b y w a l l s o f fire-resisting m a t e r i a l s a n d s h a l l b e e q u i p p e d w i t h a u t o m a t i c a l l y c l o s i n g f i r e d o o r s ; a n d s a id heating u n i t s h a l l n o t b e l o c a t e d d i r e c t l y b e n e a t h a n y p o r t i o n o f a s c h o o l b u i l d i n g o r addition t h e r e t o w h i c h is c o n s t r u c t e d o r r e c o n s t r u c t e d a f t e r t h e e f f e c t i v e d a t e o f t h i s a c t. This r e g u l a t i o n s h a l l n o t b e c o n s t r u e d t o r e q u i r e t h e r e m o v a l o f a n e x i s t i n g h e a t i n g plant f r o m b e n e a t h a n e x i s t i n g b u i l d i n g w h e n a n a d d i t i o n t o s u c h b u i l d i n g is c o n s t r u c t e d un l e s s t h e s t a t e s u p e r i n t e n d e n t o f p u b l i c i n s t r u c t i o n o r h i s a u t h o r i z e d a g e n t , acting j o i n t l y w i t h t h e s t a t e f i r e m a r s h a l , s h a l l s o r e q u i r e i n t h e i n t e r e s t s o f t h e p u b l i c safety. I n a n y s c h o o l w h e r e n a t u r a l g a s o r a n y o t h e r k i n d o f g a s is u s e d f o r h e a t i n g purposes, t h e g a s s h a l l b e c h e m i c a l l y t r e a t e d b e f o r e b e i n g u s e d i n s u c h a m a n n e r a s t o give a v e r y d i s t i n g u i s h a b l e o d o r i f a n y l e a k s h o u l d d e v e l o p i n t h e h e a t i n g s y s t e m . ( e ) I n g y m n a s i u m s , f i r e - p r o o f i n g s m a y b e o m i t t e d f r o m t h e t r u s s e s a n d purlins if t h e y a r e m o r e t h a n 1 6 f e e t o f f t h e m a i n f l o o r l e v e l . T h e a r c h i t e c t o r e n g i n e e r shall pro v i d e a d e q u a t e e x i t s f r o m a l l p a r t s o f s c h o o l b u i l d i n g s . I n a l l c a s e s t h e r e s h a l l b e at least 2 s t a i r w a y s a n d t h e d i s t a n c e f r o m t h e d o o r o f a n y c l a s s o r a s s e m b l y r o o m t o a stairway o r e x i t s h a l l n o t e x c e e d 1 0 0 f e e t . ( f ) P r o v i s i o n s i n s u b d i v i s i o n s ( b ) t o ( e ) m a y b e w a i v e d i n w r i t i n g b y t h e state fire m a r s h a l . HISTORY: Am. 1941, p. 192, Art 148, Eff. Jan. 10, 1942;—C l, 1948. 388.551;—Am. 1949, p. 280, Act 231, Imil. Eff. Slav 3i;-Am. IK, p .375. Act 175, Im EE ff. May 17— Am. 1908. p. 366, Act 239. Eff.:Sep. 1. CITED IN' OTHER SECTIONS: The above section is cited in ) 29.3c. PUBLIC ACTS 1957—No. 312. 388.644 Uses of state aid; violations, audits, reports, public inspection. [M.S.A. 15.1919(84)] Sec. 34. Except as provided in sections 3 to 6, inclusive, each school district shall apply the moneys received by it under the terms of this act on salaries of teachers, anil other employees, on tuition, on transportation, lighting, heating and ventilation and 'water service and on the purchase of textbooks and other supplies: Provided, That an amount equal to not more than 5% of the total amount received by any school district under sec tions 8 et seq. of this act may be expended by the board of education of said district for capital costs or debt service for debts contracted after December 8, 1932; and no part» said money shall be applied or taken for any purpose whatsoever except as above provide • The superintendent of public instruction shall determine the reasonableness of such expendi tures and may withhold from any school district which violates the provisions of this sec tion. the apportionment otherwise due such school district under this act for the 73aa year following the discovery' by said superintendent of public instruction of such' violation or violations by said school district. For the purpose of determining the reasonableness of such expenditures and whether any violation of the provisions of this act has occurred, the superintendent of public instruction shall require that school districts have audits of their financial and child accounting records at least once every 3 years at the expense of said districts by certified public accountants or by county school superintendents, as may be required by the superintendent of public instruction, or in the case of school districts of the first class by a certified public accountant, the county school superintendent or the auditor general of the city. Such audits shall be for such period or periods as the superin tendent of public instruction shall specify, and shall be subject to such regulations as the superintendent, in consultation with the auditor general of the state may prescribe. Copies of the reports of such audits shall be filed as required by the superintendent of public instruction and shall be available at all reasonable times for public inspection. 1957 PA 312 was repealed by 1972 PA 258 , § 179. § 18 of 1972 PA 258 i s the present equ iv alen t of 1957 PA 312, § 34. 3 8 8 .1 1 1 8 U s e s o f s t a t e a i d ; v i o l a t i o n s ; a u d i t s ; i n s p e c t i o n . [ M . S . A . 1 5 . 1 9 1 9 ( 5 1 8 ) ] S e c . 1 8 . ( 1 ) E x c e p t a s p r o v i d e d i n c h a p t e r s 3 , 4 a n d 6 , e a c h d i s t r i c t s h a l l a p p ly t h e m o n e y s r e c e i v e d b y i t u n d e r t h i s a c t o n s a l a r i e s o f t e a c h e r s a n d o t h e r e m p lo y e e s , t u i t i o n , t r a n s p o r t a t i o n , l i g h t i n g , h e a t i n g a n d v e n t i l a t i o n a n d w a t e r se rvice a n d o n t h e p u r c h a s e o f t e x t b o o k s a n d o t h e r s u p p l i e s . A n a m o u n t e q u a l to n o t m o r e t h a n 5 % o f t h e t o t a l a m o u n t r e c e i v e d b y a n y d i s t r i c t u n d e r c h a p t e r 2 m a y b e e x p e n d e d b y t h e b o a r d f o r c a p i t a l c o s t s o r d e b t s e r v i c e f o r d e b t s c o n tra c te d a f t e r D e c e m b e r 8 , 1 9 3 2 . N o p a r t o f t h e m o n e y s h a l l b e a p p l i e d o r t a k e n for a n y p u r p o s e w h a t s o e v e r e x c e p t a s p r o v i d e d i n t h i s s e c t i o n . T h e d e p a r t m e n t shall d e t e r m i n e t h e r e a s o n a b l e n e s s o f e x p e n d i t u r e s a n d m a y w i t h h o l d f r o m a n y d is tric t t h e a p p o r t i o n m e n t o t h e r w i s e d u e f o r t h e f i s c a l y e a r f o l l o w i n g t h e d is c o v e r y b y t h e d e p a r t m e n t o f a v i o l a t i o n b y t h e d i s t r i c t . (2) F o r t h e p u r p o s e o f d e t e r m i n i n g t h e r e a s o n a b l e n e s s o f e x p e n d i t u r e s a n d w h e th e r a n y v i o l a t i o n o f t h i s a c t h a s o c c u r r e d , t h e d e p a r t m e n t s h a l l r e q u i r e t h a t istricts h a v e a u d i t s o f t h e i r f i n a n c i a l a n d c h i l d a c c o u n t i n g r e c o r d s a t l e a s t a n n u a lly a t t h e e x p e n s e o f t h e d i s t r i c t s b y c e r t i f i e d p u b l i c a c c o u n t a n t s o r b y m t e r m e d ia t e d i s t r i c t s u p e r i n t e n d e n t s , a s m a y b e r e q u i r e d b y t h e d e p a r t m e n t , or ' n ^ le c a s e o f d i s t r i c t s o f t h e f i r s t c l a s s b y a c e r t i f i e d p u b l i c a c c o u n t a n t , t i r e i n t e r m e d i a t e s u p e r i n t e n d e n t o r t h e a u d i t o r g e n e r a l o f t h e c i t y . T h e a u d i t s s h a l l e s u b je c t t o s u c h r u l e s a s t h e s t a t e b o a r d , i n c o n s u l t a t i o n w i t h t h e s t a t e a u d i t o r s en er a l , m a y p r e s c r i b e . C o p i e s o f t h e r e p o r t s o f t h e a u d i t s s h a l l b e f i l e d a s iW jt u r e d b y t h e s t a t e b o a r d a n d s h a l l b e a v a i l a b l e a t a l l r e a s o n a b l e t i m e s f o r P u b lic i n s p e c t i o n . 74aa P U B L I C A C T S 1 9 7 2 — N o . 2 5 8 3 8 8 . 1 1 2 1 B a s i c a l l o t m e n t s ; r e o r g a n i z a t i o n . [ M . S . A . 1 5 . 1 9 1 9 ( 5 2 1 ) ] S e c . 2 1 . ( 1 ) E x c e p t a s o t h e r w i s e p r o v i d e d i n t h i s a c t , f r o m t h e amount a p p r o p r i a t e d i n s e c t i o n 1 1 t h e r e i s a l l o c a t e d t o - e v e r y d i s t r i c t a s u m d e t e r m U a s p r o v i d e d i n s u b s e c t i o n ( 2 ) p l u s t h e a m o u n t s a l l o c a t e d f o r t r a n s p o r t a t i o n ii c h a p t e r 7 a n d t u i t i o n i n c h a p t e r 1 1 . ( 2 ) T h e s u m a l l o c a t e d t o e a c h s c h o o l d i s t r i c t s h a l l b e c o m p u t e d fro m tie f o l l o w i n g t a b l e : S t a t e e q u a l i z e d v a l u a t i o n b e h i n d e a c h c h i l d G r o s s A l l o w a n c e D e d u c t i b l e M i l l a g e ( a ) $ 1 7 , 7 5 0 . 0 0 o r m o r e $ 6 4 4 . 0 0 1 6 ( b ) L e s s t h a n $ 1 7 , 7 5 0 . 0 0 $ 7 1 5 . 0 0 2 0 ( 3 ) W h e n e v e r 2 o r m o r e d i s t r i c t s a r e r e o r g a n i z e d i n t o a s i n g l e district, e i t h e r t h r o u g h a p r o c e d u r e o f a n n e x a t i o n o r c o n s o l i d a t i o n , t h e a m o u n t o f state a i d t o b e r e c e i v e d b y t h e n e w d i s t r i c t d u r i n g t h e 2 y e a r s i m m e d i a t e l y subse q u e n t t o t h e a n n e x a t i o n o r c o n s o l i d a t i o n s h a l l n o t b e l e s s t h a n t h e to ta l sum o f s t a t e a i d w h i c h w a s e a r n e d b y a l l t h e d i s t r i c t s f o r m i n g t h e n e w district d u r i n g t h e l a s t f i s c a l y e a r i n w h i c h t h e d i s t r i c t s r e c e i v e d a i d a s s e p a r a t e district, e x c e p t t h a t n o m o r e t h a n $ 4 0 0 , 0 0 0 . 0 0 s h a l l b e a l l o c a t e d u n d e r t h i s subsection. § 2 1 ( 1 ) , as amended b y 1 9 7 3 P A 1 0 1 § 1 5 .1 9 1 9 ( 5 1 1 1 ) Sum s allocated to d istricts; levy of taxes.] yA'C. 21. (1) Except as otherwise provided in this act, from the amount appropriated in section 11 there is allocated to every district a sum determined as provided in [th is] subsection ♦ The sum allocated to each school district shall be fan amount per membership pupil to be] computed ❖ [by subtracting, from $38,000.00 in 1973-/4, $39,000.00 in 1974-75 and $40,000.00 in 1975-76, the district’s state equalized valuation behind each membership pupil and then multiplying the resulting difference by the tax levied for purposes included in the operation cost of the oistnct as defined in .section 112, up to and including 22 mills in 1973-74, 25 mills in 1974-75 and without limitation thereafter. A tax levied pursuant to subdivision (b) of subsection (4) of section 681 of the school code of 1955, as amended, being section o40.681 of the_Michigan Compiled Laws, for the retirement of an operating deficit shall be considered levied for operating pur poses in making computations under this section. 75aa P U B L I C A C T S 1 9 7 2 — N o . 2 5 8 3 8 8 .1 1 5 1 R e i m b u r s e m e n t p r o g r a m ; a l l o c a t i o n ; r a t e o f r e i m b u r s e m e n t . [ M . S . A . 1 5 . 1 9 1 9 ( 5 5 1 ) ] S e c . 5 1 . ( 1 ) T h e r e i s a u t h o r i z e d a $ 6 7 , 0 0 0 , 0 0 0 . 0 0 p r o g r a m f o r t h e p u r p o s e of r e i m b u r s i n g d i s t r i c t s f o r s p e c i a l e d u c a t i o n p r o g r a m s , s e r v i c e s a n d s p e c i a l e d u c a t io n p e r s o n n e l a s d e f i n e d i n t h e s c h o o l c o d e o f 1 9 5 5 . (2) F r o m t h e a m o u n t a p p r o p r i a t e d i n s e c t i o n 1 1 , t h e r e i s a l l o c a t e d t h e s u m of $ 5 0 ,0 0 0 ,0 0 0 .0 0 w h i c h a m o u n t s h a l l b e a u g m e n t e d w i t h $ 1 7 , 0 0 0 , 0 0 0 . 0 0 o f fe d e ra l f u n d s a v a i l a b l e u n d e r a n a g r e e m e n t w i t h t h e d e p a r t m e n t o f s o c i a l se rvice s. (3) R e i m b u r s e m e n t s h a l l b e a t 7 5 % o f t h e a c t u a l c o s t o f s a l a r i e s , n o t t o e xceed $ 8 , 1 0 0 . 0 0 f o r a n y i n d i v i d u a l s a l a r y , f o r s u c h p r o g r a m s a n d s e r v i c e s a s d e t e r m i n e d b y t h e d e p a r t m e n t . N o t l a t e r t h a n M a r c h 1 , 1 9 7 3 t h e d e p a r t m e n t shall p r e p a r e a w r i t t e n r e p o r t f o r t h e l e g i s l a t u r e i n d i c a r i n g t h e a m o u n t o f f e d e r a l m o n e y s e a r n e d u n d e r t i r e a g r e e m e n t w i t h t h e d e p a r t m e n t o f s o c i a l s e r v i c e s f r o m J u l y 1 , 1 9 7 2 t h r o u g h J u n e 3 0 , 1 9 7 3 . § 51 , as amended by 1973 PA 101 § 1 5 .1 9 1 9 ( 5 5 1 ) Special education program s, services and personnel; authorization o f fu nd s.] S E C . 5 1 . ( 1 ) T h e r e i s a u t h o r i z e d a ♦ p r o g r a m [ o f n o t t o e x c e e d $ 1 0 0 , 0 0 0 , 0 0 0 . 0 0 ] f o r t h e p u r p o s e o f r e i m b u r s i n g d i s t r i c t s f o r s p e c i a l e d u c a t i o n p r o g r a m s , s e r v i c e s a n d s p e c i a l e d u c a t i o n p e r s o n n e l a s d e f i n e d i n t h e s c h o o l c o d e o f 1 9 5 5 [ , i n c l u d i n g a l t e r n a t i v e e d u c a t i o n p r o g r a m s f o r p r e g n a n t p e r s o n s a p p r o v e d b y t h e d e p a r t m e n t i n a c c o r d a n c e w i t h A c t N o . 2 4 2 o f t h e P u b l i c A c t s o f 1 9 7 0 , b e i n g s e c t i o n s 3 8 8 . 3 9 1 t o 3 8 8 . 3 9 4 o f t h e M i c h i g a n C o m p i l e d L a w s , a n d P r o g r a m s f o r p u p i l s h a n d i c a p p e d b y l e a r n i n g d i s a b i l i t i e s a s d e f i n e d b y t h e d e p a r t m e n t . A n a m o u n t e q u a l t o t h e d i f f e r e n c e b e t w e e n t h e $ 1 7 , 0 0 0 , 0 0 0 . 0 0 o f f e d e r a l f u n d s a n t i c i p a t e d f o r t h e 1 9 7 2 - 7 3 s c h o o l y e a r a n d t h e a m o u n t o f f e d e r a l f u n d s a c t u a l l y r e c e i v e d , b u t n o t t o e x c e e d $ 1 0 , 4 0 0 , 0 0 0 . 0 0 , s h a l l b e d i s t r i b u t e d t o t h e d i s t r i c t s a s r e i m b u r s e m e n t f o r p r o g r a m s c o n d u c t e d , s e r v i c e s r e n d e r e d a n d p e r s o n n e l e m p l o y e d i n 1 9 7 2 - 7 3 ] . Allocations; reports; deficiencies in anticipated federal fund ing-] ( 2 ) F r o m t h e a m o u n t a p p r o p r i a t e d i n s e c t i o n 1 1 , t h e r e i s a l l o c a t e d t h e s u m o f [ $ 8 4 , 0 0 0 , 0 0 0 . 0 0 ] w h i c h a m o u n t s h a l l h e a u g m e n t e d w i t h [ n o t t o e x c e e d $ 1 6 , 0 0 0 , 0 0 0 . 0 0 ] o f f e d e r a l f u n d s a v a i l a b l e u n d e r a n a g r e e m e n t w i t h t h e d e p a r t m e n t o f s o c i a l s e r v i c e s . [ P r i o r t o D e c e m b e r 1 , 1 9 7 3 a n d A p r i l 1 , 1 9 7 4 t h e d e p a r t m e n t s h a l l e v a l u a t e t h e a v a i l a b i l i t y o f s u c h f e d e r a l f u n d s , 76aa s h a l l r e p o r t t o t h e d i s t r i c t s a n d t h e i n t e r m e d i a t e d i s t r i c t s t h e r e u p o n a n d s h a l l a d j u s t t h e a m o u n t o f s u b s e q u e n t s t a t e m e n t s p r e p a r e d p u r s u a n t t o s e c t i o n 1 7 o f t h i s a c t a c c o r d i n g l y . N o t h i n g i n t h i s s e c t i o n s h a l l b e c o n s t r u e d a s a n e x p r e s s e d o r i m p l i e d s t a t e m e n t o f i n t e n t , o n t h e p a r t o f t h e S t a t e o f M i c h i g a n , to a s s u m e r e s p o n s i b i l i t y f o r a n y d e f i c i e n c y i n a n t i c i p a t e d f e d e r a l f u n d i n g . ] R e i m b u r s e m e n t ; r e p o r t t o l e g i s l a t u r e . ] ( 3 ) R e i m b u r s e m e n t s h a l l b e a t 7 5 % o f t h e a c t u a l c o s t o f s a l a r i e s , n o t t o e x c e e d $ 8 , 1 0 0 . 0 0 f o r a n y i n d i v i d u a l s a l a r y , f o r s u c h p r o g r a m s a n d s e r v i c e s a s d e t e r m i n e d b y t h e d e p a r t m e n t ! ] , u n l e s s t h e a p p r o p r i a t i o n m a d e i n t h i s s e c t i o n e x c e e d s t h e a m o u n t n e c e s s a r y to f u n d t h i s s c a l e o f r e i m b u r s e m e n t , i n w h i c h c a s e t h e s c a l e s h a ll b e p r o r a t e d u p w a r d a c c o r d i n g l y ] . N o t l a t e r t h a n M a r c h 1 , [ 1 9 7 4 ] t h e d e p a r t m e n t s h a l l p r e p a r e a w r i t t e n r e p o r t f o r t h e l e g i s l a t u r e i n d i c a t i n g t h e a m o u n t o f f e d e r a l m o n e y s e a r n e d u n d e r t h e a g r e e m e n t w i t h t h e d e p a r t m e n t o f s o c i a l s e r v i c e s f r o m J u l y 1 , [ 1 9 7 3 ] t h r o u g h J u n e 3 0 , [ 1 9 7 4 , a n d s h a l l d e v e l o p a n d r e p o r t t o t h e l e g i s l a t u r e a s y s t e m f o r r e i m b u r s i n g s p e c i a l e d u c a t i o n p r o g r a m s a n d s e r v i c e s o n a n a d d e d c o s t b a s i s . T r a n s f e r r e d p e r s o n n e l ; r i g h t s , b e n e f i t s , t e n u r e . ] ( 4 ) S p e c i a l e d u c a t i o n p e r s o n n e l t r a n s f e r r e d f r o m 1 s c h o o l d i s t r i c t to a n o t h e r t o i m p l e m e n t t h e s c h o o l c o d e o f 1 9 5 5 , a s a m e n d e d , s h a ll b e e n t i t l e d t o a l l r i g h t s , b e n e f i t s , a n d t e n u r e t o w h i c h t h e p e r s o n w o u l d o t h e r w i s e b e e n t i t l e d h a d h e b e e n e m p l o y e d b y t h e r e c e i v i n g d i s t r i c t o r i g i n a l l y ] . § 15 o f 1947 PA 336, as added by 1965 PA 379 423.215 Collective bargain ing ; duties of em ployer and employees rePre sentative; subjects and lim itations. S e c . 1 5 . A p u b l i c e m p l o y e r s h a l l b a r g a i n c o l l e c t i v e l y w i t h t h e r e p r e s e n t a t i v e s o > e m p l o y e e s a s d e f i n e d i n s e c t i o n 1 1 a n d is a u t h o r i z e d t o m a k e a n d e n t e r i n t o col ec i' b a r g a i n i n g a g r e e m e n t s w i t h s u c h r e p r e s e n t a t i v e s . F o r t h e p u r p o s e s o f t h i s section, b a r g a i n c o l l e c t i v e l y is t h e p e r f o r m a n c e o f t h e m u t u a l o b l i g a t i o n o f t h e e m p l o y e r * t h e r e p r e s e n t a t i v e o f t h e e m p l o y e e s t o m e e t a t r e a s o n a b l e t i m e s a n d co n fe r in go f a i t h w i t h r e s p e c t t o w a g e s , h o u r s , a n d o t h e r t e r m s a n d c o n d i t i o n s o f e m p lo y in e n t h e n e g o t i a t i o n o f a n a g r e e m e n t , o r a n y q u e s t i o n a r i s i n g t h e r e u n d e r , a n d tir e exec“ .j o f a w r i t t e n c o n t r a c t , o r d i n a n c e o r r e s o l u t i o n i n c o r p o r a t i n g a n y a g r e e m e n t reac | r e q u e s t e d b y e i t h e r p a r t y , b u t s u c h o b l i g a t i o n d o e s n o t c o m p e l e i t h e r p a r t y t o agrt a p r o p o s a l o r r e q u i r e t h e m a k i n g o f a c o n c e s s i o n . HISTORY: Add. 19®, p. 74S, Acl 379. Imd. Elf. Jul. i i . 77aa § 46 of 1969 PA 306, as amended by 1971 PA 171 2 4 .2 4 6 P r o m u l g a t i o n ; r e c o r d s . [ M . S . A . 3 . 5 6 0 ( 1 4 6 ) ] S e c . 4 6 . ( 1 ) T o p r o m u l g a t e a r u l e a n a g e n c y s h a l l f i l e i n t h e o f f i c e o f t h e s e c r e t a r y o f s t a t e 3 c o p i e s o f t h e r u l e b e a r i n g t h e r e q u i r e d c e r t i f i c a te s o f a p p r o v a l a n d a d o p t i o n a n d t r u e c o p i e s o f t h e r u l e w i t h o u t t h e c e r t i f i c a t e s . A n a g e n c y s h a l l n o t f i l e a r u l e , e x c e p t a n e m e r g e n c y r u l e u n d e r s e c t i o n 4 8 , u n t i l a t l e a s t 1 0 d a y s a f t e r t h e d a t e o f t h e c e r t i f i c a t e o f a p p r o v a l b y t h e j o i n t c o m m i t t e e o n a d m i n i s t r a t i v e r u l e s o r u n t i l a t le a s t 1 0 d a y s a f t e r e x p i r a t i o n o f t h e a p p l i c a b l e p e r i o d o f t i m e p r e s c r i b e d i n s u b s e c t i o n ( 5 ) o f s e c t i o n 4 5 w h e n t h e l e g i s l a t u r e h a s n o t a d o p t e d a c o n c u r r e n t r e s o l u t i o n d i s a p p r o v i n g t h e r u l e d u r i n g t h a t p e r i o d . A n a g e n c y s h a ll t r a n s m i t a c o p y o f t h e r u l e b e a r i n g t h e r e q u i r e d c e r t i f i c a t e s o f a p p r o v a l a n d a d o p t i o n t o t h e o f f i c e o f t h e g o v e r n o r a t l e a s t 1 0 d a y s b e f o r e it f i l e s t h e r u l e . ( 2 ) T h e s e c r e t a r y o f s t a t e s h a l l i n d o r s e t h e d a t e a n d h o u r o f f i l i n g o f r u le s o n t h e 3 c o p i e s o f t h e f i l i n g b e a r i n g t h e c e r t i f i c a t e s a n d s h a l l m a i n t a i n a f i l e c o n t a i n i n g 1 c o p y f o r p u b l i c i n s p e c t i o n . (3 ) T h e s e c r e t a r y o f s t a t e , a s o f t e n a s h e d e e m s i t a d v i s a b l e , s h a l l c a u s e t o b e a r r a n g e d a n d b o u n d i n a s u b s t a n t i a l m a n n e r t h e r u l e s h e r e a f t e r f i l e d i n h i s o f f i c e w i t h t h e i r a t t a c h e d c e r t i f i c a t e s a n d p u b l i s h e d i n a s u p p l e m e n t t o t h e M i c h i g a n a d m i n i s t r a t i v e c o d e . H e s h a l l c e r t i f y u n d e r h is h a n d a n d s e a l o f t h e s t a t e o n t h e f r o n t i s p i e c e o f e a c h v o l u m e t h a t i t c o n t a i n s a l l o f t h e r u l e s f i l e d a n d p u b l i s h e d f o r a s p e c i f i e d p e r i o d . T h e r u l e s , w h e n s o b o u n d a n d c e r t i f i e d , s h a l l b e k e p t i n t h e o f f i c e o f t h e s e c r e t a r y o f s t a t e a n d n o f u r t h e r r e c o r d t h e r e o f i s r e q u i r e d t o b e k e p t . T h e b o u n d r u l e s a r e s u b j e c t t o p u b l i c i n s p e c t i o n . In The SUPREME COURT OF THE UNITED STATES October Term 1973 No. 73-435 ALLEN PARK PUBLIC SCHOOLS, et aL, -v- RONALD BRADLEY, et al„ Petitioners, Respondents. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT BRIEF OF PETITIONERS ALLEN PARK PUBLIC SCHOOLS, ET AL. BUTZEL, LONG, GUST, KLEIN & VAN ZILE CONDIT AND MC GARRY, P.C. Richard P. Condi t, Of Counsel Ha r t m a n , b e i e r , h o w l e t t Me CONNELL & GOOGASIAN Kenneth B. McConnell, . Of Counsel WILLIAM M. SAXTON JOHN B. WEAVER ROBERT M. VERCRUYSSE XHAFER ORHAN 1881 First National Building Detroit, Michigan 48226 Counsel for Petitioners Allen Park Public Schools, et al., Southfield Public Schools, and School District of the City of Royal Oak 1 INDEX T a b l e o f A u t h o r i t i e s ............................................................................................................................................................. j j j O p i n i o n s a n d O r d e r s B e l o w ................................................................................................................................... 1 J u r i s d i c t i o n .................................................................................................................................................................................................. 3 S t a t e m e n t o f Q u e s t i o n s P r e s e n t e d ......................................................................................................... 3 C o n s t i t u t i o n a l P r o v i s i o n s , S t a t u t e s a n d R u l e s I n v o l v e d ..................... 4 S t a t e m e n t o f t h e C a s e ........................................................................................................................................................ 8 T h e S t a t u s o f P e t i t i o n e r s S c h o o l s D i s t r i c t s i n T h i s L i t i g a t i o n 8 T h e B a s i s o f T h i s L i t i g a t i o n ........................................................................................................................ 9 T h e D e c i s i o n o f t h e C o u r t o f A p p e a l s .............................................................................. 1 9 S u m m a r y .................................................................................................................................................................................................. 2 1 S u m m a r y o f A r g u m e n t ................................................................................................................................................... 2 2 T h e N a t u r e o f t h e C o n s t i t u t i o n a l V i o l a t i o n s H e r e F o u n d R e q u i r e s A R e m e d y L i m i t e d t o t h e D e t r o i t S c h o o l S y s t e m 2 2 T h e N a t u r e o f t h e C o n s t i t u t i o n a l V i o l a t i o n s H e r e F o u n d N e i t h e r R e q u i r e s N o r P e r m i t s A “ M e t r o p o l i t a n ” R e m e d y D e s i g n e d t o E f f e c t A R a c i a l B a l a n c e B e t w e e n t h e D e t r o i t S c h o o l S y s t e m a n d O t h e r I n d e p e n d e n t S c h o o l S y s t e m s . . 2 3 P e t i t i o n e r s H a v e B e e n D e n i e d D u e P r o c e s s o f L a w .............................. 2 6 I . T h e F a i l u r e o f t h e D i s t r i c t C o u r t t o J o i n P e t i t i o n e r s S c h o o l D i s t r i c t s I s A D e n i a l o f D u e P r o c e s s o f L a w . . 2 6 I I . R e s t r i c t i n g P e t i t i o n e r s t o A H e a r i n g O n l y O n t h e S c o p e o f t h e “ M e t r o p o l i t a n ” R e m e d y I s A D e n i a l o f D u e P r o c e s s .................................................................................................................................................................. 2 7 Argument ....................................................................................... 29 I . B a s e d U p o n t h e N a t u r e o f t h e C o n s t i t u t i o n a l V i o l a t i o n s H e r e F o u n d , t h e R e m e d y M u s t B e L i m i t e d t o C o n v e r t i n g t h e D e t r o i t S c h o o l S y s t e m t o A U n i t a r y S y s t e m .................................................................................................................................................................................. 2 9 I I . T h e r e I s N o C o n s t i t u t i o n a l V i o l a t i o n O n W h i c h t o P r e d i c a t e A S o - C a l l e d M e t r o p o l i t a n R e m e d y ................................... 3 5 Page 11 Page A .Brown v. Board o f Education and Its Progeny, Re visited .................................................................. 35 B. There Is No Constitutional Violation On Which A “Metropolitan” Remedy Can Be Predicated ........ 44 III. Petitioners Have Been and Will Continue to Be Denied Due Process of Law ..................................... 52 A. Failure to Join School Districts Whose Interests Are to Be Affected Is A Denial Due Process ........ 53 B. Petitioners “Conditional” Intervention and the Proceedings Thereafter Constitute A Denial of Due Process of Law ................................................ 55 Conclusion .......................................................................... 58 Ill TABLE OF AUTHORITIES Alexander v. Holmes County Board o f Education, 396 U.S. 19(1969) ...................................................... 22, 33, 34 40 Armstrong v. Manzo, 380 U.S. 545 (1965) .............. 28, 56 Baltimore & O R. Co. v. Chicago River and Indiana R. Co., 170 F.2d 654 (CA 7, 1948), cert. den. 336 U.S. 944(1949) .................................................. 27,53 Boris v. Moore, 152 F. Supp.(E.D. Wis. 1957), aff’d 253 F.2d 523 (CA 7, 1958).................................. 27 Bradley v. Milliken, 338 F. Supp. 582 (E.D. Mich. 1971) ...................................................................... 2 Bradley v. Milliken, 433 F.2d 897 (CA 6, 1970) ___ 1, 9, 11 30, 31 Bradley v. Milliken, 438 F.2d 945 (CA 6, 1971) ___ 1, 25 Bradley v. Milliken, 468 F.2d 902 (CA 6, 1972), cert, den. 409 U.S. 844 (1972) 1,13 Bradley v. Milliken, 484 F.2d 215 (CA 6, 1973) ___ 1,13,21 28, 29, 30, 31, 32, 35 35,49, 50 55, 57, 58 Bradley v. School Board o f the City o f Richmond, 338 F. Supp.67 (E.D. Va. 1972) .......................... 17,27,53 Bradley v. School Board o f the City o f Richmond, 462 F.2d 1058 (CA 4, 1972), aff’d. by equally divided Court, 412 U.S. 92 (1973) ...................... 17,24,27 52, 53 Brown v. Board of Education o f Topeka, 347 U.S. 40 Page Cases 44,49, 50, 52 Brown v. Board of Education o f Topeka, 349 U.S. 294(1955) 40, 41,42 22,35,37 38 IV Brunson v. Board o f Trustees o f School District No. 1, Clarendon County, S.C., 429 F,2d 820 (CA 4, 1970) 51 Davis v. School District o f the City o f Pontiac, 443 F.2d 573 (CA 6, 1971), cert. den. 404 U.S. 913 (1971) .................................................................. 25 Deal v. Cincinnati Board o f Education, 369 F.2d 55 (CA 6, 1966), cert. den. 389 U.S. 847 (1969) ___ 51 Dred Scott v. Sanford, 60 U.S. (19 How) 393 (1856) 36, 51 Green v. County School Board o f New Kent Countv, 391 U.S. 430 (1968) ........................................ .. . 33,34,39 40 Griffin v. County School Board o f Prince Edward County, 377 U.S. 218 (1964) ................................. 31,38 Higgins v. Board o f Education o f the City o f Grand Rapids, ___F. Supp— (W.D. Mich. 1973), Case- No. 6386) ............................................................ 27,31,54 55 In Re Gault, 387 U.S. 1(1967) .......................... 57 In Re Oliver, 333 U.S. 257 (1948) .......................... 28, 56 Jenkins v. McKeithen 395 U.S. 41 1 (1969) .............. 56 Jones v. Grand Ledge Public Schools, 349 Mich. 1, 84 N.W. 2d 327 (1957) ............................................. 48,49 Keyes v. School District No. 1, Denver, Colo., 413 U.S. 189 (1973) 37 L. Ed. 2d 548 (1973)............ 28,31,32 43,44,58 Lee v. Macon County Board o f Education, 448 F.2d 746 (CA. 5, 1971) ............................................... 45,46 MacQueen v. City Commission o f Port Huron, 194 Mich. 328, 160 N.W. 627 (1916).......................... 49 The People ex rel Joseph Workman v. The Board of Education o f the City o f Detroit, 18 Mich. 399 (1869) ...................... 23,24,45 Page Cases V Page Plessy v. Ferguson, 163 U.S. 537 (1896) .................. 36, 50 Railroad Commission o f California v. Pacific Gas & Electric Co., 302 U.S. 388 (1938) ........................ 56 Raney v. Board of Education o f Gould School Dis trict, 391 U.S. 443 (1968).................................... 34 San Antonio Independent School District v. Rod riguez, 411 U .S. 1 (1973) .................................... 23,31,46 49 School District of the City o f Lansing v. State Board of Education, 367 Mich. 591, 116 N.W.2d 866 (1962) .................................................................. 49 Spencer v. Kugler, 326 F. Supp. 1235 (N.J. 1971), aff’d 404 U.S. 1027 (1972) .................................. 24,42,43 50, 52 Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971) ................................................ 22, 23, 25 26, 29, 32 33, 34, 37 Cases 40, 41, 42 46, 50, 51 52, 60 United States v. Board of Education, Independent School District No. 1, Tulsa, Oklahoma, 459 F.2d 720 (CA 10, 1972) .............................................. 25,60 United States v. Scotland Neck City Board of Educa tion, 407 U.S. 484 (1972) .................................... 23, 43 Waterman v. The Canal-Louisiana Bank and Trust Company, 215 U.S. 33 (1909) ............................ 27,53,54 Wright v. Council o f the City o f Emporia, 407 U.S. 451 {1912) .......................................................... 23,34,43 United States Constitution Fifth Amendment ................................................ 4, 29 Tenth Amendment .............................................. 4,5 United States Constitution Thirteenth Amendment........................................ 36 Fourteenth Amendment ...................................... 5,36,38 42,60 Fifteenth Amendment.......................................... 36 United States Statutes 62 Stat. 928 (1948), 28 U.S.C. 1254(1) .............. 3 62 Stat. 929 (1948), as amended 72 Stat. 1770 (1958), Pub. L. 85-919, 28 U.S.C. 1292 (b) ........ 19 Federal Rules of Civil Procedure Fed. R. Civ. P. 19 ................................................ 20,29 Fed. R. Civ. P. 54(b) ............................................ 19 Michigan Constitution of 1963 art VIII, §2 .......................................................... 5,26,45 46,53 art VIII, §3 .......................................................... 5,6 Michigan Statutes Act No. 34, Public Acts of Michigan 1867 (amend ed Act No. 319, Public Acts of Michigan 1927) 7,44,45 Act No. 319, Public Acts of Michigan 1927 (Michi gan Compiled Laws 340.1-386.12, amended Act No. 269, Public Acts of Michigan 1955) .......... 8, 45 Act No. 269, Public Acts of Michigan 1955 (Michi gan Compiled Laws 340.1 et seq.)...................... 45 Mich. Comp. Laws 340.26.................................. 31,47 Mich. Comp. Laws 340.77 26,31,47 53 Mich. Comp. Laws 340.113 .............................. Mich. Comp. Laws 340.165 .............................. Mich. Comp. Laws 340.192 .............................. 47 Mich. Comp. Laws 340.352 .......................... 6, 7, 8,47 vi Page Michigan Statutes Mich. Comp. Laws 340.355 ............................ 7, 45 Mich. Comp. Laws 340.569 ............................ 26,47,53 Mich. Comp. Laws 340.575 ............................ 27, 47, 53 Mich. Comp. Laws 340.582 ............................ 26, 47, 53 Mich. Comp. Laws 340.583 ............................ 27, 47, 53 Mich. Comp. Laws 340.589 ............................ 26, 48 Mich. Comp. Laws 340.591 .............................. 48 Mich. Comp. Laws 340.594 48 Mich. Comp. Laws 340.609 48 Mich. Comp. Laws 340.614 27,48,53 Mich. Comp. Laws 340.643a ............................ 48 Mich Comp. Laws 340.711 48 Mich. Comp. Laws 340.882 ............................ 27, 48, 53 Act No. 175, Public Acts of Michigan 1962 (Michi gan Compiled Laws 388.85 1-388.853, 388.855a) ........................................................ 31 Act No. 48, Public Acts of Michigan 1970 (Michi gan Compiled Laws 388.171a, 388.172a, 388.173a, 388.174-388.183)............................ 9,10 Section 12 Mich. Comp. Laws 388.182) .......... 7, 1 1, 13 30, 31 Miscellaneous Official Record, Michigan Constitutional Convention, Volume II ............................................................ 45 Equality o f Educational Opportunity, Fred erick Mosteller and Daniel P. Moynihan, Random House 1972; ........................................................ 59 The Evidence On Busing” , David J. Armor, The Public Interest, No. 28 (Summer 1972)................ 59 Do Schools Make A Difference” , Godfrey Hodgson, The Atlantic, March 1973 .................................... 59 vii Page Miscellaneous viii “Equality of Educational Opportunity” , Office of Education, U.S. Department of Health, Education and Welfare, U.S. Government Printing Office, 1966. OE-38001; Superintendent of Documents Catalog No. FS 5-238: 38001................................. 59 “Coleman On The Coleman Report” , Educational Researcher, American Educational Research Assoc iation, Vol. 1, No. 3 (March 1972) ...................... 59 Through the Looking Glass, Lewis Carroll................ 35, 36 1 In The SUPREM E C O U R T O F T H E U N ITE D STATES October Term 1973 N o . 7 3 -4 3 5 ALLEN P A R K PUBLIC SC H O O LS, et al„ Petitioners, -v- RONALD B R A D L E Y , et a l„ Respondents. ON W R IT O F C E R T IO R A R I T O T H E U N ITE D STATES C O U R T O F APPEALS F O R TH E SIX T H CIR CU IT B R IEF O F PETITIO N ER S A L L E N P A R K PUBLIC SC H O O L S, ET A L . O PINION S A N D O R D E R S BE LO W The opinions in the Court of Appeals for the Sixth Circuit filed June 12, 1973, are printed in the Appendix to the Petition For Writ Of Certiorari filed by Allen Park Public Schools, et al., in Case No. 73-435, at pages 110a through 240a (Pet. A. 110a-240a)t1J and are reported at 484 F.2d 215 (CA 6, 1973). The judgment of the United States Court of Appeals for the Sixth Circuit entered June 12, 1973, is unreported and appears in the Appendix to the Petition for Writ of Certiorari at pages 244a through 245a. (Pet. A. 244a-245a). Opinions of the Court of Appeals for the Sixth Circuit ren dered at prior stages of the case are reported at 433 F.2d 897 (CA 6, 1970), 438 F.2d 945 (CA 6, 1971) and 468 F.2d 902 (CA 6, 1972), cert, den. 409 U.S. 844 (1972). Citations denoted “ Pet. A____ ” refer to the single volume Appendix filed with the Petition For Writ Of Certiorari filed by Petitioners Allen Park Public Schools, et al., in Case No. 73-435. Citations denoted “ A____” refer to the volume and page o f the five volume single Appendix filed subsequent to the grant of the Petitions For Writ Of Certiorari in Nos. 73-434, 73-435 and 73-436. 2 The Ruling On Issue Of Segregation, dated September 27, 1971, issued by the District Court for the Eastern District of Michigan is printed in the Appendix to the Petition For Writ Of Certiorari at pages 17a through 39a (Pet. A. 17a-39a) and is re ported at 338 F. Supp. 582 (E.D. Mich. 1971). The Findings of Fact and Conclusions of Law On Detroit- Only Plans of Desegregation, dated March 28, 1972, issued by the District Court, is printed in the Appendix to the Petition For Writ Of Certiorari at pages 53a through 58a (Pet. A. 53a-58a). The Ruling On Propriety of Considering A Metropolitan Remedy to Accomplish Desegregation of the Public Schools of the City of Detroit, dated March 24, 1972, issued by the District Court, is printed in the Appendix to the Petition For Writ Of Cer tiorari at pages 48a through 52a (Pet. A. 48a-52a). The Ruling On Desegregation Area and Order For Develop ment of Plan of Desegregation, dated June 14, 1972, issued by the District Court, is printed at pages 97a-105a in the Appendix to the Petition For Writ Of Certiorari (Pet. A. 97a-105a). The District Court’s Findings of Fact and Conclusions of Law In Support of Ruling On Desegregation Area and Development of Plans, also dated June 14, 1972, is printed in the Appendix to the Petition For Writ Of Certiorari at pages 59a through 96a (Pet. A. 59a-96a). The Order for Acquisition of Transportation, dated July 11, 1972, entered by the District Court, is printed in the Appendix to the Petition For Writ Of Certiorari at pages 106a through 107a (Pet. A. 106a-107a). The Ruling and Order On Petitions for Intervention entered by the District Court on March 15, 1972, is set forth in the de cision of the Court of Appeals for the Sixth Circuit printed in the Appendix to the Petition For Writ Of Certiorari at pages 208a to 209a, footnote 6 (Pet. A. 208a-209a) and at pages 232a to 233a (Pet. A. 232a-233a), respectively, and in the joint Appendix at A. Ia204-207. 3 JU R ISD ICTIO N The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). The Judgment of the United States Court of Appeals for the Sixth Circuit was entered on June 12, 1973. This Petition For Writ Of Certiorari was timely filed on September 6, 1973. Cer tiorari was granted on November 19, 1973. ST A T E M E N T O F Q U E STIO N S PRESEN TED I ASSUMING, ARGUENDO, A DE JURE SEGREGATED PUBLIC SCHOOL SYSTEM IN OPERATION WITHIN THE DETROIT SCHOOL SYSTEM, CAN THE VESTIGES OF SUCH SEGREGATION BE ELIMINATED AND THE DE TROIT PUBLIC SCHOOL SYSTEM BE CONVERTED TO A UNITARY SYSTEM UNDER A DESEGREGATION PLAN LIMITED TO SAID SCHOOL DISTRICT? II II WHERE A DE JURE SEGREGATED PUBLIC SCHOOL SYSTEM IS FOUND IN OPERATION IN THE CITY OF DETROIT SCHOOL DISTRICT, DOES THE UNITED STATES CONSTITUTION REQUIRE OR PERMIT A UNITED STATES DISTRICT COURT TO ISSUE A DESEG REGATION ORDER EMBRACING UP TO EIGHTY-FIVE (85) OTHER GEOGRAPHICALLY AND POLITICALLY SEPARATE, IDENTIFIABLE AND UNRELATED SCHOOL DISTRICTS AND REQUIRING THE FORCED REASSIGN MENT AND CROSS-DISTRICT TRANSPORTATION OF HUNDREDS OF THOUSANDS OF CHILDREN, ABSENT (i) ANY CLAIM OR FINDING THAT SUCH OTHER SCHOOL DISTRICTS HAVE FAILED TO OPERATE UNI TARY SCHOOL SYSTEMS, AND (ii) ABSENT ANY CLAIM OR FINDING THAT THE BOUNDARY LINES OF ANY SCHOOL DISTRICTS WERE ESTABLISHED WITH THE PURPOSE OF CREATING OR FOSTERING RACIAL SEG REGATION IN THE PUBLIC SCHOOLS? 4 DOES THE FAILURE TO ACCORD PETITIONERS SCHOOL DISTRICTS, AGAINST WHOM RELIEF IS SOUGHT, A MEANINGFUL OPPORTUNITY TO PRESENT EVIDENCE AND BE HEARD ON ALL CONTROLLING IS SUES, INCLUDING THE ISSUE OF SEGREGATION, A “ DETROIT-ONLY” PLAN OF DESEGREGATION AND THE PROPRIETY OF A SO-CALLED METROPOLITAN REMEDY TO DESEGREGATE THE DETROIT PUBLIC SCHOOL SYSTEM, DENY PETITIONERS DUE PROCESS OF LAW? III C O N S T IT U T IO N A L P R O V ISIO N S, S T A T U T E S A N D R U L E S IN V O L V E D Constitutional Provisions United States Constitution, Amendment V: AMENDMENT V - CAPITAL CRIMES; DOUBLE JEOPAR DY; SELF-INCRIMINATION; DUE PROCESS; JUST COM PENSATION FOR PROPERTY “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be sub ject 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 compensa tion.” United States Constitution, Amendment X: AMENDMENT X - POWERS RESERVED TO THE STATES “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.” 5 United States Constitution, Amendment XIV, Section 1: “ Section 1. All persons bom or naturalized in the United States, and subject to the jurisdiction thereof, are citi zens 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 of life, liberty, or property, without due process of law; nor deny to any per son within its jurisdiction the equal protection of the laws.” Michigan Constitution of 1963, Art. 8, § 2: Free public elementary and secondary schools; discrimi nation. “ Sec. 2. The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law. Every school district shall provide for the education of its pupils without discrimination as to religion, creed, race, color or national origin.” Michigan Constitution of 1963, Art. 8, §3: State board of education; duties. “Sec. 3. Leadership and general supervision over all pub lic education, including adult education and instructional programs in state institutions, except as to institutions of higher education granting baccalaureate degrees, is vested in a state board of education. It shall serve as the general planning and coordinating body for all public education, including higher education, and shall advise the legislature as to the fi nancial requirements in connection therewith.” Superintendent o f public instruction; appointment, powers, duties. The state board of education shall appoint a super intendent of public instruction whose term of office shall be determined by the board. He shall be the chairman of the board without the right to vote, and shall be responsible for the execution of its policies. He shall be the principal execu tive officer of a state department of education which shall have powers and duties provided by law.” 6 State board of education; members, nomination, elec tion, term. “The state board of education shall consist of eight members who shall be nominated by party conventions and elected at large for terms of eight years as prescribed by law. The governor shall fill any vacancy by appointment for the unexpired term. The governor shall be ex-officio a member of the state board of education without the right to vote.” Boards of institutions of higher education, limitation. “The power of the boards of institutions of higher edu cation provided in this constitution to supervise their respec tive institutions and control and direct the expenditure of the institutions’ funds shall not be limited by this section.” Michigan Statutes Michigan Compiled Laws, §340.352: 340.352 Body corporate; powers, rights, liabilities; presump tions. “Sec. 352. Every school district shall be a body cor porate under the name provided in this act, and may sue and be sued in its name, may acquire and take property, both real and personal, for educational purposes within or without its corporate limits, by purchase, gifts, grant, devise or bequest, and hold and use the same for such purposes, and may sell and convey the same as the interests of such district may require, subject to the conditions of this act contained. As such body corporate, every school district shall be the succes sor of any school district previously existing within the same territorial limits and shall be vested with all rights of action, with the title of all property, real and personal, of the district of which it is the successor, and the indebtedness and obliga tions of the district superseded shall become and be the in debtedness and obligations of the succeeding district, except as otherwise provided in chapters 3, 4 and 5, part 2 of this act. Every school district shall in all cases be presumed to have been legally organized when it shall have exercised the franchises and privileges of a district for the term of 2 years, 7 and such school district and its officers shall be entitled to all the rights, privileges and immunities, and be subject to all the duties and liabilities conferred upon school districts by law.” Michigan Compiled Laws, §340.355: 340.355 Discrimination; race, color, intellectual progress. “Sec. 355. No separate school or department shall be kept for any person or persons on account of race or color. This section shall not be construed to prevent the grading of schools according to the intellectual progress of the pupil, to be taught in separate places as may be deemed expedient.” Act 34, Sec. 28, Mich. Pub. Acts of 1867: “ (2271) Sec. 28. All residents of any district shall have an equal right to attend any school therein; Provided, That this shall not prevent the grading of schools according to the intellectual progress of the pupils, to be taught in separate places when deemed expedient.” Act 48, Sec. 12, Mich. Pub. Acts of 1970: 388.182 Attendance provisions, implementation; conditions. “Sec. 12. The implementation of any attendance provi sions for the 1970-71 school year determined by any first class school district board shall be delayed pending the date of commencement of functions by the first class school dis trict boards established under the provisions of this amenda tory act but such provision shall not impair the right of any such board to determine and implement prior to such date such changes in attendance provisions as are mandated by practical necessity. In reviewing, confirming, establishing or modifying attendance provisions the first class school district boards established under the provisions of this amendatory act shall have a policy of open enrollment and shall enable students to attend a school of preference but providing prior ity acceptance, insofar as practicable, in cases of insufficient school capacity, to those students desiring to attend the school for participation in vocationally oriented courses or other specialized curriculum.” Act 3 19, Part Ii, Ch. 2, Sec. 9, Mich. Pub. Acts of 1927: “ Sec. 9. All persons residents of any school district, and five years of age, shall have an equal right to attend any school therein; and no separate school or department shall be kept for any person or persons on account of race or color: Provided, That this shall not be construed to prevent the grading of schools according to the intellectual progress of the pupil, to be taught in separate places as may be deemed expedient.” 8 S T A T E M E N T O F T H E C A SE The Status o f Petitioners School Districts In This Litigation Petitioners are forty-two (42) separate, unrelated and identi fiable Michigan school districts in Wayne, Oakland and Macomb counties within varying degrees of geographical proximity to the city of Detroit. Each of Petitioners School Districts is an indepen dent municipal body corporate organized and existing pursuant to the Constitution and laws of the State of Michigan.Each ot said school districts is governed by its respective duly elected Board of Education. There is no claim or finding that any of the Petitioners has failed to operate a unitary school system or that any of the Petitioners’ school district boundaries were established for the purpose of fostering racial segregation in the public schools. The complaint in this cause asserts no unlawful action re specting Petitioners and makes no claim for relief against Petition ers. Petitioners are before this Court because the United States District Court and the United States Court of Appeals for the Sixth Circuit have decreed that Petitioners can be used for the pur pose of changing the racial composition of the Detroit public school system from predominantly black to predominantly white. t2 l M ich ig a n C o m p ile d L a w s , S e c t io n 3 4 0 .3 5 2 . 9 The Basis o f This Litigation This action was commenced by the filing of a complaint by the plaintiffs on August 18, 1970. (Pet. A. 2a). The defendants named in the complaint are the Governor of the State of Michigan, the Attorney General of the State of Michigan, the Michigan State Board of Education, the Superintendent of Public Instruction for the State of Michigan, the Board of Education of the City of Detroit, and its then members, and the Superintendent of the Detroit Public Schools. The complaint is directed solely at the operation of the Detroit public school system and alleges that as a result of actions and policies of the Detroit Board of Education and a section of Act No. 48 of the Public Acts of Michigan, 1970, [3] said school system is not being operated on a unitary basis. No claim is made that the Detroit school district was established for the purpose of fostering racial segregation. No claim is made that the establish ment or operation of any other school district has any causal con nection with the alleged failure to operate the Detroit school system as a unitary system. The gravamen of the complaint is stated in paragraph I thereof as follows: “ . . . this being a suit for declaratory judgment declaring certain parts of Act No. 48 of the Michigan Public Acts of 1970 (a copy of which is attached hereto as Exhibit A) unconstitutional. This is also an action for injunctive relief against the enforcement of certain portions of said Act No. 48 and to require the operation o f the Detroit, Michigan public schools on a unitary basis.” (Pet. A. 2a). [Emphasis added.] The Complaint alleged that in the 1969-70 school year the overall racial mix of the student population of the Detroit schools was 61.9% Negro, 36.4% white and 1.7% were of other racial ethnic minorities (Pet. A. 6a). It was further alleged that some of the schools in the City of Detroit were identifiable as “white” [ 31 7 Said A c t a p p lie d o n ly t o s o -c a l le d F irst C lass s c h o o l d is tr ic ts in th e S ta te o f M ich igan . T h e C ity o f D e t r o it S c h o o l D is tr ic t is th e o n ly F irst C lass s c h o o l district in th e S ta te , Bradley et al. v . Milliken e t al., 4 3 3 F 2 d 8 9 7 , 9 0 0 (C A 6 , 19 7 0 ). T h e e f f e c t o f o n e s e c t io n o f th e A c t w a s t o d e la y im p le m e n t a t io n o f a P rop osed p lan t o e f f e c t a m o r e b a la n c e d d is t r ib u t io n o f b la ck a n d w h ite s tu dents in ce rta in D e tro it s e n io r h ig h s c h o o ls (P e t . A . 1 1 0 a -l 1 l a ) . 1 0 schools or as “Negro” schools (Pet. A. 6a), and that - “Plaintiffs allege that they are being denied equal educa tional opportunities by the defendants because o f the segre gated pattern o f pupil assignments and the racial identifiabil- ity o f the schools in the Detroit public school system. Plain tiffs further allege that said denials of equal educational op portunities contravene and abridge their rights as secured by the Thirteenth and Fourteenth Amendments to the Constitu tion of the United States.” (Pet. A. 1 la). [Emphasis added.] Plaintiffs further alleged that the Detroit School Board had followed a racially discriminatory policy in assigning faculty and staff members employed in the Detroit school system on the basis of race and color. (Pet. A. 12a). The concluding paragraph of the complaint reiterates that the matters complained of related solely to the City of Detroit School District: “Plaintiffs and those similarly situated and affected on whose behalf this action is brought are suffering irreparable injury and will continue to suffer irreparable injury by reason of the provision of the Act complained of ^ herein and by reason of the failure or refusal of defendants to operate a unitary school system in the City o f Detroit. . . . ” (Pet. A. 12a). [Emphasis added.] On April 7, 1970, the Detroit Board of Education adopted a plan to effect a more balanced distribution of black and white students in certain senior high schools by changing attendance zones involving some 12,000 pupils, to be carried out over a three year period (Pet. A. 114a-115a). Before this plan could be imple mented the Michigan legislature enacted Act No. 48 of the Public Acts of 1970. The principal purpose of said Act was internal re organization of the management of the Detroit school system. However, the Act delayed implementation of the above-mentioned plan to achieve a more balanced distribution of black and white high school students by providing that — A c t 4 8 , P u b lic A c t s o f M ic h ig a n , 1 9 7 0 . 11 “Sec. 12. The implementation of any attendance provi sions for the 1970-71 school year determined by any first class school district board shall be delayed pending the date of commencement of functions by the first class school dis trict boards established under the provisions of this amenda tory act but such provision shall not impair the right of any such board to determine and implement prior to such date such changes in attendance provisions as are mandated by practical necessity. . . .” Act No. 48, Section 12, Public Acts of Michigan, 1970; Michigan Compiled Laws Section 388.182. [Emphasis added.] The relief requested By plaintiffs was the implementation of the Detroit School Board’s partial plan of senior high school deseg regation adopted on April 7, 1970, the restraining of Section 12 of Act 48, restraining of new school construction, requiring the assignment of faculty and staff to each school in Detroit according to the system-wide racial ratio, and a plan for the operation of the Detroit school system on a non-racial, unitary basis. (Pet. A. 13a-15a). Before trial on the issues framed by the complaint ever com menced, plaintiffs appealed to the United States Court of Appeals for the Sixth Circuit from denial of plaintiffs’ request for a preli minary injunction to require implementation of the Detroit Board of Education’s proposed April 7th plan to effect a more balanced ratio of black and white students in certain senior high schools. The Court of Appeals sua sponte declared that Section 12 of Act 48 was unconstitutional because it delayed implementation of the Detroit Board of Education plan. Bradley et al. v. Milliken et al, 433 F2d 897 (CA6, 1970). Trial on the merits limited to the; issue o f segregation within the Detroit public school system [5] commenced on April 6, 1971, and concluded on July 22, 1971. During the course of said trial, Intervenors Denise Magdowski, et al, moved to join eighty- four (84) school districts in Wayne, Oakland, and Macomb Counties, including Petitioners herein, as parties. (A. Ia 119). The District Court never ruled on such motion. ̂ “ R u lin g O n Issu e o f S e g r e g a t io n ” (P e t . A . 1 8 a ) . 12 On September 27, 1971, the District Court issued a “ Ruling On Issue of Segregation” (Pet. A. 17a) finding “a de jure segre gated school system in operation in the City o f Detroit” (Pet. A. 38a). The District Court stated that the principal causes for the seg regation found to exist in Detroit were population movement and housing patterns — “ . . .A current condition of segregation exists. . . The principal causes undeniably have been population movement and housing patterns, but state and local governmental ac tions, including school board actions, have played a substan tial role in promoting segregation. . .” (Pet. A. 33a). The District Court concluded, however, that - . . both the State of Michigan and the Detroit Board of Education have committed acts which have been causal factors in the segregated condition of the public schools of the City of Detroit. . . .” (Pet. A. 33a) The acts of the Detroit Board of Education found by the Dis trict Court, and affirmed by the Court of Appeals for the Sixth Circuit, to have resulted in the de jure segregation of the Detroit school system can be summarized as follows: 1. The Detroit Board’s creating and maintaining optional attendance zones in neighborhoods undergoing racial transition in a manner which has had the natural, pro bable and actual effect of continuing black and white pupils in racially segregated schools. (Pet. A . 24a-27a; 34a-35a; 139a-140a). 2. The Detroit Board’s practice of transporting black stu dents from overcrowded black schools to other identi- fiably black schools, while passing closer identifiably white schools, within the Detroit school system, which [61 E m p h a s is a d d e d . 13 could have accepted the black pupils. (Pet. A. 35a; 136a-l 39a). 3. The Detroit Board’s creating and altering attendance zones, maintaining and altering grade structures and creating and altering feeder school patterns in a manner which has had the effect of continuing black and white pupils in racially segregated schools within the Detroit school system. I7! (Pet. A. 25a-26a; 35a-36a; 118a- 136a). 4. Constructing new schools within the City of Detroit school district in such manner as to contain the black population. (Pet. A. 26a-27a; 144a-151a). The Court of Appeals for the Sixth Circuit further affirmed the District Court’s conclusion that the State of Michigan ^ abetted the de jure segregation of the Detroit school system on the grounds that - 1. The acts of the Detroit Board of Education as a subor dinate entity of the State government are attributable to the State of Michigan, thus creating a vicarious liability on the part of the State (Pet. A. 151 a). 2. The Michigan legislature delayed the implementation of the Detroit Board’s April 7, 1970, desegregation plan by the passage of Section 12 of Act 48, Public Acts of Michigan, 1970 (Pet. A. 151a). 3. The effects of the Detroit school system construction program are held to be attributable to the State Board of Education (Pet. A. 151a). 4. The Michigan legislature for many years did not provide * 8 [71 T h e D is tr ic t C o u r t n o t e d th a t s im p ly b y d ra w in g b o u n d a r y lin es in an east-west d ir e c t io n t h e D e t r o i t B o a r d c o u ld a c h ie v e “ s ig n if ica n t in t e g r a t io n ” . (Pet. A . 2 6 a ). [ 8 ] A s n o t e d b y th e C o u r t o f A p p e a ls , h o w e v e r , t h e S ta te o f M ich ig a n is n o t a Party t o th is l it ig a t io n (P e t . A . 1 1 5 a ) ; Bradley v . M illiken, 4 8 4 F .2 d 2 1 5 , 220. (C A 6 , 1 9 7 3 ) . 14 funds specifically for the transportation of pupils within the Detroit school district (Pet. A. 151a). ^ 5. In 1957 and 1958 some unidentified number of black high school students were transported from a black school district outside Detroit to a high school within Detroit because of inadequate high school facilities (Pet. A. 137a-l38a) with the assumed approval of the State Board of Education (Pet. A. 152a). Nowhei'e in the findings and conclusions issued by the District Court or in the opinion of the Court of Appeals is there any assertion that a single school district, except Detroit, has defaulted in the constitutional obligation to maintain a unitary school system. Nor is there any claim or finding that the establish ment or operation of any other school district had any causal con nection with the de jure segregation found extant in the operation of the Detroit school system. On November 5, 1971, the District Court ordered the Detroit Board of Education to submit a plan of desegregation for the Detroit schools within sixty (60) days and ordered the State Peti tioners to submit a so-called metropolitan plan of desegregation within one-hundred-twenty (120) days (Pet. A. 46a-47a). [l°l The District Court’s Order of November 5, 1971, adumbrated a dramatic change in the nature of the proceedings. Despite having conducted a trial limited to the issue of unlawful segregation within the Detroit school system and having made findings limited to such issue, the District Court perceived its remedial powers to be infinite. Some eighty-five (85) independent school districts in Wayne, Oakland and Macomb counties were, and are, suddenly confronted with the prospect of being subjected to judicial fiat [^1 T h e S ta te d id n o t p r o v id e s p e c i f i c fu n d s f o r s o -c a l le d in - c i t y transporta t io n t o a n y o f th e m a n y c i t y s c h o o l d is tr ic ts w ith in t h e S ta te o f Michigan (P e t . A . 1 5 4 a - l 5 7 a ) . [1 9 1 In a s m u ch as th e r e w a s , a n d is , n o c la im , e v id e n c e o r f in d in g o f ‘ m etro p o l i t a n ” s e g r e g a t io n , it is s u b m it t e d th a t th e D is t r ic t C o u r t e rred In ordering th e s u b m is s io n o f a “ m e t r o p o l i t a n ” p la n o f d e s e g re g a t io n . 15 without any claim, trial or finding that either their establishment or operation was, or is, tainted by unconstitutional acts. Pursuant to the aforementioned Order of November 5, 1971 (Pet. A. 46a), a so-called metropolitan plan of desegregation was filed with the District Court on or about February 4, 1972. On February 9th, 16th and 17th, respectively, Grosse Pointe Public Schools, Allen Park Public Schools, et al., Southfield Public Schools and School District of the City of Royal Oak filed mo tions to intervene for the purpose of representing their interests and those of the parents and children situate in said school districts. (A. Ial85, 189, 192, 196). On March 15, 1972, the District Court granted said school districts’ motions to intervene as a matter of right, and simul taneously imposed the following conditions designed to circum scribe Petitioners School Districts’ participation in the proceed ings: “ 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. 3. The participation of the intervenors considered this day shall be subordinate to that of the original parties and previous intervenors. “4. The new intervenors shall not initiate discovery proceed ings except by permission of the court upon application in writing, accompanied by a showing that no present party plans to or is willing to undertake the particular discovery sought and that the particular matter to be discovered is relevant to the current stage of the pro ceedings. “5. No new intervenor shall be permitted to seek a delay of any proceeding in this cause; and he shall be bound by the brief and hearing schedule established by the Court’s Notice to Counsel, issued March 6, 1972. 16 “ 6. New intervenors will not file counterclaims or cross complaints; nor will they be permitted to seek the joinder of additional parties or the dismissal of present parties, except upon a showing that such action will not result in delay. “ 7. New intervenors are-granted intervention for two prin cipal purposes: (a) To advise the court, by brief, of the legal propriety or impropriety o f considering a metro politan plan; (b) To review any plan or plans for the de segregation o f the so-called larger Detroit Metropolitan area, and submitting objections, modifications or alter natives to it or them, and in accordance with the re quirements o f the United States Constitution and the prior orders of this Court. “ 8. New intervenors shall present evidence, if any they have, through witnesses to a number to be set, and limited, if necessary by the court, following conference. “ 9. With regard to the examination of witnesses, all new in tervenors shall among themselves select one attorney per witness to act for them, unless one or more of the new intervenors show cause otherwise.” (Pet. A. 232a-233a; A. Ia 206-207). [Emphasis added.] Petitioners School Districts filed written objections (A. Ia208, 218, 220) with the District Court to the imposition of such conditions. To date, the District Court has not ruled on said objections. The District Court precluded Petitioners School D i s t r i c t s from participation in hearings on a Detroit-only plan of dese gregation by withholding ruling on the motions for intervention until after said hearing had commenced (Pet. A. 53a) and by ex press limitation in the order granting intervention: “ 7. New intervenors are granted intervention for two prin cipal purposes: (a) To advise the court, by brief, of the legal propriety or impropriety of considering a metro politan plan; (b) To review any plan or plans for the de segregation of the so-called larger Detroit Metropolitan 17 area, and submitting objections, modifications or alter natives to it or them, and in accordance with the re quirements of the United States Constitution and the prior orders of this court.” (Pet. A. 232a; A. Ia. 206). Upon being granted right to intervene on March 15, 1972, the District Court advised Petitioners School Districts that the Court had previously set March 22, 1972 (A. Ia203-207), as the date for filing of briefs on the legal propriety of a “metropolitan” plan of desegregation and that said School Districts thus had one (1) week to present their legal arguments on such issue. On March 24, 1972, two (2) days after the due date for the filing of briefs, the District Court issued a “ Ruling On Propriety Of Considering A Metropolitan Remedy To Accomplish Desegregation Of The Pub lic Schools Of The City Of Detroit” (Pet. A. 48a). The District Court commenced taking testimony on a “ met ropolitan” plan of desegregation at 10:10 a.m. on March 28, 1972. About two (2) hours after Petitioners School Districts’ counsel had first appeared in the District Court and before completion of testimony of a single witness, the District Judge announced that all counsel could stop by his office and pick up his “Findings Of Fact And Conclusions Of Law On Detroit-Only Plans Of Desegre gation” (Pet. A. 53a). Relying upon inapposite cases f1 ^ where a state-wide dual school system was fostered and operated pursuant to state policy, the District Court declared its intention to change the racial composition of the Detroit school system by means of a metropolitan” plan of desegregation. During the period from March 28, 1972, to April 14, 1972, the District Court conducted hearings on the so-called metro politan plan for desegregating the Detroit school system (Pet. A. 59a). Counsel for Petitioners School District was directed by the District Court to confine his participation to “ the size and expanse of the metropolitan plan” (A. IVa225-226), which effectively pre cluded Petitioners from offering any evidence in opposition to such a remedy. Q1.1 ' Bradley v .R ichm ond, 3 3 8 F . S u p p . 6 7 (E .D . V a . 1 9 7 2 ) , u p o n w h ic h th e n c C o u rt P 'a c e d p r in c ip a l r e l ia n c e f o r its “ m e t r o p o l i t a n ” r e m e d y , w a s d e ., b y th e C o u r t o f A p p e a ls f o r th e F o u r t h C ir cu it o n J u n e 5 , 1 9 7 2 , d iir ir fp jV ' R lchm ond ’ 4 6 2 F .2 d 1 0 5 8 (C A 4 , 1 9 7 2 ) , a f f ir m e d b y a n e q u a lly a m d ed C o u rt , 4 1 2 U .S . 9 2 ( 1 9 7 3 ) . 18 On June 14, 1972, the District Court issued “ Findings Of Fact And Conclusions Of Law In Support Of Ruling On Desegre gation Area And Development Of Plans” (Pet. A. 59a) and “ Ruling On Desegregation Area And Order For Development Of Plan Of Desegregation” (Pet. A. 97a). In the opening paragraph of the Findings of Fact and Conclusions of Law, the court stated - . . It should be noted that the court has taken no proofs with respect to the establishment o f the boundaries of the 86 public school districts in the counties o f Wayne, Oakland and Macomb, nor on the issue o f whether, with the exclusion o f the city o f Detroit school district, such school districts have committed acts o f de jure segregation. ” (Pet. A. 59a-60a). [Emphasis added.] The District Court’s Order For Development of Plan of De segregation is premised on the self-serving assertion that “ ‘relief of segregation in the Detroit public schools cannot be accomplished within the corporate geographical limits of the city’ ” (Pet. A. 98a). 112] The June 14, 1972, Order of the District Court created a panel of nine (9) H3] persons to prepare and submit a so-called metropolitan plan of desegregation. (Pet. A. 99a). Despite the fact that the fifty-two (52) school districts, outside Detroit, who were included in the so-called desegregation area have approximately 503,000 students compared to Detroit’s approximately 276,000 students, the District Court directed they should have a single rep resentative on the panel while the Detroit Board of Education was granted three (3) panel members (Pet. A. 99a). The District Court’s command was not to simply desegregate the Detroit public schools but to reassign pupils in order to arrive at a racial balance among the Detroit public schools and tie * 13 1 1 2 1 A s w ill b e m o r e fu l ly d e a lt w it h in t h e a r g u m e n t , s u ch co n te n t io n ex h ib its a m is a p p lic a t io n o f th e c o n s t i t u t io n a l c o m m a n d t o d esegregate segr g a te d s c h o o ls . T h e D is t r ic t C o u r t a n d th e C o u r t o f A p p e a ls e rro n e o u s ly vi ra c ia l b a la n c in g a n d d e s e g re g a t io n as s y n o n y m o u s . [ 1 3 ] S u b s e q u e n t ly in c r e a s e d b y t h e D is tr ic t C o u r t t o e le v e n ( 1 1 ) people p e rm it r e p r e s e n ta t io n o n t h e p a n e l b y t w o ( 2 ) t e a c h e r o r g a n iz a t io n s . 19 schools within the fifty-two (52) independent school districts selected by the District Court. While assiduously avoiding the use of the words “racial balance” , the overriding objective of the Dis trict Court to achieve a racial balance is patently expressed in the following statement: . .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 b[e] sub stantially disproportionate to the overall racial composi tion. . .” (Pet. A. 101a-102a). [Emphasis added.] Despite having previously found that there was no unlawful segregation of faculty and staff in the Detroit school district (Pet. A. 28a-32a) and having opined that the matter of faculty reassign ment was “ already litigated” (A. IVa71), “ foreclosed” and that the court was “precluded from considering the matter of faculty” (A. IVa73), the court’s Order of June 14, 1972, mandates the reassignment of faculty and staff (Pet. A. 102a-103a, para. F.) On July 11, 1972, the District Court ordered the Detroit Board of Education to purchase at least 295 buses (estimated cost approximately $3,000,000) for the purpose of transporting pupils under a desegregation plan not then in esse, and sua sponte added the State Treasurer as a party defendant to disburse the necessary monies (Pet. A. 106a). The Decision o f the Court o f Appeals On July 20, 1972, the District Court entered an Order de claring its prior rulings and orders, concerning its findings of de jure segregation in Detroit and its rulings on a Detroit-only and a so-called metropolitan plan of desegregation, to be deemed final orders under Rule 54(b) of the Federal Rules of Civil Procedure and certifying the issues presented therein under the provisions of 28 U.S.C. 1292(b). (A. Ia265). Appeal was taken from the aforementioned orders and on ecember 8, 1972, the United States Court of Appeals for the ix r Circuit rendered an opinion, by a panel of three judges, a irming the Ruling On Issue of Segregation (Pet. A. 17a) and 20 Findings of Fact and Conclusions of Law On “ Detroit-Only” Plans of Desegregation (Pet. A. 53a). The decision of the panel vacated the remaining orders appealed from, but affirmed in principle the ruling of the District Court that Petitioners and other school dis tricts could be used as instrumentalities for altering the racial balance in the Detroit school district (Pet. A. 11 la-112a). On January 16, 1973, the Court of Appeals for the Sixth Circuit granted rehearing in banc which had the effect of vacating the previous opinion and judgment of the court (Pet. A. 112a). Oral arguments before the court in banc were heard on February 8, 1973, and the opinion and judgment of the court issued on June 12, 1973. By majority decision the Court of Appeals for the Sixth Cir cuit affirmed the Ruling On Issue of Segregation, dated September 27, 1971, (Pet. A. 17a) and the Findings of Fact and Conclusions of Law On “Detroit-Only” Plans of Desegregation (Pet. A. 53a). The Court of Appeals further affirmed in principle the ruling of the District Court that Petitioners and other school districts may, without any finding of segregative establishment or operation, be included in a remedy (Pet. A. 173a), the principal objective of which is racial balancing. The Court of Appeals declared that any school district to be affected by the decree of the District Court is a necessary party under Rule 19, Fed. R. Civ. P. (Pet. A. 177a) and as a pre-requisite to implementation of a multi-school district remedy, school dis tricts to be affected must be made a party to the litigation and afforded an opportunity to be heard (Pet. A. 177a). The Court of Appeals, while holding that affected school districts D 4 ] m u s t b e afforded an opportunity to be heard, so circumscribes such right as to render it meaningless. The Court of Appeals states that - t 1 4 ] S u b s e q u e n t t o th e f i l in g o f th e P e t i t io n F o r W rit O f C e r t io ra r i herein, P la in t i f fs -R e s p o n d e n t s f i l e d an a m e n d e d c o m p la in t a d d in g all b u t o n e o f the m o re th a n 8 6 s c h o o l d is tr ic ts in W a y n e , O a k la n d a n d M a c o m b c o u n tie s to th e se p r o c e e d in g s . N o c la im o f u n la w fu l a c t io n is m a d e a g a in st a n y o f said s c h o o l d is tr ic ts . T h e a m e n d e d c o m p la in t a lle g e s th e ir in c lu s io n is n ecessa ry to d e se g re g a te th e D e t r o i t s c h o o l s y s te m ( A . I a 2 9 6 -2 9 7 ) . 21 . . .the District Court will not be required to receive any additional evidence as to the matters contained in its Ruling on the Issue of Segregation, dated September 27, 1971, and reported at 338 F. Supp. 582, or its Findings of Fact and Conclusions of Law on the ‘Detroit-only’ plans of desegregation, dated March 28, 1972.” (Pet. A. 178a). The net result is that Petitioners and other school districts are foreclosed from any hearing whatever with respect to the con trolling issues. The final remedy - a “metropolitan” racial balancing plan — is already ordained. Pursuant to the decision of the Court of Appeals, there remains only the selection of the school districts to be used to effectuate such plan. Summary In summary, the salient facts attendant to this litigation may be stated as follows: 1. The singular issue framed by the complaint filed in this case, and the sole issue tried on the merits, is whether the Detroit school system has been operated as a de jure segre gated system. 2. There is no claim, no proofs and no finding that any school district in the State of Michigan was established for the purpose, or with the foreseeable effect, of fostering racial segregation. 3. There is no claim, no proofs and no finding that any of the independent school districts, except the City of De troit school district, included in a so-called metropolitan remedy have committed any acts of de jure segregation individually or by virtue of State action. 4. The separate, unrelated and identifiable school dis tricts intended to be used to effect a change in the racial balance of the Detroit school system have been and are operating unitary school systems. 5 5. There is no causal connection between the found operation of the Detroit school system as a de jure segregated 22 system and the establishment or operation of other separate, unrelated and identifiable school districts in the State of Michigan. 6. The change in the racial composition of the Detroit school system from majority white to majority black in re cent years is the result of demographic factors common to large cities throughout the United States. 7. The so-called metropolitan remedy conceived by the District Court, and approved in principle by the Court of Appeals, is a racial balancing scheme having the sole purpose and effect of creating a white majority in all schools within the Detroit school system. SUMMARY OF ARGUMENT The Nature of the Constitutional Violations Here Found Requires A Remedy Limited to the Detroit School System Assuming, arguendo, that the Detroit school district is a de jure operated school system, the “nature of the violation deter mines the scope of the remedy” . Swann v. Charlotte-Mecklenburg Board o f Education, 402 U.S. 1, 16 (1971). The nature of the violation found in the instant case is that the Detroit Board of Education, aided and abetted by the action and inaction of State officials, engaged in segregative zoning and student assignment practices within the Detroit school system (Pet. A. 118a), created optional attendance areas (Pet. A. 139a), and pursued building construction and transportation policies (Pet. A. 136a, 144a, 151a), all calculated to assign students, or deny students ad mission, to particular schools solely within the Detroit school system on account of race or color. The appropriate remedy is one that will “ achieve a system of determining admission to the public schools on a non-racial basis”. Brown v. Board o f Education, 349 U.S. 294, 300-301 (1955). ( “Brown II”.) The District Court has “broad power to fashion a remedy that will assure a unitary school system” . Swann v. Charlotte-Mecklenburg Board o f Education, 402 U.S. 1, 16 (1971). A unitary school system is one “ within which no person is to be effectively excluded from any school because of race or color” . Alexander v. Holmes County Board o f Education, 396 U.S. 19, 20 (1969). 23 The District Court can fashion a remedy which will convert the Detroit school district to a unitary system by requiring the establishment of attendance zones and the transportation of stu dents in such manner that no person will be effectively excluded from any school in the Detroit system because of race or color. While the Detroit school system as a whole would still be composed of a majority of black students, desegregation in the constitutional sense can be accomplished. Compare Wright v. Council o f the City o f Emporia, 407 U.S. 451 (1972) and United States v. Scotland Neck City Board o f Education, 407 U.S. 484 (1972). This Court has stated, in unequivocal terms, that the attainment of a racial balance within a school system is beyond the permissible scope of a desegregation remedy. Swann v. Chariotte-Mecklenburg Board o f Education, 402 U.S. 1, 24 (1971); Wright v. Council o f the City o f Emporia, supra, at page 465. The constitutional violations here found do not require or permit a judicial remedy extending beyond the Detroit school district. The Nature of the Constitutional Violations Here Found Neither Requires Nor Permits A “Metropolitan” Remedy Designed to Effect A Racial Balance Between the Detroit School System and Other Independent School Systems While school districts in the State of Michigan are instrumen talities of the State subject to ultimate control by the State legislature, education is largely a local function with the day- to-day authority over the management, control and operation of the schools exercised by the local school board. San Antonio Inde pendent School District v. Rodriguez, 411 U.S. 1, 52 (1973). The State of Michigan has for over 100 years maintained a policy prohibiting racial segregation in the public schools. The People v. Board of Education o f Detroit, 18 Mich. 399 (1869). The only constitutional violations found in this case relate to the internal operation of the Detroit school system. No proofs were taken and no findings made with respect to whether any school district was established for the purpose, or with the foresee- 3 e effect, of fostering racial segregation (Pet. A. 60a). No proofs were taken and no findings made with respect to whether any 24 school district, other than Detroit, has committed any acts of de jure segregation (Pet. A. 60a). There is no finding that the establish ment of any school district, or the operation of any school district other than Detroit, is causally connected with the acts found to constitute de jure segregation in the Detroit school system. With or without the acts of commission and omission by the Detroit Board of Education and the State Petitioners found to constitute de jure segregation with respect to the Detroit school system, there is no basis for concluding that the racial composition of the Detroit school system would be any different than it is today. The Detroit school district boundaries have been co terminous with the boundaries of the City of Detroit by legisla tive enactments dating back over 130 years to 1842. The People v. Board of Education o f Detroit, 18 Mich. 399,408 (1869). The black population as a total percentage of the population of Detroit has increased at a dramatic rate since 1940, increasing from 9.2% in 1940 to 43.9% in 1970 (Pet. A. 21a). Whatever the root causes for this concentration of blacks in Detroit, there is no evidence that it has been school assignments. Bradley v. School Board of the City of Richmond, 462 F.2d 1058, 1066 (CA 4, 1972), aff’d. by equally divided Court, 412 U.S. 92 (1973). The system of local school districts as provided by legislative enactments is unitary in nature and intent. Any racial imbalance between the Detroit school district and other school districts re sults from an imbalance in the population due to demographic factors. Racially balanced municipalities are beyond the pale of judicial intervention. Spencer v. Kugler, 326 F. Supp 1235, 1240 (N.J. 1971), aff’d 404 U.S. 1027 (1972). The fact that the D e t r o i t school district would be predominantly black even if operated as a unitary system does not provide a federal court with the power to prescribe a remedy designed to effect a more desirable racial balance between Detroit and other school districts. The majority opinion of the Sixth Circuit Court of Appeals erroneously concludes that a racial imbalance between separate, unrelated and identifable school districts is a constitutional violation (Pet. A. 173a, 224a) without regard to the lack of causal relationship with respect to such imbalance and the actions of school authorities. Absent a showing of a constitutional violation on the part of school authorities, equity does not require a federal court to effect changes in the racial composition of the public 25 schools. United States v. Board o f Education, Independent School District No. 1, Tulsa, Oklahoma, 459 F.2d 720, 724 (CA 10, 1972); Davis v. School District o f the City o f Pontiac, 443 F.2d 573, 575 (CA 6, 1971), cert. den. 404 U.S. 913 (1971). The task is to correct the condition that offends the Consti tution. Swann v. Charlotte-Mecklenburg Board o f Education, 402 U.S. 1, 16 (1971). The issue in this case is not what might be a desirable Detroit school plan, but whether or not there are consti tutional violations in the school system as presently operated, and, if so, what relief is necessary to avoid further impairment of con stitutional rights. Bradley v. Milliken, 438 F.2d 945, 946 (CA 6, 1971); Swann, supra, at page 23. The condition that offends the Constitution is not the exis tence of predominantly white school districts in geographical proximity to the predominantly black Detroit school district. The condition that offends the Constitution is the assignment of pupils within the Detroit school system on the basis of race or color. Assuming, arguendo, that the Detroit Board of Education and State executive officials can be faulted for the racial imbalance in particular schools within the Detroit school system, there is abso lutely no basis to support a conclusion that the racial imbalance vis-a-vis Detroit and other school systems is attributable to any action of State or local school authorities. The effect of the de jure segregated operation of the Detroit school system is that, but for the acts complained of, children in the Detroit school system would be attending schools within the Detroit school system having a racial composition more nearly in accord with the racial composition of that school system. Apply ing the teachings of Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 23 (1971), the appropriate remedy is to prohibit the assignment of children to schools on account of race or color within the Detroit school district, and to remove the ves tiges of segregation by re-assigning children in the Detroit school system to schools on a basis which is more nearly reflective of the condition which would prevail had the Detroit school system been operated as a unitary system. 2 6 T h e h o ld in g th at the D e tro it s c h o o l system can o n ly b e de segregated b y m ean s o f a “ m e tr o p o l ita n ” re m e d y ig n ores the c o n tro ll in g p r in c ip le that th e n atu re o f th e co n s titu t io n a l v iola tion determ in es th e s c o p e o f th e re m e d y . T h e C o u r t o f A p p e a ls ’ m ajor ity e rro n e o u s ly assum es th at d esegrega tion m ean s e ffe c t in g a racial ba lan ce w h ich is p re d o m in a n tly w h ite . T h e co n s t itu t io n a l co m m a n d t o desegregate n o n -u n ita ry s ch o o ls d o e s n o t req u ire or p erm it racial b a lan cin g . Swann v. Charlotte-Mecklenburg Board of Education, 4 0 2 U .S . 1, 2 4 (1 9 7 1 ) . B ased u p o n the p r o n o u n c e m e n t o f th is C o u r t that the “ n ature o f th e v io la t io n d e term in es th e s c o p e o f th e rem e d y ” (Swann v. Charlotte-Mecklenburg Board o f Education, supra, at page 1 6 ), th e in c lu s io n o f separate, u n rela ted and identifiab le s c h o o l d istricts in a re m e d y a im ed at a lterin g th e racia l ba lance in the D e tro it s c h o o l system m u st b e re je c te d . A “ m e tro p o lita n ” re m e d y , o n th e fa cts in th is case, g o e s far b e y o n d the n atu re o f the co n s titu t io n a l v io la t io n w h ich is ex p ress ly lim ite d , b y th e findings o f the D istrict C o u r t , t o th e operation o f th e D e tro it school d istrict as a de jure segregated s c h o o l sy stem . Petitioners Have Been Denied Due Process O f Law I . The Failure o f the District Court to Join Petitioners School Districts Is A Denial o f Due Process o f Law T h e re m e d y in v o k e d in this case w o u ld e ffe c t iv e ly emasculate th e ex ten s iv e righ t o f lo ca l c o n tr o l o v e r P etition ers S ch o o l Dis tricts p ro v id e d b y legislative en a ctm en ts o f the M ich igan legis lature. F o r e x a m p le , said re m e d y in te rd ic ts the e x e rc ise o f local s c h o o l d istrict a u th o r ity o v e r su ch m atters as c o n tr o l o f attend an ce o f n on -re s id e n t stu den ts (M ich C o n st 1 9 6 3 , art V III, §2; M ich . C o m p ile d L aw s 3 4 0 .5 8 2 , 3 4 0 .5 8 9 ) ; the e m p lo y m e n t and a llo ca t io n o f tea ch in g and a dm in istra tive s ta f f to e d u ca te resident pupils (M ich . C o m p ile d L aw s 3 4 0 .5 6 9 ) ; the c o n s tr u c t io n , expan s ion and use o f s c h o o l fa c ilit ies (M ich . C o m p ile d L aw s 340 .77 ); and th e cu rr icu lim , a ctiv ities an d standards o f c o n d u c t and the 2 7 safety o f stu den ts, fa cu lty , s ta f f an d parents w ith in each s ch o o l district (M ich . C o m p lie d L aw s 3 4 0 .5 7 5 , 3 4 0 .5 8 3 , 3 4 0 .6 1 4 , 3 4 0 .8 8 2 ). W hile th e co m p la in t filed in th is case m ade n o a llegation s with resp ect t o P etition ers S c h o o l D istricts , the m atter o f a “ m e t rop o lita n ” re m e d y was raised d u rin g the cou rse o f the trial on the issue o f de jure segregation w ith in th e D e tro it s c h o o l d istrict. A t the very o u tse t o f th e trial o n th e m erits , P la in tiffs -R e sp o n d e n ts ’ counsel stated t o th e co u r t that a “ m e tro p o lita n s o lu t io n ” m igh t be ap p rop ria te (A . I Ia 4 4 ). O n June 17 , 1 9 7 1 , in terven in g d e fe n dants D enise M a g d ow sk i, et al, filed a fo rm a l m o t io n t o a d d P eti tioners, and th e rem ain in g s c h o o l d istricts in W a yn e , O ak lan d and M acom b co u n tie s , as parties d e fe n d a n t (A . Ia 1 1 9 -1 2 9 ). If, as c o n te n d e d b y the S ix th C ircu it m a jo r ity , the re m e d y in this case requ ires th at P etition ers be su b je c te d t o the orders o f the court, P etition ers are in d isp en sab le parties an d th ey sh ou ld have been in c lu d ed as parties at th e co m m e n c e m e n t o f th e litigation . Baltimore & O.R. Co. v. Chicago River and Indiana R. Co., 170 F .2d 6 5 4 (C A 7 , 1 9 4 8 ), cert. den. 3 3 6 U .S . 9 4 4 (1 9 4 9 f Bradley v. School Board o f the City o f Richmond, 3 3 8 F . S u pp . 6 7 (E .D . V a. 1972), reversed o n o th e r g ro u n d s 4 6 2 F .2 d 1 0 5 8 (C A 4 , 1 9 7 2 ), aff'd. b y equ a lly d iv id e d C o u rt , 4 1 2 U .S . 9 2 (1 9 7 3 ) . P etition ers w ere n o t in c lu d e d in this litig a tion u n til a fter the case was in fa ct d e c id e d . It is, th e re fo re a den ia l o f du e p ro ce ss o f law to su b ject th em to a ju d ic ia l re m e d y w h ich d ire c t ly a ffe cts their law fu l in terests. Waterman v. The Canal-Louisiana Bank and Trust Company, 2 1 5 U .S . 3 3 , 4 8 (1 9 0 9 )\ Boris v. Moore, 152 F. Supp. 6 0 2 (E .D . Wis. 1 9 5 7 ) , aff’d. 2 5 3 F .2 d 5 2 3 (C A 7 , 1 9 5 8 ). Petitioners h ad p o te n t ia lly adverse interests to b e a ffe c te d and they w ere en tit led t o n o t ic e t o d e fe n d and an o p p o r tu n ity to be heard u p o n th ose issues w h ich c o u ld a ffe c t th e m , i f d e c id e d ad versely to th eir in terests. Higgins v. Board o f Education o f the City of Grand Rapids,.____ F . S u p p ______ (W .D . M ich ., Ju ly 18 , 1 9 7 3 ), Slip O p in ion , page 80 . II. Restricting Petitioners to A Hearing Only On the Scope o f the “ M etropolitan” Rem edy Is A Denial o f Due Process It is im p o ss ib le t o eq u a te the p ro ce e d in g s in the D istrict 28 C o u rt w ith the req u irem en ts set fo r th by this C o u rt as m in im al to due p ro ce ss o f law . D u e p ro ce ss o f law requ ires an o p p o r tu n ity to b e heard at a m ea n in g fu l tim e and in a m ea n in g fu l m an n er. Arm strong v. Manzo, 3 8 0 U .S . 5 4 5 , 5 5 2 ( 1 9 6 5 )\In Re Oliver, 3 3 3 U.S. 2 5 7 (1 9 4 8 ) . T h e D istrict C o u rt im p o s e d c o n d it io n s u p o n Petitioners w h ich lim ited th em to e x a m in a tio n o f w itn esses and the presenta t io n o f e v id e n ce w h ich a c c o r d e d w ith th e c o u r t ’ s p recon ce iv ed v iew th at a “ m e tr o p o lita n ” re m e d y was req u ired . T h e con d ition s im p o se d b y th e D istr ict C o u rt e f fe c t iv e ly p re c lu d e d Petitioners fr o m raising q u e stio n s n ecessary t o p r o te c t th e ir in terests. Bradley v . Milliken, 4 8 4 F .2 d 2 1 5 , 2 6 7 -2 6 8 (C A 6 , 1 9 7 3 ). (P et. A. 2 0 8 a -2 0 9 a ). T h e m a jo r ity o p in io n o f the S ix th C ircu it h o ld s that Peti tion ers , an d o th e r s c h o o l d istricts t o be a ffe c te d b y the decree o f the D istrict C o u r t , are “ n e ce ssa ry ” parties an d m u st b e afforded an o p p o r tu n ity to b e h eard . Bradley v. Milliken, 4 8 4 F .2 d 215, 2 5 1 -2 5 2 (C A 6 , 1 9 7 3 ), (P et. A . 1 7 7 a ). H o w e v e r , the hearing to be a ffo r d e d said s c h o o l d istricts is m ean in gless in so fa r as th e protec t io n o f th e ir in terests is c o n c e r n e d . U n d er th e m a jo r ity opin ion said s c h o o l d istricts have no right t o p resen t e v id e n ce o r b e heard on th e issue o f segregation o r o n w h e th e r a D e tr o it -o n ly desegrega t io n plan m eets c o n s t itu t io n a l req u irem en ts . Bradley v. Milliken, supra, at page 2 5 2 (P et. A . 1 7 8 a ). T h e n et resu lt is that a “ m etro p o lita n ” re m e d y is o rd a in e d an d P e tit io n e rs ’ righ t t o a hearing is illu sory . T h e fu n d a m en ta l right to du e p ro ce ss o f law in the fo rm o f a c o m p le te an d m e a n in g fu l hearing as a c o n d it io n p re ce d e n t to the d e term in a tion o f the s c o p e o f a d esegregation re m e d y is exem p lified b y the h o ld in g o f this C o u r t in Keyes v. School District No. 1, Denver, Colo, 4 1 3 U .S . 189 (1 9 7 3 ) . In Keyes, supra, this Court h e ld that w h ere a single s c h o o l d is tr ict was fo u n d t o have engaged in in ten tion a l segregative a c t io n b u t co n te n d e d that said segrega tive a ct io n a ffe c te d o n ly a part o f the s c h o o l d istr ict, said school d istrict m ust b e a ffo r d e d th e o p p o r tu n ity to p ro v e that the unlaw fu lly segregated area is separate, id e n tifia b le and u nrela ted and sh ou ld be treated as iso la ted fr o m the rest o f the d istrict. T o p erm it P etit ion ers , and o th e r a ffe c te d s c h o o l d i s t r i c t s , t o be heard o n ly in the n a rrow ly restr icted sense set fo r th in the 2 9 Sixth C ircu it m a jo r ity o p in io n is t o d e n y th em du e p rocess guaran teed b y R u le 19 , F edera l R u les o f C ivil P roced u re and b y the C o n - sitution (A m e n d m e n t V ) itse lf. Bradley v.Milliken, 4 8 4 F .2 d 215 284 (C A 6 , 1 9 7 3 ). (P et A . 2 3 9 a -2 4 0 a ). A R G U M E N T I Based U pon the Nature o f the Constitutional Violations Here F ound, the Rem edy Must Be Lim ited to Converting the Detroit School System to A Unitary School System T his C o u rt in Swann v. Charlotte-Mecklenburg Board o f Edu cation, 4 0 2 U .S . 1 (1 9 7 1 ) c lea rly delin ea ted the s c o p e o f the pow ers o f fed era l cou rts u n d er th e m an d ate o f the C o u r t to e lim i nate racia lly segregated sch o o ls resu ltin g fr o m govern m en ta l a ct io n and to establish u n itary system s at o n ce . “ • • • a s c h o o l d esegregation case d oes n o t d if fe r fu n d a m en ta lly fr o m o th e r cases in v o lv in g the fram in g o f equ itab le rem ed ies t o repa ir th e den ia l o f a co n stitu t io n a l right. The task is to correct, b y a ba la n cin g o f the in d iv idu a l and c o l le c tive in terests , the condition that offends the Constitution. “ In seek in g to d e fin e even in b ro a d and general term s h o w far th is rem ed ia l p o w e r e x te n d s it is im p o rta n t to re m em b er th at judicial powers may be exercised only on the basis o f a constitutional violation.” Swann, supra, at pages 15 -16 . [E m ph asis a d d e d .] In short, th e C o u r t sta ted the perim eters o f ju d ic ia l a u th or ity as fo llow s: “ A s w ith an y e q u ity case, the nature o f the violation determines the scope o f the remedy. ” Swann, supra, at page 16. [E m ph asis a d d e d .] The rem e d y in this case m ay n o t g o b e y o n d the d im en sion o f the con stitu tion a l v io la tio n s . T h e n ature o f the co n s titu t io n a l v io la tio n s is that the D e tro it Board o f E d u ca tio n , a ided and a b etted b y th e a ction and in a ctio n 3 0 o f S tate o f f ic ia ls , engaged in segregative p ra ctice s w ith resp ect to th e o p e ra t io n o f th e D e tro it s c h o o l system w h ich w ere calculated to iso la te ch ild ren in certa in s c h o o ls a c c o r d in g to race o r c o lo r . T h e co n s t itu t io n a l v io la t io n s fo u n d to have been com m itted by the Detroit Board o f Education are: 1. F o rm u la tin g and m o d ify in g a tten d a n ce zo n e s within th e D e tro it s c h o o l sy stem to crea te o r p e rp e tu a te racia l segre g a tion . Bradley y. Milliken, 4 8 4 F. 2 d 2 1 5 , 221 (C A 6 , 1973), (P et. A . 11 8 a ). 2 . T ra n sp o rt in g b la ck ch ild ren past w h ite s ch o o ls with availab le s c h o o l sp ace . Bradley v. Milliken, supra, at page 2 2 1 , (P et. A . 11 8 a ). 3. C rea tin g o p t io n a l a tte n d a n ce areas w h ich permitted w h ite stu den ts to tran sfer to all w h ite o r predom inantly w h ite s c h o o ls lo c a te d n earer the c ity lim its. Bradley v. Milli ken, supra, at page 2 2 1 , (P et. A . 1 18a -l 19a). 4 . C o n stru ct in g s c h o o ls in e ith er ov erw h e lm in g ly all b la ck o r all w h ite n e ig h b o r h o o d s . Bradley v. Milliken, supra, at page 2 3 5 , (P et. A . 144a). T h e State is fo u n d t o have co n tr ib u te d to th e “ segregation fo u n d in th e D e tro it s c h o o l sy s te m ” , Bradley v. Milliken, 4 8 4 F.2d 2 1 5 , 2 4 2 (C A 6 , 1 9 7 3 ), (P et. A . 1 5 7 a ), b y th e fo l lo w in g action , or in a c t io n : 1. T h e e n a ctm e n t o f A c t 4 8 o f the P u b lic A cts of 1 9 7 0 , S e c tio n 12 o f w h ich d e la y e d ch anges in attendance zo n e s w ith in the D e tro it s c h o o l system [15] p en din g other w ise co n s titu t io n a l reorga n iza tion o f th e in ternal manage m en t stru ctu re o f the D e tro it s c h o o l system . T h e e ffe ct of S e c t io n 12 o f A c t 4 8 was t o d e la y im p le m e n ta tio n o f a De- 1^1 Act 48 applied only to First Class school districts in the State of Michigan. The City o f Detroit school district is the on ly First Class school district in the State. Bradley v. Milliken, 433 F. 2d 897, 900 (CA 6, 1970). 31 tro it s c h o o l b o a rd plan t o e f fe c t a m o re desirable racial bal ance in so m e se n io r h igh s c h o o ls in D e tro it . Bradley v . Mil- liken, supra, at pages 2 1 9 and 2 3 8 , (P et. A . 1 1 4 a -l 15a and 151a). [16] 2. T h e a tta ch in g o f v ica riou s re sp o n s ib ility to th e State B oard o f E d u ca tio n f o r the segregative results o f the s c h o o l co n s tru ctio n program o f th e D e tro it B oa rd o f E d u ca tio n . Bradley v. Milliken, 4 8 4 F .2 d 2 1 5 , 2 3 8 (CA 6 , 1 9 7 3 ), (P et. A. 15 1 a ). [17] 3. T h e S tate o f M ich igan d id n o t a llo ca te fu n ds to the D e tro it s c h o o l d is tr ict f o r the s p e c if ic p u rp ose o f p u p il trans p o rta tio n th o u g h su ch tra n sp orta tion fu n d s w ere m ade gen erally available fo r stu d en ts w h o live over a m ile and o n e -h a lf from th eir assigned s ch o o ls in rural M ich igan . 1181 4. T h e assu m ed “ ta cit o r ex p re ss ” a p p rova l o f the State B oa rd o f E d u ca t io n o f th e cross-d istrict tra n sp orta tion t16l Within approximately ninety (90) days of its enactment, the Sixth Circuit Court o f Appeals declared Section 12 o f Act 48 unconstitutional. Bradley v. Milliken, 433 F.2d 897, 900 (CA 6, 1970). Said legislative enactment thus had little, if any, impact upon the de jure segregation found extant in the operation o f the Detroit school system. [171 Since 1962, the period during which virtually all o f the asserted segregative construction occurred, the State Board of Education had no power or authority to approve or disapprove site location. Act No. 175, Public Acts of Michigan, 1962, Michigan Compiled Laws 388.851 et seq. Site selection has always been primarily the subject of local control and since 1962 has been exclusively a matter o f local control. Michigan Compiled Laws 340.77. r i o l There is no evidence or finding that the urban-rural classification used as the determinative factor for providing transportation funds was founded upon considerations o f race or any purpose or intent to segregate so as to constitute an act o f de jure segregation. Keyes v. School District No. 1, enver, Colo., 413 U.S. 189 (1973). Under such classification predominantly white urban schools are also denied transportation funds. In Griffin v. County school Board o f Prince Edward County, 377 U.S. 218, 230 (1964) the Court noted that a State could treat school districts differently so long as such isparate treatment is not founded upon the purposeful objective o f denying e erally protected rights. San Antonio Independent School District v. 0 riquez, 411 U.S. 1 (1973) further negates the conclusion that a constitu- lona violation can be predicated upon the naked existence of a state school lnancing system which results in unequal revenues between school districts. n jSgins v. Board o f Education o f the City o f Grand Rapids,___ F. Supp. (W.D. Mich. July 18, 1973), Judge Engel held that said method of ocating transportation funds was not related to racial differences and did not offend the Constitution. 3 2 o f so m e h igh s c h o o l stu d en ts in a p re d o m in a n tly b la ck sch ool d istrict to a p re d o m in a n tly b la ck h igh s c h o o l in the D etroit s c h o o l d istrict. Bradley v . Milliken, 4 8 4 F .2 d 2 1 5 , 2 3 1 -2 3 2 , 2 3 8 (C A 6 , 1 9 7 3 ), (P et. A . 1 3 7 a -1 3 8 a , 1 5 2 a ) J 19) T h e e f f e c t o f the co n s titu t io n a l v io la t io n s is sta ted b y the m a jo r ity o p in io n o f th e S ix th C ircu it as fo l lo w s : “ T h e d iscr im in a to ry p ra ctices on the part o f th e Detroit S c h o o l B oard and th e S tate o f M ich igan revea led b y this re c o r d are s ig n ifica n t, pervasive and cau sa lly re la ted t o the sub stantial a m o u n t o f segregation fo u n d in the Detroit school system b y th e D istr ict J u d g e .” Bradley v . Milliken, 4 8 4 F.2d 2 1 5 , 2 4 2 (C A 6 , 1 9 7 3 ), (P et. A . 1 5 7 a ). [E m p h a sis a d d e d .] T h e n ature o f th e v io la t io n is th a t, as a resu lt o f segregative actions w ith re sp e ct to th e o p e ra tio n o f th e D e tro it s c h o o l system , the racial c o m p o s it io n o f s c h o o ls within the Detroit school system has b een co n tr iv e d b y assign m en t o f pu pils t o s ch o o ls on the basis of race o r c o lo r . In sh o rt, th e D e tro it s c h o o l system is n o t a unitary system b e ca u se , within that system, p erson s have b e e n effectively e x c lu d e d fr o m so m e s ch o o ls b eca u se o f race o r c o lo r . T h ere is n o e v id e n ce an d n o fin d in g that the constitutional v io la tio n s fo u n d have an y causal re la tion sh ip w ith the racial com p o s it io n o f th e D e tro it s c h o o l system as a w h o le vis-a-vis the racial c o m p o s it io n o f P etition ers S c h o o l D istr icts , o r an y o th e r school d istrict. T h ere is n o e v id e n ce and n o fin d in g th at Petitioners S c h o o l D istricts have en gaged in any a c tio n w ith the purpose or in ten t to segregate. Keyes v . School District No. 1, Denver, Colo., 4 1 3 U .S . 189 (1 9 7 3 ) . S in ce th e natu re o f th e co n s t itu t io n a l v io la t io n , and the vestiges th e re o f, is lim ited to th e perim eters o f th e D etro it school system , th e s co p e o f th e re m e d y m u st b e so lim ited . Swann v. Chariotte-Mecklenburg Board o f Education, 4 0 2 U .S. 1, 16 (1 9 7 1 ) . T h e requ ired o b je c t iv e o f th e re m e d y is to see that school 119 119] Said finding is lacking evidentiary support and is premised upon self-serving assumptions. Moreover, the situation referred to was short-live In 1960 the predominantly black Carver school district was merged into a predominantly white school district (Pet. A. 169a). 3 3 authorities e x c lu d e n o p u p il o f a racial m in o r ity fr o m a n y s c h o o l on a cco u n t o f race. Swann v. Charlotte-Mecklenburg Board o f Education, 4 0 2 U S 1, 23 (1 9 7 1 ) . P la in tiffs -R e sp o n d e n ts in this case p ro d u c e d as a w itn ess Dr. G ordon F o ste r , an e x p e r t in th e area o f s c h o o l d esegregation . Dr. Foster d e scr ib e d a racia lly id e n tifia b le s c h o o l as on e that “ is d is p rop ortion a te in racial m ak e-u p to the o th e r s c h o o ls in that system ” (A . IV a 8 0 ). H e ex p ressed the o p in io n that a D e tro it school having a s tu d e n t p o p u la t io n o f 6 5 % b la ck and 3 5 % w h ite w ould n o t b e a racia lly id e n tifia b le s c h o o l “ in term s o f D e tro it as a desegregated sy stem w h ere th e racia l m ix is 6 5 -3 5 ” (A . IV a 8 1 ) because su ch racia l c o m p o s it io n re fle c ts th e to ta l p u p il p o p u la t io n ratio in th e system (A . IV a 8 2 ). Dr. F o s te r sta ted that a b la ck ch ild in the D e tro it s c h o o l system w o u ld n o t p e rce iv e o f h is s c h o o l s itu a tion b e in g racia lly isolated o r segregated i f th e p u p il c o m p o s it io n re f le c te d the racial popu lation in th e D e tro it s c h o o l sy stem , b ecau se the ch ild w o u ld know he had the sam e s itu a tion as all o th e r ch ild ren in the D e tro it school system (A . I V a 8 2 -8 3 ) . E xp ressed a n o th e r w a y , he stated that so lo n g as a ch ild in the D e tro it s c h o o l system is o f fe r e d the same o p p o rtu n it ie s o ffe r e d to all o th e r ch ild ren in th e D e tro it school system , th e ch ild w o u ld n o t fe e l racia lly iso la te d o r c o n tained in a segregated s itu a tion (A . IV a 8 4 ). Dr. F o ste r su b m itte d a d esegrega tion p lan lim ited t o the Detroit s c h o o l system w h ich h e sta ted w o u ld w o r k now (A . IV a76-77 ), w o u ld m eet co n s t itu t io n a l req u irem en ts (A IV a 9 5 -9 5 ) , w ould elim in ate racia lly id e n tifia b le s ch o o ls (A . I V a 9 7 -9 8 ) , and w o u ld i m p r o v e e d u ca tio n a l o p p o r tu n it ie s o f D e tro it s c h o o l children (A . I V a 9 8 ), Green v. County School Board o f New Kent County, 391 U .S . 4 3 0 ( 1 9 6 8 ) . Dr. F o s te r ’ s p ro p o s e d plan and te s t im o n y is c o n so n a n t w ith the con stitu tion a l m a n d a te t o c o n v e rt the D e tro it s c h o o l system to a unitary system in w h ich n o ch ild w o u ld be e f fe c t iv e ly e x cluded fro m an y s c h o o l becau se o f race o r c o lo r . Alexander v. Holmes, supra, at page 2 0 ; Swann, supra, at pages 17, 2 2 -2 3 , 28 . 3 4 T h e F in d in gs o f F a ct and C o n c lu s io n s o f L aw O n D etroit- O n ly Plans o f D esegrega tion issued b y th e D istrict C o u r t (P et. A. 5 3 a -5 8 a ) re fle c t a p re d isp o s it io n t o pu rsu e a “ m e tr o p o l ita n ” area racial ba la n cin g sch em e to re d u ce the p r o p o r t io n o f b la ck students in th e D e tro it s c h o o l d istrict and a d isregard fo r th e lim ita tion s on th e ex erc ise o f ju d ic ia l a u th o r ity as ex p ressed in Swann v. Charlotte-Mecklenburg Board o f Education, 4 0 2 U .S 1 16 (1 9 7 1 ) . T h e fa ct th at th e D e tro it s c h o o l system has a racia l com p os i t io n a p p ro x im a te ly 6 5 % b la ck an d 3 5 % w h ite d o e s n o t preclude desegregation o f th e s c h o o l system in th e co n s titu t io n a l sense by m ean s o f a D e tr o it -o n ly re m e d y . T h is C o u r t a p p ro v e d desegrega t io n plans in Wright v. Council o f the City o f Emporia, 4 0 7 U.S. 4 5 1 (1 9 7 2 ) and Raney v . Board o f Education o f the Gould School District, 391 U .S . 4 4 3 (1 9 6 8 ) , re sp e ctiv e ly , w h ich resu lted in a racial ra tio o f 6 6 % b la ck and 3 4 % w h ite . T h e su m m ary r e je c t io n o f the D e tr o it -o n ly p lan o f desegrega tion e x h ib its e ith er a m isu n d ersta n d in g o f th e m an d ate that the re m e d y f o r a segregated s c h o o l sy stem is c o n v e rs io n to a unitary sy stem , o r a re je c t io n o f su ch m a n d a te in fa v o r o f a socio log ica lly - c o n c e iv e d d u ty t o e f f e c t a m o re desirab le racial b a la n ce between the D e tro it s c h o o l sy stem as a w h o le an d o th e r separate, unrelated and id e n tifia b le s c h o o l d istricts . T h e tran sition o f th e D e tro it s c h o o l system to a u n itary , non- racial system is th e u ltim a te en d t o b e b ro u g h t a b o u t. Green v. County School Board o f New Kent County, 391 U .S . 4 3 0 , 436 (1 9 6 8 ) . A u n itary s c h o o l system is o n e w ith in w h ich n o person is to be e ffe c t iv e ly e x c lu d e d fr o m an y s c h o o l b eca u se o f race or c o lo r . Alexander v. Holmes County Board o f Education, 396 U.S. 19 (1 9 6 9 ) . R a cia l ba la n cin g o r m ix in g is n o t con stitu tion a lly re qu ired o r p e rm itte d . Swann, supra, at page 2 4 . T h e o n ly perm issib le r e m e d y , based o n th e constitutional v io la tio n s h ere fo u n d , is t o co n v e rt the D e tro it s c h o o l system to a u n itary system . T h is can and m u st be a c co m p lis h e d b y a judicial re m e d y lim ited to th e D e tro it s c h o o l s y s t e m .!2 0 ] [20] j j j e District Court noted that simply by drawing boundary lines in an east-west direction the Detroit Board could achieve “ significant integration” . (Pet. A. 26a). 3 5 II There Is N o Constitutional Violation On Which to Predicate A So-Called M etropolitan Rem edy A s n o te d h e re in a b o v e , th is litiga tion was in stitu ted , tr ied , and findings and co n c lu s io n s issued so le ly o n th e grou n d s that the D etroit s c h o o l system has b een o p e ra te d as a de jure segregated system . T h e u n iq u e p o stu re o f this case on appea l is n o te d at the very ou tse t o f th e m a jo r ity o p in io n o f the C o u rt o f A p p e a ls fo r the S ixth C ircu it : “ T h is is a s c h o o l desegregation case w h ich , as orig ina lly filed , w as d irected against th e s c h o o l system o f D e tro it , M ich igan , b u t on th is appea l in vo lves b o th D e tro it and s c h o o l d istricts lo c a te d in th e su rrou n d in g m e tro p o lita n area .” Bradley v. Milliken, 4 8 4 F .2 d 2 1 5 , 2 1 7 (C A 6 , 1 9 7 3 ). (P et. A . 11 la ) . D espite th e fa c t that the o n ly co n s titu t io n a l v io la tio n s fo u n d are lim ited to the o p e ra tio n o f o n e s c h o o l d istrict, D e tro it , so m e u nspecified n u m b e r o f th e 8 6 u n re la ted , separate and id e n tifia b le sch ool d istricts I21 l in three co u n tie s , em b ra cin g an area in excess o f 1 ,000 square m iles , are fa ce d w ith the p ro s p e c t o f b e in g su b jected to a ju d ic ia l d e cre e requ irin g th e fo r c e d re-assignm ent o f hundreds o f th ou sa n d s o f p u p ils fo r the p u rp o se o f racial balancing. A. Brown C22J v. Board o f Education and Its Progeny, Revisited. “ ‘W hen I use a w o r d , ’ H u m p ty D u m p ty said, in a rather scorn fu l to n e , ‘ it m ean s ju st w h at I c h o o s e it t o m ean , n e ith er m ore n o r less .’ [ 2 i i J The District Court Ruling On Desegregation Area and Development of Plans (Pet. A. 59a) embraced fifty-three (53) school districts within three counties, covering an area of approximately 700 square miles, and contem plated the transportation of over 300,000 children (Pet. A. 72a). Brown v. Board o f Education o f Topeka, 347 U.S. 483 (1954) ( Brown / ” ), and Brown v. Board o f Education, 349 U.S. 294 (1955) ( “Brown II” ). 3 6 “ ‘T h e q u e stio n is ,’ said A lic e , ‘ w h eth er y o u can m ake w o rd s m ean so m a n y d if fe re n t th in g s .’ “ ‘ T h e q u e stio n is ,’ said H u m p ty D u m p ty , ‘ w h ich is to b e th e m aster — th a t ’ s a ll.’ ” L ew is C a rro ll, Through The Looking Glass. T h e term s “ seg reg a tion ” an d “ d e se g re g a tio n ” have b e e n given w e ll-d e fin e d m ea n in g b y th is C o u r t in re la tion to the p r o te c t io n o f co n s titu t io n a l rights gu aran teed b y the E q u a l P r o te c t io n C lause o f th e F o u rte e n th A m e n d m e n t . S egregation an d d eseg reg a tion may b e , and are, u sed rh e to r ica lly in exp ressin g d if fe r in g soc io lo g ica l v ie w p o in ts b u t th eir ju d ic ia lly -p re scr ib e d m ean in g d o e s n o t perm it a c o u rt to ascribe its o w n d e fin it io n t o said term s as the linch p in fo r a ju d ic ia l r e m e d y . It is su b m itte d th at th e D istr ict C ourt and th e m a jo r ity o f th e C o u r t o f A p p e a ls fo r the S ix th Circuit have d is to r te d th e m ean in g o f th ese term s, as laid d o w n b y this C o u rt , in d e cre e in g th at a “ m e tr o p o lita n ” re m e d y is requ ired to desegregate th e D e tro it s c h o o l system . A p ro p e r assessm ent o f th e p r in c ip le e n u n cia te d in Brown /, 3 4 7 U .S . 4 8 3 (1 9 5 4 ) , b eg in s w ith Dred Scott v. Sanford, 6 0 U.S. (1 9 H o w ) 3 9 3 (1 8 5 6 ) . In Dred Scott, supra, C h ie f Ju stice Taney stated th at the C o n s t itu tio n o f th e U n ite d S tates d id n o t a ffo rd to b la ck c it izen s th e sam e rights as a ffo r d e d to w h ite c it izen s because b la ck c it izen s w ere in fe r io r a c co rd in g to law . S u b se q u e n tly , the T h irte e n th , F o u rte e n th and F ifte e n th A m e n d m e n ts t o the United S tates C o n s t itu tio n re c o g n iz e d th at th ere w as n o ju stifica tion w h atever fo r a tta ch in g a badge o f legal in fe r io r ity t o b la ck citizens and d ecla red th at the sa n ctio n o f law c o u ld n o t b e u sed to den y to b la ck citizen s th e sam e rights a f fo r d e d to w h ites . H ow ev er , in Plessy v. Ferguson, 163 U .S . 5 3 7 (1 8 9 6 ) , a m a jo r ity o f the Court gave ap p rova l t o the “ separate b u t equ a l d o c tr in e ” in h o ld in g that a state statute req u ir in g racial segregation in ra ilw ay service did n o t a m o u n t t o a den ial o f equ a l p r o te c t io n o f the law s. T h e separ ate b u t equ a l d o c tr in e was then used b y so m e states as justifica tion fo r legally e n fo r c e d segregation o f p u p ils in the p u b lic schools on th e basis o f race o r c o lo r . 3 7 In 1 9 5 4 ca m e Brown / , 3 4 7 U .S . 4 8 3 (1 9 5 4 ) . T h is case, and its co m p a n io n cases fr o m S ou th C arolin a , V irgin ia and D elaw are, presented a situ ation w h ere b la ck ch ild ren had b een den ied adm is sion to s ch o o ls a tten d ed b y w h ite ch ildren u n d e r state law s req u ir ing or p e rm ittin g segregation a c co rd in g to race. T h e C o u rt c o n cluded that w h ere th e S tate has u n d erta k en to p ro v id e free p u b lic edu cation , it m u st be m ade “ available to all on equ a l term s” , Brown / , supra, at page 4 9 3 . T he ra tion a le o f the C o u r t was that a state sa n ctio n e d p o l ic y o f racial segregation in fa ct e m b o d ie s a legal p h ilo s o p h y prem ised on in equ ality b e tw e e n b la ck s and w h ites. T h e C ou rt exp ressed its agreem ent w ith the Kansas D istrict C ou rt that - “ • . . S egregation with the sanction o f law, th e re fo re , has a te n d e n cy t o [re ta rd ] th e ed u ca tio n a l and m ental d e v e lo p m e n t o f n eg ro ch ild ren and t o deprive th em o f som e o f the b e n e fits th ey w o u ld rece ive in a r a c ia l[ ly ] in tegrated s ch o o l sy s te m .” Brown I, supra, at page 4 9 4 . [E m ph asis a d d ed .] Thus, Brown I, 3 4 7 U .S . 4 8 3 (1 9 5 4 ) , stands fo r the p rin ciple that a state and its agencies m ay n o t , in e f f e c t , h ang signs on the sch o o l h ou se d o o r that say “ fo r w h ites o n ly ” o r “ fo r b lacks on ly” . A s stated in Swann v. Charlotte-Mecklenburg Board o f Education, 4 0 2 U .S . 1 ,6 (1 9 7 1 ) - “ T h a t was w h at Brown v. Board o f Education was all a b o u t .” There is n o th in g in Brown I, 3 4 7 U .S . 4 8 3 (1 9 5 4 ) , w h ich says that a p rep o n d e ra n ce o f b la ck stu den ts in a particu lar s c h o o l , o r a particular s c h o o l d istrict, o f fe n d s th e C o n st itu tio n . W hat is c o n dem ned in Brown I is n o t the p resen ce o f t o o m an y o r t o o fe w black students in a s c h o o l b u t use o f the fo r c e o f law to d en y black ch ildren en tran ce to a s c h o o l o r c la ssroom so le ly becau se o f race o r co lo r . In Brown v. Board o f Education, 3 4 9 U .S . 2 9 4 (1 9 5 5 ) ( Brown II”), the C o u rt addressed it s e lf to the m atter o f r e lie f to be a ccord ed w h ere it is fo u n d that the state o r its agen cies have denied b lack ch ild ren access to s c h o o ls on the basis o f race. T he 3 8 C o u rt d id n o t set d o w n w ith pa rticu la rity the in c id e n ts o f the rem ed ia l a c t io n t o be tak en b u t sta ted as fo l lo w s : “ In fa sh io n in g and e ffe c tu a t in g the d e cre e s , th e courts w ill be g u id ed b y e q u ita b le p r in cip les . T ra d it io n a lly , equity has b een ch a ra cter ized b y a p ractica l f le x ib il ity in shaping its rem ed ies an d b y a fa c ility f o r ad ju stin g and re co n c il in g public and private n eed s . These cases ca ll f o r the ex erc ise o f these tra d ition a l a ttr ib u tes o f e q u ity p o w e r .” Brown II, supra, at page 3 0 0 . [E m p h asis a d d e d .] T h e gu idelines f o r rem ed ia l a c t io n in Brown II, supra, m ust be a p p lied in th e c o n te x t o f th e s itu a tion p resen ted b y th e cases to w h ich the C o u rt re fe rre d , i .e ., a dual s c h o o l sy stem which separated ch ild ren in th e p u b lic s ch o o ls o n th e basis o f race, by sa n ction o f law . T h e C o u r t ’ s s ta tem en t d o e s n o t grant federal cou rts u n lim ited licen se w ith o u t regard t o th e c o n te x t in which rem ed ia l a u th o r ity is t o b e e x e rc ise d . N o r w as the C o u r t authoriz in g racial ba la n cin g as a re m e d y . T h e o b je c t iv e o f th e exercise of the co u r ts ’ e q u ity p o w e rs was clearly sta ted as fo l lo w s : “ . . . A t stake is the p erson a l in terest o f the p la intiffs in admission to public schools as s o o n as p ra ctica b le on a non- discriminatory basis” Brown II, 3 4 9 U .S . 2 9 4 (1 9 5 5 ) , at page 3 0 0 . [E m ph asis a d d e d .] In Griffin v. County School Board o f Prince Edward County, 3 7 7 U .S . 2 1 8 (1 9 6 4 ) , a c o u n ty c lo se d its p u b lic s c h o o l system, u n d er a u th ority o f state law , in an a tte m p t to evade the mandate o f Brown I, 3 4 7 U .S . 4 8 3 (1 9 5 4 ) . T h e C o u r t ex p ress ly n o te d that the E qual P ro te c t io n C lause relates to equ a l p r o te c t io n o f the laws “between persons as such rather than between areas’’, Griffin, supra, at 2 3 0 , an d th at th e State c o u ld p ro p e r ly treat o n e county s c h o o l d istrict d if fe re n t th an a n oth er so lo n g as su ch treatm ent was n o t fo u n d e d u p o n the p u rp o se fu l o b je c t iv e o f d e n y in g federally- p r o te c te d rights. E xpressin g its d issa tis fa ction w ith the e fforts of th e P rince E dw a rd C o u n ty s c h o o l a u th orities t o c ircu m ven t the in te rd ic t io n o f Brown I, supra, the C o u rt d ecla red that the time fo r co n v e rtin g to a u n itary system w ith “ m ere de lib era te speed had run o u t and that su ch phrase, u sed in Brown I, supra, cou ld no lon ger be used as a basis fo r fa ilure to co n v e rt to a un itary school system . 3 9 In Green v. County School Board o f New Kent County, 391 U.S. 4 3 0 (1 9 6 8 ) , the C o u r t d eterm in ed that a so -ca lled “ fre e d o m o f c h o ic e ” plan d id n o t m eet the req u irem en t to con v ert a dual school system to a u n ita ry s c h o o l system w h en , in fa ct , s ch o o ls that w ere fo rm e r ly all b la ck b y san ction o f law rem ain ed all b la ck . T he N ew K e n t C o u n ty s c h o o l system was in itia lly estab lish ed and m ainta in ed u n d e r c o m p u ls io n o f the V irg in ia co n s titu t io n and statutory p rov is ion s m an datin g racial segregation in th e p u b lic schools. In 1 965 the s c h o o l b o a rd a d o p te d a “ fre e d o m o f c h o ic e ” plan w h ereb y ea ch p u p il, e x c e p t th ose en terin g the first and eighth grades, co u ld e le c t t o a tten d e ith er o f the tw o s ch o o ls in the school system , o n e o f w h ich had b een e x clu s ive ly fo r w h ites and the o th er e x c lu s iv e ly fo r b lack s. T h ree years a fter the plan w en t into o p e ra tio n , n o t a single w h ite ch ild had ch o se n to a tten d the all black s c h o o l. T h e C o u rt h e ld that w h en s c h o o l au th orities have in e f fe c t erected signs on th e s c h o o l h ou se d o o r s sayin g “ this s c h o o l fo r whites o n ly ” o r “ th is s c h o o l f o r b la ck s o n ly ” , m erely rem ov in g the signs d oes n o t sa tisfy the o b lig a tio n t o co n v e rt t o a u n itary school system . T h e a ffirm a tiv e d u ty o f the s c h o o l au th orities to convert to a u n itary system , ra th er than p la ce such bu rd en on the children an d th eir paren ts, w as ex p ressed as an o b lig a tio n o f the school b oa rd to fo rm u la te a p lan to c o n v e rt t o a system “ w ith o u t a ‘white’ s c h o o l and a ‘N e g r o ’ s c h o o l , b u t ju st s c h o o ls ” . Green v. County School Board o f New Kent County, 391 U .S. 4 3 0 , 4 4 2 (1968). T he co m m a n d to co n v e rt to a system w ith o u t a w h ite s c h o o l and a N egro s c h o o l , b u t ju st s ch o o ls , was n o t an ex p ress ion o f a requirem ent fo r racial ba lan cin g . T h e e ffe ctiv e n e ss o f a desegrega tion plan is n o t to b e m easu red in term s o f racial ba lan ce b u t in terms o f its p ro sp e cts fo r d ism an tlin g a system o f separate s ch o o ls for blacks and w h ites. “ . . . W here th e co u r t fin d s the b oa rd to be a ctin g in g o o d faith an d the p ro p o s e d p lan to have real p ro sp e cts fo r dismantling the state-imposed dual system ‘ at the earliest practicable d a te ’ , th en the plan m ay be said to p rov id e e f f e c tive re lie f.” Green, supra, at page 4 3 9 . [E m ph asis a d d e d .] 40 F o llo w in g its d e c is io n in Green v. County School Board of New Kent County, 391 U .S . 4 3 0 (1 9 6 8 ) , th e C o u rt in Alexander v. Holmes County Board o f Education, 396 U .S . 19 (1 9 6 9 ) , in co n s id e r in g th e d eseg reg a tion o f segregated s ch o o ls in M ississippi, sa id : “ . . . co n t in u e d o p e ra t io n o f segregated s c h o o ls under a standard o f a llo w in g ‘ all d e lib era te s p e e d ’ f o r desegregation is n o lo n g e r c o n s t itu t io n a lly perm issib le . U n d er e x p lic it hold ings o f th is C o u r t the obligation o f every s c h o o l d istrict is to terminate dual systems at once an d to operate n o w and here a fter o n ly unitary schools.” Alexander v. Holmes, supra, at page 2 0 . [E m p h asis a d d e d .] T h e C o u r t d e fin e d a u n ita ry system as o n e — “ . . . w ith in w h ich n o p erson is t o b e e ffe c t iv e ly ex c lu d e d fr o m a n y s c h o o l b e ca u se o f ra ce o r c o lo r . ” Alexander v. Holmes, supra, at page 2 0 . In Swann v. Charlotte-Mecklenburg Board o f Education, 402 U .S . 1, 5 , 6 (1 9 7 1 ) , th e C o u rt n o te d th e reason s f o r its grant of certiorari, as fo l lo w s : “ W e gran ted ce rtio ra ri in th is case to rev iew im portant issues as to the duties o f school authorities and the scope of powers o f federal courts u n d e r th is C o u r t ’ s m an dates to eli m in a te racially separate public schools estab lish ed and main ta ined b y state a c t io n . Brown v . Board o f Education, 347 U .S . 4 8 3 ( 1 9 5 4 ) {Brown I). “ T h is case an d th o se argued w ith it a rose in states hav in g a lo n g h is to ry o f m a in ta in in g tw o sets o f s ch o o ls in a single s c h o o l system d e lib e ra te ly o p e ra te d t o carry out a g ov ern m en ta l p o l i c y to separate p u p ils in s c h o o ls solely on th e basis o f race . T h at w as w h at Brown v. Board o f Educa tion w as all a b o u t .” [E m p h asis a d d e d .] T h e C ou rt in Swann, supra, ex p ress ly n o te d that — “ W e are c o n c e r n e d in these cases w ith the elim ination of th e d iscr im in a tion in h eren t in the dual s c h o o l system s, not 41 w ith th e m y ria d fa c to rs o f hum an e x is te n ce w h ich can cause d iscr im in a tion in a m u ltitu d e o f w ays o n racia l, re lig iou s or e th n ic g rou n d s. The target o f the cases from Brown I to the present was the dual school system.” Swann, supra, at page 22 . [E m ph asis a d d e d .] S egregation in th e p u b lic s ch o o ls in the c o n te x t o f th e d e c i sions o f this C ou rt m eans th e de lib era te separation o f w h ite and black ch ildren so le ly on th e basis o f race , b y g ov ern m en ta l a ction . That is the ev il s tru ck d o w n b y Brown I and its p ro g e n y and that is the v io la tio n t o b e co r re c te d b y ju d ic ia l re m e d y . A s stated in Swann v. Charlotte-Mecklenburg Board o f Education, 4 0 2 U .S . 1 (1971): “ O u r o b je c t iv e in dea lin g w ith th e issues p resen ted b y these cases is t o see that s c h o o l a u th orities e x c lu d e n o p u p il o f a racial m in o r ity fr o m an y s c h o o l , d ire c t ly o r in d ire c t ly , on a c c o u n t o f ra ce ; it does r\pt and cannot embrace all the problems o f racial prejudice, even when those problems con tribute to disproportionate racial concentrations in some schools. ’’Swann, supra, at page 2 3 . [E m ph asis a d d e d .] T he C o u rt ex p ressed th e p red ica te fo r ju d ic ia l a c t io n and the limitations on th e s co p e o f the rem ed ia l p o w e rs o f th e federal courts as fo l lo w s : “ . . . The task is to correct, b y a b a lan cin g o f th e in d i vidual and co lle c t iv e in terests, the condition that offends the Constitution. “ In seek in g t o d e fin e even in b ro a d and general term s h ow far this rem ed ia l p o w e r e x te n d s it is important to re member that judicial powers may be exercised only on the basis o f a constitutional violation. R em ed ia l ju d ic ia l a u th or ity d oes n o t p u t ju d g e s a u to m a tica lly in th e sh oes o f s c h o o l a u th orities w h o se p o w e rs are p len ary . J u d icia l a u th ority enters o n ly w h en lo c a l a u th o r ity d efau lts . “ S c h o o l a u th orities are tra d ition a lly ch arged w ith b ro a d p ow er to fo rm u la te and im p le m e n t e d u ca tio n a l p o lic y and might w ell c o n c lu d e , fo r e x a m p le , that in o rd er t o prepare students to live in a p lu ra listic s o c ie ty each s c h o o l sh ou ld 4 2 have a p re scr ib e d ra tio o f N e g ro to w h ite stu den ts reflecting the p r o p o r t io n fo r the d istrict as a w h o le . T o d o this as an e d u ca tio n a l p o l ic y is w ith in the b roa d d iscre t io n a ry powers o f s c h o o l a u th or ities ; absen t a fin d in g o f a con stitu tion a l v io la t io n , h o w e v e r , that w o u ld n o t be w ith in the a u th ority of a fed era l co u r t . A s w ith any e q u ity case, the nature o f the violation determines the scope o f the remedy. In d e fa u lt by the s c h o o l au th orities o f their o b lig a tio n to p r o f fe r ac ce p ta b le rem ed ies , a d istr ict c o u r t has b ro a d p o w e r t o fashion a remedy that will assure a unitary school system." Swann v. Charlotte-Mecklenburg Board o f Education, 4 0 2 U .S . 1, 16 (1 9 7 1 ) . [E m ph asis a d d e d .] T h e C o u rt exp ressly stated that racial ba la n cin g o r m ix in g is n e ith er req u ired n o r p e rm itte d to sa tisfy the m an d ate o f the Equal P r o te c t io n C lause. “ . . . I f w e w ere t o #read the h o ld in g o f the District C ou rt t o req u ire , as a m a tter o f su bstan tive constitutional righ t, an y particu lar degree o f racia l b a la n ce o r m ix in g , that a p p ro a ch w o u ld be d isa p p rov ed an d w e w o u ld be obliged to reverse .” Swann v. Charlotte-Mecklenburg Board o f Educa tion, 4 0 2 U .S . 1 , 2 4 ( 1 9 7 1 ) . W hile th e cases p resen ted to th is C o u rt fr o m Brown /, 347 U .S . 4 8 3 (1 9 5 4 ) to Swann v. Charlotte-Mecklenburg Board of Education, 4 0 2 U .S . 1 (1 9 7 1 ) , dea lt w ith s itu a tion s w h ere there had b e e n a lo n g h is to ry o f leg a lly s tru ctu red separate s ch o o ls for w h ites and b la ck s , Spencer v. Kugler, 3 2 6 F . S u p p . 1 2 3 5 (N.J. 1 9 7 1 ), aff’d. 4 0 4 U .S . 1 0 2 7 (1 9 7 2 ) , in v o lv e d a state w h ere , like M ich igan , th ere is n o h is to ry o f s ta te -w id e im p o s e d segregation in the p u b lic s ch o o ls . T h e d e c is io n o f th e th ree ju d g e cou rt in Spencer v. Kugler, supra, a ff irm e d b y this C o u rt , n o te d as follow s: “ . . . Brown never req u ired a n yth in g m o re than a uni tary s c h o o l system . . . . ” Spencer v. Kugler, supra, at page 1241 . * * * “ T h e C o u rt in Swann draw s a critical distinction b etw een th ose states w h ich have a h is tory o f dual school 43 system s and a separa tion o f the races . . . and th ose w h erein so -ca lled ‘de facto’ segregation results fr o m h ou s in g patterns and co n v e n tio n a l d raw in g o f s c h o o l d istrict z o n e s .” * * * “ T h e cre a tio n o f th ose s c h o o l d istricts b y a p prova l o f the legislature o n S e p te m b e r 18, 1 9 5 3 , p re ce d e d the h is tor ic d ecis ion o f Brown I, d e c id e d on M ay 17 , 1 9 5 4 . T h e o b v io u s in tent o f th e leg islature was to m ainta in a u n ita ry s c h o o l sys tem as Brown I la ter req u ired . While the result o f such legisla tion some 18 years later may be racial imbalance, within certain school districts, it does not amount to segregation. ” * * * “ A c o n t in u in g tren d tow a rd racial im b a la n ce caused b y housing patterns w ith in the variou s s c h o o l d istricts is n o t su sceptib le to fed era l ju d ic ia l in terv en tion . . . . ” Spencer v. Kugler, supra, at pages 1 2 4 2 -1 2 4 3 . [E m ph asis a d d e d ] . In Wright v. Council o f the City o f Emporia, 4 0 7 U .S. 451 (1 9 7 2 ), and United States v . Scotland Neck City Board o f Educa tion, 407 U .S. 4 8 4 (1 9 7 2 ) , the C o u rt addressed itse lf to the “ nar row q u estion ” o f w h e th e r a n ew s c h o o l d istrict c o u ld be carved out o f an ex istin g s c h o o l d istrict w h ich was in the p ro ce ss o f dis mantling a dual s c h o o l system pu rsuan t t o c o u r t ord er. T h e C o u rt held that a n ew s c h o o l d istrict m ay n o t be created w h ere its e f fe c t would be to im p ed e the p ro ce ss o f d ism antlin g a dual system . Emporia, supra, at page 4 6 5 . In Keyes v. School District No. 1, Denver, Colo., 4 1 3 U .S. 1 8 9 ,------ (1 9 7 3 ) , 3 7 L . E d. 2d 5 4 8 , 5 6 3 (1 9 7 3 ) , th e C o u rt h e ld that where a s ta tu tory du a l s c h o o l system n ever ex is te d , th e u n d er pinning to su p p ort a f in d in g o f de jure segregation is “ p u rp o se o r intent to segregate” . T h e C o u r t fu rth er h e ld that even w ith in a single s ch o o l d istrict a sy stem -w id e d esegregation rem edy is n o t re quired i f the s c h o o l d istr ict can p ro v e that its in ten tion a l segrega tive acts w ere co n fin e d t o an area o f the s ch o o l d istrict w h ich is a 44 separate, id e n tifia b le an d u n re la ted s e c t io n o f the s c h o o l district that sh ou ld be trea ted as iso la te d fr o m the rest o f th e d istrict. F ro m Brown I to Keyes v. School District No. 1. Denver, Colo., 4 1 3 U .S . 189 ( 1 9 7 3 ) , it is c lea r that - 1. De jure segregation in the p u b lic s c h o o ls m ean s the sep a ra tion o f ch ild re n in s ch o o ls s o le ly o n th e basis of race o r c o lo r b y in te n tio n a l a c t io n o f state authorities. 2 . T h e m ere e x is te n ce o f racial im b a la n ce in the public s c h o o ls d o e s n o t o f fe n d th e C o n s t itu t io n . 3. D esegregation m ean s the assignm ent o f ch ildren to p u b lic s c h o o ls , an d w ith in su ch s c h o o ls , w ith o u t regard to th eir race o r c o lo r . 4 . A u n itary s c h o o l system is a system in w h ich n o person is e f fe c t iv e ly e x c lu d e d fr o m an y s c h o o l becau se o f race o r c o lo r . 5. R acia l ba la n cin g is n o t req u ired in re m e d y in g even a dual s c h o o l sy stem . A p p ly in g the teach in gs o f th is C o u rt fr o m Brown I to date, a so -ca lled m e tro p o lita n p lan o f desegregation t o a cco m p lish deseg regation o f the p u b lic s c h o o ls o f th e C ity o f D e tro it is imper m issible. B. There Is N o Constitutional Violation On Which A “ M etropolitan” R em edy Can Be Predicated In Brown I, 3 4 7 U .S . 4 8 3 (1 9 5 4 ) , the C o u r t d eclared that w h ere a S tate has u n d erta k en to p ro v id e free p u b lic ed u cation , it m u st b e m ad e available t o all on equ a l term s. T h e constitutional and sta tu tory law o f the S tate o f M ich igan has m a n d a ted such p o lic y fo r over 100 years. P u b lic A c t N o . 3 4 , S e c tio n 2 8 , o l the M ich igan P u b lic A cts o f 1 8 6 7 expressly p ro v id e d that - “ A ll residents o f an y d istr ict shall have an equ a l right to a tten d an y s c h o o l th ere in . . .” In The People v. Board o f Education o f Detroit, 18 M ich . 3 9 9 (1 8 6 9 ), the M ich igan S u prem e C o u rt h e ld that u n d e r said statute children c o u ld n o t be d en ied a dm ission to an y s c h o o l on the basis o f race o r c o lo r . In 1927 the M ich igan legislature en a cted A c t N o . 3 1 9 , Part II, C hapter 2 , S e c tio n 9 o f w h ich p ro v id e d as fo l lo w s : “ A ll p erson s residen ts o f an y s c h o o l d istrict, and five years o f age, shall have an equ a l right t o a tten d an y s c h o o l th ere in ; an d n o separate s c h o o l o r d ep a rtm en t shall be k ept fo r an y p erson o r p erson s o n a c c o u n t o f race o r c o lo r . . .” The M ich igan S c h o o l C o d e o f 195 5 p rov id es that — “ N o separate s c h o o l o r d ep a rtm en t shall be k ep t f o r any person o r person s o n a c c o u n t o f race o r c o lo r .” M ich . C o m p . Laws § 3 4 0 .3 5 5 . T he lon g -estab lish ed State p o lic y against racial separation in the p u b lic s ch o o ls was re a ffirm e d in the M ich igan C o n s t itu tio n o f 1963: “ . . . E very s c h o o l d istr ict shall p rov id e f o r the e d u ca tion o f its p u p ils w ith o u t d iscr im in a tion as to re lig ion , creed , race, c o lo r o r n a tion a l o r ig in .” M ich C on st 1 9 6 3 , art V III . §2.123] T here is n o c o n te n t io n and n o fin d in g that th e S tate o f M ichigan has fo s te re d dual s c h o o l system s. T h e o n ly fin d in g o f con stitu tion a l v io la t io n is that w ith in the D e tro it s c h o o l system children have n o t been assigned to s ch o o ls w ith o u t regard to race or co lo r . In Lee v. Macon County Board of Education, 4 4 8 F .2 d 746, 752 (C A 5 , 1 9 7 1 ), the co u r t a rticu la ted the basis f o r treating separate s c h o o l d istricts as o n e fo r p u rp oses o f desegregation , as fo llow s: [231 “ The anti-discrimination clause is placed in this section as a declaration which leaves no doubt as to where Michigan stands on this question.” State of Michigan Constitutional Convention, 1961, Official Record, Volume II, page 4 6 “ . . . h is to r ica lly separate s c h o o l d istricts , where shown to be created as a part o f a state-wide dual system or to have cooperated together in the maintenance o f such a system, have b een trea ted as o n e fo r p u rp oses o f desegregation .” [E m ph asis a d d e d .] H ere, th e a b sen ce o f a S tate p o lic y fo s te r in g a dual s c h o o l system, the co m p le te ab sen ce o f c o o p e ra t iv e a c t io n b e tw e e n D e tro it and o th e r s c h o o l d istricts w ith re sp e ct to the de jure segregated opera t io n o f the D e tro it s c h o o l sy stem , and th e la ck o f any causal rela t io n sh ip w ith re sp e ct to th e segregation fo u n d in D e tro it and other s c h o o l d istricts p ro h ib its a m u lt i-s ch o o l d is tr ict re m e d y u n der the guise o f desegregatin g th e D e tro it s c h o o l sy stem . T h e a p p a ren t rea son in g u sed b y the m a jo r ity o p in io n o f the C o u rt o f A p p ea ls t o su p p o rt a m u lt i-s ch o o l d istrict re m e d y is that ( i ) all s c h o o l d istricts are agen cies o f the S tate , and ( i i ) de jure segregation w ith resp ect to any s c h o o l d istr ict is, accord ingly , State a c t io n , e rg o (i i i) any s c h o o l d istricts o p e ra tin g u n d e r the egis o f State a u th or ity m a y b e in c lu d e d in a d esegrega tion remedy. T his e rro n e o u s p ostu la te is co n tra ry to th e p r o n o u n c e m e n t o f this C o u rt that the nature o f the v io la t io n d eterm in es th e s c o p e o f the re m e d y , Swann v . Charlotte-Mecklenburg Board o f Education, 402 U .S . 1, 16 (1 9 7 1 ) , and ig n ores the fa c t th a t s c h o o l d istricts in the State o f M ich igan , th o u g h crea ted b y legislative e n a ctm e n t, have p len ary a u th ority ov er the m a tter o f p u p il assignm ents and that the o p e ra tio n o f said s c h o o l d istricts is largely a lo c a l function. San Antonio Independent School District v . Rodriguez, 411 U.S. 1, 5 2 -5 3 (1 9 7 3 ) . T h e M ich igan C o n s t itu tio n p rov id es that - “ T h e legislature shall m ainta in and su p p o rt a system of free p u b lic e lem en tary and se co n d a ry s ch o o ls as d e fin ed by law . E very s c h o o l d istr ict shall p ro v id e f o r the ed u ca tion of its p u p ils w ith o u t d iscr im in a tion as to re lig io n , creed , race, c o lo r o r n a tion a l o r ig in .” M ich C o n st 1 9 6 3 , art V III , § 2 . Pursuant to said co n s titu t io n a l m an d ate , a s c h o o l d istrict as es tab lish ed b y legislative e n a ctm e n t is an in d e p e n d e n t “ b o d y cor p o ra te ” . 4 7 “ S ec. 3 5 2 . E very s c h o o l d istrict shall be a b o d y c o r porate u n d er the n am e p ro v id e d in this a ct, and m a y sue and be sued in its n a m e, m ay a cq u ire and take p ro p e r ty , b o th real and p erson a l, fo r e d u ca tio n a l p u rposes w ith in o r w ith o u t its corp ora te lim its, b y p u rch ase , g ifts , grant, devise o r b eq u est, and h o ld and use the sam e fo r su ch p u rp oses , and m ay sell and co n v e y the sam e as the in terests o f such d istrict m a y re quire, su b je ct to the co n d it io n s o f this a ct co n ta in e d . A s su ch b o d y co r p o r a te , every s c h o o l d istr ict shall be the su ccessor o f any s c h o o l d istr ict p rev iou s ly ex istin g w ith in the sam e terri torial lim its and shall be vested w ith all rights o f a c t io n , w ith the title o f all p r o p e r ty , real and p erson a l, o f the d istrict o f w h ich it is th e su cce sso r , and the in d eb ted n ess and ob lig a tions o f th e d istr ict su p ersed ed shall b e c o m e and be the in debtedness and o b lig a tio n s o f the su cce e d in g d istr ict, e x ce p t as o th erw ise p ro v id e d in ch apters 3 , 4 and 5 , part 2 o f this act. E very s c h o o l d istrict shall in all cases be p resu m ed to have been legally org a n ized w h en it shall have e x e rc ise d the franchises an d priv ileges o f a d istrict fo r the term o f 2 years; and such s c h o o l d istrict and its o f f ic e r s shall be en tit le d to all the rights, privileges and im m u n ities , an d be su b je ct t o all the duties and liab ilities co n fe r re d u p o n s c h o o l d istricts b y la w .” M ichigan C o m p ile d L aw s 3 4 0 .3 5 2 . I l l u s t r a t i v e o f t h e b r o a d a u t h o r i t y w h i c h t h e l e g i s l a t u r e h a s v e s t e d i n a l o c a l s c h o o l d i s t r i c t a r e t h e p o w e r s t o : 1. A cq u ire real and p erson a l p ro p e r ty . M ich . C o m p . Law s § § 3 4 0 . 2 6 ; 3 4 0 . 7 7 ; 3 4 0 .1 1 3 ; 3 4 0 .1 6 5 ; 3 4 0 .1 9 2 ; 3 4 0 .3 5 2 . 2. H ire and c o n tr a c t w ith d u ly q u a lified teach ers. M ich . C o m p . L aw s § 3 4 0 .5 6 9 . 3. D eterm in e th e len gth o f the s c h o o l term . M ich . C om p . Law s § 3 4 0 .5 7 5 . 4. C o n tro l th e adm ission o f n on -res id en t pu p ils . M ich . C o m p . L aw s § 3 4 0 .5 8 2 . 5 - D e t e r m i n e c o u r s e o f s t u d y a n d c a r r y o n s u c h g r a d e s , s c h o o l s a n d d e p a r t m e n t s a s i t s h a l l d e e m n e c e s s a r y . M ich . C o m p . Law s § 3 4 0 .5 8 3 . 4 8 6. E stablish a tte n d a n ce areas w ith in its d istr icts . Mich. C o m p . L aw s § 3 4 0 .5 8 9 . 7. A rran ge f o r tra n sp o rta tio n o f n o n -re s id e n t students. M ich . C o m p . L aw s § 3 4 0 .5 9 1 . 8 . A c q u ir e tra n sp o rta tio n e q u ip m e n t . M ich . C o m p . Laws § 3 4 0 .5 9 4 . 9. E m p lo y legal c o u n s e l. M ich . C o m p . L aw s § 3 4 0 .6 0 9 . 10 . M ake ru les an d reg u la tion s relative t o th e p u b lic schools o f th e d istr ict. M ich . C o m p . L aw s § 3 4 0 .6 1 4 . 11 . L e v y a u t h o r i z e d m i l l a g e . M ic h . C o m p . Laws § 3 4 0 .6 4 3 a . 12. A c q u ir e p r o p e r ty b y e m in e n t d o m a in . M ich . Comp. L aw s § 3 4 0 .7 1 1 . 13. A p p r o v e an d se lect t e x tb o o k s . M ich . C o m p . Laws § 3 4 0 .8 8 2 . In ch aracteriz in g th e n atu re o f lo ca l s c h o o l d istricts and their exten sive c o n tr o l o v e r e d u ca t io n , th e M ich igan S u p rem e Court n o te d in Jones v. Grand Ledge Public Schools, 3 4 9 M ich . 1, 5; 84 N .W .2 d 3 2 7 , 3 2 9 (1 9 5 7 ) , as fo l lo w s : “ . . . T h e gen eral p o l i c y o f the S tate has b e e n to retain c o n tr o l o f its s c h o o l system , t o b e ad m in istered throughout th e S tate u n d e r State law s b y local State agencies organized with plenary powers in d e p e n d e n t o f th e lo c a l governm ent w ith w h ich , b y lo c a t io n an d g eog ra p h ica l b ou n d a r ies , they are n ecessarily c lo s e ly a ssocia ted and t o a greater or less e x te n t a u th o r ize d t o c o -o p e r a te . E d u ca t io n b e lo n g s to the State. It is n o part o f th e lo c a l se lf-g o v e rn m e n t inherent in th e to w n s h ip o r m u n ic ip a lity e x c e p t so fa r as th e legislature m a y c h o o s e t o m ak e it su ch . * * * T h e gen era l s c h o o l laws w ere ca re fu lly p la n n ed and e n a cte d to guard that distinction; provision was made for organization o f the common school districts, with officers elected at school meetings by electors with defined qualifications, and who as a school board were given large plenary powers and control o f school matters, 4 9 p ra ctica lly in d e p e n d e n t fr o m the lo c a l g o v e rn m e n t o f m u n ic i p a lit ie s in w h ich th e s ch o o ls w ere s itu a ted .” [E m ph asis a d d ed .] See also MacQueen v. City Commission o f City o f Port Huron, 194 Mich. 3 2 8 , 160 N .W . 6 2 7 (1 9 1 6 ) ; School District o f the City o f Lansing v. State Board o f Education, 3 6 7 M ich . 5 9 1 , 116 N .W . 2d 8 6 6 (1 9 6 2 ) . H ere, as n o te d in San Antonio Independent School District v. Rodriguez, 411 U .S . 1, 5 2 n .1 0 8 , ( 1 9 7 3 ) - “ . . . It ca n n o t b e ser iou sly d o u b te d that . . . e d u ca tio n rem ains largely a lo ca l fu n c t io n , and that the p rep on d era tin g bu lk o f all d e c is io n s a ffe c t in g th e s ch o o ls is m a d e an d e x e cu te d at th e lo c a l level, gu aranteein g th e greatest p a rtic ip a tion by th ose m o s t d ire c t ly c o n c e r n e d .” T h e m a jo r ity o p in io n o f the S ix th C ircu it ord a in in g a “ m etropo lita n ” re m e d y , and the ord er o f the D istrict C o u rt , is founded on th e p rem ise that a p re d o m in a n tly b la ck s c h o o l d is trict geogra p h ica lly su rrou n d ed b y separate, u n rela ted and id en ti fiable p red om in a n tly w h ite s c h o o l d istricts o f fe n d s the C o n st itu tion. “ . . . a rem ed ia l o rd e r o f a co u r t o f e q u ity w h ich le ft the D e tro it s c h o o l system o v e rw h e lm in g ly b la ck ( f o r the foreseeab le fu tu re ) su rrou n d ed b y su bu rban s c h o o l system s overw h elm in g ly w h ite ca n n o t c o r r e c t the co n s titu t io n a l v io la tions herein fo u n d .” Bradley v. Milliken, 4 8 4 F .2 d 2 1 5 , 2 5 0 (C A 6 , 1 9 7 3 ), (P et. A . 17 3 a ). t2 4 l * * * “ . . . A large m e tro p o lita n area su ch as w e have in ou r case ca n n o t be m ade the su b je c t o f instant in tegra tion . W e m ust bear in m in d th at the task w e are ca lled u p o n to per form is a soc ia l o n e , w h ich s o c ie ty has b een u n ab le to a c com plish . In rea lity o u r cou rts are ca lled u p o n , in these [2 4 ] In the opinion of the three-judge panel initially issued in this case on December 8, 1972, and vacated by granting of rehearing in banc, the same concept was expressed as “ big city school systems for blacks surrounded by suburban school systems for whites cannot represent equal protection under the law.” Bradley v. Milliken, 484 F.2d 215, 261, 276 (CA 6, 1973), (Pet. A. 195a, 224a). 50 s c h o o l cases, to attain a so c ia l g o a l, th rou gh the education sy stem , b y u sin g the law as a lev er .” U n ited S tates District C o u r t , E .D . M ich (P et. A . 4 0 a -4 1 a ). O bsessed w ith th e n o t io n that racia l im b a la n ce between s c h o o l d istricts sh ou ld n o t b e to le ra te d , th e m a jo r ity o p in io n of the C o u rt o f A p p e a ls states that - “ I f s c h o o l b o u n d a ry lines c a n n o t b e ch a n g ed fo r an u n co n s t itu t io n a l p u rp o se , it fo l lo w s lo g ica lly th at existing b o u n d a ry lines c a n n o t b e fr o z e n f o r an uncon stitu tiona l p u r p o s e .” Bradley v. Milliken, 4 8 4 F .2 d 2 1 5 , 2 5 0 (C A 6, 1 9 7 3 ), Pet. A . 1 7 4 a ). In light o f th e fa ct that th ere have b e e n n o p r o o fs tak en in this case w ith resp ect t o th e esta b lish m en t o f th e b o u n d a r ie s o f any school district, n o r o n th e issue o f w h e th e r , w ith th e exclu sion of th e D e tro it s c h o o l sy stem , a n y s c h o o l d is tr ict has co m m itte d acts o f de jure segregation (P et. A . 6 0 a ), th e c o n c lu s io n that school d istrict b o u n d a r ie s have b e e n fr o z e n f o r an unconstitutional p u rp o se is in cre d ib le . T h ere is n o c o n s t itu t io n a l requ irem en t to ch ange s c h o o l d istr ict b o u n d a r ie s f o r th e p u rp o se o f m aking ad ju s tm e n ts o f the racia l c o m p o s it io n o f s tu d en t b o d ie s where, as h ere , th ere is n o sh ow in g that s c h o o l a u th orities o r o th e r agencies o f th e S tate d e lib e ra te ly estab lish ed o r a ltered su ch s c h o o l district b ou n d a r ies w ith the p u rp o se o f a ffe c t in g th e racia l c o m p o s it io n of said s c h o o l d istricts . Swann v . Charlotte-Mecklenburg Board of Education, 4 0 2 U .S . 1, 3 1 -3 2 (1 9 7 1 ) ; Spencer v. Kugler, 326 F. S u pp 123 5 (N .J . 1 9 7 1 ), a ff’d. 4 0 4 U .S . 1 0 2 7 (1 9 7 2 ) . T h e s ta tem en t in th e m a jo r ity o p in io n o f th e S ix th Circuit that th e instant case calls up h a u n tin g m e m o r ie s o f th e “ separate b u t e q u a l” d o c tr in e o f Plessy v . Ferguson, 163 U .S . 5 3 7 (1896), and that a “ m e tr o p o lita n ” re m e d y is n ecessary to c o m p ly with the m an date o f Brown v. Board o f Education o f Topeka, 3 4 7 U.S. 483 (1 9 5 4 ) , is n augh t b u t rh e to r ic . Bradley v . Milliken, 4 8 4 F .2d 215, 2 4 9 (C A 6 , 1 9 7 3 ), (P et. A . 172 a ). T h ere is n o ev id en ce in this case that any s c h o o l d is tr ict , in c lu d in g D e tr o it , has, w ith the sanction o f law , m a in ta in ed separate s ch o o ls ex c lu s ive ly fo r blacks and ex clu sive ly fo r w h ites. Brown I. supra, d id n o t d eclare that racial im b a la n ce o f fe n d s th e C o n s t itu t io n . T h e co m m a n d o f Brown I, supra, was n o t d ire cte d at th e racial c o m p o s it io n o f school 51 districts b u t at a d e lib era te govern m en ta l p o lic y o f m ainta in ing two sets o f s c h o o ls in a single s c h o o l system so le ly o n the basis o f race. Swann v. Chariotte-Mecklenburg Board o f Education 4 0 7 U.S. 1 ,6 ( 1 9 7 1 ) . T he im p lic it ra tion a le fo r a “ m e tr o p o lita n ” rem e d y is that black stu den ts m u st b e c o n fin e d to a n u m erica l m in o r ity in every sch oo l, grade o r c la ss ro o m ” (P et. A . 101a) becau se a p re dom inance o f b la ck ch ild ren in a s c h o o l system co n stitu te s in vidious d iscr im in a tion against b la ck ch ild ren . A “ m e tro p o lita n ” rem edy im p lies that m a jo r ity b la ck sch o o ls are b y ju d ic ia l d e fin i tion in fe r io r and is in e f fe c t a retu rn to th e spirit o f Dred Scott v. Sanford, 6 0 U .S . (1 9 H o w ) 3 9 3 (1 8 5 6 ) . See o p in io n o f Judge S o b e lo ff in Brunson v. Board o f Trustees o f School District No. 1, Clarendon County, S.C., 4 2 9 F . 2d 8 2 0 (C A 4 , 1 9 7 0 ). T h e lim ita tio n exp ressed in Swann v. Charlotte-Mecklenburg Board o f Education, 4 0 2 U .S . 1, 16 (1 9 7 1 ) , that the “ nature o f the v io la tion d eterm in es th e s co p e o f th e r e m e d y ” m akes a “ m etrop o lita n ” re m e d y im p erm issib le in this case. T h e C o u rt o f Appeals fo r the S ix th C ircu it re co g n ize d th e e x te n t o f this lim ita tion in Deal v. Cincinnati Board o f Education, 3 6 9 F. 2 d 5 5 , 63 (CA 6 , 1 9 6 6 ), cert. den. 3 8 9 U .S . 8 4 7 (1 9 6 7 ) : “ . . . I f the s c h o o l o ff ic ia ls , th rou g h overt p ra ctice o r b y su bterfu ge , have treated stu den ts d if fe re n t ly so le ly becau se o f race, th en th ey n o t o n ly m u st cease d o in g so , b u t also m ust take affirmative action to remedy the condition which they have caused. ” T he nature o f the co n stitu t io n a l v io la t io n is that w ith in the Detroit s c h o o l system ch ild ren have b een assigned to s ch o o ls on the basis o f race o r c o lo r . T h e result o f such segregative a ction is that som e s ch o o ls w ith in the D e tro it system are co m p rise d o f a majority o f b la ck o r w h ite ch ild ren in substantial d is p ro p o r t io n to the racial c o m p o s it io n o f that s c h o o l system . Had n o n e o f the acts fo u n d to co n s titu te de jure segregation , with respect to the D e tro it s c h o o l system , o c cu rre d , n o pu pil resident in D e tro it w o u ld have b een assigned to any o th e r s c h o o l district o r v ice-versa. T h ere is n o ev id en ce and n o fin d in g that the ■acial im balance b e tw e e n D e tro it and o th e r s c h o o l d istricts is a condition caused b y the de jure segregated o p e ra tio n o f the etroit s c h o o l system . N o r is there any fin d in g that any o f the separate, u nrela ted and id en tifia b le s c h o o l d istricts , o th e r than the 52 D e tro it s c h o o l d is tr ict , are in a n y w a y resp o n s ib le fo r th e de jure segregation w ith in th e D e tro it s c h o o l system . T h ere is n o consti tu tion a l v io la t io n o n w h ich to p re d ica te a “ m e tr o p o lita n ” rem edy. T h e o b v io u s in ten t o f th e M ich igan legislature has b e e n , and is, t o m ainta in a u n itary s c h o o l system as req u ired b y Brown I, 347 U .S . 4 8 3 (1 9 5 4 ) , and su b seq u en t d e c is io n s o f th is C o u rt . This in ten t has b e e n carried o u t e x c e p t w ith in th e D e tro it school system . T o u p h o ld a “ m e tr o p o l ita n ” re m e d y req u ires d isobed ience to th e p r in c ip le s e n u n cia te d b y th is C o u r t fr o m Brown I, supra, to date . T h e use o f a “ m e tr o p o lita n ” re m e d y to e f fe c t a racial b a la n ce is c lea rly p r o s c r ib e d b y th e h o ld in g in Spencer v. Kugler, 3 2 6 F . S u pp . 1 2 3 5 , 1 2 4 3 (N .J . 1 9 7 1 ), aff’d 4 0 4 U .S . 1 0 2 7 (1972), th at — “ A co n t in u in g tren d to w a rd racial im b a la n ce caused by h ou s in g p a ttern s w ith in th e v a r iou s s c h o o l d istricts is not su scep tib le to fed era l ju d ic ia l in te rv e n tio n .” See also Swann v. Charlott e-Mecklenburg Board o f Education, 402 U .S . 1, 3 1 - 3 2 ( 1 9 7 1 ) . T h is lit ig a tion w as c o m m e n c e d , tried and fin d in g s issued on th e so le g rou n d s that o n e s c h o o l d is tr ict , D e tr o it , was being o p e ra te d in v io la t io n o f th e C o n s t itu t io n . A “ m etropo lita n ” rem e d y using o th e r separate, u n re la ted and id e n tifia b le unitary s c h o o l system s to e f f e c t a racia l b a la n ce is b e y o n d the scope of this litiga tion , “ . . . fo r th ere is n o right t o racia l b a la n ce w ith in even a single s c h o o l d is tr ict , Swann v. Charlott e-Mecklenburg Board o f Education, 4 0 2 U .S . at 2 4 , 91 S C t. 1 2 6 7 , b u t o n ly a right t o a tten d a u n ita ry s c h o o l sy s te m .” Bradley v. School Board o f the City o f Richmond, 4 6 2 F . 2 d 1 0 5 8 , 106 9 (C A 4, 1 9 7 2 ), aff’d b y an e q u a lly d iv id ed C o u rt , 4 1 2 U.S. 92 (1 9 7 3 ) . Ill Petitioners Have Been And Will Continue T o Be Denied Due Process o f Law Under the Decision Below A “metropolitan” remedy directly affects th e lives o f hun dreds of thousands of children and parents w ith in Petitioners 53 School D istricts and requ ires the e x p e n d itu re o f u n to ld m illion s o f dollars. T h e re m e d y in v o k e d in this case w o u ld e f fe c t iv e ly em a scu late the exten sive righ t o f lo c a l c o n tr o l ov e r P etition ers S c h o o l Districts p ro v id e d b y legislative en a ctm en ts . F o r e x a m p le , said remedy in terd icts th e ex erc ise o f lo c a l s c h o o l d istr ict a u th o r ity over such m atters as c o n t r o l o f a tten d a n ce o f n on res id en t stu den ts (Mich C on st 1 9 6 3 , art V III , § 2 ; M ich . C o m p . L aw s 3 4 0 .5 8 2 ) ; the em ploym ent an d a llo ca t io n o f te a ch in g an d adm inistrative s ta f f t o educate residen t p u p ils (M ich . C o m p . L aw s 3 4 0 .5 6 9 ) ; the c o n struction, e x p a n s io n and use o f s c h o o l facilit ies (M ich . C o m p . Laws 3 4 0 .7 7 ) ; and th e cu rr icu lu m , activ ities an d standards o f c o n duct and the sa fe ty o f s tu d en ts , fa cu lty , s ta f f and paren ts w ith in each s c h o o l d istr ict (M ich . C o m p . L aw s 3 4 0 .5 7 5 , 3 4 0 .5 8 3 , 340.614, 3 4 0 .8 8 2 ) . A . Failure to Join School Districts W hose Interests Are to Be A ffected Is A Denial o f Due Process A n in d ispen sab le p a rty is d e fin e d as o n e w h o se in terest in the subject m atter o f th e suit and in th e relief sought is so b o u n d up with that o f the o th e r parties that h is legal p resen ce as a p a rty to the p roceed in g is an a b so lu te n ecess ity w ith o u t w h ich the co u rt cannot p ro ce e d . Baltimore & O.R. Co. v. Chicago River and Indiana R. Co.. 170 F .2 d 6 5 4 (C A 7 , 1 9 4 8 ), cert. den. 3 3 6 U .S . 9 4 4 (1 9 4 9 ). Petitioners S c h o o l D istricts w h o se in terests are d ire c t ly a f fected b y th e re m e d y d e cre e d in this case w ere , and are, in d isp en sable parties t o th is lit ig a tio n . A s su ch , P etit ion ers w ere en tit led to be made parties before th e d istr ict c o u r t d e c id e d th e case. Water man v. The Canal-Louisiana Bank and Trust Company, 2 1 5 U .S. 33, 48 (1 9 0 9 ) ; Bradley v. School Board o f the City o f Richmond, 338 F. Supp. 67 (E .D . V a . 1 9 7 2 ), reversed o n o th e r g ro u n d s 4 6 2 F.2d 1058 (C A 4 , 1 9 7 2 ) , aff’d b y an e q u a lly d iv id ed C ou rt 4 1 2 U.S. 92 (1 9 7 3 ) . A fo rm a l m o t io n to add th e P etition ers , and o th e r s c h o o l districts, was filed w ith th e D istrict C o u rt o n July 17, 1971 (A . Ia 119). T he cou rt d id n o t rule o n this m o t io n , b u t d iscu ssed it in th e September 27 , 1 9 7 1 , “ R u lin g O n Issue o f S egrega tion ” (P et. A . 17) and co n c lu d e d th at th e m o t io n sh ou ld n o t b e co n s id e re d at that tim e becau se “ in co n s id e r in g the m o t io n to ad d th e listed school districts w e pause to n o te that the p ro p o s e d a c tio n has to 54 d o w ith r e lie f .” (P et. A . 3 8 a ). T h is C o u rt u n d e r sim ilar circum stan ces, sta ted : “ T h e re is a n o th e r class o f p erson s w h o se re la tion s to the suit are su ch th at i f th e ir in terest and th e ir absen ce are fo rm a lly b r o u g h t to th e a tte n t io n o f th e c o u r t , it will require them to be made parties, i f w ith in its ju r is d ic t io n , before deciding the case.” Waterman v. The Canal-Louisiana Bank and Trust Company, 2 1 5 U .S . 3 3 , 4 8 -4 9 (1 9 0 9 ) . [Emphasis a d d e d .] W hile th e fa ilu re t o jo in an in d isp en sa b le p a rty d o e s n o t de prive th e c o u r t o f ju r is d ic t io n t o d e te rm in e th e p e n d in g a ction be fo re it , it d o e s p r o h ib it th e c o u r t fr o m gran tin g a n y r e lie f which w o u ld a f fe c t an absen t p a rty . “ I f the c o u r t can d o ju s t ic e to th e parties b e fo re it w ith o u t in ju rin g absen t p e rso n s it w ill d o so , and shape its re lie f in su ch a m a n n er as t o preserve th e rights o f th e persons n o t b e fo r e th e c o u r t . I f n ecessa ry , th e c o u r t m a y requ ire that th e b ill b e d ism issed as to su ch absen t parties, and may gen era lly shape its d e cre e s so as to d o ju s t ice to th ose made parties , w ith o u t p re ju d ice to su ch absen t p e rso n s .” Waterman v. The Canal-Louisiana Bank and Trust Company, 2 1 5 U.S. 3 3 , 4 9 (1 9 0 9 ) . P etit ion ers are in d isp en sa b le parties in litiga tion involv in g the co n t in u e d e x is te n ce and b a sic fu n c t io n s o f su ch s c h o o l districts. Y e t P etit ion ers w ere n o t in c lu d e d as parties to th is a ct io n at the c o m m e n c e m e n t o f p ro ce e d in g s . N o r w ere th ey jo in e d as parties as req u ested b y in terv en ors D en ise M a g d o w sk i, e t al, in Ju ly o f 1971. It w as n o t u n til th e c lo s in g w e e k s o f the tw o -y e a r o ld law suit that P etit ion ers o n th e ir o w n m o t io n (A . Ia 1 9 2 ), o v e r the o b je c t io n of P la in tiffs -R e sp o n d e n ts , w ere p e rm itte d “ c o n d it io n a l” participa tion in th e p ro ce e d in g s (A . Ia 2 0 4 ). In Higgins v . Board o f Education o f the City o f Grand Rapids,____ F . S u p p _____ (W .D . M ich . 1 9 7 3 ), Judge E n gel granted a m o t io n to jo in s c h o o l d istr icts in a sim ilar s itu a tion , saying: “ . . .A lth o u g h th e p re c ise issue h ad n o t b e e n decided, general c o n c e p ts o f d u e p ro ce ss s tron g ly suggested that i f the su bu rban s c h o o l d istr icts h ad p o te n t ia lly adverse interests to b e a ffe c te d , th e y w ere en tit le d to n o t ic e to d e fe n d and an o p p o r tu n ity t o b e heard u p o n th o se issues w h ich co u ld affect 55 th em , i f d e c id e d adversely to their in terests. A c c o r d in g ly , the cou rt o rd ered th e jo in d e r .” Slip O p in io n , page 80 . As stated b y Judge W eick in d issen tin g fr o m the m a jo r ity o p in io n below: “ A ll s c h o o l d istricts w h o se b o rd e rs w ere b e in g in vaded were en tit le d as a m a tter o f righ t and n o t o f m ere grace , t o be m ade parties d e fe n d e n t in th e case and to b e a c c o r d e d the same rights as an y o th e r d e fen d a n ts . T h e y w ere en tit le d to b e heard o n all issues in th e case w h ich a ffe c te d th em , an d w ere en titled t o p a rtic ip a te e f fe c t iv e ly in the p ro ce e d in g s . T h e y were en tit le d t o b e h eard o n th e issues o f segregation , the ‘ D etro it-O n ly p la n ’ an d th e ‘ M e tro p o lita n p la n ’ . ” Bradley v. Milliken, 4 8 4 F .2 d 2 1 5 , 2 6 7 (C A 6 , 1 9 7 3 ), (P et. A . 2 0 6 a ). P etition ers have b een d e n ie d d u e p ro ce ss o f law b y th e D is trict C o u rt ’ s fa ilure t o jo in th em as parties, and any re lie f d e cre e d in this suit m u st b e sh aped in a m an n er that w ill n o t a ffe c t Petitioners’ in terests. B. Petitioners “ Conditional” Intervention and the Proceedings Thereafter Constitute A Denial o f Due Process o f Law Seven d ays a fter a llow in g P etition ers t o in terven e, as a m atter o f right b u t su b je ct to oppressive c o n d it io n s , !251 th e trial co u rt required the filin g o f w ritten b r ie fs o n th e legal p ro p r ie ty o f a m etropolitan p lan o f d esegrega tion . (A . Ia 2 0 3 ). T h e c o u r t d id n o t require o r p erm it ora l argu m en t. Less than th irty -s ix (3 6 ) h ou rs later the co u rt issued its “ R u lin g O n P ro p r ie ty o f C on sid erin g A M etropolitan R e m e d y t o A c c o m p lis h D esegregation o f the P u b lic Schools o f the C ity o f D e tr o it ” (P et. A . 4 8 ) re je ct in g the c o n te n tions o f P etition ers. T e s t im o n y regard in g “ m e tr o p o lita n ” plans com m enced fo u r d ays later (a w e e k e n d and M o tio n d ay falling betw een) at 1 0 :1 0 a .m . P rior to the n o o n recess, ju st tw o h ou rs after P etition ers ’ co u n se l h ad first appeared in the D istrict C o u rt and b e fore c o m p le t io n o f te s t im o n y o f a single w itn ess, the D is trict Judge a n n o u n ce d that co u n se l c o u ld s to p b y h is o f f ic e and pick up his “ F in d in gs o f F a ct and C o n c lu s io n s o f L aw on D e tro it- 1251 Petitioners submit that the conditions imposed by the trial court on their participation (A. Ia206-Ia207) in themselves constitute a denial o f due Process requiring reversal. See “ Objections to Conditions Placed On Inter i o r s ” , (A. Ia209) and (A. Ia220). 5 6 O n ly Plans o f D ese g re g a tio n ” (P et. A . 5 3 a ) w h ere in th e court d ecla red its in te n tio n to seek a m o re desirab le racial m ix b y means o f a “ m e tr o p o lita n ” p lan . T h u s, w ith o u t an y o p p o r tu n ity fo r ora l a rgu m en t, without o p p o r tu n ity to e x a m in e o r cross -ex a m in e o n e w itn ess, without o p p o r tu n ity to p resen t o n e shred o f e v id e n ce , an d , in d e e d , with o u t o p p o r tu n ity t o o b ta in c o p ie s o f p re v io u s p lead in gs and testi m o n y , th e P e tit io n e rs h ad b e e n e f fe c t iv e ly fo r e c lo s e d fro m pro te c t in g th e ir in terests. P erm ittin g P etit ion ers a lim ite d hearing on the s c o p e o f th e r e m e d y a fter issues a ffe c t in g th e ir in terests had b e e n d e c id e d a dversely th e re to d o e s n o t a c c o r d w ith th e principles o f d u e p ro ce ss as e n u n cia te d b y th is C o u r t : “ A fu n d a m e n ta l re q u ire m e n t o f du e p ro ce ss is ‘ the op p o r tu n ity t o b e h ea rd ’ . . . It is an o p p o r tu n ity w h ich m ust be gran ted at a m e a n in g fu l t im e and in a m e a n in g fu l manner.” Armstrong v. Manzo, 3 8 0 U .S . 5 4 5 , 5 5 2 (1 9 6 5 ) . “ A p e rs o n ’ s right to a rea son a b le n o t ic e o f a charge against h im , an d an o p p o r tu n ity to b e heard in his defense - a right t o his d ay in co u rt — are basic in o u r system of ju r isp ru d e n ce ; and these rights in c lu d e , as a m in im u m , a right t o e x a m in e th e w itnesses against h im , t o o f f e r testi m o n y , [26] and t o b e rep resen ted b y c o u n s e l .” In Re Oliver, 3 3 3 U .S . 2 5 7 , 2 7 3 (1 9 4 8 ) . “ T h e righ t to a fair and o p e n hearin g is o n e o f the ru d im en ts o f fair p la y assured t o every litigant b y th e Federal C o n s t itu tio n as a m in im al re q u ire m e n t.” Railroad Com mission o f California v . Pacific Gas & Electric Co., 302 U.S. 3 8 8 , 3 9 3 (1 9 3 8 ) . “ W e have fre q u e n tly em p h a sized that th e right to con fr o n t and cross -ex a m in e w itn esses is a fu n d a m en ta l aspect of p ro ce d u ra l du e p r o c e s s .” Jenkins v . McKeithen, 395 U.S. 4 1 1 ,4 2 8 (1 9 6 9 ) . 26 [26] §ee trial court’s ruling quashing the subpoena to Wells (A. IVa 278); refusal to receive the deposition of Dr. David Armor (A. IVa 283). Indicative of the trial court’s differing treatment o f Petitioners as opposed to other parties in receiving evidence is the court’s ruling on Exhibit 16. After counsel for Petitioners established that the witness had no personal knowledge as to Exhibit 16 the court decided to “ follow Justice of the Peace Cane’s rule. ‘We will let it in for what it’s worth.’ ” (A. IVa 197). Yet Mr. Wells’ testimony regarding safety in the schools was excluded as not relevant despite previous testimony (A. IVa 212-213) on the same subject. 5 7 It is im p o ss ib le to equ ate the p ro ce e d in g s b e lo w w itli the requirem ents set fo r th b y th is C o u r t as m in im al to du e p ro ce ss o f law. A llo w in g co u n s e l t o ex a m in e o r cross-ex a m in e w itnesses a fter the w itnesses ’ v iew s have b een a d o p te d b y th e co u rt can h a rd ly be considered du e p ro ce ss , or even w o rth w h ile . T he co n se q u e n ce s o f the trial c o u r t ’ s a c t io n s w ere clearly foreto ld b y Mr. Justice F orta s in In Re Gault, 3 8 7 U .S . 1, 19-21 (1 967 ): “Failure to observe the fundamental requirements o f due process has resulted in instances, which might have been avoided, o f unfairness to individuals and inadequate or in accurate findings o f fact and unfortunate prescriptions o f remedy. D u e p ro ce ss o f law is the p rim a ry and in d ispen sab le fo u n d a tio n o f in d iv id u a l fr e e d o m . * * * A s M r. Ju stice F rank fu rter has said : ‘ T h e h is to ry o f A m e rica n F re e d o m is, in n o sm all m easure, th e h is to ry o f p r o c e d u r e .’ B ut in a d d it io n , the p roced u ra l ru les w h ich have b een fa sh ion ed fro m th e gen erality o f d u e p ro ce ss are o u r best in stru m en ts fo r the d istil lation and eva lu ation o f essential fa cts fr o m the co n flic t in g w elter o f data that life and ou r adversary m e th o d s presen t. It is these in stru m en ts o f d u e p ro ce ss w h ich en h a n ce th e p o s sibility th at tru th w ill em erge fr o m th e c o n fr o n ta t io n o f op p os in g vers ion s and c o n flic t in g data. ‘P ro ce d u re is to law what “ s c ie n tific m e t h o d ” is to s c ie n ce .’ ” [E m ph asis a d d e d .] Judge M iller, d issen tin g b e lo w , set fo r th th e fu n d a m en ta l re quirements o f d u e p ro ce ss in re la tion t o th is case: “ Parties to be a ffe c te d and against w h o m re lie f is sou ght should be a c c o r d e d , in co m p lia n ce w ith basic p r in cip les o f due p ro ce ss , an o p p o r tu n ity to b e h eard at a m ea n in g fu l tim e and in a m ea n in g fu l m an n er n o t o n ly w ith respect to the u ltim ate s c o p e o f the re m e d y t o be fa sh io n e d , b u t a lso w ith respect to im p o rta n t, s ign ifican t and perh aps even co n tro llin g issues, in c lu d in g th e issue o f segregation , a ‘ D e t r o it -o n ly ’ s ch o o l p lan and the p ro p r ie ty o f a m e tro p o lita n re m e d y . I f any on e o f these issues is reso lved in fa v or o f parties ou ts id e 5 8 the D e tro it S c h o o l D is tr ic t , the n atu re and s c o p e o f a remedy e m b ra c in g o u t ly in g d istr icts w o u ld n o t b e re a ch e d . H e n ce the o u t ly in g d is tr icts h ave a v ita l in terest in ea ch issue separately and sh ou ld b e h eard o n ea ch in a true adversary sense. Until this is d o n e o u r e x p re ss io n o f v ie w o n th e m erits o f the several q u e s tio n s is u n ca lled fo r and ill-advised . To permit these additional parties to be heard only in the restricted sense set forth in the majority opinion is to deny them basic rights guaranteed n o t o n ly b y R u le 19 , F e d era l R u les o f Civil P ro ce d u re , b u t by the Constitution itself. ” Bradley v. Mil- liken, 4 8 4 F .2 d 2 1 5 , 2 8 4 (C A 6 , 1 9 7 3 ), (P et. A . 239a-240a). [E m p h a sis a d d e d .] M in im al re q u ire m e n ts o f d u e p ro ce s s req u ire that Petitioners be a ffo r d e d a m e a n in g fu l hearin g o n all issues in th is litigation w h ich c o u ld a f fe c t th em i f d e c id e d a d versely to th e ir interests. C O N C L U S IO N T h e co n s t itu t io n a l v io la t io n h ere fo u n d is th e de jure segre gated o p e r a t io n o f o n e s c h o o l d istr ict, th e C ity o f D e tro it . The o b je c t iv e , th e re fo re , is t o redress th is co n s t itu t io n a l evil. Thus, the re m e d y is lim ite d t o o n e w h ich w ill co n v e r t th e D e tro it school system to a u n ita ry sy stem w h ere in n o p e rso n is e f fe c t iv e ly ex c lu d e d fr o m a n y s c h o o l w ith in th e D e tro it s c h o o l system because o f race o r c o lo r . T h is o b je c t iv e d o e s n o t p erm it th e exten sion of the re m e d y b e y o n d th e D e tro it s c h o o l d istr ict. A s n o te d b y M r. Ju stice P o w e ll in his separate o p in io n in Keyes v. School District No. 1, Denver, Colo., 4 1 3 U .S . 1 8 9 , ____ , 37 L .E d .2 d 5 4 8 , 5 8 0 (1 9 7 3 ) , n o th in g in th e C o n s t itu t io n comm ands o r en cou ra g es th e c o u r t -c o m p e lle d d is ru p tio n o f p u b lic educa t io n , t27 ] an d th e seriou s e c o n o m ic b u rd e n s , t28 l in h eren t in the fo r c e d re -assignm ent an d large sca le tra n sp o rta tio n o f hundreds of th ou san ds o f s c h o o l ch ild re n , w h ich th e “ m e tr o p o l ita n ” remedy d e cre e d in th is case co m m a n d s . ^ 7 ] see Findings o f Fact and Conclusions of Law In Support of Ruling On Desegregation Area and Development o f Plans (Pet. A. 59a-96a). I28) As an example, the annual operating costs for merely transporting the 3 1 0 ,0 0 0 p u p ils to be re-assigned under the District Court’s ruling (Pet. A. 72a, para. 43), if accomplished at the conjectural cost referred to by the District Court, would range from $15,500,000 to $18,600,000. (Pet. A. 73a, para. 45) • 5 9 M oreover, th ere is n o su bstan tia l e v id en ce that a “ m e tr o p o l i tan” rem edy w o u ld resu lt in any e d u ca tio n a l b e n e fit f o r e ith er black or w h ite stu den ts, l 29 ̂ In d e e d , soc ia l s c ie n ce fin d in g s have revealed that th e e d u ca tio n a l b e n e fits h is tor ica lly assum ed t o d e rive from racial b a la n cin g are grea tly exaggera ted . On Equality o f Educational Opportunity, F red er ick M oste lle r and D an ie l P. Moynihan, page 3 1 , R a n d o m H ou se 1 9 7 2 ; “ T h e E v id en ce O n Bus ing” , David J. A rm o r , The Public Interest, N o . 28 (S u m m e r 1 9 7 2 ); “ Do S ch oo ls M ake A D iffe r e n c e ” , G o d fr e y H o d g so n , The At lantic, M arch 1 9 7 3 , pages 3 5 -4 6 . D r. Jam es C o le m a n , w h o h eaded the team o f soc ia l scien tists c o m m is s io n e d t o p rep are th e re p o rt on “ E quality o f E d u ca tio n a l O p p o r tu n ity ” fo r th e U n ite d States Office o f E d u ca tio n , has sta ted that — “ . . .T h ere is n o t su ffic ie n t ev id en ce to sh ow that the k ind o f b en efits t o low er-class ch ild ren that arise fr o m a s o c io e co n o m ica lly h e te ro g e n e o u s o r racia lly h e te ro g e n e o u s s ch o o l can ’ t a lso b e p ro v id e d b y o th e r m eans. I d o n ’ t th ink a ju d g e can say there is prim a fa c ie e v id en ce o f in eq u a lity in e d u ca tion a l o p p o rtu n ity on a ch iev em en t g ro u n d s i f there is s c h o o l segrega tion. In th is sense, I th in k ju d g e s have lo o k e d at that stu dy and used the resu lts m o re s tron g ly than the results w arran t.” “ C olem an O n the C o le m a n R e p o r t ” , Educational Researcher, A m erican E d u ca tio n a l R esea rch A s s o c ia t io n , V o l . 1, N o . 3 (M arch 1 9 7 2 ). T he “ m e tr o p o lita n ” re m e d y d e cre e d b y th e S ix th C ircu it Court o f A pp ea ls g o e s far b e y o n d the a ffirm ative co n stitu t io n a l duty to desegregate th e D e tro it s c h o o l system . Said re m e d y presum es a constitutional d u ty t o m a x im ize in tegra tion am on g s c h o o l d is tricts. T he m a jo r ity o p in io n o f the C o u rt o f A p p e a ls creates, b y judicial legerdem ain , a n ew co n s titu t io n a l standard, t o w it: desegre gation o f a n on -u n ita ry s c h o o l system requ ires racial ba lan ce n ot merely w ithin the o ffe n d in g s c h o o l system b u t a m on g separate, u n related and id en tifia b le u n ita ry s c h o o l system s w ith in such geogra- Dr. Gordon Foster, the expert witness for Plaintiffs-Respondents, whose concept of a “ metropolitan” plan was adopted by the District Court (Pet. A. 69a, para. 32), testified that “ quality of education” was not a criteria for said Plan (Pet. A. IVa255). The District Court rejected proffered evidence relative to the questionable educational benefit of a “ metropolitan” remedy as irrelevant (Pet. A.lVa283-284). DO] The £0[eman rep0r(; on “ Equality of Educational Opportunity” , Office of Education, U.S. Department o f Health, Education and Welfare, U.S. Government Printing Office, 1966. OE-38001; Superintendent of Documents Catalog No. FS5-238:38001. 6 0 p h ica l area as the co u r t d e e m s relevan t. S u ch an e x te n s io n o f consti tu tion a l d o c tr in e is n o t req u ired to satisfy the gu arantee o f the Equal P r o te c t io n C lause an d is in te rd ic te d b y th e d e c is io n s o f this Court, | Swann v. Charlotte-Mecklenburg Board o f Education, 4 0 2 U.S. 1, i 2 4 ,3 1 - 3 2 ( 1 9 7 1 ) . In United States v. Board o f Education, Independent School̂ District No. 1, Tulsa, Okla., 4 5 9 F .2 d 7 2 0 , 7 2 4 (C A 10 , 19 7 2 ), the c o u r t stated that the va lid ity o f d esegrega tion plans — “ . „ .sh ou ld n o t d e p e n d o n the w h im o r preferences of m em b ers o f th e fed era l ju d ic ia r y . T h e y m u st be ju dged by co n s titu t io n a l standards. . .” R a cia l im b a la n ce as a soc ie ta l evil is s im p ly b e y o n d the scope of this lit ig a tion . A s sta ted in Swann v. Charlotte-Mecklenburg Board o f Education, supra, at page 22 . “ W e are c o n ce rn e d in these cases w ith the elim ination of the d iscr im in a tion in h eren t in th e dual s c h o o l system s, not w ith m y ria d fa c to rs o f h u m a n e x is te n ce w h ich can cause dis cr im in a tion in a m u lt itu d e o f w ays o n racia l, re lig iou s o r ethnic g rou n d s. . . O n e v eh ic le ca n carry o n ly a lim ited am ount of : ba gga ge .” In a c c o r d w ith th e p r in c ip le s h e r e to fo r e en u n cia ted by this C o u rt , the “ m e tr o p o l ita n ” re m e d y c o m m a n d e d b y the decisions of ' the co u rts b e lo w is im perm issib le . P etit ion ers S c h o o l D istr icts req u est th at this C o u r t reverse the ju d g m e n t o f the C o u rt o f A p p e a ls fo r th e S ix th C ircu it w ith respect t o a “ m e tr o p o lita n ” re m e d y and d ism iss P etit ion ers fr o m this litiga tio n . R e s p e c t fu lly su b m itted , BUTZEL, LONG, GUST, KLEIN & VAN ZILE WILLIAM M. SAXTON JOHN B. WEAVER ROBERT M. VERCRUYSSE XHAFER ORHAN 1881 First National Building Detroit, Michigan 48226 CONDIT AND MC GARRY, P.C. Richard P. Condit, O f Counsel HARTMAN, BE1ER, HOWLETT, MC CONNELL & GOOGASIAN Kenneth B. McConnell, O f Counsel Dated: January 3, 1974 Counsel for Petitioners Allen Park Public Schools, et al, Southfield Public Schools, and School District o f the City o f Royal Oak IN T H E SU P R E M E C O U R T O F T H E U N IT E D S T A T E S O c to b e r T erm 1 9 7 3 N o . 7 3 -4 3 6 THE G R O S S E P O IN T E P U B L IC S C H O O L S Y S T E M , Petitioner, vs. RO N ALD B R A D L E Y , e t a l„ Respondents. ON W R IT O F C E R T I O R A R I T O T H E U N IT E D S T A T E S C O U R T O F A P P E A L S F O R T H E S IX T H C IR C U IT B R IE F F O R P E T IT IO N E R THE G R O S S E P O IN T E P U B L IC S C H O O L S Y S T E M D O U G L A S H . W E ST 3 7 0 0 P e n o b s c o t B u ild in g D e tro it , M ich igan 4 8 2 2 6 9 6 2 -6 4 8 5 Counsel fo r Petitioner T H O M A S E . C O U L T E R , and H IL L , L E W IS , A D A M S , G O O D R IC H & T A IT 3 700 P e n o b s co t B u ild in g D etroit, M ich igan 4 8 2 2 6 9 6 2 -6 4 8 5 O f Counsel 1 INDEX Opinions and O rders B e lo w ............................................................... 1 Jurisdiction ...................................................................................................... 2 Questions P resen ted .................................................................................. 2 Constitutional P rov is ion s , S tatu tes and R u le s In v o lv ed . . 3 Statement o f the C ase ....................................... 3 Summary o f A rg u m e n t .......................................................................... 7 Argument ............................................................................................................ 9 I. IN T R O D U C T IO N ................................................................. 9 II. T H E C O N S T IT U T IO N A L V IO L A T IO N S ........... 13 A . T h e U n ita ry E sta b lish m en t and O p e ra t io n o f P e tit io n e r S c h o o l D istr ict .......................... 13 B. V i o l a t i o n s o f th e D e tro it S c h o o l D istr ict 15 C . A c t io n s o f D e fe n d a n ts M illik en , et al . . 18 D. S u m m a ry as t o th e A lle g e d V io la t io n s . . 31 III. T H E R E M E D Y ................................................................... 3 4 A . T h e S c o p e o f th e P l a n ................................. 3 4 B. T h e P r e d i c a t e s f o r R e l i e f : In te n t and N exu s ................................................................................... 3 6 IV T H E P R O P O S E D D E C L A R A T I O N O F N E W C O N S T IT U T IO N A L R I G H T S ................................... 39 A . T h e R a cia l In d e n tifia b ility T h e o r y ..................3 9 B. M a in t e n a n c e o f L o c a l S c h o o l D istricts as a L eg itim a te S tate In terest ..................................... 4 6 C. S u m m ary as to N e w C o n st itu tio n a l R ig h ts 5 7 V. V I O L A T I O N O F P E T IT IO N E R ’ S R IG H T S O F DU E P R O C E S S .................................................................... 58 Conclusion .......................................... 55 Constitutional P rov ision s, S tatu tes and R u les In v o lv ed ............. la a Page 11 TABLE OF AUTHORITIES Cases (Federal): Armstrong v. Manzo, 3 8 0 U .S . 5 4 5 , 14 L. E d . 2d 6 2 ( 1 9 6 5 ) . . . 61 Bradley v. Milliken, 4 3 3 F . 2 d 8 9 7 ( 6 th C ir. 1 9 7 0 ). . . 4,20,21,23 Bradley v. Milliken, 4 3 8 F . 2 d 9 4 5 ( 6 th C ir. 1 9 7 1 ) ....................... 23 Bradley v. Milliken, 7 2 -1 8 0 9 -1 8 1 4 ( 6 th C ir., D e c . 8 , 1 9 7 2 ). . 1,34 Bradley v. Milliken, 4 8 4 F . 2d 2 1 5 ( 6 th C ir. 1 9 7 3 ) _ 1,34,39,58 Bradley v. School Board o f the City o f Richmond, 3 3 8 F. S u pp . 6 7 (E . D . V a . 1 9 7 2 ). .................................................................... 62 Bradley v. School Board o f the City o f Richmond, 4 6 2 F . 2d 1058 (4 th Cir. 1 9 7 2 ), A ff’d by an equally divided court, --------------U .S ---------------- , 3 6 L . E d . 2d 771 ( 1 9 7 3 ) .................. 38,39,49 Bradley v. State Board o f Education,___________U .S ._________ , 3 6 L . E d . 2 d 771 ( 1 9 7 3 ) .......................................................................... 24 Briggs v. Elliot, 132 F . S u pp . 7 7 6 (E .D .S .C . 1 9 5 5 ) ........................ 52 Brown v. Board o f Education o f Topeka, 3 4 7 U .S . 4 8 3 , 98 L. E d . 8 7 3 ( 1 9 5 4 ) .................................................................... 19 ,4 3 ,4 4 ,45,57 Brown v . Board o f Education o f Topeka, 3 4 9 U .S . 2 9 4 , 9 9 L. E d. 1083 ( 1 9 5 5 ) 10,57 Brunson v. Board o f Trustees o f School District No. 1, Clarendon, S.C., 429 F. 2d 820 (4th Cir. 1970). . 39,43,44,45 Davis v. School District o f the City o f Pontiac, 4 4 3 F . 2d 573 ( 6 th Cir. 1 9 7 1 ) ............................................................................................... 41 Deal v. Cincinnati Board o f Education, 369 F 2d 55 (6th Cir. 1 9 6 6 ), cert, denied, 3 8 9 U .S . 8 4 7 , 19 L . E d . 1 1 4 (1 9 6 7 ) . . 41 Dred Scott v. Sanford, 6 0 U .S . 3 9 3 ( 1 8 5 6 ) .......................... 4 3 ,44,45 Gomillion v. Lightfoot, 3 6 4 U .S . 3 3 9 , 5 L . E d . 2d 110 ( 1 9 6 0 ) ................................................................................................................. 46 Green v. County School Board o f New Kent County, 391 U .S . 4 0 3 , 2 0 L. E d. 2 d 7 1 6 ( 1 9 6 8 ) ...................................... . 52,54,55 Hadley v. Junior College District o f Metropolitan Kansas City, 3 9 7 U .S . 5 0 , 25 L. E d. 2d 4 5 ( 1 9 7 0 ) ................................... 20 Page Ill Higgins v. Board o f Education o f City o f Grand Rapids, C iv. No. 6 3 8 6 (W . D . M ich ., Ju ly 18, 1 9 7 3 ) .......................................... 2 8 ,6 2 In Re Oliver, 3 3 3 U .S . 2 5 7 , 9 2 L. E d. 6 8 2 ( 1 9 4 8 ) .......................... 61 Jenkins v. MeKeithen, 3 9 5 U .S . 4 1 1 , 23 L . E d. 2 d 4 0 4 (1 9 6 9 ) . 61 Keyes v. School District No. 1, Denver, Colorado,__________ U.S______, 3 7 L E d . 2 d 5 4 8 ( 1 9 7 3 ) ......................... 1 2 ,2 1 ,3 3 ,3 7 ,5 2 ,5 3 ,5 5 ,5 6 Plessy v. Ferguson, 163 U .S . 5 3 7 ( 1 8 9 6 ) .............................................. 4 3 ,4 4 ,4 5 Railroad Commission o f California v. Pacific Gas & Electric, 302 U .S. 3 8 8 , 8 2 L . E d . 3 1 9 ( 1 9 3 8 ) ................................................ 61 Reynolds v. Sims, 3 7 7 U .S . 5 3 3 , 12 L. E d . 2 d . 5 0 6 (1 9 6 4 ) . . 4 6 San Antonio Independent School District v. Rodriguez, ________U .S __________ , 3 6 L . E d . 2d 16 ( 1 9 7 3 ) ................. 2 7 ,2 8 ,4 6 ,5 0 ,5 1 ,5 8 Shelley v. Kraemer, 3 3 4 U .S . 1, 9 2 L . E d. 1161 ( 1 9 4 8 ) .............. 19 Sparrow v. Gill, 3 0 4 F . S u pp . 86 (3 Ju dge C o u rt , M .D .N .C . 1969) .................................................................................................................. 2 8 Spencer v. Kugler, 3 2 6 F . S u p p . 1 235 (D . N . J. \91 \),a ffd , 404 U .S. 1 0 2 7 , 3 0 L . E d . 2d 7 2 3 ( 1 9 7 2 ) ........................................ 3 9 ,4 1 ,4 2 Swann v. Charlotte-Mecklenburg Board o f Education, 4 0 2 U.S. 1, 28 L . E d. 2d 5 4 4 ( 1 9 7 1 ) . .9 ,1 0 ,1 2 ,3 3 ,3 6 ,3 7 ,4 0 ,4 1 ,5 1 ,5 3 ,5 4 ,5 6 United States v. Scotland Neck Board o f Ecuation, 4 0 7 U .S . 484, 33 L. E d. 2d 75 ( 1 9 7 2 ) ....................................................................... 4 3 ,4 6 United States v. State o f Texas, 321 F . S u pp . 1 043 (E .D . Texas 1 9 7 0 )...................................................................................................... 4 9 Wright v. Council o f City o f Emporia, 4 0 7 U .S . 4 5 1 , 3 3 L . Ed. 2d 51 ( 1 9 7 2 ) ............................................................................................ 4 0 ,4 3 ,4 6 ,5 0 Zenith Radio Corp. v. Hazeltine, 3 9 5 U .S . 1 00 , 2 3 L. E d . 2d 129 (1 9 6 9 ) . Page 6 4 IV hge State C ases: Ex Rel Workman, 18 M ich . 4 0 0 ( 1 8 6 9 ) ................................................14 Governor v. State Treasurer, 3 8 9 M ich . 1 ( 1 9 7 2 ) , vaca ted and cause d ism isse d ,_________ M ic h ._________ (D e c . 7 , 1 9 7 3 ) . . .27,64 Jones v. Grand Ledge Public Schools, 3 4 9 M ich . 1 (1 9 5 7 ) . . . 56 Lansing Dist. v. State Bd. ofEduc., 3 6 7 M ich . 591 (1 9 6 2 ) . . . 48 Senghas v. L ’anse Creuse P .S ., 3 6 8 M ich . 5 5 7 ( 1 9 6 2 ) .............. 48 U n ited S tates C o n s t itu t io n : F ifth A m e n d m e n t ...........................................................................................3 62 F o u rte e n th A m e n d m e n t ....................................................................... 3,13,40 U n ited S tates C o d e : 28 U .S .C . § 1 2 5 4 ( 1 ) ........................................................................................ 2 2 8 U .S .C . § 129 2 ( b ) ..................................................................................... 1,7 28 U .S .C . § 2 2 8 1 et s e q ................................................................................... 65 F ed era l R u les o f C iv il P ro ce d u re : F e d R . C iv. P. 5 4 ( b ) ..................................................................................... 1,7 F ed . R . C iv. P. 19 ..........................................................................................61,63 F e d . R . C iv. P. 2 4 (a ) .................................................................................. 61 ,62 M ich igan C o n s t itu t io n o f 1 9 6 3 : A rt. 8 , § 2 .......................................................................................................... 46 A rt. 8 , § 3 .........................................................................................................18,49 A rt. 9 , § 6 ........................................... 46 A rt . 9 , § 11 ....................................................................................................... 46 A rt. 9 , § 16 ....................................................................................................... 46 M ich igan C o m p ile d L a w s A n n o ta te d § 3 3 8 .6 2 1 27 § 3 4 0 .2 6 .............................................................................................................. 48 § 3 4 0 .2 7 .............................................................................................................. 48 § 3 4 0 .5 5 ................................................................................................................. 48 § 3 4 0 .7 7 .................................................................. 48 V § 3 4 0 .1 0 7 ............................................. 4 8 § 3 4 0 .1 1 3 ............................................................................................................ 4 8 § 3 4 0 .1 4 8 -9 . ....................................................................................................... 4 8 § 3 4 0 .1 6 5 ............................................................................................................ 4 8 § 3 4 0 .1 8 8 ............................................................................................................ 48 § 3 4 0 .1 9 2 ............................................................................................................ 4 8 § 3 4 0 .3 5 2 ...........................................................................................................4 8 ,6 1 § 3 4 0 .3 5 5 -3 5 7 .................................................................................................... 15 § 3 4 0 .5 6 3 ..................................... ..........., .............................................. 4 8 § 3 4 0 .5 6 9 ....................................................................... .. ................................ . 48 § 3 4 0 .5 6 7 ............................................................................................................ 4 8 § 3 4 0 .5 7 4 ............................................................................................................ 4 8 §3 4 0 .5 7 5 ............................................................................................................... 4 8 § 3 4 0 .5 7 6 b ........................................................................................................2 6 ,4 8 § 3 4 0 .5 8 2 ......................................................................................................... 4 8 § 3 4 0 .5 8 3 ............................................................................................................ 48 § 3 4 0 .5 8 4 ............................................................................................................ 48 § 3 4 0 .5 8 5 ............................................................................................................ 48 § 3 4 0 .5 8 6 ............................................................................................................ 4 8 § 3 4 0 .5 8 9 ............................................................................................................ 48 §3 4 0 .5 9 1 .......................................... 48 § 3 4 0 .5 9 4 ............................................................................................................ 48 §3 4 0 .6 0 5 ............................................................................................................ 4 8 § 3 4 0 .6 0 9 ............................................................................................................ 4 8 § 3 4 0 .6 1 3 ............................................................................................................ 48 § 3 4 0 .6 1 4 ............................................................................................................ 4 8 § 3 4 0 .6 4 3 (a ) ...................................................................................................... 4 8 §340 .7 1 1 et. s e q ............................................................................................... 2 6 ,4 8 § 3 4 0 .8 8 2 ...................................................................................................... 4 8 §388 .1 7 1 et. s e q ................................................................................................. 20 §388 .85 1 e t. s e q .................................................................................................. 2 4 Page VI Michigan Public A cts P .A . 1 8 6 7 , N o . 3 4 , § 2 8 ................................................................................ 14 P .A . 1 9 2 7 , N o . 3 1 9 (P art II, C h a p te r 2 , § 9 ) .................................. 15 P .A . 1 9 3 7 , N o . 3 0 6 ......................................................................................... 24 P .A . 1 9 4 9 , N o . 231 ......................................................................................... 24 P .A . 1 9 6 2 , N o . 175 .......................................................................................24,25 P .A . 1 9 6 9 , N o . 2 4 4 ......................................................................................... 20 P .A . 1 9 7 0 , N o . 4 8 , ...................................................... 4 ,8 ,1 9 ,2 0 ,2 1 ,2 2 ,2 3 Legislative Journals Senate o f th e State o f M ich iga n , 1 9 7 0 S. J. 9 7 , P. 1 6 8 4 ____ 21 H o u se o f th e S tate o f M ich iga n , 1 9 7 0 H . J. 1 0 4 , P . 2 8 5 6 . . . 21 Page Treatises Paul R . D im o n d , School Segregation in the North: There is But One Constitution, 7 H arvard C ivil R igh ts — C ivil L iber ties L aw R e v ie w 1 (1 9 7 1 - 1 9 7 2 ) ............................................................ 44 J en ck s, C h ris to p h e r : Inequality: A Reassessment o f the Effect o f Family and Schooling in America ( 1 9 7 2 ) ................. 44 T a e u b e r , Negroes in Cities .............................................................. 38 T a e u b e r , Residential Segregation, S c ie n t ific A m e r ica n , A u gu st, 1 965 ...................................................................................................... 38 1 IN THE SUPREME COURT OF THE UNITED STATES October Term 1973 No. 73-436 THE GROSSE POINTE PUBLIC SCHOOL SYSTEM, vs. Petitioner, RONALD BRADLEY, et al„ Respondents. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH COURT BRIEF FOR PETITIONER THE GROSSE POINTE PUBLIC SCHOOL SYSTEM OPINIONS AND ORDERS BELOW The ju d g m e n t o f th e U n ite d S tates C o u r t o f A p p ea ls fo r the Sixth C ircuit, re p o r te d in Bradley v. Milliken, 4 8 4 F 2 d 2 1 5 ( 6 th Cir. 1973 ), is co n ta in e d in th e A p p e n d ix fi le d w ith th e P e tit io n fo r Writ o f C ertiorari. T h is ju d g m e n t w as issued u p o n a rehearing b y the Court o f A p p e a ls s ittin g in b a n c , and w as d e c id e d and filed o n June 12, 1973 ( 1 10a). A p r io r ju d g m e n t o f th e C o u rt o f A p p e a ls , decided and file d o n D e c e m b e r 8 , 1 9 7 2 , w as v a ca te d b y th e gran t ing o f the rehearing in b a n c. T h e ju d g m e n t o f D e ce m b e r 8 , 1 9 7 2 is reported in Bradley v. Milliken, 7 2 -1 8 0 9 -1 8 1 4 ( 6 th C ir. D e c . 8 , 1972). The ju d g m e n t o f th e C o u rt o f A p p e a ls rev iew ed th e fo l lo w in g Rulings and O rders o f th e D istr ict C o u rt , u n d e r th e p rov is ion s o f 28 U.S.C. § 1 2 9 2 (b ) an d R u le 5 4 (b ) F ed . R . C iv . P .: 2 1. R u lin g o n Issue o f S eg reg a tion , d a te d S ep tem b er 27, 1 9 7 1 , re p o r te d at 3 3 8 F . S u p p . 5 8 2 ^ (1 7 a ) . 2 . R u lin g o n P ro p r ie ty o f C o n s id e r in g a M etropolitan R e m e d y to A c c o m p lis h D esegreg a tion o f th e P u b lic Schools o f th e C ity o f D e tro it , d a ted M arch 2 4 , 1 9 7 2 (4 8 a ) . 3 . F in d in g s o f F a ct and C o n c lu s io n s o f Law on D e tro it -O n ly P lans o f D esegreg a tion , d a te d M arch 2 8 , 1972 (5 3 a ) . 4 . R u lin g o n D esegreg a tion A re a and O rder for D e v e lo p m e n t o f P lan o f D ese g re g a tio n , and F in d in gs o f Fact and C o n c lu s io n s o f L a w in S u p p o r t th e r e o f , d a te d June 14, 1 9 7 2 , r e p o r te d at 3 4 5 F .S u p p . 9 1 4 ( 1 9 7 2 ) (9 7 a and 59a re sp e ctiv e ly ). 5 . O rd e r f o r A c q u is it io n o f T ra n s p o rta tio n , dated July 11 , 1 9 7 2 (1 0 6 a ) . JURISDICTION T h is C o u r t ’ s j u r i s d i c t i o n is in v o k e d u n d e r 28 U.S.C. § 1 2 5 4 (1 ) . C ertiora ri w as gran ted o n N o v e m b e r 19 , 1 9 7 3 . QUESTIONS PRESENTED 1. Is a P lan o f D esegreg a tion , lim ite d t o th e boundaries of th e S c h o o l D istr ict o f th e C ity o f D e tr o it , co n s titu t io n a lly insuf fic ie n t as a resu lt o f a fin d in g that it has a p re d o m in a tly Black s c h o o l e n ro llm e n t an d th e re fo re m a y b e p e rce iv e d as a Black s c h o o l d istr ict? 2 . Is a “ M e tr o p o lita n ” P lan o f D ese g re g a tio n , intended to ach ieve a certa in p u p il racia l b a la n ce in all s c h o o ls in the Detroit S c h o o l D istr ict a n d o th e r s c h o o l d istr icts o u t ly in g therefrom, w h ich are in d e p e n d e n t m u n ic ip a l b o d ie s c o r p o r a te , legally proper in th e a bsen ce o f a n y fin d in g o f in te n tio n a l d iscr im in a tory acts by su ch o u t ly in g s c h o o l d istricts , o r in th e estab lish m en t o f their b o u n d r y lines, and in th e a b sen ce o f a n y f in d in g o f a causal con n e c t io n b e tw e e n a lleged d is cr im in a to ry acts o f S tate defendants 111 111 The parenthetical page references followed by the letter “ a” refer to the page number o f the separate Appendix filed with the Petition for Writ of Cer tiorari. The parenthetical page references with the Roman numeral and ‘ a prefix, e.g., (Ila 25), refer to the page numbers o f the principal five volume Appendix filed with this Brief. The Constitutional Provisions, Statutes and Rules Involved, which are reprinted at the end of this brief, are referenced to the number o f the page at which they appear, followed by the letters “a ■ 3 and the p r e d o m in a n ce o f B lack o r W h ite s tu d en ts in D e tro it o r th e outlying s c h o o l d istricts? 3. H ave all s c h o o l d istricts o th e r th an D e tro it , p o te n tia lly the o b je c t o f a “ M e tr o p o l ita n ” P lan o f D esegreg a tion , b e e n d en ied due p rocess o f la w : ( 1) b y th e ir e x c lu s io n fr o m a n y e ffe c t iv e parti cipation in the D e tro it C o u rt p ro ce e d in g s cu lm in a tin g in its R u l ings on D e Jure S egrega tion in D e tro it , s u ff ic ie n c y o f a D e tro it - Only Plan, an d legal p ro p r ie ty o f a M e tro p o lita n P lan, and ( 2 ) b y the ruling o f th e C o u rt o f A p p e a ls that in a “ M e tro p o lita n ” d ese gregation case, o u t ly in g s c h o o l d istricts have a righ t t o p a rtic ip a te only in the re m e d y stage o f th e p ro ce e d in g s? CONSTITUTIONAL PROVISIONS, STATUTES AND RULES INVOLVED T he c o n s t itu t io n a l p ro v is io n s , statutes an d ru les p articu larly relevant to th e issues in th is case are: U .S . C o n st . A m e n d . V ; U .S . Const. A m e n d . X I V ; M ich . C o n st . A r t ’ s 8 & 9 ; 2 8 U .S .C . § § 1 2 5 4 (1 ) , 1 2 9 2 (b ) & 2 2 8 1 ; M ich igan S c h o o l C o d e o f 1 9 5 5 , Mich. C om p . L a w s A n n ., § 3 4 0 .1 , e t s e q .; A c t 3 4 , S ec. 2 8 , M ich . Pub. A cts o f 1 8 6 7 ; A c t 3 1 9 , M ich . P u b . A c ts o f 1 9 2 7 ; A c t 3 0 6 , Mich. Pub. A c ts o f 1 9 3 7 ; A c t 2 3 1 , M ich . P u b . A c ts o f 1 9 4 9 ; A c t 175, M ich. P ub . A c ts o f 1 9 6 2 ; A c t 2 4 4 , M ich . P u b . A c ts o f 1 9 6 9 ; Act 48 , M ich . P u b . A c ts o f 1 9 7 0 ; F e d . R . C ir. P ., § § 19 , 2 4 a & 54(b). STATEMENT OF THE CASE P etition er is o n e o f 85 in d e p e n d e n t s c h o o l d istricts lo ca te d in the M ichigan c o u n t ie s o f W ayn e , O ak lan d an d M a c o m b , c o n s t itu t ing what was d e fin e d b y th e D istr ict Ju dge t o b e th e “ D e tro it m etropolitan area” . O f th ese 85 s c h o o l d istr icts , 4 3 w ere de- fendant-intervenors in th is a c t io n at th e tim e ju d g m e n t was en ter ed by the C ou rt o f A p p ea ls . O f th e 4 3 in terven in g d istricts , 3 4 are in cluded w ith in th e “ d eseg reg a tion area” o r ig in a lly estab lish ed by the D istrict C o u rt in its O rd e r o f Ju ne 14 , 1 9 7 2 ( 9 7 a ) , [4] [ 2 ] [3] Ruling on Propriety of Considering a Metropolitan Plan, (49a). I „ Subsequent to the entry of the Court o f Appeals’ judgment of June 12, 73, the District Court entered an order on September 10, 1973 joining the remaining 42 outlying school districts as parties defendant. Vacated by the June 12, 1973 judgment o f the Court of Appeals. As to 1 s continued significance, See Note 62, and discussion on pg. 35, infra. 4 w h ich “ d eseg reg a tion area” in c lu d e s a to ta l o f 53 d istricts , en com passing th e 3 4 in te rv e n o rs , an a d d it io n a l 18 s c h o o l d istricts which d id n o t in terv en e an d w ere n o t parties t o th is a c t io n at th e tim e of th e o r d e r , p l u s th e S c h o o l D istr ict o f th e C ity o f D e tro it . A ll o f these s c h o o l d istricts are a u to n o m o u s m u n ic ip a l b o d ie s corporate, b e in g g e o g ra p h ica lly an d p o lit ic a l ly separate an d in d e p e n d e n t, and org a n ized an d ex is t in g pu rsu an t t o th e law s o f th e S ta te o f Michi gan ; ea ch b e in g g o v e rn e d b y its resp e ctiv e d u ly e le c te d board of e d u ca tio n . O n A u g u st 19 , 1 9 7 0 , th is a c t io n w as c o m m e n c e d in the U n ited S tates D istr ict C o u rt f o r th e E astern D is tr ic t o f Michigan, S ou th ern d iv is ion , b y certa in n a m ed in d iv id u a ls an d th e N A A C P as P la in tiffs , n a m in g in th e C o m p la in t ( l a ) : T h e B oa rd o f Education o f th e C ity o f D e tro it and its S u p e r in te n d e n t o f S ch o o ls , the G o v e rn o r , A t to r n e y G en era l, an d th e S tate B o a rd o f E d u ca tion and State S u p erin ten d en t o f P u b lic In stru ctio n o f th e S tate o f Michi gan. T h e D e tro it F e d e ra t io n o f T e a ch ers and M a g d ow sk i, et al., a D e tro it h o m e o w n e rs g ro u p , w ere p e rm itte d in te rv e n tio n prior to c o m m e n c e m e n t o f th e trial. P la in tiffs ’ C o m p la in t c la im ed that as a resu lt o f o ff ic ia l poli cies an d p ra ctices o f th e or ig in a l n a m ed D e fe n d a n ts , a constitu t io n a lly im p erm issib le ra cia lly id e n tifia b le p a ttern o f fa cu lty and stu d en t assignm ents e x is te d w ith in th e s c h o o ls o f th e S ch oo l Dis tr ict o f th e C ity o f D e tro it . P la in tiffs a lso c la im e d that Section 12 o f A c t 4 8 o f th e M ich igan P u b lic A c ts o f 1 9 7 0 ( “ A c t 4 8 ” ) was u n c o n s t itu t io n a l as in te r fe r in g w ith th e im p le m e n ta tio n o f a v o lu n ta ry p lan o f partia l h igh s c h o o l p u p il d esegregation within the S c h o o l D istr ict o f th e C ity o f D e tro it , p re v io u s ly adopted by th e D e tro it B oa rd o f E d u ca t io n o n A p r il 7 , 1 9 7 0 . B y judgment o f th e C o u rt o f A p p e a ls o n O c t o b e r 13 , 1 9 7 0 , 4 3 3 F .2 d 897 (6th Cir. 1 9 7 0 ), th is cla im o f p la in t iffs w as d isp o se d o f b y the Court’s ru ling that S e c t io n 12 o f A c t 4 8 w as u n co n s t itu t io n a l (although that q u e stio n h ad n o t y e t b e e n ru led o n b y th e D istrict Court). P la in tiffs ’ C o m p la in t , w h ich w as th u s lim ited to th e operation of the D e tro it S c h o o l D istr ict a lo n e , w as a m e n d e d f o r th e first time pursuant t o d ire c t io n o f th e D istr ict C o u rt o n A u gu st 15, 1973, and p u rp o rte d t o “ c o n fo r m to th e e v id e n ce ” p re v io u s ly presented in th e D istrict C o u rt . S u ch A m e n d e d C o m p la in t ( la 2 9 1 ) does not in c lu d e an y a llega tion s w ith re sp e ct t o a ction s o f s ch o o l official8 t^l See Note 3 supra. 5 nor the esta b lish m en t o r o p e ra tio n o f an y s c h o o l o r s c h o o l d is trict, o th e r th an th e D e tro it S c h o o l S ystem . T h e trial o n th e m erits c o m m e n c e d o n A p r il 6 , 1 9 7 1 , c o n cluded o n J u ly 2 2 , 1 9 7 1 , and co n ce rn e d o n ly th e q u e stio n o f whether th e D e tro it P u b lic S c h o o l S ystem w as o p e ra te d in a m an ner w h ich im p a ired th e co n s titu t io n a l rights o f th e P la in tiffs w ith in that s c h o o l d istrict. D u ring th e trial, o n Ju ly 17, 1 9 7 1 , in terv en ors M a g d ow sk i, et al., m ov ed t o jo in as parties th e 8 4 s c h o o l d istricts in th e co u n tie s o f W ayne, O a k la n d an d M a c o m b , o u t ly in g fr o m th e C ity o f Detroit. (Ia 1 1 9 ) T h a t M o t io n w as n o t a cted u p o n until a lm ost one year later, w h e n th e C o u rt d e e m e d it to b e w ith draw n . T he D istr ict C o u rt issued its R u lin g o n S egregation o n S ep tember 2 7 , 1971 (1 7 a ) , w h ich fo u n d th e e x is te n ce o f d e ju re segregation o f stu d en ts b u t fo u n d n o segregation o f fa cu lty w ith in the S ch o o l D istrict o f th e C ity o f D e tro it . A lth o u g h th e p ro ce e d in g s b e fo r e th e D istrict C o u rt had theretofore b e e n lim ited t o th e issue o f u n la w fu l segregation in the Detroit S c h o o l S y stem , o n O c t o b e r 4 , 1971 th e D istr ict C o u rt o r dered the S tate d e fe n d a n ts t o su b m it a “ M e tro p o lita n Plan o f D e segregation” f o r th e S c h o o l D istr ict o f th e C ity o f D e tro it , w h ich would em b ra ce th e th ree c o u n t ie s w h ich th e D istr ict C ou rt d e fined as co m p ris in g th e D e tro it m e tr o p o lita n area. Pursuant t o th is Order, o n January 4 , 1 9 7 2 th e S tate B oa rd o f E d u ca tio n file d a so-called “ M e tro p o lita n P lan o f D e se g re g a t io n ” , w h ich su bstan tially a ffe c te d th e in terests o f P e tit io n e r and th e o th e r 83 s c h o o l districts w ith in th e th ree co u n t ie s , o u t ly in g fr o m th e C ity o f Detroit. C on seq u en tly , in te rv e n tio n in these p ro ce e d in g s was sou gh t by P etitioner ( la 1 8 5 ) and 4 2 o th e r s c h o o l d istr icts (Ia 1 8 9 , 192 and 196 ) fo r th e p u rp o se o f rep resen tin g th e ir in terests as m u n ic i pal bod ies c o rp o ra te and th e in terests o f th e paren ts and ch ild ren residing therein . A lth o u g h b y O rd er o f th e D istrict C o u rt o n March 15, 197 2 (Ia 2 0 4 ) th ese M o tio n s t o in terven e w ere granted as a m atter o f r igh t, th e D istr ict C o u rt in su ch O rder, im p o se d cer tain very restrictive an d b u rd e n so m e c o n d it io n s u p o n su ch in ter- Ygndion, T h e in terven in g s c h o o l d istricts filed w ritte n o b je c t io n s to [ 6 ] p Killing on Issue of Segregation, dated September 27, 1971 (17a), herein- a er referred to as “ Ruling on Segregation” . 6 th ese c o n d it io n s , ( la 2 0 8 , 2 1 8 and 2 2 0 ) w h ich o b je c t io n s were never a c te d u p o n b y th e co u r ts b e lo w . O n M arch 2 4 , 1 9 7 2 th e D is tr ic t C o u r t issued its R u lin g on P ro p r ie ty o f M e tro p o lita n P lan (4 8 a ) . f ? ] O n ly 4 d ays later, on M arch 2 8 , 1 9 7 2 , th e D istr ict C o u r t issued its R u lin g o n Detroit- O n ly P lan ( 5 3 a ) .7 [8] O n Ju ne 14 , 1 9 7 2 , th e D is tr ic t C o u r t e n te re d its R uling on D esegregation A re a (5 9 a and 9 7 a ). ^ T h e F in d in gs th erein (59a) w ere v irtu a lly v erb a tim co p ie s o f th o se p r o p o s e d b y Plaintiffs, w ith th e e x c e p t io n o f th e o p e n in g paragraph o f its F indings of F a c t , w h ere in th e D istr ict C o u rt sta ted : “ It sh o u ld b e n o te d th at th e co u r t has tak en n o p r o o fs with re sp e ct to th e esta b lish m en t o f th e b o u n d a r ie s o f th e 86 pub lic s c h o o l d istricts in th e c o u n t ie s o f W a y n e , O ak land and M a c o m b , n o r o n th e issue o f w h e th e r , w ith th e ex c lu s ion o f th e c ity o f D e tr o it s c h o o l d is tr ic t , su ch s c h o o l d istricts have c o m m it te d acts o f d e ju r e se g re g a tio n .” (5 9 -6 0 a ) . N o tw ith sta n d in g th is ca n d id a d m iss ion , th e D is tr ic t C o u r t ’ s Order o f June 14 , 1 9 7 2 (9 7 a ) d ire c te d that final deta ils b e form ulated fo r a p lan o f d eseg reg a tion o f th e S c h o o l D istr ic t o f th e C ity o f D e tro it , in v o lv in g 5 2 o th e r in d e p e n d e n t s c h o o l d is tr icts and order ing th e tra n sp o rta tio n an d tran sfer o f p u p ils as b e tw e e n said s c h o o l d istricts “ . . . t o th e en d th at, u p o n im p le m e n ta tio n , no s c h o o l, grade o r c la ss ro o m b [ e ] su b sta n tia lly d isp ro p o rtio n a te to th e overa ll p u p il racia l c o m p o s i t io n ” ( 101 - 10 2 a) o f all s ch o o l dis tr icts w ith in th e d eseg reg a tion area. [7] Ruling on Propriety o f considering a Metropolitan Remedy to Accom plish Desegregation o f the Public Schools of the City of Detroit, dated March 24, 1972, (48a) hereinafter referred to as “ Ruling on Propriety o f Metropoli tan Plan” . [81 Findings of Fact and Conclusions o f Law on Detroit-Only Plans of De segregation, dated March 28, 1972, (53a) hereinafter referred to as “ Ruling on Detroit-Only Plan” . 191 Findings of Fact and Conclusions o f Law in Support of Ruling on De segregation Area and Development o f Plan, dated June 14, 1972, (59a) and Ruling on Desegregation Area and Order for Development of Plan of D e se g re gation, dated June 14, 1972 (97a), hereinafter collectively referred to as “ Ruling on Desegregation Area” . 7 O n Ju ly 2 0 , 1 9 7 2 th e D istrict C o u rt en tered an O rd er (la 265) d ecla rin g its p r in cip a l p r io r O rders as fin a l in p u rsu an ce o f the p rov is ion s o f R u le 5 4 (b ) , F e d .R .C iv .P ., and fu rth er certify in g , in pursuan ce o f th e p ro v is io n s o f 2 8 U .S .C . § 1 2 9 2 (b ) , that the said O rders co n ta in e d certa in c o n tro ll in g q u e stio n s o f law . O n D e ce m b e r 8 , 1 9 7 2 , th e C o u rt o f A p p e a ls d e c id e d and filed its first ju d g m e n t , w h ich w as v a ca ted b y its grant o f a rehear ing in b a n c o n Jan uary 16, 197 3 . On June 12 , 1 9 7 3 th e C o u rt o f A p p e a ls , sitting in ba n c, d e cided and file d its ju d g m e n t, fr o m w h ich th is appea l has been taken, a ffirm in g th e D istr ict C o u r t ’ s R u lin gs t h a t ( l ) D e tro it w as a de ju re segregated s c h o o l sy stem ; (2 ^ that a “ D e tr o it -O n ly ” p lan was co n s titu t io n a lly in su ffic ie n t as a resu lt o f D e tro it b e in g a “ racially id e n t ifia b le ” s c h o o l d is tr ic t ; and (3 ) th at a m e tro p o lita n desegregation p lan w as “ essential to a so lu tio n o f th is p r o b le m ,” and w o u ld , in all even ts, b e im p le m e n te d in th is case in o n e fo rm or another. T h e C o u rt o f A p p e a ls , h o w e v e r , rem a n d ed the m atter to the D istrict C o u rt f o r th e n a rro w p u rp o se o f p erm ittin g each o f the o u tly in g s c h o o l d istr icts an o p p o r tu n ity t o p resen t e v id e n ce on the exact s co p e an d deta ils o f th e m e tro p o lita n rem e d y . T his C o u rt gran ted C ertiora ri o n N o v e m b e r 19, 19 7 3 . SUMMARY OF ARGUMENT The lo w e r co u r ts have h e ld that o n c e u n co n s t itu tio n a l segre gation is fo u n d t o e x is t in th e o p e ra t io n o f a single s c h o o l d istrict, the rem edial o rd e r m u st b e ex ten s iv e e n o u g h t o m ak e the stu den t racial c o m p o s it io n o f every s c h o o l in that d istr ict m in o r ity B lack , so that the s c h o o l d istrict as a w h o le w ill n o t b e “ racia lly id e n tifi able” o r “ p e rce iv e d as B la ck ” . T h is is n ecessary , it is reason ed , even i f it requ ires th e reassign m en t and tra n sp orta tion o f h u n dreds o f thousands o f stu den ts fr o m a n u m b e r o f u n itary s c h o o l system s outlying th e re fro m , in o rd e r to ach ieve a s u ffic ie n t racial b a la n ce m each s c h o o l n ecessary t o e lim in ate su ch “ racia l id e n t ifia b ility ” . The P laintiffs , th e re fo re , a p p ro a ch th e issues in th is case o n the basis o f assum ing th at th e co n s titu t io n a l v io la tio n s fo u n d to ex ist necessitate a r e m e d y o f su ch s c o p e , so that th e o n ly q u e stio n re maining is w h eth er F ed era l C ou rts have th e p o w e r to o rd e r its im plem entation . 8 P e tit io n e r , o n th e o th e r h a n d , su b m its th at th e first question in vo lves e x a m in a tio n o f th e a lleged v io la tio n s . W hat is th e extent and n ature o f th e co n s t itu t io n a l v io la t io n s , i f a n y , c o m m itte d by P e tit io n e r , th e D e tro it S c h o o l S y stem a n d /o r th e State defendants, and w h a t n e x u s is th ere , i f a n y , b e tw e e n su ch v io la t io n s and any segregated c o n d it io n fo u n d t o e x is t? T h ese q u e s tio n s m u st first be e x p lo r e d and th e n , and o n ly th en , can th e a p p ro p r ia te scop e of the rem ed ia l O rd e r b e d e te rm in e d . P e tit io n e r fu rth e r su b m its that a lth o u g h th e r e c o r d m ay sup p o r t th e fin d in g o f d is c r im in a to ry acts o n th e part o f the Detroit S c h o o l S y stem , t10! th ere is n o th in g in th e r e c o r d substantiating a causal c o n n e c t io n b e tw e e n su ch acts an d a n y segregated condition fo u n d t o e x is t w ith re sp e ct t o D e tro it an d th e areas o u tly in g there fro m . T h e sam e a b sen ce o f causal re la tion sh ip is tru e w ith respect t o th e a lleged a c t io n s b y th e S tate d e fe n d a n ts , an d m oreov er , the re co rd su bstan tia tes n o u n c o n s t itu t io n a l c o n d u c t w h atsoever on th e part o f th e S tate d e fe n d a n ts an d n o d is cr im in a to ry intent on the part o f th e M ich igan L eg isla tu re w ith re sp e ct t o A c t 4 8 , pre v io u s ly fo u n d b y th e C o u r t o f A p p e a ls t o have h a d an unconstitu tio n a l e f fe c t . T h is b e in g th e case , th e p r o p o s e d r e m e d y , w hich has the n ecessa ry e f fe c t o f tran sferrin g ch ild re n fr o m o n e com m unity t o a n o th e r f o r th e so le p u rp o se o f a ch iev in g a p a rticu la r racial mix in ea ch s c h o o l in th e tr i -c o u n ty area, ra th er th an correctin g the lim ite d c o n s t itu t io n a l v io la t io n s w h ich m a y b e fo u n d in the record w ith resp ect t o D e tr o it , is an im p r o p e r ex erc ise o f the pow er of th e F ed era l J u d ic ia ry . L o c a l s c h o o l d istricts have a lw ays b e e n estab lish ed and oper ated b y th e S tate o f M ich igan o n a u n ita ry basis. Consequently, there has n ever b e e n an a ffirm a tiv e co n s t itu t io n a l d u ty on the part o f th e S tate o f M ich igan t o a lter th e n o n -d is c r im in a to ry manner in [t 0] Petitioner takes no position on the Correctness of these findings - the Detroit Board o f Education having decided not to further prosecute their ap peal on that question. As Petitioner stated in its letter to the District Court (la 201) regarding conditions on intervention, “ . . . we do not wish to litigate the question o f de jure segregation in the Detroit Public School System.” The question of whether such findings are correct or not, however, is totally to' material to the issue of causal connection between any such discriminatory acts and demographic patterns in the Detroit metropolitan area. Consequent ly, it will be necessary to review such findings in relation to such causal con nection; particularly in so far as acts of the Detroit Board are imputed to the State defendants. 9 w hich it has e x e rc ise d its legislative d is cre t io n b y m ainta in in g the present system o f a u to n o m o u s s c h o o l d istr icts f o r th e p u rp o se o f preserving its leg itim a te in terest in lo c a l c o n t r o l o f th e e d u ca tio n o f its ch ild ren . F in a lly , b eca u se o f th e fa ilu re o f th e D istr ict C o u rt to perm it P etition er ’ s m e a n in g fu l p a rtic ip a tio n in th e p re v io u s trial p r o c e e d ings, and b e ca u se o f th e fa ilu re o f th e C o u rt o f A p p e a ls t o o rd e r a full trial w ith re sp e ct t o all v io la t io n issues w h ich fo r m th e n eces sary p red ica tes f o r th e im p le m e n ta tio n o f a m e tro p o lita n rem ed ia l order, P e tit io n e r w as d e n ie d d u e p ro ce ss o f law . ARGUMENT I I n tr o d u c t io n T he c o n c lu s io n s re a ch e d in th e p ro ce ss o f an a lyzin g a p r o b lem o f first im p re ss io n , su ch as that p resen ted b y th e “ M e tro politan d e se g re g a tio n ” D l ] issue, w ill g rea tly d e p e n d u p o n the initial p ersp ective tak en in a p p ro a ch in g su ch analysis. O n e d if ference in su ch p e rsp e ctiv e , as b e tw e e n th e P la in tiffs t * 12 131 and all o f the P etition ers in th is cau se , has b e e n th e in itia l ch aracteriza tion o f this m a tter as a “ v io la t io n ” case o r a “ r e m e d y ” case. P la in tiffs ’ C o m p la in t w as lim ite d t o th e o p e ra tio n o f th e Detroit S c h o o l S y stem I *3 [ , an d th e co u r ts b e lo w fo u n d o n ly con stitu t io n a l v io la t io n s w ith re sp e ct t o th e D e tro it s ch o o ls . The word “ Metropolitan” has been used throughout this case to mean a multiple school district area, as distinguished from this Court’s use o f the word (e.g. in Swann, at 21) to mean a large urban area, that was covered by a single school district. [12] Because o f the Detroit Board o f Education’s present posture with re spect to the issues presented in this cause, unless otherwise clearly indicated y the context, the word “ Plaintiff” is intended to include the Detroit Board o Education in addition to the named Plaintiffs, Ronald Bradley, et al. and the NAACP. [ 13] Indeed, the Amended Complaint recently filed by Bradley, et al. (Ia ) still fails to allege any acts whatsoever by any School District other than 01 "'ll!1 respect to the non-unitary operation of any School District other than Detroit. 1 0 D e tro it h av in g b e e n fo u n d a d e ju r e segregated sy stem , how ever, P la in tiffs n o w assert th at th e so le rem a in in g q u e s t io n is whether s c h o o l d is tr ict b o u n d a ry lines are so in h eren tly in v io la te and sacro sanct as t o re n d e r an y d eseg reg a tion p lan th at in v o lv es multiple s c h o o l d istricts , an im p r o p e r e x e rc ise o f th e eq u ita b le remedial p o w e rs o f th e D istr ict C o u rt . P e tit io n e r r e s p e c t fu lly submits, h o w e v e r , th at u n d e r th e m a n d a te o f Swann, I15 ] it is essential that w e e x a m in e th e tru e e x te n t an d n atu re o f th e a lleged underlying co n s titu t io n a l v io la t io n s w h ich , it is c la im e d , req u ires a multi d istrict r e m e d y , b e fo r e th e u ltim a te p r o p r ie ty o f su ch a rem edy is it s e lf e x a m in e d . [ i 6 l T h e R u lin g o n S eg reg a tion (1 7 a ) h e ld that b y rea son o f cer tain a c t io n s an d in a c t io n s o f th e D e tro it S c h o o l D istr ict and the [14 ] Brown v. Board o f Education o f Topeka, 349 U.S. 294, 99 L.Ed. 1083 (1955); Swann v Charlotte-Mecklenberg, Board of Education 402 U.S .1,28 L.Ed. 2d 544 (1971). [15] “ As with any equity case, the nature of the violation determines the scope o f the remedy.” 402 U.S. at 16. 1161 In their opening Brief filed in the Court o f Appeals, Bradley, et al. quite perceptively summarized Petitioner’s position with respect to the lower Court’ s failure to relate the remedy to the violation, when they stated, at page 81, “ The defendants-appellants would have this court believe that the district court leaped from finding limited violations to fashioning virtually un limited relief.” That is, in fact, precisely the position o f Petitioner. 11 D efendants M illik en , et al., D e tro it w as a d e ju r e segregated s c h o o l system. 1171 T h ere is n o e v id e n ce o n r e c o r d , n o r w ere an y fin d in gs made in th e R u lin g o n S egrega tion (a n d in d e e d , o n th e basis o f th e record, n o n e c o u ld b e m a d e ) th at in a n y w a y re la ted t o th e q u es tion o f w h eth er a c t io n s o f a n y s c h o o l o ff ic ia ls in D e tro it o r o f th e State D e fen d a n ts h a d a n y seg reg a tory e f fe c ts o u ts id e D e tr o it , o r whether any s c h o o l o f f ic ia ls c o m m it te d a n y acts o f d e ju re segre gation o u ts id e o f D e tro it that h ad a n y e ffe c ts e ith er in side o r o u t side o f D etro it . In th e D istr ict C o u r t ’ s R u lin g o n P ro p r ie ty o f M e tro p o lita n Plan, the C o u rt first in d ica te d in an O rd er 118 1 that it b e lie v e d a racial im b a la n ce in th e s c h o o ls t o co n s t itu te a c o n s t itu t io n a l v io la tion. T he C o u rt sta ted : “ U n der th e c ircu m sta n ce s o f th is case, (6) the q u e stio n p re sented is w h e th e r th e c o u r t m a y co n s id e r r e lie f in th e fo r m o f a m e tro p o lita n p la n , e n co m p a ss in g n o t o n ly th e C ity o f D etro it, b u t th e larger m e tr o p o lita n area. . . . [171 The District Court’s approach o f using a multi-district remedy with re spect to a single district violation, irrespective o f the necessity for multi-dis trict violations or multi-district causation, by treating it is a remedy question only, was implicitly foretold in the following passage from the Ruling on Seg regation: Having found a de jure segregated public school system in operation in the City of Detroit, our first step, in considering what judicial remedial steps must be taken, is the consideration o f intervening parent defendants’ motion to add as parties defendant a great number of Michigan school districts . . . Plaintiffs have opposed the motion to join the additional school districts, ar guing that the presence of the State defendants is sufficient and all that is required, even if, in shaping a remedy, the affairs o f these other districts will be affected. In considering the motion to add the listed school districts we pause to note that the proposed action has to do with relief. Having determined that e circumstances o f the case require judicial intervention and equitable re- ie it would be improper for us to act on this motion until the other parties o the action have had an opportunity to submit their proposals for desegre- gahon. (38_39a) emphasis added) The District Court had previously indicated from the bench its predis position to ordering a multi-district plan, because o f the preponderance of ack students in Detroit. See page 59, supra. 1 2 (6 ) See ‘ R u lin g o n Issue o f S e g re g a tio n ,’ in d ica t in g a black s t u d e n t p r o je c t io n fo r th e s c h o o l yea r 1 9 8 0 -8 1 of 8 0 .7 % .” T hu s, o n th e basis o f sp ecu la tiv e , lon g -ra n ge s tu d en t p opu lation p r o je c t io n s f o r D e tro it , th e C o u rt c o n c lu d e d that th e “ circum stan ces” o f an in crea sin g ly p r e d o m in a n t B la ck s tu d en t enrollm ent in D e tro it m a d e th e im p le m e n ta t io n o f a m u lt i-d is tr ic t rem edy lega lly p ro p e r . F in a lly , in its R u lin g o n D e tr o it -O n ly P lan , th e D istr ict Court h e ld that any d eseg reg a tion p lan lim ite d t o D e tr o it w as constitu tio n a lly in s u ffic ie n t , and th at o n ly a m u lt i-d is tr ic t p lan w o u ld be an a p p ro p r ia te re m e d y . In su ch R u lin g , th e D is tr ic t C o u rt set forth F in d in gs o f F a c t as t o w h y a D e tr o it -o n ly p lan w as con stitu tion a lly in su ffic ie n t . T h e so le su bstan tive rea son w as th e assertion that th e racia l c o m p o s it io n o f th e s tu d e n t b o d y in D e tro it is such that th e D e tro it P u b lic S c h o o l S y stem w o u ld b e “ ra c ia lly identifi ab le as B la ck ” , o r w o u ld b e “ p e rce iv e d as B la ck ” (5 4 - 5 5a ). W e m u st a c c e p t as c o r r e c t th e p rem ise f o r r e lie f cou n se led in Swann, supra, th at th e n atu re o f th e v io la t io n d e term in es the s c o p e o f th e r e m e d y , and th e p re d ica te f o r a fin d in g o f violation re a ffirm e d in Keyes, th at th ere b e in te n t io n a lly discrim ina to r y acts an d a causal c o n n e c t io n b e tw e e n su ch acts and th e segre gated c o n d it io n fo u n d t o ex is t . T h a t b e in g so , it m u st be con c lu d e d th at th e C o u rts b e lo w h ave a ctu a lly tak en th e b o ld and un p re ce d e n te d step o f h o ld in g th at racia l im b a la n ce in a large m etro p o lita n area, resu ltin g in racia l id e n t ifia b ility o r p e rce p tio n as B lack , is p e r se, u n co n s t itu t io n a l. T h e lo w e r co u r ts m u st have so h e ld beca u se th e y have o rd e re d a m u lt i-d is tr ic t re m e d y to be im p le m e n te d w ith o u t an y an alysis o f th e e f fe c ts o f the alleged un co n stitu t io n a l a c t io n s , o r an y fin d in g s w h a tso e v e r th at there is a causal n ex u s b e tw e e n su ch racia l im b a la n ce and in ten tion a l or p u rp o se fu l segrega tory acts o n th e part o f s c h o o l o ff ic ia ls . [ 191 Actually, the District Court also made the finding, which is far more a matter o f bootstrapping than o f substance, that a Detroit-only plan was insuf ficient, and thus a metropolitan plan necessary, because a Detroit-only plan would “ not lend itself as a building block for a metropolitan plan.” [201 Keyes v School Dist. No. 1, Denver, Colorado, U.S. , 37 L.Ed. 2d 548 (1973). 13 T hat th e lo w e r co u r ts have m a d e su ch a h o ld in g is th e reason for the o b se rv a tio n a b o v e , that P la in tiffs an d P e tit io n e rs have d if ferent in itia l p e rsp e ctive s in a p p ro a ch in g th is m a tter; resp e ctiv e ly , as a rem ed y case and as a v io la t io n case. P la in tiffs have th u s far succeeded in p reva ilin g u p o n th e lo w e r co u r ts to c o m m e n c e w ith the initial p rem ise that o n c e th ere is any fin d in g o f in te n tio n a lly discrim inatory acts b y s c h o o l o ff ic ia ls , resu ltin g in a co n s titu t io n a l violation, su ch f in d in g w ill a u to m a tica lly trigger a righ t to re lie f from racial im b a la n ce and racia l id e n tifia b ility . A p p r o a c h in g th e problem fr o m th is d ire c t io n fa c ilita tes lim ita tio n o f fu rth e r in quiry to o n ly th e re m e d y issue o f w h e th e r th e u ltim a te p o w e rs o f the Federal C o u rt are b ro a d e n o u g h t o in c lu d e m u lt ip le s c h o o l dis tricts in a d esegrega tion plan. O b v iou s ly , h o w e v e r , th is a p p ro a ch t o th e m e tr o p o lita n deseg regation issue sk ew s th e resu lt, and th is is w h ere th e lo w e r co u rts have erred. T h e n ecess ity f o r th e im p le m e n ta tio n o f any ju d ic ia l relief m ust first b e d e te rm in e d b y an analysis o f the u n d erly in g violation. O n ly a fin d in g o f in te n tio n a l segregative acts b y resp on s ible s ch o o l o f f ic ia ls , h avin g a causal c o n n e c t io n w ith th e segre gated co n d it io n fo u n d t o ex is t , w ill fo r m th e p re d ica te f o r re lie f. It is on ly th en that th e q u e s t io n o f th e p r o p r ie ty and s c o p e o f a multi-district re m e d y in this case n e e d b e co n s id e re d . Unless this C o u rt is n o w p rep a red t o d e c la re th e e x is te n ce o f previously u n re c o g n iz e d F o u r te e n th A m e n d m e n t R igh ts — that Black ch ildren have th e c o n s t itu t io n a l right t o a tten d a p u b lic school w here W hite ch ild ren are in th e m a jo r ity — th e lo w e r co u rts must be reversed f o r having b e e n m isgu id ed b y P la in tiffs in their approach to th e “ m e tr o p o lita n d e se g re g a tio n ” issues. II II THE CONSTITUTIONAL VIOLATIONS - A - The Unitary Establishment and Operation of Petitioner School District In their C o m p la in t , P la in tiffs m a d e n o a llega tion s w h a tsoever with respect t o an y d iscr im in a to ry o r segregatory a c t io n s o r in ac- 14 t io n s o f o f f ic ia ls o f s c h o o l d istr icts o u t ly in g fr o m th e S c h o o l Dis tr ict o f th e C ity o f D e tro it , an d th e D istr ict C o u r t expressly a ck n o w le d g e d m a k in g n o su ch fin d in g s . It is c lear, h o w e v e r , that P e tit io n e r a n d its p re d e ce sso rs an d every o th e r o u t ly in g s c h o o l dis tr ict in th e tr i -c o u n ty area o f W a y n e , O a k la n d an d M a c o m b , main ta in and o p e ra te u n ita ry s c h o o l system s, and have d o n e so fo r at least 1 0 0 years. [211 T h e in itia l cre a tio n o f P e t it io n e r ’ s S c h o o l D istr ict boundary lines, as w ell as th o se o f all o th e r M ich igan s c h o o l d istr icts , were b a sed o n n eu tra l an d n o n -d is c r im in a to ry criteria . F o r ex a m p le , as in d ica te d in th e A ff id a v it o f G rosse P o in te S c h o o ls R e : Boundary l i n e s an d T ra n sp o rta tio n F a c ilit ie s ( la 2 5 4 ) f ile d p u rsu a n t to the d ire c t io n o f th e D istr ict C o u r t , th e p resen t g e o g ra p h ica l bound aries o f T h e G rosse P o in te P u b lic S c h o o l S y stem w e re , w ith one m i n o r m o d i f i c a t i o n , last d e te rm in e d in 1921 [22] b y the c o n s o lid a t io n o f fiv e sm aller rural s c h o o l d istricts w h o s e boundary lin es w ere o r ig in a lly d ra w n a lo n g to w n s h ip lin es a n d /o r naturally ex is t in g b o u n d a rie s . T h ere has n ever b e e n an y gerrym an d erin g of P e tit io n e r ’ s g eog ra p h ica l b o u n d a r ie s fo r any rea son whatsoever, m u ch less f o r reason s m o t iv a te d b y segregative p u rp o se . T h e a b sen ce in th e r e c o r d o f any e v id e n ce p erta in in g to the co m m is s io n o f seg reg a tory acts b y P e tit io n e r , o r any o th e r out ly in g s c h o o l d istr ict, o r w ith re sp e ct t o th e esta b lish m en t o f their b o u n d a r ie s , w as e x p lic it ly a c k n o w le d g e d b y th e D istr ict C ourt in its R u lin g o n D esegreg a tion A rea , as fo l lo w s : “ I t sh o u ld b e n o te d th at th e c o u r t has ta k en n o p r o o fs with re sp e ct t o th e esta b lish m en t o f th e b o u n d a r ie s o f th e 86 pub lic s c h o o l d istricts in th e c o u n t ie s o f W a y n e , O ak land and M a co m b , n o r o n th e issue o f w h e th e r , w ith th e exclu sion of th e c ity o f D e tro it s c h o o l d is tr ict , su ch s c h o o l d istricts have c o m m it te d acts o f de ju re se g re g a tio n .” (5 9 -6 0 a ) [211 Ex Rel Workman, 18 Mich. 400 (1869), Act 34, Sec. 28 of Mich. Pub. Acts o f 1867. [22] ^t that time, Grosse Pointe Schools had a student population of 947, as compared with the commencement of the 1971 school year, when there were 13,529 students. 15 In su m m ary P e tit io n e r has a lw ays o p e ra te d a u n itary s c h o o l system pu rsu an t t o th e C o n s t itu t io n an d th e law s o f th e S tate o f Michigan , fr o m w h ich n o ch ild has ever o r m a y n o w b e e x cluded o n a c c o u n t o f race. T h ere is absolutely nothing in th e re cord o f th is cau se that w o u ld in d ica te a c t io n s b y P e tit io n e r t o th e contrary. *̂ 2 4 25̂ - B - Violations of the Detroit School District T h e O p in io n o f th e C o u rt o f A p p e a ls rev iew ed in so m e deta il the d iscr im in a tory acts w h ich th e D istr ict C o u rt fo u n d th e D e tro it Sch ool D istrict t o have c o m m itte d . A lth o u g h it w as an A p p e lla n t before th e C o u rt o f A p p e a ls w ith re sp e ct t o th ose fin d in gs , the Detroit S c h o o l D istr ict has n o t sou g h t rev iew o f sam e b y this Court. It is p e rtin e n t, h o w e v e r , t o rev iew th e n ature o f th e acts which th e D e tro it S c h o o l D istr ict w as fo u n d t o have c o m m itte d , insofar as th e y m a y b e re levan t t o th e q u e stio n o f a m u lti-d is tr ict rem edy. T h e C o u rt o f A p p e a ls a ffirm e d th e D istr ict C o u r t ’ s fin d in g s that the D e tro it S c h o o l D is tr ic t w as g u ilty o f segregative p ra ctices falling in to 3 ca te g o r ie s : ( 1 ) S egregative z o n in g and assignm ent practices; ( 2 ) O p t io n a l a tte n d a n ce z o n e s ; and (3 ) S c h o o l co n s tru c tion. W ith th e e x c e p t io n o f o n e s p e c if ic in c id e n t, re la tin g to the Carver S c h o o l D is t r ic tJ 2 3 ̂ th ere is n o th in g in th e r e c o r d in d ica ting any re la tion sh ip w h a tso e v e r b e tw e e n th e o p e ra t io n o f th e Detroit S c h o o l D istrict and o th e r s c h o o l d istricts o u t ly in g th ere from . [231 . . Every school district shall provide for the education of its pupils without discrimination as to religion, creed, race, color or national origin. Mich. Const. 1963, Art 8, Sec 2. “No separate school or department shall be kept for any person or persons on account of race or color.” Mich. Comp. Laws Annotated, §340.355 “ All persons, residents o f a school district . . . shall have an equal right to attend school therein.” Mich. Comp. Laws Annotated, §340.35 6 See also Act 319, Part II, Ch.2, Sec. 9, Mich. Pub. Acts of 1927, at p. 3aa, infra. [24] -phis is at least one distinction between the facts o f this case and those before the Court in Bradley v. State Bd. o f Educ., U.S. , 36 L.Ed. 2d 771 (1973), aff’d by an equally divided Court, where all three school districts which were the subject of the proposed multi-district Richmond, Virginia plan had unquestionably been dual school districts. [25] pjjg c arver s chool District will be discussed below, in the section on Actions of the Defendants Milliken, et al., at pg 28, infra. 16 T h e D e tro it S c h o o l D is tr ic t a d o p te d a u n iq u e p o s tu re before th e C o u rt o f A p p e a ls b y argu ing it w as n o t g u ilty o f d e ju re segre g a tio n ; b u t i f su ch f in d in g b e a ff ir m e d , a m e tr o p o lita n p la n should b e im p le m e n te d as th e rem e d ia l o rd e r . T h e D e tr o it S c h o o l District has n o w a b a n d o n e d its in itia l p o s it io n , and is cu rre n tly advocating o n ly fo r a m e tr o p o lita n p lan , thus ren d erin g it a p a rty in total o p p o s it io n t o th e in terests o f P e tit io n e r . A su m m a ry o f the D e tro it S c h o o l D is tr ic t ’ s argu m en t co n ce rn in g th e n ature and ef fe c t o f th e v io la tio n s fo u n d to have b e e n c o m m it te d b y D etroit, and th e causal re la tion sh ip b e tw e e n su ch v io la t io n s and the cur rent c o n d it io n in su ch S c h o o l D istr ict is p a rticu la rly instructive; e sp ecia lly in ligh t o f th e fa c t th at th is argu m en t w as previously m a d e in c o n ju n c t io n w ith its s im u lta n eou s argu m en t in fa v or o f a m u lti-d istr ict r e m e d y . In its b r ie f t o th e C o u rt o f A p p e a ls , the D e tro it S c h o o l D istrict a rg u e d : “ A s t o th e ro le o f th e acts o f th e D e tro it B oa rd fo u n d to be w ro n g fu l in causing th e cu rren t c o n d it io n o f segregation P la in tiffs p ro fe rre d t o th e C o u rt th e ir f in d in g o f fa c t which co n ta in e d o n ly th e o p in io n te s t im o n y o f several exp erts to th e e f fe c t th at a ll-B lack an d a ll-W hite s c h o o ls te n d e d to rein fo r c e a fe e lin g o f sperarateness o n th e part o f b o t h races, w h ich , in tu rn , m a n ife s te d it s e lf t o so m e u n d e fin a b le degree in th e c h o ic e o f re s id e n ce in u n iracia l n e ig h b o r h o o d s on the part o f b o th races. The mind boggles at the meaning o f this assumed, un measured phenomenon against the standard o f proximate cause. F irst, th e fin d in g s o f th e D istr ict C o u r t as t o specific acts o f d iscr im in a tio n rela te t o a re la tive ly sm all proportion o f th e to ta l s c h o o l d is tr ic t : th e c o n s tr u c t io n o f o n e specified e lem en ta ry s c h o o l , o u t o f a to ta l s c h o o l c o n s tr u c t io n pro gram in v o lv in g a m u lt itu d e o f s c h o o ls ; several instances of B la ck -to -B la ck b u s in g ; and th e m a in te n a n ce o f six optional z o n e s , w h ich w ere in th e p ro ce ss o f seriatim e lim in a tio n , rep resen tin g b u t a sm all fr a c t io n o f th e to ta l o f tw e n ty -o n e high s c h o o l c o n s te lla t io n s in th e C ity o f D e tro it . There is not an iota o f evidence which shows or which even attempts to show that any person living in the City o f Detroit made housing decisions any differently, because o f the “acts or failures to act” o f the Detroit Board. * * * 17 T h e m o s t v iv id in d ica to r o f th e la ck o f any causal n exus b e tw e e n th e a c t io n s o f th e D e tro it B oard and th e current c o n d it io n o f segregation is th e fin d in g (s ic ) th e C o u r t ’ s “ R u l in g o n D e tro it -O n ly P lans” , that even had it gran ted all th e r e lie f re q u e ste d b y P la in tiffs , th e im p le m e n ta tio n o f a p u p il assignm ent p lan w ith in th e ju r is d ic t io n o f th e S c h o o l D istrict o f th e C ity o f D e tro it w o u ld n on eth e less retain ra cia lly id en tifia b le s ch o o ls . A p p . I a 4 5 9 , V o l. ITS. I f the District Court, with its broad equitable jurisdiction, is unable to overcome residential housing patters within the City o f Detroit to elimi nate the condition o f racial identifiability in its schools, then the same condition o f segregation would exist even if the Detroit Board had acted exactly as the District Court would have had it act. H o w th en can th e D e tro it B oard b e fo u n d to have p r o x im a te ly cau sed th at c o n d it io n , w h ich even th e D is tr ict C o u rt fo u n d it s e lf p o w e r le ss t o re m e d y ? T h e fin d in g is really th en n o t that th e D e tro it B oa rd sh ou ld have su cce e d e d in e lim in a tin g racia l id e n t if ic a t io n in its s ch o o ls , b u t that it sh ou ld have d o n e a b e tte r j o b o f fa iling. I f fa ilu re t o alleviate the c o n d it io n s is in ev ita b le even fo r th e C o u rt itse lf, as th e C ou rt has e f fe c t iv e ly fo u n d , th en th e p articu lar q u a lity o f the B oa rd ’ s fa ilu re ca n h a rd ly b e said to have cau sed that c o n d i tion . A b se n t th at ca u sa tio n , D e tro it ca n n o t b e h e ld to a de jure segregated du a l sy s te m .” t26 l (E m ph asis a d d e d ) P etition er agrees that o n th e basis o f th e re c o r d , th e D e tro it Board o f E d u ca t io n has n ever o p e ra te d a dual s c h o o l system . Detroit has a lw ays m a in ta in ed s c h o o ls a tten d ed b y b o t h B lacks and W hites, in v a ry in g p r o p o r t io n s , d e p e n d in g o n th e d e m o g ra p h ic patterns o f h o u s in g in th e c ity and p o p u la t io n sh ifts ov er the years. T here have a lw ays b een in tegra ted s ch o o ls in th e C ity o f D etroit, and th ere has n ever b e e n a p o lic y o f th e D e tro it B oard o f E ducation to estab lish separate s c h o o ls fo r B lack and W h ite ch ild ren in th e D e tro it S c h o o ls an y m o r e th an th ere has b e e n a statu tory or co n s t itu t io n a l p ro v is io n o f M ich igan L aw req u ir in g sepa rate e d u ca tion a l fa c ilit ie s f o r B lack and W hite ch ildren in the State o f M ichigan. Brief of the School District of the City o f Detroit in the United States Court of Appeals for the Sixth Circuit, pp. 35-38. 1 8 It is a lso a p p a ren t that certa in adm in istrative o f f ic e r s o f the D e tro it S c h o o l D istr ict m a y have b e e n g u ilty o f certa in acts which had e ith er a seg reg a tory p u rp o s e , a lim ite d segregative e f fe c t , or b o th . H ow e v e r , P e t it io n e r agrees w ith th e R e s p o n d e n t D etroit S c h o o l D is tr ic t ’ s d e sc r ip t io n o f su ch acts as b e in g e x tr e m e ly insig n ifica n t (in re la tion t o th e to ta l o p e r a t io n o f that large s c h o o l dis tr ic t ), an d th e ir e f fe c ts as b e in g so m in u te as t o ren d er them n o n -e x is te n t in term s o f a causal n e x u s w ith segregated housing pattern s th e p resen t racia l m a k e -u p o f th e D e tro it s c h o o ls , and the s c h o o l p o p u la t io n in D e tr o it in gen era l, b e in g de minimus, it is in co n ce iv a b le th at su ch acts c o u ld have had an y ca u sa lly related ra m ifica t io n s in u n re la ted , sep ara te ly o p e ra te d , a u ton om ou s s c h o o l d istricts o u t ly in g th e re fro m . - C - Actions of Defendants Milliken, et al T h e C o u rt o f A p p e a ls a ff irm e d th e D istr ict C o u r t ’ s findings that th e State o f M ich igan * has b e e n g u ilty o f certa in constitu tion a l v io la tio n s , an d has d iv id e d th e m in to fiv e ca tegories . Be cause o f th e p articu lar s ig n ifica n ce w h ich su ch fin d in g s m ig h t have u p o n th e m e tr o p o lita n r e m e d y issue, P e tit io n e r w ill d iscu ss them in som e deta il: 1. T h e en tire te x t o f th e first f in d in g is as fo l lo w s : “ S c h o o l d istricts in th e S tate o f M ich igan are instrumen ta lities o f the S tate an d su b o rd in a te to its S tate B oard of E d u ca tio n an d leg isla tu re (p a g e r e fe re n ce ). H en ce , the Since “ State o f Michigan” has never been made a party to this action, it is difficult to conceive of how the State, as an entity, could have been found guilty of anything. As to the distinction between the State o f Michigan and the State Defendants, reference is to the Brief o f Milliken, et al. 28 [28] Actually, the Detroit School District is “ subordinate” only to the Michigan Legislature. The language o f the Michigan Constitution of 1963 states that the State Board of Education shall have responsibility for “ leader ship and general supervision” o f local school districts (Mich. Const. 1963, Art 8, Sec 3). Also see discussion of the significance of local school districts under Michigan law, page 48, infra. 19 segregative a c t io n s and in a ctio n s o f th e D e tro it B oa rd o f E du ca tion p re v io u s ly o u tlin e d are th e a ctio n s o f an a g e n cy o f th e State o f M ich ig a n .” ( 1 5 1 a ) P etit ion er is at so m e w h a t o f a loss as to th e s ig n ifica n ce o f this separately e n u m era ted s ta tem en t; m o r e su cc in c t ly sta ted , th e the D etro it B oa rd o f E d u ca t io n is an a g en cy o f th e S tate o f M ich i gan. I f th e C o u rt m ea n t that th e “ S tate o f M ich iga n ” , and all levels in its g ov ern m en ta l s tru ctu re , are t o have im p u te d t o th em , and are to b e c o m e ta in ted w ith th e sam e “ g u ilt” as th e D e tro it S c h o o l District m a y have a d ju d g ed against it, P e tit ion er m u st tak e e x c e p tion. S u ch a fin d in g , b e in g essen tia lly a legal c o n c lu s io n , w o u ld certainly b e a n o v e l a p p lica tio n and e x te n s io n o f th e d o c tr in e o f respondeat superior. N o c ita t io n o f a u th o r ity having b e e n given , and n o fu rth er elucidation o f su ch th e o r y h avin g b e e n exp ressed , h o w e v e r , it must be assum ed that the fin d in g is m ere ly declara tive o f fu n d a mental C o n st itu tio n a l la w ; [29] that a ction o f a S c h o o l D istrict is “ state a c t io n ” fo r p u rp o se s o f the F o u rte e n th A m e n d m e n t t o the United States C o n s t itu tio n . 2. T h e s e co n d C o n s t itu tio n a l v io la t io n fo u n d t o have b een com m itted b y th e “ S tate o f M ich iga n ” w as th e en a ctm e n t b y th e Michigan L egislature o f S e c t io n 12 o f A c t 4 8 o f th e M ich igan P u b lic A cts o f 1 9 7 0 ( “ A c t 4 8 ” ). W ith re sp e ct t o th is statute, th e Court o f A p p e a ls h e ld : “ W hile th is sta tu te has sin ce b e e n in va lidated b y ju d g m e n t o f this co u rt , 4 3 3 F .2 d 8 9 7 , its c o n tr ib u t io n to p rev en tin g dese gregation an d t o co n t in u in g and in creasing segregation o f the D etro it s c h o o l system ca n n o t b e o v e r lo o k e d .” (1 5 1 a ) . It is su bm itted th at based o n th e r e co rd in th is cause, th e c o n clusion expressed in th is f in d in g is to ta lly w ith o u t fo u n d a t io n and am ounts to exa ggera ted su p p o s it io n and sp e cu la tio n o n th e part o f the C ourt o f A pp ea ls . Brown v. Board o f Education o f Topeka, 347 U.S. 483, 98 L.Ed. 873 0954fShelleyw.Kraemer, 334 U.S. 1,92 L.Ed. 1161 (1948). 20 T h e fa cts re la tin g t o A c t 4 8 are, f o r th e m o s t part, set forth in th e r e p o r te d o p in io n o f th e C o u rt o f A p p e a ls , I3° l an d are also ascerta in ab le f r o m a rev iew o f th e sta tues th em selves. T h ese facts m a y b e b r ie f ly su m m a rized as fo l lo w s . In 1 9 6 9 , th e M ich iga n L eg isla tu re e n a cte d A c t 2 4 4 o f the M ich igan P u b lic A c ts o f 1 9 6 9 ,13 1 1 ( “ A c t 2 4 4 ” ) th e p u rp ose of w h ich w as to e ffe c tu a te th e “ d e c e n tra liz a t io n ” o f th e D e tr o it Pub lic S c h o o l S y stem . D e ce n tra liza tio n w as in te n d e d t o d iv id e the co m p a ra tiv e ly large D e tro it S c h o o l D istr icts in to sem i-au ton om ou s reg ion s p ro v id in g so m e m easu re o f c o m m u n ity c o n tr o l b y the citi zens o v e r th e o p e r a t io n o f s c h o o l w ith in a p articu lar re g ion . The e x p e r im e n t in to d e ce n tra liza tio n o f th e D e tr o it S c h o o l District w as w id e ly su p p o r te d b y th e B la ck c o m m u n ity w ith in Detroit, an d n o c la im has ever b e e n m a d e th at th e d e ce n tra liz a tio n pro gram w as m o t iv a te d b y d is cr im in a to ry p u rp o se s . O n A p r il 7 , 1970, pu rsuan t t o A c t 2 4 4 , the D e tro it B oa rd o f E d u c a t io n ad op ted a p lan f o r th e d iv is ion o f D e tro it in to 7 reg ion s . In that sam e action, th e D e tro it B oa rd a lso a d o p te d a p la n m a k in g ch an ges in the at te n d a n ce areas o f 12 o f th e S c h o o l S y s te m ’ s 21 h igh schools, fo s te r in g a greater d egree o f in teg ra tion . T h e p lan w as t o b e imple m e n te d o v e r a 3 -y e a r p e r io d ; c o m m e n c in g w ith th e 10th grade stu den ts in th e F a ll o f 1 9 7 0 , an d th en th e 1 1th grade student in the F all o f 1 9 7 1 , an d fin a lly th e 1 2 th grad e s tu d en ts in th e Fall of 1 9 7 2 . D u rin g its 1 9 7 0 term th e M ich igan L eg islatu re enacted a n u m b e r o f a m e n d m e n ts to A c t 2 4 4 b y e n a ctin g A c t 4 8 . T he pur p o s e o f A c t 4 8 w as t o fa c ilita te th e m e ch a n ics o f decentralization in the D e tro it S c h o o l D istr ict b y rea d ju stin g th e reg ion a l areas to take in to a c c o u n t o n e -m a n , o n e -v o te re q u ire m e n ts I3 2 ! and to ad ju st certa in o th e r p ro v is io n s re la tin g t o salaries, fa c ilit ie s , central b o a rd rep resen ta tives and a n u m b e r o f o th e r m atters. S ection 12 o f A c t 4 8 , a lso c o n ta in e d th e fo l lo w in g p ro v is io n : “ S ec. 12 . T h e im p le m e n ta t io n o f a n y a tte n d a n ce provi s ion s f o r th e 1 9 7 0 -7 1 s c h o o l y ea r d e te rm in e d b y any first [ 3 0 ] Bradley v M illiken, 4 3 3 F .2 d 8 9 7 ( 1 9 7 0 ) . 1311 M ic h . C o m p . L a w s A n n o t a t e d , § 3 8 8 .1 7 1 , e t s e q . 13 2 1 H adley v. Junior C ollege D istrict o f M etropolitan Kansas City, 397 U . S . 5 0 , 2 5 L . E d . 2 d 4 5 ( 1 9 7 0 ) 21 class s c h o o l d istr ict b o a rd shall b e d e la y e d p en d in g th e date o f c o m m e n c e m e n t o f fu n c t io n s b y th e first class s c h o o l d i s t r i c t b o a rd s estab lish ed u n d e r th e p ro v is io n s o f this a m e n d a to ry a ct b u t su ch p ro v is io n shall n o t im p a ir th e right o f an y su ch b o a rd to d e te rm in e and im p le m e n t p r io r t o su ch date su ch ch an ges in a tten d a n ce p ro v is io n s as are m an d ated b y p ra ctica l n ece ss ity . . . The C ou rt o f A p p e a ls h e ld o n O c t o b e r 13, 1 9 7 0 [33] th at S e c t io n 12 o f A c t 4 8 h ad th e e f fe c t o f d e la y in g im p le m e n ta tio n o f th e D etroit B o a rd ’ s A p r il 7 Plan f o r in creased in tegra tion in th e 10 th grades, and w as th e re fo re “ u n co n s t itu t io n a l and o f n o e f fe c t as violative o f the F o u rte e n th A m e n d m e n t .” T h e m o tiv a tin g p u rp o se b e h in d S e c t io n 12 o f A c t 4 8 d o e s not appear fr o m th e re c o r d , and o n e can o n ly surm ise its p u rp o se from the fa ce o f th e statute. 3̂3 3 4 ̂ It is certa in ly clear th at th ere is nothing in th e r e c o r d in d ica tin g a segregative p u rp o se o r d iscr im i natory m o t iv e b e h in d A c t 4 8 . 3̂ 5 ̂ In d e e d , th e Jou rn a l o f th e Senate o f the S tate o f M ich igan 3̂6 37 * *̂ reveals that th e S en ate v o te on A ct 4 8 w as 21 yes , 0 n o . T h e y es v o te s in c lu d e d all 3 B lack Michigan senators, In a d d it io n , th e Jou rn a l o f th e H o u se o f the State o f M ich igan reveals that th e H ou se v o te o n A c t 4 8 was 87 yes , 2 n o . T h e y e s v o te in c lu d e d all 5 B lack M ich igan R e p - [3 3 ] Bradley v . M illiken, 4 3 3 F .2 d 8 9 7 ( 6 th C ir . 1 9 7 0 ) , at 9 0 4 . 3̂ 4 ̂ It w o u ld a p p e a r f r o m t h e fa c e o f th e s ta tu te th a t at least th e p r im a r y intent o f A c t 4 8 w a s t o e n a b le t h e n e w ly e l e c t e d r e g io n a l b o a r d s , u n d e r d e ce n tra liza tio n , t o p a r t ic ip a te in t h e d e c is io n m a k in g p r o c e s s w it h r e s p e c t t o such m atters as a t te n d a n c e areas. [351 S ee K eyes, supra, w h e r e in t h e C o u r t s ta te d : “ . . . W h e re n o s t a t u t o r y dual sy s te m has e v e r e x is t e d , p la in t i f fs m u st p r o v e n o t o n l y th a t s e g re g a te d sch oo lin g e x is ts b u t a ls o th a t it w a s b r o u g h t a b o u t o r m a in ta in e d b y inten- tional state a c t i o n . ” (e m p h a s is a d d e d ) , U .S . at , 3 7 L .E d .2 d a t 5 5 7 . 1361 1 9 7 0 S .J .9 7 , p g . 1 6 8 4 . [37] O n e o f t h e S e n a to r s v o t in g in fa v o r o f A c t 4 8 w a s S e n a to r C o le m a n °u n g ; n o w th e fir s t B la c k m a y o r o f t h e C ity o f D e t r o it . 1381 1 9 7 0 H .J . 1 0 4 , p g . 2 8 5 6 . 22 resen tatives w h o w ere p resen t and v o t in g , w ith th e o n ly n o votes b e in g cast b y W h ite R epresen ta tiv es . 3̂9 ̂ T h e p o in t o f th is analysis, s im p ly sta ted , is th at even though it is argu able th at th ere w e re s u ff ic ie n t g ro u n d s f o r th e C ou rt of A p p e a ls t o ru le S e c t io n 12 o f A c t 4 8 u n co n s t itu t io n a l, p u re ly as a resu lt o f its e f fe c t o n th e im m e d ia te im p le m e n ta t io n o f th e A pril 7 P lan, th ere is n o th in g in th e r e c o r d o r o th e rw ise indicating a d iscr im in a to ry p u rp o s e o r in te n t o n th e part o f th e Michigan L egislature, f40 4 1 1 T h e C o u rt o f A p p e a ls m a d e n o fin d in g as to in ten t at th e t im e S e c t io n 12 w as ru led u n co n s t itu t io n a l, and any such fin d in g w o u ld have h ad t o b e b a sed s o le ly u p o n speculation. T h e o th e r a sp ect o f A c t 4 8 w h ic h m u st b e e x a m in e d is the causal c o n n e c t io n w h ich it h ad w ith in tegra ted a n d /o r segregated e d u ca t io n in th e C ity o f D e tro it . D u rin g th e 1 9 7 0 -7 1 school [3 9 J o f t h e 8 B la c k S e n a to r s a n d R e p r e s e n ta t iv e s v o t in g o n t h e A c t , all 8 v o t e d y e s . N o t w it h s t a n d in g t h e a rg u a b le v a l id i ty o f t h e C o u r t o f Appeals e a r lie r d e c is io n as t o its u n c o n s t i t u t io n a l i t y s o le ly b e c a u s e o f its e f f e c t o n the A p r i l 7 p la n , P e t i t io n e r is c o n f id e n t t h a t e a c h o f t h o s e B la c k le g is la to rs would b e a f f r o n t e d b y t h e s t a t e m e n t c o n t a in e d in t h e D e t r o i t B o a r d ’ s R e sp o n se to th e P e t i t io n f o r W rit o f C e r t io r a r i , at p . 4 8 , ch a r g in g “ T h e A c t ’ s statutory s t ig m a t iz a t io n o f b la c k c h i ld r e n , b e c a u s e o f r a c e . . . .” [ 4 0 ] p e t i t io n e r s e r io u s ly q u e s t io n s w h e t h e r A c t 4 8 d id in fa c t have the necessary e f f e c t a t t r ib u t e d t o it b y t h e C o u r t o f A p p e a ls . S e c t io n 12 specific a lly p e r m it t e d th e D e t r o i t B o a r d t o im p le m e n t a t te n d a n c e area ch a n g e s in the e v e n t t h e y w e r e “ m a n d a t e d b y p r a c t ic a l n e c e s s i t y ” . T h e J u ly 2 8 , 1 9 7 0 opin i o n o f t h e D e t r o i t B o a r d ’ s a t t o r n e y ( la 3 0 ) , s o h e a v ily r e l ie d u p o n by the C o u r t o f A p p e a ls , in t e r p r e t e d th is la n g u a g e t o m e a n th a t w h e r e th ere were “ c o m p e l l in g e d u c a t io n a l r e a s o n s ” , ch a n g e s in a t te n d a n c e areas cou ld be m a d e . It is r e s p e c t fu l ly s u b m it t e d th a t th is la n g u a g e w a s a m p ly b r o a d t o have p e r m it t e d th e D e t r o i t B o a r d o f E d u c a t io n t o a c t u a l ly im p le m e n t th e April 7 p la n in S e p t e m b e r , 1 9 7 0 , in t h e e v e n t t h e y d e e m e d th a t t h e r e a so n s were all th a t c o m p e l l in g ; w it h t h e l ik e l ih o o d o f ju d ic ia l in t e r fe r e n c e w it h so proceed in g b e in g n i l . T h e u lt im a te d e c is io n n o t t o p r o c e e d st ill r e s te d w ith the D e t r o it B o a r d . t44 5 It is s u b m it t e d th a t i f th e r e h a d t r u ly b e e n a d is c r im in a t o r y motive or in te n t b e h in d S e c t io n 1 2 , it is m o r e l ik e ly th a t th e L e g is la tu re w o u ld have prohibited c h a n g e s in a t te n d a n c e areas f o r p u r p o s e s o f in c r e a s in g integration, ra th e r th a n o n l y q u a l i f i e d ly p o s t p o n in g t h e e f f e c t iv e d a te o f a n y su ch changes f o r 4 m o n t h s a n d a lso le a v in g a la rg e “ l o o p h o l e ” w h ic h p e r m it t e d attendance area ch a n g e s “ m a n d a t e d b y p r a c t ic a l n e c e s s i t y ” t o p r o c e e d . t 4 2 *l A s s u m in g arguendo th a t it w a s A c t 4 8 th a t h a d th e n e ce ssa ry effect of d e la y in g im p le m e n t a t io n o f th e A p r i l 7 P la n . S ee n o t e 4 0 , supra. 23 year, th ere w e re a lm o st 2 9 0 ,0 0 0 stu d en ts in th e D e tro it S c h o o l System . T h e A p r il 7 P lan, in its first year, w as in te n d e d t o a ffe c t on ly 10th grade s tu d en ts in 12 o f th e 21 D e tro it h igh sch o o ls . T h e resulting d e la y in im p le m e n ta t io n , th e re fo re , a ffe c te d litt le m o re than 3 ,0 0 0 stu d en ts , b o t h B la ck and W h ite , rep resen tin g o n ly slightly m o r e than 1% o f the en tire D e tro it s c h o o l p o p u la t io n . In a d d it io n , th is d e la y w as, b y th e term s o f th e sta tute , fo r a four m o n th p e r io d fr o m th e o p e n in g o f s c h o o l in S ep te m b e r , 1970, u n til January 1, 1 9 7 1 J 43 ̂ T h e C o u rt o f A p p e a ls , h ow e v e r , ruled on O c t o b e r 13 th that that S e c t io n 12 w as u n co n s t itu tio n a l and o f n o e f fe c t — a little o v e r a m o n th a fter s c h o o l started. T h e failure t o im p le m e n t th e A p r il 7 P lan at that ju n c tu re resu lted from th e re fu sa l o f th e C o u rt o f A p p e a ls and th e D istrict Court t o o rd e r it in to e f fe c t , as w ell as th e u n w illin gn ess o f the D etro it B oa rd o f E d u ca t io n t o v o lu n ta r ily d ire c t its im p le m e n tation. T hus, th e p o ss ib le e x te n t o f an y d e la y in th e im p le m e n ta tio n o f the A p r il 7 P lan w h ich ca n b e a ttr ib u ta b le t o A c t 4 8 e x te n d s from n o n e at all t o a m a x im u m o f o n e m o n th ( f r o m th e start o f school in S e p te m b e r , 1 9 7 0 u n til th e C o u rt o f A p p e a ls d e c is io n o n O ctober 13, 1 9 7 0 ), w ith th e n u m b e r o f ch ild ren a ffe c te d b e in g less than 1 -1 /2 % o f th e en tire s tu d en t b o d y o f th e D e tro it S c h o o l District. T h e u ltim a te e f fe c t o f th e d e la y m a y b e to ta lly unascer- tainable, b u t at th e sam e tim e , c o m m o n sense d icta tes that w h a t ever the e f fe c t , it w as in s ig n ifica n t in term s o f th e d e m o g ra p h ic patterns that P la in tiffs n o w c o m p la in o f . T h e n ex u s b e tw e e n this delay, i f an y , an d th e p resen t racia l c o m p o s it io n o f th e s tu d en ts in the sch oo ls o f th e C ity o f D e tro it is, in an y even t, n o t t o b e fo u n d in the re co rd , an d P e tit io n e r r e s p e c t fu lly su bm its that an assertion o f anyth ing m o r e th an a de minimus n e x u s w o u ld req u ire greater cla irvoyance th an w o u ld b e req u ired to spirit o u t the u n d erly in g m otivations o f th e B la ck and W h ite M ich igan leg isla tors w h o v o te d for passage o f A c t 4 8 . [4311 C f . O p in io n o f t h e a t t o r n e y f o r t h e D e t r o i t B o a r d o f E d u c a t io n th a t im p le m e n ta t io n w o u ld b e d e la y e d , as a p r a c t ic a l m a tte r , u n t i l S e p te m b e r , 1971 (la 3 0 ) . [4 4 ] Bradley v M illiken, 4 3 3 F .2 d 8 9 7 ( 6th C ir . 1 9 7 0 ) at 9 0 4 . 1451 Bradley v M illiken, 4 3 8 F .2 d 9 4 5 ( 6 th C ir . 1 9 7 1 ) . 24 3. T h e th ird fin d in g a ff irm e d b y th e C o u rt o f A p p e a ls with resp ect t o a c t io n s o f th e D e fe n d a n ts M illik en , et al, re la ted to the p o w e r an d re sp o n s ib ility o f th e S tate B oa rd o f E d u c a t io n to ap p ro v e s c h o o l b u ild in g c o n s tr u c t io n p lan s and s c h o o l site selection. A t o n e p o in t , th e O p in io n states that th e S tate B oa rd h a d , p rior to 1 9 6 2 , “ s p e c if ic s ta tu to ry a u th o r ity t o su pervise s c h o o l site selec t io n ” (1 5 1 a ) , an d at a n o th e r p o in t , “ d ire c t s ta tu to ry c o n t r o l over site p lan n in g fo r n e w s c h o o l c o n s t r u c t io n ” (1 5 7 a ) . H o w e v e r , the C ou rt o f A p p e a ls ’ o p in io n d o e s n o t d iscu ss e x a c t ly h o w these sup p o se d p o w e rs and re sp o n s ib ilit ie s are d eriv ed fr o m th e statutes in v o lv e d , an d th e re fo re , th is o m iss io n req u ires d e ta iled rev iew . T h e M ich igan sta tu te w h ich gov ern s th e e x te n t o f th e control b y the State B oard o f E d u ca t io n o v e r p u b lic and private school c o n s tru c t io n and s c h o o l sites f o r th e p e r io d fr o m 1 9 4 9 -1 9 6 2 is A c t 3 0 6 o f th e M ich igan P u b lic A c t s o f 1 9 3 7 , as a m e n d e d ( “ Act 3 0 6 ” ) , C4 6 l and p a rticu la rly S e c t io n 1 th e r e o f (4 a a ) . In 1949, S e c tio n 1 o f A c t 3 0 6 w as a m e n d e d t o p r o v id e as fo l lo w s : “ S ec. 1. N o s c h o o l b u ild in g , p u b lic o r p r iv a te , o r addi tio n s th e re to , shall h e re a fte r b e e re c te d , re m o d e le d o r recon stru cted in th e state o f M ich igan e x c e p t it b e in con form ity w ith th e fo l lo w in g p ro v is io n s : (a ) A ll p lan s and sp e c if ic a t io n s fo r b u ild in g s shall be p rep a red b y , an d th e c o n s tr u c t io n su perv ised b y , an architect o r en g in eer w h o is reg istered in th e state o f M ich igan . Before th e co n s tr u c t io n , r e c o n s tr u c t io n o r re m o d e lin g o f a n y school b u ild in g o r a d d it io n th e re to is c o m m e n c e d , th e w ritten ap p ro v a l o f th e p lan s an d s p e c if ica t io n s b y th e superintendent o f p u b lic in s tru ctio n o r h is a u th o r ize d agent shall be ob ta in ed . In the approval o f plans and specifications the super intendent o f public instruction or his authorized agent shall consider in addition to the considerations otherwise men tioned in this act the following factors: ( 1 ) The adequacy and location o f the site, (2 ) The educational usefulness o f the building, [ 4 6 ] M ic h . C o m p . L a w s A n n o t a t e d , § 3 8 8 . 8 5 1 , e t s e q . T h e e n t ir e A c t 306 is r e p r in t e d in fu l l at th e e n d o f th is B r ie f ( 4 a a ) , t o g e t h e r w i t h th e 1 9 4 9 and 1 9 6 2 a m e n d m e n t s t h e r e t o , b e in g A c t 2 3 1 , M ic h . P u b . A c t o f 1 9 4 9 ( 5 aa) and A c t 1 7 5 , M ich . P u b . A c t s o f 1 9 6 2 ( 8 a a ) , r e s p e c t iv e ly . 25 ( 3 ) The provisions for health and safety. The superintendent o f public instruction shall publish an informative bulletin which shall set forth good school building planning procedures and interpret clearly the provi sions o f this act. ” (6 a a , em ph asis a d d e d ) Subsections (b ) , ( c ) , ( d ) an d (e ) o f S e c t io n 1 g o o n to set fo r th basic sp e c if ica t io n s f o r use o f fire -resistin g m ateria ls an d fire proofing o f s c h o o l b u ild in gs . T h e rem ain in g se c t io n s p ro v id e fo r inspections b y th e S tate fire m arshal, th e re sp on s ib ilit ie s o f th e ar chitect, etc. In 1 9 6 2 , th e ita lic iz e d p o r t io n o f S e c t io n 1, q u o te d a b o v e , was su bstitu ted b y th e fo l lo w in g : “ T h e su p er in ten d en t o f p u b lic in s tru ctio n o r h is a u th o r ize d agent shall n o t issue su ch a p p rov a l u n til h e has secu red in w riting th e a p p rov a l o f th e state fire m arshal relative t o fa c tors c o n ce rn in g fire sa fe ty and o f th e h ea lth d e p a rtm e n t hav ing ju r is d ic t io n rela tive t o fa c to rs a ffe c t in g w a ter su p p ly , san itation and f o o d handlin g . T h e su p e r in te n d e n t o f p u b lic in s tru ctio n shall p u b lish an in fo rm a tiv e b u lle tin w h ich shall set fo r th g o o d s c h o o l bu ild in g p la n n in g p ro ce d u re s and in terp re t c learly the p ro v i sions o f th is act. T h e b u lle t in shall b e p rep a red in c o o p e r a tion w ith th e state fire m arshal and th e state h ea lth co m m is sioner and, in so fa r as re q u ire m e n ts fo r a p p rova l o f p lan s are co n ce rn e d , shall b e co n s is te n t w ith re co g n iz e d g o o d p ra ctice as e v id e n ce d b y standards a d o p te d b y n a tio n a lly r e co g n iz e d au th orities in th e fie ld s o f fire p r o te c t io n and h e a lth .” (8 -9aa ) It is p e r fe c t ly o b v io u s fr o m a read in g o f th is statute as a whole, and p a rticu la rly th e 1 9 6 2 a m e n d m e n t that b ro a d e n e d and made m ore gen eral th e fa c to rs to b e co n s id e re d b y th e S tate Superintendent, th at th ese p ro v is io n s , in c lu d in g th e re fe re n ce to “ loca tion ” , w ere in te n d e d t o re la te so le ly t o th e a p p rov a l o f c o n struction plans f o r s c h o o l b u ild in g s in so fa r as fire , h ea lth , sa fe ty and related m atters w ere c o n c e r n e d . A s far as a u th o r ity ov er school sites fo r th e p e r io d 1 9 4 9 -1 9 6 2 , th ere is n o th in g in th e statute granting th e S tate S u p er in ten d en t th e p o w e r o r resp on si bility to “ supervise s c h o o l site s e le c t io n ” , o r in th e “ site p lan n in g 2 6 fo r n e w s c h o o l c o n s t r u c t io n ” , as ch a rged in th e C o u rt o f Appeals d e c is io n . T h is is p a rticu la r ly o b v io u s in ligh t o f th e fa c t that these p ro v is io n s w ere e q u a lly a p p lica b le t o p u b lic an d private school c o n s tru c t io n . A p p ro v a l w as so u g h t a fter th e fa ct . A s a practical m atter, s c h o o l sites w ere , an d still are, a cq u ire d b y th e lo c a l school s c h o o l d istr ict in p u rsu a n ce o f th e s ta tu to ry p o w e r s gran ted to them . 4̂7 ̂ P rop osed b u ild in g p lan s and s p e c if ica t io n s are then pre pared b y an a rch ite ct h ired b y th e lo c a l s c h o o l d is tr ic t , t o be re v iew ed b y th e S tate S u p e r in te n d e n t f o r th e ir a d e q u a cy as a func t io n in g s c h o o l b u ild in g . F o r th e p e r io d 1 9 4 9 -1 9 6 2 , one such fa c to r w h ich th e S tate S u p e r in te n d e n t w as sp e c if ica lly requ ired to take in to co n s id e ra tio n w as th e “ a d e q u a cy and lo c a t io n o f the s ite .” B ut, w as th at a d e q u a cy and lo c a t io n t o b e v ie w e d in relation to th e th en ex is t in g racia l d e m o g ra p h ic pattern s su rrou n d in g the site, o r w as that a d e q u a cy an d lo c a t io n to b e v ie w e d in relation to sa fe ty an d h ea lth a sp ects o f th e school building, i f it w ere to be lo c a te d o n th e p r o p o s e d s ite? W h en lo o k in g at th e amended statute as a w h o le , an d th e s p e c if ic lan gu age in q u e s t io n , the for m er in te rp re ta tio n s im p ly stre tch es o n e ’s legal im a g in a tio n to the break in g p o in t . ®48 ^ P la in tiffs m a y argue th at th e state e d u ca t io n a l authorities sh ou ld b e d e e m e d t o h ave an o v e rr id in g c o n s t itu t io n a l responsi b ility to see th at a n y s c h o o l c o n s tr u c t io n m a x im ize s integration w ith in th e State. T h a t, h o w e v e r , is a q u e s t io n 149] to ta lly im m aterial to th e p recise h o ld in g o f th e D is tr ic t C o u rt and th e Court o f A p p e a ls : th at b y statute th e S tate o f M ich iga n w as ob ligated to supervise and c o n t r o l s c h o o l site p la n n in g and s e le c t io n in light of m a x im iz in g in teg ra tion . T h e sta tu te in q u e s tio n d o e s n ot so p ro v id e , and in that re sp e ct , th e lo w e r co u r ts w e re c le a r ly in error. [ 4 7 ] M ich . C o m p . L a w s A n n o t a t e d , § § 3 4 0 .7 1 1 e t s e q . a n d 3 4 0 .2 6 , 340.77, 3 4 0 .1 3 3 , 3 4 0 .1 6 5 , 3 4 0 .1 9 2 & 3 4 0 .3 5 2 . ^4 8 ̂ It is s u b m it t e d th a t th e 1 9 6 2 a m e n d m e n t a c t u a l ly m a k e s clear the in t e n t o f th e f o r m e r p r o v is io n , in th a t it d o e s n o t p r e v e n t t h e S ta te Superin t e n d e n t f r o m ta k in g a d e q u a c y a n d l o c a t io n o f s ite i n t o c o n s id e r a t io n in the a p p r o v a l o f p la n s a n d s p e c i f i c a t io n s , b u t o n l y d e le t e d t h e item ization o f the fa c t o r s a n d n o w a l lo w s all fa c t o r s r e la t in g t o h e a lth a n d s a fe ty t o b e taken in t o c o n s id e r a t io n . [4 9 ] q Uest io n 0 f th e s t a t e ’ s a f f i r m a t iv e d u t y t o f o s t e r in te g ra t io n is dis cu s s e d infra, at p g . 5 1 . 27 4. T h e fo u r th co n s t itu t io n a l v io la tio n fo u n d to have been com m itted b y th e “ State o f M ich iga n ” relates to the fa ilure o f th e State to a llo ca te t o th e D e tro it S c h o o l D istrict, fu n d s fo r p u p il tra n sp orta to tion , even th o u g h . . su ch fu n d s w ere m a d e general ly available f o r stu d en ts w h o lived ov e r a m ile and a h a lf fr o m their assigned s c h o o ls in rural M ich iga n ” (1 5 1 a ) . I50 ) O f th e v io la t io n s fo u n d to have b e e n c o m m itte d , th is is cer tainly th e m o s t cu r io u s o f th em all. P e tit io n e r is particu larly curious a b o u t th e a lleged den ia l o f c o n s titu t io n a l rights, b ecau se during th e so -ca lle d “ cr it ica l y e a rs ” , G rosse P o in te S c h o o ls was also d en ied any a llo c a t io n o f fu n d s fo r p u p il tra n sp orta tion . I51 ! Since th e s tu d en t b o d y o f G rosse P o in te S c h o o ls is p re d o m in a n tly White, it appears as th o u g h th is fo rm u la fo r tra n sp o rta tio n aid a f fected b o th B la ck an d W h ite stu den ts alike. N e ith er P e tit io n e r n o r th e D e tro it S c h o o l D istrict w ere pro hibited fr o m tra n sp o rtin g stu d en ts -- th e q u e stio n is s im p ly o n e o f reim bursem ent t o th e lo c a l s c h o o l d istricts o f fu n d s e x p e n d e d b y them in th e ev en t th e lo c a l b o a r d o f e d u ca t io n d eterm in es that tran sportation o f certa in o f its stu den ts w o u ld b e a p p rop ria te . T h e S tate L egislature , in d e c id in g w h e th e r o r n o t to g ive lo ca l sch ool d istricts fin a n cia l assistance in th e tra n sp orta tion o f stu dents, has m a d e a c la ss ifica tio n that is based u p o n th e rural vs. A lt h o u g h t h e C o u r t o f A p p e a ls d id n o t in c lu d e it as o n e o f th e c o n s t i tu t io n a l v io la t io n s , t h e D is t r ic t C o u r t a ls o f o u n d th a t “ . . . o t h e r f in a n c ia l lim ita t io n s , s u c h as t h o s e o n b o n d in g a n d th e w o r k in g o f th e S ta te a id f o r m ula w h e r e b y s u b u r b a n d is tr ic ts w e r e a b le t o m a k e fa r la rger p e r p u p i l e x p e n d i tures d e s p ite less t a x e f f o r t , h a v e c re a te d a n d p e r p e t u a t e d s y s t e m a t ic e d u c a t ion a l in e q u a lit ie s .” T h is s ta te m e n t is n o t o n l y fa c t u a l ly in c o r r e c t , th e c o n s t itu t io n a l q u e s t io n s ra ise d b y s u ch s ta te m e n t h a v e s in ce b e e n d is p o s e d o f by San A n ton io In d ep en d en t S ch oo l D istrict v R odriguez,______ U .S _______ , 3 6 L .E d .2 d 1 6 ( 1 9 7 3 ) . S e e a ls o , G overnor v State Treasurer, 3 8 9 M ic h 1 ( 1 9 7 2 ) , vacated and cause dismissed,______ M ic h _______( D e c . 7 , 1 9 7 3 ) . U n d e r t h e p r o v is io n s o f M ich . C o m p . L a w s A n n o t a t e d , s 3 8 8 .6 2 1 , P e tit io n e r , as w i t h t h e D e t r o i t S c h o o l D is t r ic t , has b e e n r e im b u r s e d b y th e State f o r c o s t s r e la te d t o t h e t r a n s p o r t a t io n o f m e n t a l ly a n d p h y s ic a l ly h a n d i cap ped c h i ld r e n . T h is is t o b e d is t in g u is h e d f r o m S ta te r e im b u r s e m e n t f o r general t r a n s p o r ta t io n p u r p o s e s . S e e A f f id a v i t o f G r o s s e P o in t e S c h o o ls , ( la 2 5 4 ). 28 u rban s c h o o l d is tr ict . t5 2 l T h is d is t in c t io n is fa r fr o m b e in g in h eren tly su sp ect in an d o f itse lf, an d its re la tion sh ip t o classifica t io n o n a c c o u n t o f race o r d is cr im in a to ry m o t iv e o r in ten t is s im p ly n o n -e x is te n t , [53] A ls o p u z z lin g is th e causal re la tio n sh ip b e tw e e n th is so-called d iscr im in a tory sta tu te and segrega tion in D e tro it . O n th e one h a n d , th e D e tro it B oa rd o f E d u ca t io n w as it s e lf fo u n d g u ilty o f c o m m itt in g segregative acts b y b u s in g B la ck ch ild re n past White s ch o o ls t o B lack s c h o o ls , and y e t th e S ta te ’ s fa ilu re t o reim burse D e tro it fo r h avin g d o n e so is su p p o se d t o have h ad a segregative resu lt. T h e il lo g ic o f th e argu m en t is p a ten t. 5. T h e f i fth and fin a l co n s t itu t io n a l v io la t io n fo u n d to have b een c o m m itte d b y th e D e fe n d a n ts M illik en , et al, w as th e “ tacit o r ex p ress” a p p rov a l b y th e S ta te B o a rd o f E d u c a t io n o f the De tro it S c h o o l D is tr ic t ’ s tra n sp o rta tio n o f B lack ch ild re n fro m the C a r v e r S c h o o l D istr ict t o th e N o rth e rn H igh S c h o o l in De tro it . t5 4 l T h e T e s t im o n y [55] o f D e tr o it S c h o o l D is tr ic t ’ s fo rm e r Su p er in ten d en t, Dr. N o rm a n D ra ch ler , c o n ce rn in g th e C arver School [ 5 2 ] S u c h a d is t in c t io n w a s s p e c i f i c a l l y u p h e ld in Sparrow v Gill, 304 F .S u p p . 86 ( 3 J u d g e C o u r t , M d . 1 9 6 9 ) . I t is a ls o s u b m it t e d th a t San Antonio v Rodriguez, supra, is p la in ly d is p o s it iv e o f th is is s u e in as m u c h as it boils d o w n t o a q u e s t io n o f s c h o o l d is tr ic t f in a n c in g - s ta te a id r e im b u r s e m e n t of fu n d s e x p e n s e d f o r t r a n s p o r ta t io n . [ 5 3 ] j j j g r e la t io n s h ip b e t w e e n th e M ich ig a n s ta te a id f o r tra n sp orta tion s ta tu te a n d ra c ia l d is c r im in a t io n w a s r e v ie w e d in Higgins v Bd. o f Edue. o f the City o f Grand Rapids, C iv . N o . 6 3 8 6 (W .D . M ic h . , J u ly 1 8 , 1 9 7 3 ) , where the D is tr ic t J u d g e h e ld th a t t h e s ta tu te “ . . . is in n o p a r t r e la te d t o racia l dif f e r e n c e . ” S lip o p i n i o n , at 3 . [ 5 4 ] T h e C o u r t o f A p p e a ls o p in io n s ta te s th a t t h e s t u d e n t s c a m e f r o m “ the C a rv er S c h o o l , lo c a t e d in F e r n d a le s c h o o l d is t r ic t ” . ( 1 5 2 a ) T h e r e c o r d (see n o t e 5 6 b e l o w ) , as w e l l as t h e C o u r t o f A p p e a ls o p in io n it s e l f ( 1 3 7 - 1 38a) c o r r e c t ly in d ic a t e s , h o w e v e r , th a t C a rv e r w a s i t s e l f a s e p a ra te s c h o o l district, l o c a t e d in R o y a l O a k T o w n s h ip , M ich ig a n . [5 5 ] D r . D r a c h le r ’ s t e s t im o n y o n th is s u b je c t is in t h e f o r m o f a deposition. 29 District is v irtu a lly th e o n ly te s t im o n y f5 6 ̂ in th e r e c o r d c o n c e r n ing the C arver S c h o o l D istrict. A p o r t io n o f D r. D ra ch le r ’ s testi m ony is re p r in te d in th e C o u rt o f A p p e a ls o p in io n (1 3 7 -1 3 8 a ) . This te s t im o n y can b e b r ie f ly su m m arized as saying that in “ ‘ 5 7 , ‘ 58 ” th e p re d o m in a n tly B la ck C arver S c h o o l D istr ict , w h ich d id not have a h igh s c h o o l , arranged to have its h igh s c h o o l stu den ts attend s c h o o l in D e tro it , and th at th e y w ere tra n sp orted past the p redom in an tly W h ite M u m fo rd H igh S c h o o l t o th e p re d o m in a n tly Black N orth ern H igh S c h o o l . T h e C o u rt o f A p p e a ls o m itte d th e rem aining p o r t io n o f D r. D ra ch ler ’ s te s t im o n y co n ce rn in g C arver and becau se o f its p a rticu la r re levan ce , th e rem ain in g te s t im o n y is fully rep rin ted : “ A t N o rth e rn H igh S c h o o l where we had space s o m e b la ck students w ere b ro u g h t in u n d e r a lease fr o m the C arver S c h o o l District. T h a t w as b e fo r e C arver b e ca m e a part o f O ak Park. Q. O r R o y a l O a k T o w n sh ip ? ^ 6 1 T h e re w a s s o m e t e s t im o n y b y D r . R o b e r t G r e e n , w h ic h a p p e a rs a t 8 Tr. 8 8 5 , 9 3 9 , 9 4 0 , a n d 9 9 3 - 9 9 7 . T h e o n l y p o r t i o n o f th is t ra n s c r ip t in c lu d e d in th e A p p e n d ix a p p e a r s at (H a l 0 9 - 1 1 1 ) . T h e o n l y s ta te m e n t t h e r e o f w h ic h p rov id es a n y s u b s ta n t iv e in f o r m a t io n o n t h e e d u c a t io n o f C a rv er H ig h S c h o o l ch ild ren re a d s as f o l l o w s : “ A . T h e b u s s in g w a s d u r in g t h e p e r i o d ’ 4 9 t o ’ 5 2 , 1 k n o w f o r su re b e cau se I w a s in h ig h s c h o o l at t h e t im e .” F in a lly , t h e on ly r e m a in in g r e fe r e n c e t o C a rv e r is a s ta te m e n t b y o n e o f P la in t i f f ’ s c o u n s e l , w h ic h a p p e a rs at ( I la 1 3 1 ) as f o l l o w s : “ M R . C A L D W E L L : Y o u r H o n o r , w it h r e fe r e n c e t o s o m e th in g that c a m e u p t h e o t h e r d a y I w o u ld l ik e t o re a d o n e s e n te n c e f r o m P la in t i f f ’ s E x h ib it 7 8 - A w h ic h is t h e S e p t e m b e r 1 9 5 9 b o u n d a r y g u id e b o o k . I a m r e a d in g f r o m th e c e n t e r d is t r ic t b o o k , th e N o r th w e s te r n fe e d e r p a t te r n w h ic h is d e s c r ib e d o n p a g e s 2 5 a n d 2 6 . I w i l l tu r n b a c k t o th e N o r th e r n p a t te r n f e e d e r m a p s o n p a g e 2 3 a n d 2 4 . T h e r e is a [ 1 2 5 9 ] f o o t n o t e f o r N o r th e r n S e n io r H ig h S c h o o l th a t N o r th e r n w il l c o n t in u e t o s erv e th e 9 B , t h e 1 2 A p u p ils f r o m th e C a rv e r S c h o o l D is t r ic t , F e rn d a le . T h a t is in t h e 1 9 5 9 -6 0 b o u n d a r y g u id e b o o k . ” In so fa r as P e t it io n e r h a s b e e n a b le t o d e te r m in e , t h e r e fe r e n c e s c i t e d a n d q u o te d h e re in , t o g e t h e r w i t h t h e p o r t i o n o f D r . D r a c h le r ’ s t e s t im o n y q u o t e d in the C o u r t o f A p p e a ls d e c i s i o n , c o n s t i t u t e s t h e en tire r e c o r d o n th e s u b je c t o f the C arver S c h o o l D is t r ic t . 30 A . O r R o y a l O ak T o w n s h ip , I57 J th a t ’ s righ t. Because th ey w e n t b y M u m fo rd d o w n W y o m in g and th ere w ere some w h o th o u g h t that w e w ere bu ssin g D e tr o it b la ck students fr o m th e M u m fo r d area all th e w a y t o N o rth e rn . T o my k n o w le d g e th at w as n o t true. T h e c o n tr a c t f o r C arver, i f I am n o t m ista k en , h ad b e e n started w h e n it w as n o t necessarily w ith B ro w n e ll ’ s in v o lv e m e n t b u t w h en h e b e c a m e aw are o f it he asked th at it b e d is co n t in u e d . The rationale for not doing it at Mumford which was the nearest school was simply that Mumford was much more crowded, from what I understand, than was Northern and that is the reason they were being bussed there. But neverthe less, that was discontinued and that problem was resolved.” ( V A 186 em ph asis a d d e d ) T h e re fo re , th e o th e r h a lf o f th e te s t im o n y o n th e C arver School D istrict, n o t q u o te d b y th e C o u rt o f A p p e a ls , reveals th e reason w h y ch ild ren fr o m C arver, w h o w ere a c ce p te d in D e tro it on a tu it io n basis, w ere tra n sp o rte d t o N o rth e rn H igh S c h o o l instead of t o M u m fo rd H igh S c h o o l . T h ere w as n o r o o m fo r th e students in M u m fo rd . T h is is th e only re fe re n ce in th e r e co rd to an y reason fo r th e assignm ent o f th e C arver stu d en ts to N o rth e rn , and the o n ly in fe re n ce th at can b e d ra w n fr o m it , is th at th ere w as neither d iscr im in a to ry m o t iv e n o r in te n t u n d e r ly in g th e d e c is io n . T o Peti t io n e r ’ s k n o w le d g e , D r. D ra ch le r ’ s te s t im o n y , p lu s that contained in f o o t n o t e 5 6 , c o n stitu te s th e entire r e c o r d o n th e su b je c t o f the C arver S c h o o l D istr ict. In su m , it reveals o n ly that D etro it ac ce p te d th e ch ild ren fr o m C arver, an d it w as th e d e c is io n o f the D e tro it B oa rd o f E d u ca t io n as to w h ich s c h o o l th e y w ere assigned. A n y rep resen ta tion b y P la in tiffs as to D e fe n d a n ts M illiken , et al l ^ 7 1 A l t h o u g h n o t p a r t o f t h e r e c o r d , P e t i t io n e r b e l ie v e s th a t s o m e clarifica t i o n o f th e g e o g r a p h ic a l l o c a t io n o f t h e C a rv e r S c h o o l D is t r ic t m a y be of s o m e a ss is ta n ce , a n d th is s t a t e m e n t is m a d e u p o n in f o r m a t io n a n d b e l ie f . The C a rv er S c h o o l D is tr ic t w a s l o c a t e d in R o y a l O a k T o w n s h ip , w h ic h Tow nship w as s u r r o u n d e d b y th e C ity o f B e r k le y o n th e N o r t h , t h e C i t y o f F ern d a le on th e E a st , th e C ity o f D e t r o it o n t h e S o u t h , a n d th e c i ty o f O a k Park on the W est. T h e N o r t h e r ly p o r t i o n o f R o y a l O a k T o w n s h ip w a s in th e Berkley S c h o o l D is t r ic t a n d th e E a s te r ly p o r t i o n o f th e T o w n s h ip w a s in th e Ferndale S c h o o l D is t r ic t . T h e r e m a in in g , o r W e s te r ly , p o r t i o n o f t h e T o w n s h ip form ed th e se p a ra te C a rver S c h o o l D is t r ic t . 31 k n ow led g e o f th is fa ct , o r t o any d iscr im in a tory m o t iv e o r in ten t on a n y b o d y ’s p art, is p u re ly sp ecu la tive . T h e r e c o r d d o e s in d ica te , h o w e v e r , that the C arver S c h o o l D istrict w as su b se q u e n tly a tta ch ed to , and b e ca m e a part o f the Oak Park S c h o o l D istr ict in 1 9 6 0 (1 3 8 a ) . A t th e tim e o f a ttach m ent, O a k Park h ad a v irtu a lly all-W hite stu d en t p o p u la t io n , and it is n o w a p p ro x im a te ly 10% B lack . (I a 2 7 6 ) . T h u s, th e o n ly a ct io n w hich t o o k p la ce w ith re sp e ct t o Carver, b y S tate level e d u ca tion a l authorities, w as in fa c t t o re m e d y an y w ron gs that m igh t have occu rred at th e lo c a l lev e l; and that re m e d y t o o k p la ce o v e r 13 years ago. In su m m a ry , a n y causal re la tion sh ip b e tw e e n a ctio n s o f the D etroit B oa rd in assigning C arver stu den ts t o N orth ern , and pre sent d e m o g ra p h ic p a ttern s in th e tr i-c o u n ty m e tro p o lita n area, is, as a m atter o f c o m m o n sense, de minimus, and any causal c o n n e c tion that m ay b e sp ecu la ted u p o n b y P la in tiffs is in fa ct n o n existent in so fa r as th e r e co rd is c o n ce rn e d . In a d d itio n , th e state m ent b y th e C o u rt o f A p p e a ls that th e assignm ent o f C arver stu dents to D e tro it w as w ith th e ta c it o r express a p prova l o f th e S tate Board o f E d u ca t io n is u tte r ly u n su p p o rte d b y the re co rd . It sim ply d o e s n o t e x is t ; e ith er in th e fo r m o f te s t im o n y o r even as a part o f th e D istrict C o u r t ’ s fin d in gs . A fin d in g that th e State Board o f E d u ca t io n h ad an y k n o w le d g e w h a tsoever as to w h ich sch ool in th e C ity o f D e tro it th e C arver stu den ts w ere assigned t o , or the racia l m a k eu p o f that s c h o o l , is based o n pure sp ecu la tion . - D - Summary as to the Alleged Violations D ue to P e tit io n e r ’ s a b so lu te b e lie f , based o n a th o ro u g h re view o f th e r e c o r d in th is cause, that th e C o u rt o f A p p e a l ’ s c o n c lu sions regard in g th e a c t io n s o f th e S tate D e fen d a n ts are so c o m - 32 p le te ly w ith o u t fo u n d a t io n as t o b e s h o ck in g , f5 8 l P e tit io n e r has fo u n d it n ecessa ry t o d iscu ss th e sam e in co n s id e ra b le deta il. It is h o p e d , h o w e v e r , th a t th is C o u r t w ill r e c o g n iz e th at P e tit io n e r has a tte m p te d t o d o th is w ith o u t e x a g g e ra tio n , su p p o s it io n , specu la t io n o r a ssu m p tion . T h e f in d in g th at a c t io n s o f th e D e tr o it S c h o o l D istr ict are “ a c t io n s o f an A g e n c y o f th e S tate o f M ich ig a n ,” w ith o u t m ore, ca n n o t b e q u a rre led w ith ; b u t it is in n o w a y leg a lly o r factually su p p ortiv e o f a n y o th e r fin d in g s , o r th e c o n c lu s io n s d raw n there fro m . T h e fin d in g s w ith re sp e ct t o d iscr im in a tio n in tran sportation fu n d s an d State B o a rd c o n t r o l o v e r s c h o o l c o n s tr u c t io n are grossly illo g ica l and u n fo u n d e d legal in te rp re ta tio n s o f state statutes; w h ich in te rp re ta tio n s are s im p ly n o t s u p p o rta b le u p o n an exam in a tio n o f th e sta tutes th em selves. T h e f in d in g w ith re sp e ct t o th e C arver S c h o o l D istr ict, at least in so fa r as it c o n c e r n s a c t io n o r in a c t io n b y th e D efendants B rad ley , et al, is b a sed o n a r e c o r d that is v irtu a lly n o n -e x is te n t. F in a lly , th e fin d in g w ith re sp e ct t o P u b lic A c t 4 8 , th e u n con s titu tio n a lity o f w h ich is th e only f in d in g w h ic h in a n y w a y is at least arguably a c o r r e c t legal c o n c lu s io n , is a lso su b je c t t o th e same in firm ity that th e fo u r o th e r fin d in g s are s u b je c t t o , even assuming arguendo th e y have any in itia l m e r it w h a tso e v e r , v iz : discrim ina t o r y in ten t o r p u rp o se , an d p resen t causal c o n n e c t io n w ith the racia lly segregated c o n d it io n fo u n d t o ex is t . It is r e sp e ctfu lly sub m itte d th at a m o s t th o r o u g h e x a m in a tio n o f th e r e c o r d w ill dis c lo se n o th in g t o su p p o rt e ith er in te n t o r n ex u s , un less p u re specu- [ 5 8 ] j ^ e m a g n itu d e o f t h e ca se is s o g r e a t , n o t o n l y in t e r m s o f th e legal issu es in v o lv e d , b u t in t e r m s o f th e n u m b e r o f s tu d e n ts a n d s c o p e o f a rem e d ia l o r d e r , th a t a n a d e q u a t e r e c o r d w i t h r e s p e c t t o t h o s e fa c t s th a t w ou ld a f f e c t t h e p r o p r ie t y o f a m e t r o p o l i t a n p la n , s h o u ld b e e s s e n t ia l . B a se d on the r e c o r d th a t it h a d b e f o r e i t , it is in c o n c e iv a b le th a t t h e C o u r t o f A ppeals c o u l d m a k e t h e s ta te m e n ts th a t th e “ S ta te o f M ic h ig a n ” w a s g u ilt y o f dis c r im in a to r y p r a c t ic e s th a t a re “ . . . s ig n if ic a n t , p e rv a s iv e a n d c a u s a lly related t o t h e su b s ta n t ia l a m o u n t o f s e g r e g a t io n f o u n d in t h e D e t r o i t s c h o o l system b y t h e D is tr ic t J u d g e .” ( 1 5 7 a ) , a n d th a t “ . . . t h e S ta te h a s b e e n g u ilty o f d is c r im in a t io n w h ic h h a d t h e e f f e c t o f c r e a t in g a n d m a in ta in in g ra c ia l segrega t io n a lo n g s c h o o l d is tr ic t l in e s .” ( 1 7 2 a ) A l t h o u g h th e s e a re o b v io u s exaggera t io n s , P e t i t io n e r ’s s u g g e s t io n o f e x t r e m e su rp r ise is n o t . 33 lation is d e e m e d to co n s t itu te a s u ffic ie n t basis fo r m ak in g fin d ings w h ich m ig h t b e d e term in a tive o f th e issues o f the m a gn itu d e and im p o rta n ce as th o se u n d e r co n s id e ra tio n . t5 9 i In his R u lin g o n M e tro p o lita n Plan (4 8 a ) , the D istrict Judge made the fo l lo w in g s ta tem en t: “ A s C h ie f J u stice B urger said in Swann, ‘ in seek in g t o d e fin e the s c o p e o f rem ed ia l p o w e r o f co u rts in an area as sensitive as w e deal w ith h e re , w o rd s are p o o r in stru m en ts t o c o n v e y the sense o f b a s ic fa irness in h eren t in e q u ity . ’ S u bstan ce , n o t sem an tics , m u st g o v e r n .” (5 0 a ) P etitioner agrees th at su b sta n ce is th e gov ern in g co n s id e ra tio n , and indeed, su bstan ce , n o t sem an tics , m u st d e te rm in e th e s c o p e o f the desegregation p lan f o r D e tro it . T h is brin gs us fu ll c irc le , h ow e v e r , to the p o in t m a d e b y P e tit io n e r in th e in tr o d u c t io n to this se ctio n - that this m u st b e v ie w e d as a v io la t io n case rath er than a re m e d y case; fo r v iew in g it as a re m e d y case co n ce n tra te s o n th e rh etorica l aspects o f w h e th e r a m e tr o p o lita n p lan c o u ld c o n c e iv a b ly b e ap propriate u n d e r an y c ir cu m s ta n ce , ra th er than co n ce n tra tin g o n the su bstan ce o f th e v io la t io n in this case to d e term in e i f th e p r o posed re m e d y is a p p ro p r ia te . A n d th e su bstan ce o f th e v io la tio n s reflected in th is r e c o r d estab lish es n o th in g ju s t ify in g a rem ed ia l plan o f m e tro p o lita n s co p e . A n o th e r asp ect o f th is case w h ich ap p a ren tly requ ires a c o n scious e f fo r t in o rd e r t o sort th e su b sta n ce o u t o f th e C o u rt o f Appeals O p in io n , in v o lv es its a p p a ren t d e c la ra tio n o f n ew co n s t i tutional rights. F r o m an analysis o f th e p r o p o s e d rem ed ia l O rder, and the “ p r o b le m ” th at it w as a ttem p tin g t o c o r re c t , o n e c o n cludes that e ith er th ere has b e e n a rh e to r ica l a ttem p t to c o v e r an intentional d e v ia tio n fr o m th e co m m a n d s o f Swann and Keyes, o r else there u n derlies th e lo w e r c o u r t ’ s o rd e r th e su bstan tive , a lbeit tacit, fin d in g that th ere is in d e e d a n e w ly d ecla red v io la t io n — “ racial id e n t ifia b ility ” . P e tit io n e r assum es that th e la tter m u st b e A s d is cu s s e d b e l o w , it is , in a n y e v e n t , P e t i t io n e r ’ s p o s i t io n th a t sh o rt o f th e c o m m is s io n o f s e g r e g a t iv e a c ts b y s c h o o l o f f i c ia l s o f o u t ly in g s c h o o l d istricts, ca u s in g se g r e g a te d c o n d i t i o n s in D e t r o i t v is-a -v is its o u t ly in g a rea , and sh ort o f t h e e s ta b lis h m e n t o f s c h o o l d is tr ic t b o u n d a r y lin e s b y th e S ta te in o rd e r t o c re a te o r m a in ta in se g re g a te d s c h o o l s , a m u lt i-d is t r ic t d e s e g re g a tion r e m e d y is le g a lly im p e r m is s ib le . 34 th e co r r e c t in te rp re ta tio n o f th e lo w e r c o u r ts ’ a c t io n s , and the q u e stio n o f racia l id e n tifia b ility as a v io la t io n o f F ourteenth A m e n d m e n t rights w ill b e n e x t d iscu ssed in , Part III b e lo w . Ill THE REMEDY - A - The Scope of the Plan W hat is th e s c o p e o f th e r e m e d y m a n d a ted b y th e lower c o u r t ’ s h o ld in g s? It is gen era lly d e scr ib e d b y th e C o u rt o f Appeals in th e fo l lo w in g passage fr o m th e C o u r t ’ s o p in io n : “ . . . an y D e tro it o n ly d eseg reg a tion p lan w ill lead directly to a single segregated D e tr o it s c h o o l d istr ict overw h elm in gly b la ck in all o f its s c h o o ls , su rro u n d e d b y a ring o f suburbs and su bu rban s c h o o l d istr icts o v e rw h e lm in g ly w h ite in com p o s it io n in a S tate in w h ich th e racia l c o m p o s it io n is 87 per cen t w h ite an d 13 p er ce n t b la ck . f6° ] * * * A t th e o u tse t it is o b v io u s fr o m w h at w e have said per ta in in g t o th e in a d e q u a cy o f an y D e tro it o n ly desegregation p lan that th is c o u r t fee ls th at so m e p lan o f d esegregation be y o n d th e b o u n d a r ie s o f th e D e tro it S c h o o l D istr ict is both w ith in th e e q u ity p o w e rs o f th e D istr ict C o u rt and essential t o a s o lu t io n o f th is p r o b le m .” (1 7 2 - 1 7 3 a ). In a sm u ch as th e C o u rt o f A p p e a ls a ff irm e d th e findings of th e D istrict C o u rt as t o th e reason s fo r th e in s u ff ic ie n c y o f a De tro it -o n ly p lan (th a t th e en tire D e tro it S c h o o l D is tr ic t w ou ld re m ain id e n tifia b ly B lack an d w o u ld b e p e rce iv e d as B la ck ) (54-55a) it is q u ite ap p aren t, in ligh t o f th e a b o v e q u o te d lan gu age, that the 60 [ 6 0 ] A s p o in t e d o u t in b o t h th e d is s e n t in g o p in io n s o f J u d g e W e ic k (195a) a n d J u d g e K e n t ( 2 2 4 a ) , th e o r ig in a l D e c e m b e r 8 , 1 9 7 2 o p in io n o f th e three J u d g e P a n e l, w h ic h o p in io n w a s a d o p t e d w it h o n ly m in o r ch a n g e s b y the S ix th C ir cu it m a jo r i t y , in banc, c o n t a in e d an a d d i t io n a l s e n te n c e at this p o in t , w h ic h s ta te d : “ B ig c i ty s c h o o l s y s te m s f o r b la c k s s u r r o u n d e d b y s u b u rb a n school s y s te m s f o r w h ite s c a n n o t r e p r e s e n t e q u a l p r o t e c t i o n u n d e r t h e la w .” 35 “ p r o b le m ” re fe rre d to is th e racia l p e r ce p t io n o r id e n tifia b ility o f the D e tro it S c h o o l D istr ict w ith resp ect t o th e racia l c o m p o s it io n o f the en tire m e tro p o lita n area su rrou n d in g D e tro it . T h e o n ly v ia ble “ so lu t io n o f this p r o b le m ” (in the o p in io n o f the lo w e r cou rts), is to have s c h o o ls w h ich re fle c t th e racial m a k e-u p o f the p op u la tion co n ta in e d in that a p p rop ria te geog ra p h ica l area cu t o u t o f that p o r t io n o f th e S tate o f M ich igan su rrou n d in g D e tro it , lim ited o n ly b y co n s id e ra tio n s o f tim e and d ista n ce in the trans porta tion o f stu den ts. A lth o u g h the D istr ict C o u r t ’ s R u lin g on D esegregation A rea (97a ) w as v a ca ted in part b y th e C o u rt o f A p p e a ls , it rem ains fully illustrative o f th e m a g n itu d e o f th e p lan w h ich th e D istrict Court co n s id e re d n ecessary in o rd e r to so lve th e “ p r o b le m ” . In that R u lin g , th e D istr ict C ou rt sta ted : “ W ith in th e lim ita tio n s o f rea son a b le travel tim e and d istan ce fa c to rs , p u p il reassign m en ts shall b e e f fe c te d w ith in the clu sters d e scr ib e d in [P la in tiffs p ro p o s e d 52 s c h o o l d is trict d eseg reg a tion p lan s] so as to ach ieve the greatest degree o f a ctu a l d esegrega tion to the end that, upon implementation, no school, grade or classroom by (sic) substantially dispro portionate to the overall pupil racial composition. ” (em ph asis a d d ed , 1 0 1 -1 0 2 a ). Thus, the D istrict C o u rt h e ld th at the 52 d istricts in c lu d e d in the D esegregation A re a w o u ld p ro v id e e n o u g h W hite stu den ts, w h en com bin ed w ith th e stu d en ts resid ing in th e C ity o f D e tro it , t o cre ate a m in im u m racia l m ix w ith in ea ch class in ea ch s c h o o l rou g h ly p rop ortion a te t o th e racia l m ak e u p o f th e p o p u la t io n o f th e tri county area, and th e re fo re n o t racia lly id en tifia b le . T h e to ta l n u m ber o f stu den ts in v o lv e d in th e D istrict C o u r t ’ s 52 d istrict desegre g a t io n a r e a , based o n th e 1 9 7 1 -7 2 p o p u la t io n figures, was ̂ A l th o u g h s u b s ta n t ia lly v a c a t e d , th e C o u r t o f A p p e a ls c o n t in u e d in ex isten ce th e D e s e g r e g a t io n P a n e l e s ta b lis h e d in s u c h O r d e r . ( 1 7 8 a ) . In a d d i t io n , it is q u ite a p p a r e n t th a t th is a c t io n w as ta k e n o n l y t o c o r r e c t w h a t th e m a jor ity o f th e C o u r ts o f A p p e a ls p e r c e iv e d t o b e a t e c h n ic a l d e fe c t in th e p ro ce e d in g s b e lo w w it h r e s p e c t t o t h o s e 18 s c h o o l d is tr ic ts in c lu d e d in th e D istrict C o u r t ’ s D e s e g r e g a t io n O r d e r w h ic h h a d n o t s o u g h t in t e r v e n t io n . 36 7 7 9 , 0 0 0 ; 2 7 6 , 0 0 0 in D e tro it an d 5 0 3 ,0 0 0 in th e o u tly in g d istricts. l 62l — B — The Predicates for Relief: Intent and Nexus T h e s c o p e o f th e D istr ict C o u r t ’ s r e m e d y , th e re fo re , is the reassign m en t, tra n sfer and tra n sp o rta tio n o f h u n d red s o f th ou sands o f s tu d en ts a cross s c h o o l d is tr ict b o u n d a r ie s , s o th at in the D e tro it M e tro p o lita n A re a , every class in every s c h o o l w ill have a racial b a la n ce o f a p p ro x im a te ly 2 5 % B la ck and 7 5 % W h ite stu dents. B ut, i f th is is th e s c o p e o f th e r e m e d y , h o w d o e s it relate to the co n s titu t io n a l v io la t io n s that have b e e n fo u n d t o have o c cu rred ? T h e s im p le an sw er is th at it d o e s n o t , an d is th e re fo re in v io la t io n o f th e m an d ates o f Swann, w h ich states in part: “ H ow e v e r , a s c h o o l d ese g re g a tio n case d o e s n o t d i f fe r funda m e n ta lly fr o m o th e r cases in v o lv in g th e fram in g o f equitable rem ed ies t o repa ir th e d en ia l o f a c o n s t itu t io n a l right. The task is to c o r r e c t , b y a b a la n c in g o f th e in d iv id u a l an d co llec tive in terests, th e c o n d it io n th at o f fe n d s th e C o n s t itu tio n . In seek in g t o d e fin e even in b r o a d and gen eral terms h o w far th is rem ed ia l p o w e r e x te n d s it is im p o rta n t to re m e m b e r that ju d ic ia l p o w e r s m a y b e e x e rc ise d o n ly o n the basis o f a co n s t itu t io n a l v io la t io n . R e m e d ia l ju d ic ia l autho r ity d o e s n o t p u t ju d g e s a u to m a t ica lly in th e sh oes o f school a u th orities w h o se p o w e rs are p len a ry . J u d ic ia l a u th o r ity en ters o n ly w h en lo c a l a u th o r ity de fau lts . S c h o o l a u th o r itie s are tra d it io n a lly ch a rged w ith broad p o w e r t o fo rm u la te an d im p le m e n t e d u ca t io n a l p o l ic y and [ 6 2 ] p la in t i f fs w il l b e h e a rd t o s a y th a t b e c a u s e t h e J u n e 1 4 , 1 9 7 3 o rd e rs o f th e D is tr ic t C o u r t h a v e b e e n v a c a t e d , n o “ D e s e g r e g a t io n A r e a ” is presently d e f in e d a n d t h e area a n d n u m b e r o f s t u d e n t s in v o lv e d is t h e r e fo r e u n k n o w n . P e t it io n e r s u b m it s , h o w e v e r , th a t b e c a u s e th e e f f e c t o f t h e d e c is io n s b e lo w is t o r e q u ir e th e c r o s s -d is tr ic t t ra n s fe r t o p u p ils t o th e e n d t h a t a fte r s u ch trans fe r n o s c h o o l in D e t r o i t w il l b e p r e d o m in a n t ly b la c k , o r p e r c e iv e d as black w h e n v ie w e d a g a in st o t h e r s c h o o l s in t h e m e t r o p o l i t a n a re a , any p la n w h ich is d e v is e d b y th e D is t r ic t C o u r t t o im p le m e n t t h is t ra n s fe r w i l l , o f necessity , r e q u ir e th e r e a s s ig n m e n t o f h u n d r e d s o f th o u s a n d s o f s tu d e n ts . 37 m ight w ell c o n c lu d e , fo r e x a m p le , that in o rd e r t o prepare stu den ts t o live in a p lu ra listic s o c ie ty ea ch s c h o o l sh ou ld have a p re scr ib e d ra tio o f N e g ro t o w h ite stu den ts re fle ct in g th e p r o p o r t io n fo r th e d istrict as a w h o le . T o d o th is as an e d u ca tio n a l p o l i c y is w ith in th e b ro a d d iscre t io n a ry p o w e rs o f s c h o o l a u th o r itie s ; absen t a fin d in g o f a c o n s titu t io n a l v io la t io n , h o w e v e r , that w o u ld n o t b e w ith in the a u th o r ity o f a fed era l c o u r t . A s w ith an y e q u ity case, th e nature o f the v io la t io n d e term in es th e s co p e o f the r e m e d y .” l63] In b r ie f , th ere m u st b e a causal c o n n e c t io n b e tw e e n an in ten tional v io la t io n and th e c o n d it io n that th e re m e d y is in ten d ed to m od ify . T h is e lem en ta ry p re ce p t w as last stated and re a ffirm e d b y this C ourt in Keyes, supra. A lth o u g h th e C o u r t ’ s d e c is io n in Keyes turned o n th e q u e s tio n o f w h ich p a rty has th e b u rd en o f p rov in g a causal c o n n e c t io n w ith re sp e ct t o a segregated c o n d it io n fo u n d to exist in o n e part o f a single s c h o o l d is tr ic t , w h ere th e d istr ict was u n q u estion a b ly g u ilty o f having in te n tio n a lly cau sed a segregated con d ition in a n o th e r part o f th e sam e d istr ict, th e Swann lim ita tions on th e s c o p e o f th e rem ed ia l o rd e r w ere clearly sta ted . N o de jure segregated c o n d it io n w ill b e fo u n d t o ex is t , and n o rem ed ia l order m ay issue t o c o r r e c t th e c o n d it io n , i f “ . . . a lesser d egree o f segregated s c h o o lin g in th e . . . area w o u ld n o t have resu lted even if the B oard had n o t a cted as it d id .” 164] F u rth er, i f fo r any rea son a prim a fa c ie case m a y b e fo u n d to ex is t w ith resp ect t o a single s c h o o l d is tr ict , it can b e re b u tte d “ . . . b y sh ow in g that its past segregative acts d id n o t crea te o r co n tr ib u te to th e cu rren t segregated c o n d it io n o f th e . . . s c h o o ls .” t6 5 J E ven assum ing arguendo th at th e D e tro it B oard o f E d u ca tio n and the S tate D e fe n d a n ts had c o m m itte d every act the lo w e r courts charged th em w ith , and even i f th e acts had th e resu lting e ffects stated o r im p lie d b y th e lo w e r co u rts w ith resp ect t o the schools in D e tro it , it still rem ains u n q u e st io n a b le that had such alleged acts n ever o c c u r r e d , th e d e m o g ra p h ic p a ttern s in the Swann, supra, a t 1 5 -1 6 . K eyes, supra, 3 7 L .E d .2 d at 5 6 4 . ^6 5 ] Id at 5 6 5 . 38 M e tro p o lita n area and th e racia l c o m p o s it io n o f th e ou tly ing s ch o o ls w o u ld b e u n ch a n g e d . P e tit io n e r again re fers t o th e argu m en t m a d e b y co u n s e l fo r th e D e tro it S c h o o l D istr ict in its brief t o th e C o u rt o f A p p e a ls : “ T h ere is n o t an io ta o f e v id e n ce w h ich sh o w s o r w h ich even a ttem p ts t o s h o w th at a n y p e rso n liv ing in th e C ity o f D etroit m a d e h o u s in g d e c is io n s a n y d if fe r e n t ly b e ca u se o f th e ‘ acts o r fa ilu re to a c t ’ o f th e D e tro it B o a r d .” [661 It o n ly stands t o rea son that i f a c t io n s o f th e D e tro it B oard o f E d u ca tio n h ad n o e f f e c t o n th e d e m o g ra p h ic p a ttern s within De tro it , an y e f fe c t o u ts id e o f D e tro it w o u ld b e even less lik e ly . When this fa c t is c o m b in e d w ith th e c o n c lu s io n s th at are c o m p e lle d by a rev iew o f th e lim ite d r e c o r d w ith re sp e ct t o a lleged acts o f D efen dants M illik en , et al, a n y c la im th at th e D istr ict C o u r t ’ s proposed re m e d y w as co m m e n su ra te w ith th e v io la tio n s , and in te n d e d only to c o rre c t a c o n d it io n caused b y s c h o o l a u th orities , is truly fa la ciou s . t6” ! T h e fa ct is that school officials have n o t caused the c o n ce n tra t io n o f B lack s in c it ies , and have n o t cau sed th em to be su rrou n d ed b y W h ites liv ing in o u t ly in g m e tr o p o lita n areas. Com m o n sense an d s o c io lo g ic a l a u th o r ity t6 8 ! c o n fir m s th is proposi t io n , and th ere is a b so lu te ly n o th in g in th e r e c o r d o f th is cause to in d ica te a n yth in g to th e co n tra ry . A s stated b y th e F o u r th Circuit in re ferring to th e la ck o f p recise k n o w le d g e as to reason s fo r con cen tra tion s o f B lack s, I6 9 ! “ W h atever th e basic cau ses, it has n o t b e e n s c h o o l assign m en ts , an d s c h o o l assign m en ts ca n n o t reverse th e tre n d .” [6 6 5 S e e p a g e 1 6 , supra. 16 7 ] Qne 0f piaintiffs’ w itn e s s e s in t h e D is t r ic t C o u r t w as D r . K a r l Taeuber, It is in te r e s t in g t o n o t e D r . T a e u b e r ’ s c o n c lu s i o n th a t th e u n iv e rsa l character is t ic o f A m e r ic a n c it ie s is r e s id e n t ia l s e g r e g a t io n . T a e u b e r , Residential Segre gation, S c ie n t i f i c A m e r ic a n , A u g u s t , 1 9 6 5 . D r . T a e u b e r h a s a ls o fo u n d that r e s id e n tia l s e g r e g a t io n e x is ts “ . . . r e g a rd le s s o f th e c h a r a c te r o f lo c a l laws a n d p o l ic ie s a n d re g a rd le ss o f o t h e r f o r m s o f d is c r im in a t io n .” 'T a e u b e r , N egroes in Cities. [68] Id [ 6 9 1 Bradley v S ch ool Board o f the City o f R ichm ond, 4 6 2 F .2 d 1058 , at 1 0 6 6 (4 th C ir ., 1 9 7 2 ) , a f f d b y an e q u a l ly d iv id e d C o u r t ,______ U .S _____ 36 I .I d .2 d 77 1 ( 1 9 7 3 ) . 39 IV THE PROPOSED DECLARATION OF NEW CONSTITUTIONAL RIGHTS -A- The Racial Identifiability Theory F ro m th e p re ce d in g d iscu ss ion , it is c lear that P la in tiffs ’ re quest f o r r e lie f ca n n o t b e p re d ica te d u p o n th e C o n st itu tio n a l v io lations fo u n d b y th e lo w e r C o u rts to have b e e n co m m itte d — irre spective o f th e a c cu ra cy o f su ch fin d in gs. T h e o n ly lo g ica l c o n c lu sion o n e can rea ch , th e re fo re , is that th e P la in tiffs m u st b e ta c itly requesting th is C o u rt t o d e cla re a n ew co n s titu t io n a l right l7° l — freed om fr o m a tten d in g a “ racia lly id e n t ifia b le ” t7 1 1 — s c h o o l as well as th e co r re s p o n d in g a ffirm a tiv e co n s titu t io n a l o b lig a tio n o f the State t7 2 l t o reassign all stu d en ts w ith in th e S tate in o rd e r to elim inate an y s c h o o ls that m a y b e p e rce iv e d b y th e co m m u n ity as being B lack . I7 3 ] T h ere is, h o w e v e r , n o th in g in the m ere racial * 404 7̂I31 T o d a t e , P la in t i f fs h a v e n o t o p e n ly s o u g h t s u ch a d e c la r a t io n , h o w e v e r the im p l ic a t io n f o r s u ch a d e c la r a t io n is n o t in c o n s is te n t w it h th e ir e m p h a s is on th e “ R e m e d y ” n a tu re o f th e s e p r o c e e d in g s . T h e c o n c e p t “ ra c ia l i d e n t i f ia b i l i t y ” o r “ p e r c e p t io n as b la c k ” is v a r i ously r e fe r re d t o in S pencer v . K ugler 3 2 6 F .S u p p . 1 2 3 5 (D .N .J . 1 9 7 1 ) A f f ’d, 40 4 U .S . 1 0 2 7 , 3 0 L .E d .2 d 7 2 3 ( 1 9 7 2 ) , as “ ra c ia l im b a la n c e ” , in Bradley v. Richmond, supra, as “ v ia b le ra c ia l m i x ” , a n d in Brunson v . Board o f Tr. o f School D istrict N o. 1 o f Clarendon Co., S.C. 4 2 9 F . 2 d 8 2 0 (4 t h C ir. 1 9 7 0 ) as the “ P e tt ig re w t h e o r y ” ( c o n c u r r in g o p in io n o f J u d g e S o b e l o f f ) . 7̂ 2 1 T h e se n e w r ig h ts a n d o b l ig a t io n s w o u ld m e a n , o f c o u r s e , th a t a B la ck child w o u ld never b e p e r m it t e d t o a t te n d a p u b l i c s c h o o l th a t is p r e d o m in a te ly B la c k , ir r e s p e c t iv e o f p e r s o n a l p r e fe r e n c e s . In h is d is s e n t in g o p in io n , J u d g e K e n t a ssessed th e p r o p o s e d ch a n g e in c o n s t itu tio n a l s ta n d a r d , im p l ic i t in th e m a jo r i t y o p in io n , as f o l l o w s : “ T h r o u g h th e m a jo r i t y ’ s o p in io n ru n s t h e th re a d w h ic h h o ld s it t o gether. T hat th re a d is th e u n w ill in g n e s s a p p a re n t in th e m in d s o f th e m a jo r ity to sa n ctio n a b la c k s c h o o l d is tr ic t w ith in a c i t y w h ic h it c o n c lu d e s w il l b e su rrou n d ed b y w h ite s u b u r b s . W h ile th e m a jo r it y d o e s n o t n o w s ta te that such a d e m o g r a p h ic p a t te r n is in h e r e n t ly u n c o n s t i t u t io n a l , n e v e r th e le s s , I am persuaded that t h o s e w h o s u b s c r ib e t o th e m a jo r i t y o p in io n are c o n v in c e d , as stated in th e s lip o p in io n o f th e o r ig in a l p a n e l , ‘ b ig c ity s c h o o l s y s te m s f o r blacks s u r r o u n d e d b y s u b u r b a n s c h o o l s y s te m s f o r w h ite s c a n n o t re p re se n t equal p r o t e c t io n o f th e la w . ’ W h ile th at s ta te m e n t has b e e n r e m o v e d f r o m th e op in ion o f th e m a jo r i t y , y e t th e p re m ise u p o n w h ic h th e s ta te m e n t w as o b v i ously ba sed m u st n e c e s s a r ily f o r m th e fo u n d a t io n f o r th e c o n c lu s io n s r e a ch e d m the m a jo r ity o p in io n . It may be that such will b ecom e the law, but such a conclusion should not receive our approval on a record such as exists in this case.'' (2 2 4 a ; e m p h a s is a d d e d ) 40 c o m p o s it io n o f th e s c h o o ls w h ic h , w ith o u t m o r e , w ill su p p ort a fin d in g o f a den ia l o f eq u a l p r o te c t io n o f th e law s, guaranteed u n d e r th e F o u r te e n th A m e n d m e n t . t7 4 l A n d th is C o u rt so h eld in Swann: “ O u r o b je c t iv e in dea lin g w ith th e issues p resen ted b y these cases is to see th at s c h o o l a u th o r itie s e x c lu d e n o p u p il o f a racia l m in o r ity fr o m a n y s c h o o l , d ir e c t ly o r in d ire c t ly , o n ac c o u n t o f ra ce ; it d o e s n o t and ca n n o t e m b ra ce all the p ro b lem s o f racia l p re ju d ice , even w h e n th o se p r o b le m s co n tr i b u t e t o d is p r o p o r t io n a t e racia l co n ce n tra t io n s in som e s c h o o ls .” * * * “ I f w e w ere t o read th e h o ld in g o f th e D istr ict C o u rt t o re q u ire , as a m a tter o f su bstan tive c o n s t itu t io n a l r igh t, an y par ticu la r degree o f racia l b a la n ce o r m ix in g , that ap p roach w o u ld b e d isa p p ro v e d an d w e w o u ld b e o b lig e d t o reverse. T h e c o n s t itu t io n a l c o m m a n d t o d esegregate s c h o o ls d o e s not m ean that e v ery s c h o o l in e v ery c o m m u n ity m u st a lw ays re f l e c t th e racia l c o m p o s it io n o f th e s c h o o l system as a w h o le .” I7 6 1 T h e co n c lu s io n s re a ch e d fr o m an an alysis o f th e r e c o r d and the h o ld in g s b e lo w , bear rep ea tin g . P la in tiffs are co m p la in in g a b o u t a p re p o n d e ra n ce o f B lack s in th e D e tro it P u b lic S c h o o ls , but there is absolutely nothing to indicate that actions o f State or local school officials caused that condition. C o n s e q u e n tly , P la in tiffs m u st be ask ing th e C o u rt t o “ . . . req u ire , as a m a tte r o f su bstan tive con sti tu tio n a l righ t, [a ] p a rticu la r d egree o f racia l b a la n ce o r m ix- [ 7 4 ] T h e f o l l o w i n g o b s e r v a t io n o f M r. C h ie f J u s t ic e B u rg e r in Wright v Council o f City o f Em poria, 4 0 7 U .S . 4 5 1 , a t 4 7 7 , 3 3 L .E d .2 d 5 1 at 70 (d is s e n t in g o p i n i o n ) is p a r t ic u la r ly a p p r o p o s : “ A lo c a l s c h o o l b o a r d p la n th a t w il l e l im in a t e d u a l s c h o o l s , s t o p dis c r im in a t io n , a n d im p r o v e th e q u a l i ty o f e d u c a t io n o u g h t n o t b e cast aside b e c a u s e a ju d g e ca n e v o lv e s o m e o t h e r p la n th a t a c c o m p l is h e s t h e sa m e result, o r w h a t h e c o n s id e r s a p r e fe r a b le r e s u lt , w it h a t w o p e r c e n t , f o u r p e r c e n t , or s ix p e r c e n t d i f f e r e n c e in r a c ia l c o m p o s i t i o n . S u c h an a p p r o a c h g iv es c o n t r o l l in g w e ig h t t o s o c i o l o g i c a l t h e o r ie s , n o t c o n s t i t u t io n a l d o c t r in e . ” 17 5 1 Swann v C harlotte-M ecklenberg Bd. o f E duc., 4 0 2 U .S . 1 ( 1 9 7 1 ) at 23. l 7 6 l Id. at 2 4 . 41 ing. . . w h ich has b e e n c o n d e m n e d in Swann. P e tit ion er agrees w ith th is C o u r t ’ s p r o p o s e d d isp o s it io n o f su ch a requ est - it m u st be d isa p p ro v e d and th e lo w e r co u rts reversed . t7 7 l T h is q u e s tio n w as also co n s id e re d in con s id era b le deta il in Spencer v. Kugler, supra. In that case, P la in tiffs co m p la in e d that the s ch o o ls in N e w Jersey w ere “ racia lly im b a la n ce d ” becau se o f the e x is te n ce o f . . s c h o o l d istrict b ou n d a r ies th e re b y ren derin g racial b a la n ce m a th e m a tica lly im p o ss ib le in m a n y districts. . .” I7 8 ) The th ree -ju d ge D istrict C o u rt fram ed th e issue as fo l lo w s : I7 9 l “ P la in tiffs ’ su bstan tive cla im rests w h o l ly o n the assertion that th ere is an a ffirm a tiv e co n stitu t io n a l d u ty t o ach ieve racia l b a la n ce a m on g th e several d istricts o f a state system o f p u b lic s ch o o ls . . . . ” In d isp os in g o f th is issue, and p la in t iffs ’ cla im o f den ia l o f equal p ro te c t io n o f th e law s, th e C o u rt in Spencer s ta ted : t8° ] “ In n o n e o f th e sch o o ls o f w h ich th e p la in tiffs c o m p la in is an y b la ck p u p il ‘ segregated ’ fr o m any w h ite pu p il. Indeed, l 7 7 ̂ O t h e r p a n e ls o f t h e S ix th C ir cu it h a v e r e c o g n iz e d th e p r in c ip le w h ic h was ig n o r e d b y th e m a jo r i t y s it t in g in b a n c . In Deal v . Cincinnati Bd. o f Educ., 3 6 9 F .2 d 5 5 ( 6t h C ir ., 1 9 6 6 ) , c e r t , d e n ie d 3 8 9 U .S . 8 4 7 ( 1 9 6 7 ) , th e C ou rt h e ld th a t th e C in c in n a t i B o a r d o f E d u c a t io n h a d n o c o n s t i tu t io n a l d u ty t o c o r r e c t a ra c ia l im b a la n c e in its s c h o o ls , w h e r e s u ch im b a la n c e w a s n o t c re a te d b y it . T h e m a jo r i t y in t h e O p in io n b e lo w a t te m p ts t o d is t in g u ish D e a l b y s a y in g , q u it e s im p ly , “ T h e r e th e D is tr ic t C o u r t m a d e fin d in g s o f fa c t th a t th ere h a d b e e n n o u n c o n s t i t u t io n a l c o n d u c t o n th e p a rt o f th e C in c in n a t i B oard o f E d u c a t io n .” ( 1 8 9 a ) . T h is p o in t h ig h lig h ts th e P e t i t io n e r ’ s s ta te m e n t at f o o t n o t e [ 1 6 ] , th a t th e C o u r t h a s “ le a p e d f r o m f in d in g l im ite d v io la t io n s to fa s h io n in g v ir t u a lly u n l im it e d r e l ie f . ” U n le ss th is C o u r t s a n c t io n s a ru le that w ill a l lo w a f in d in g o f any c o n s t i t u t io n a l v io la t io n t o tr ig g e r th e im p o s i t io n o f a r e m e d y th a t g o e s b e y o n d a n y c o n c e iv a b le s c o p e o r e f f e c t o f th e v io la t io n i t s e l f , t h e o p in io n b e lo w is in ir r e c o n c ia b le c o n f l i c t w it h D eal a n d th e d e c is io n s o f th is C o u r t d is cu s s e d a b o v e . S e e a ls o , Davis v . S chool Dist. o f the City o f Pontiac, 4 4 3 F .2 d 5 7 3 ( 6t h C ir . 1 9 7 1 ) , w h e re in th e 6th C ircu it s ta ted , at p g . 5 7 5 ; “ . . . a s c h o o l d is tr ic t h a s n o a f f ir m a t iv e o b l ig a t io n t o a ch ieve a b a la n c e o f t h e r a c e s in th e s c h o o ls w h e n th e e x is t in g im b a la n c e is n ot a t t r ib u ta b le t o s c h o o l p o l i c ie s o r p r a c t ic e s a n d is th e re su lt o f h o u s in g pattern s a n d o t h e r f o r c e s o v e r w h ic h th e s c h o o l a d m in is t ra t io n h a d n o c o n t ro l .” f 7 8 ! Spencer v Kugler, supra, at 1 2 3 7 . [7 9 ] Id., at 1 2 3 8 . [80J Id., at 1 2 3 9 . 42 complaint is made that the blacks who reside in the school district served predominate over the whites, th u s a ffo rd in g an e x a m p le o f c o m p le te d e se g re g a tio n w h ich w as th e expressed o b je c t o f th e c o u r t in th e Brown case. * ❖ * If, as p la in t iffs c o n te n d , th e p r o p o r t io n a te b la ck atten d a n ce in th e ir re sp e ctiv e s c h o o ls a d versely a ffe c ts th e degree o f e x c e lle n c e o f e d u ca t io n w h ich th e y can rece iv e th ere must b e a p o in t at w h ich a n y ex ce ss o f b la ck s o v e r w h ites is likely t o im pa ir th e q u a lity o f th e e d u ca t io n availab le in that school f o r th e b la ck pu p ils . N o w h e re in th e a p p e n d ix filed b y the p la in tiffs o r in th e fa cts in v o lv e d in an y o f th e ju d ic ia l prece den ts w h ich th e y c ite are w e in fo r m e d o f th e s p e c if ic racial p r o p o r t io n s w h ich are lik e ly t o assure m a x im u m excellence o f th e e d u ca t io n a l advantages ava ilab le fo r th e w h ites. As su m in g fu r th e r that e f fo r ts to a ch ieve th e idea l interracial p r o p o r t io n n ecessarily in c lu d e th e a ltera tion o f th e popula t io n fa c to r d e term in a tiv e o f th e re d istr ictin g , th ere can be no assurance that th e p o p u la t io n fa c t o r w ill rem ain static. I f so, it w o u ld b e n ecessa ry t o su cce ss iv e ly reassign p u p ils to an o th e r d istrict as th e rate o f b irth s an d g ra d u a tion s alters the racia l p r o p o r t io n s crea tin g th e d em a n d f o r e d u ca tio n a l facili ties as it ch an ges fr o m term t o term . In sum, the difficulty complained o f does not amount to unconstitutional segrega tion. * * * T h e system as p ro v id e d b y th e va riou s legislative enact m en ts is u n ita ry in n ature and in ten t and an y purported racia l im b a la n ce w ith in a lo ca l s c h o o l d is tr ict resu lts from an im b a la n ce in th e p o p u la t io n o f th at m u n ic ip a lity -s ch o o l dis tr ict . Racially balanced municipalities are beyond the pale of either judicial or legislative intervention.” (em ph a sis added) T h is ex erp t fr o m Spencer is, w ith o u t m o r e , fu lly d isp os itiv e o f the real issue in th is case. F in a lly , P e tit io n e r su b m its that th is C o u r t ’ s decisions in 43 Wright v. Council o f the City o f Emporia t8 11 and United States v. Scotland Neck Board o f Education l8 2 ] im p lic it ly h o ld that a plan o f d esegregation lim ite d to a p re d o m in a n tly B lack s c h o o l system is not in su ffic ie n t to r e m e d y co n s t itu t io n a l v io la tio n s o f its s tu d en ts ’ rights o f equ a l p r o te c t io n . In Wright, th e d esegrega tion p lan to b e im p lem en ted w as w ith resp ect t o a s c h o o l system having a racial m ake-up o f 3 4 % W h ite an d 6 6 % B la ck - a lm ost e x a c t ly th e sam e racial c o m p o s it io n as th e D e tro it S c h o o l S ystem . In Scotland Neck, th e racia l c o m p o s it io n o f th e s c h o o l system w as 7 7 % B lack , 22% W hite an d 1 % A m e r ica n Ind ian . T h e o p in io n o f th e C o u rt o f A p p e a ls has ch arged that t o re ject their t h e o r y —th at B la ck s tu d en ts m a y n o t b e a llo w e d to p re dom inate in D e tr o it—is to retu rn to th e d o c tr in e o f Plessy v Fer gusonJ 833 It is r e sp e c t fu lly su b m itte d , h o w e v e r , that ju s t th e o p posite is tru e, and that th e a d o p t io n o f th e lo w e r c o u r t ’ s racial iden tifiab ility th e o ry w o u ld in fa ct fa ll w ith in th e Brown I i s s u e - assignment o f B lack D e tro it ch ild ren solely o n th e basis o f ra ce — and w o u ld co n s t itu te a retreat fr o m th e p rin c ip les o f Brown I and a breath o f li fe in to Dred Scott. I8 4 ] In a co n cu rr in g o p in io n in Brunson, I8 5 * *! Judge S o b e lo f f p re sented an e x tre m e ly co m p e llin g d iscu ssion o f th is p recise q u e stio n . 181] 4 0 7 U .S . 4 5 1 , 3 3 L .E d .2 d 51 ( 1 9 7 2 ) . 182] 4 0 7 u § 4 g4 > 3 3 L E d 2 d 7 5 ( 1 9 7 2 ) . 8̂ 8 ̂ 1 6 3 U .S . 5 3 7 ( 1 8 9 6 ) . T h e C o u r t o f A p p e a ls s ta te d : “ T h e r e e x is ts h o w ever, an e v e n m o r e c o m p e l l in g b a s is f o r th e D is t r ic t C o u r t ’ s c r o s s in g a r t if ic ia l b ou n d a ry lin es t o c u re th e S ta te ’ s c o n s t i t u t io n a l v io la t io n s . T h e in s ta n t ca se calls u p h a u n tin g m e m o r ie s o f t h e n o w lo n g o v e r ru le d a n d d is c r e d it e d ‘ se p a r ate but e q u a l d o c t r in e ’ o f Plessy v Ferguson, 1 6 3 U S 5 3 7 ( 1 8 9 6 ) . I f w e h o ld that s c h o o l d is tr ic t b o u n d a r ie s a re a b s o lu t e b a rr ie rs t o a D e t r o i t s c h o o l d e s e g regation p la n , w e w o u ld b e o p e n in g a w a y t o n u l l i fy Brown v Board o f Educa tion w h ich o v e r r u le d Plessy, supra.” ( 1 7 2 a ) . 84 ] Dred S co tt v Sanford, 6 0 U S 3 9 3 (1 8 5 6 ). Brunson v Board o f Trustees o f S chool Dist. N o. 1 o f Clarendon County, South Carolina, supra. 44 H is argu m en t c o u ld b e litt le im p r o v e d u p o n , and deserves ex te n sive q u o ta t io n : “ T h e lin ch -p in o f th e d issen t is th e n o t io n th at, ideally , th e g o a l o f d eseg reg a tion sh o u ld b e t o a ch ieve an ‘ op tim al m ix , ’ con s is t in g o f a w h ite m a jo r ity . It suggests . . . th at de segregation sh o u ld n o t g o so fa r as to p u t w h ites in m in o r ity s itu ation s. * * * It w o u ld , I am sure, a ston ish th e Brown c o u r t t o learn that 16 years la ter, in a case stem m in g d ire c t ly fr o m th at de c is io n , it w as ser iou s ly b e in g c o n te n d e d that desegregation m igh t n o t b e re q u ire d in s o fa r as it th rea ten ed t o im p a ir ma jo r i t y w h ite s itu ation s . * * * Brown a r ticu la ted th e tru th that Plessy c h o s e t o disre gard : th a t re le g a tio n o f b la ck s t o separate fa c ilit ie s represents a d e c la ra t io n b y th e state th at th e y are in fe r io r and n o t to be a ssocia ted w ith . B y co n d e m n in g th e p ra c t ice as ‘ inherently u n e q u a l,’ th e C o u rt , at lo n g last, e x p u n g e d th e con stitu tion a l p r in c ip le o f b la ck in fe r io r ity and w h ite su p re m a cy in tro d u ce d b y Dred Scott, an d o rd e re d th e d ism an tlin g o f th e ‘ im passib le b a rrier ’ u p h e ld b y that case. * * ❖ T h e in v id io u s n atu re o f th e P ettig rew thesis, advanced b y th e d issen t in th e p resen t case, th u s em erges. Its central 1861 J u d g e S o b e l o f f ’ s o p in io n has b e e n q u o t e d , w i t h a p p a r e n t a p p ro v a l , in a n a r t ic le w r it t e n b y o n e o f P l a i n t i f f s a t t o r n e y s , P a u l R . D im o n d . S ch ool Seg regation in the N orth : There Is B u t O ne C onstituion, 7 H a rv a rd C iv il R ig h t s - C iv il L ib e r t ie s L a w R e v ie w 1 ( 1 9 7 1 - 1 9 7 2 ) . In c it in g J u d g e S o b e l o f f ’ s d iscu s s io n , M r. D im o n d a sserts th a t t h e c la im th a t th e r e m ig h t b e “ t o o m any b la c k s ” in a s c h o o l s y s t e m is a “ p a te n t r a c ia l in s u lt ” . P e t i t io n e r c o n c u r s w ith th is s ta te m e n t b u t fa i ls t o u n d e r s ta n d h o w th is p o in t a v o id s b e in g in co n s is t e n t w it h P la in t i f fs ’ a s s e r t io n th a t th e r e m u s t n o t b e a p r e p o n d e r a n c e o f b la c k s in t h e D e t r o i t S c h o o l D is t r ic t . S e e a ls o , Isn cks, In equality : A reassess m ent o f the E f fe c t o f Fam ily and S chooling in Am erica, 4 0 -4 1 ( 1 9 7 2 ) , w here h e s ta te s “ T h is im p lie s th a t b la c k p a r e n ts c a n n o t s e n d th e ir c h i ld r e n t o all b la c k s c h o o l s , e v e n i f t h e y w a n t t o , b e c a u s e a l l -b la c k s c h o o l s are b y d e fin it io n in fe r io r . T h is p o s i t io n s t r ik e s m e as b o t h r a c is t a n d p o l i t i c a l l y u n w o rk a b le o v e r t h e lo n g h a u l .” 45 p r o p o s it io n is that th e va lue o f a s c h o o l d e p e n d s o n th e ch ar acter istics o f a m a jo r ity o f its stu den ts and su p erior ity is re la ted t o w h iten ess, in fe r io r ity to b lack n ess. A lth o u g h the th e o r y is c o u c h e d in term s o f ‘ s o c io -e c o n o m ic class’ and the n ecess ity f o r th e c re a tio n o f a ‘m id d le -cla ss m ilie u ’ , n everth e less, at b o t t o m , it rests o n th e gen era liza tion th at, e d u ca t io n ally speak in g , w h ite p u p ils are s o m e h o w b e tte r o r m o re desir ab le th an b la ck pu p ils . T h is p rem ise leads t o the n e x t p r o p o s it io n , that a sso c ia tio n w ith w h ite p u p ils h elp s th e b la ck s and so lo n g as w h ites p re d o m in a te d o e s n o t harm th e w h ite ch ild ren . B u t o n c e th e n u m b e r o f w h ites a p p roa ch es m in o r ity , th en a sso c ia tio n w ith th e in fe r io r b la ck ch ild ren hurts the w h ites an d , b eca u se th ere are n o t en o u g h o f th e su p erior w h ites t o g o a ro u n d , d o e s n o t a p p re c ia b ly h e lp th e b lack s. T h is id ea , th en , is n o m o re th an a resu rrection o f the a x io m o f b la ck in fe r io r ity as ju s t ifica t io n fo r separation o f th e races, an d n o less than a retu rn t o th e spirit o f Dred Scott. T h e in v en tors an d p r o p o n e n ts o f this th e o ry grossly m isa p preh en d th e p h ilo s o p h ica l basis fo r desegregation . It is n o t fo u n d e d u p o n th e c o n c e p t that w h ite ch ild ren are a p re c io u s re so u rce w h ich sh ou ld b e fa ir ly a p p o rt io n e d . It is n o t , as P ettig rew suggests, b eca u se b la ck ch ild ren w ill b e im p roved b y a sso c ia tio n w ith th eir b etters . C erta in ly it is h o p e d that u n d e r in teg ra tion m e m b e rs o f ea ch race w ill b e n e fit fr o m u n fe t te re d c o n ta c t w ith th e ir peers. B ut s c h o o l segregation is fo r b id d e n s im p ly b eca u se its p e rp e tu a tio n is a living insu lt to th e b la ck ch ild ren and im m ea su ra b ly taints th e e d u ca tio n th ey rece ive . T h is is th e p recise lesson o f Brown. W ere a co u rt to a d o p t th e P ettig rew ra tion a le it w o u ld d o e x p lic it ly w hat c o m p u ls o r y segregation law s d id im p lic it ly .” i8 7 l P etitioner su bm its that th e racial id e n tifia b ility th e o ry , w h en su b jected to th o r o u g h analysis, is revea led to b e n o th in g m o re than a theorem o f B la ck in fe r io r ity — n o t se lf ev id en t, b u t w ith all o f the invidiousness o f Dred Scott an d Plessy, w a itin g t o b e p rov en . It is inapposite to th e teach in gs o f Brown / , and sh ou ld n o t b e su b scribed to b y th is c o u rt . [8 7 ] 4 2 9 F 2 d , 8 2 4 t o 8 2 6 46 -B- Maintenance of Local School Districts as a Legitimate State Interest In its O p in io n , th e C o u rt o f A p p e a ls sta ted : “ W e re je ct the c o n te n t io n th at s c h o o l d istr ict lin es are sa crosa n ct. . . . ” (1 7 4 a ). T h is is a s ta tem en t w ith w h ich P e tit io n e r co n cu rs , an d w h ich was n ever a m ateria l issue. N o n e o f th e P etit ion ers have ev er cla im ed th at s c h o o l d istr ict lines w ere in v io la te o r sa cro sa n ct, an d th is Peti t io n e r d o e s n o t n o w so c la im . It w as a c lass ic straw m an p ro ffe re d b y P la in tiffs and grasped b y th e C o u r t o f A p p e a ls as an e x cu se for d isregard ing s c h o o l d is tr ic t b ou n d a r ies . In an e f fo r t t o c lea rly d e lin ea te th e essentia l d if fe re n ce s that m a y ex is t b e tw e e n P e tit io n e r an d P la in tiffs w ith re sp e ct t o the legal status o f lo c a l s c h o o l d istricts , P e tit io n e r su b m its , as correct, th e fo l lo w in g p r o p o s it io n s : (1 ) L o c a l s c h o o l d istricts in M ich igan are n o t sovereign , b u t are crea ted b y an d are su b je c t t o th e c o m p le te p o w e r and c o n tr o l o f th e M ich igan L eg isla tu re ; t8 8 l and ( 2 ) W h ere essential t o p ro v id e a r e m e d y fo r a clearly co g n iz a b le co n s t itu t io n a l v io la t io n , p o lit ic a l su b d iv is ion lines may b e s u b je c t t o m o d if ic a t io n b y th e e x e rc ise o f th e equita b le p o w e rs o f th e fed era l ju d ic ia r y . I8 9 ] ^8 8 1 A l t h o u g h n o t e s s e n t ia l t o th e issu e s h e r e in p r e s e n t e d , P e t i t io n e r notes th a t as a re su lt o f t h e M ich ig a n C o n s t i t u t io n o f 1 9 6 3 m a k in g r e fe r e n c e to s c h o o l d is tr ic ts in f o u r d i f f e r e n t s e c t io n s (A r t 8 , § 2 ; A r t 9 , § 6 ; A r t 9 , § 1 1 ; A r t 9 , § 1 6 ) th e r e is a s e r io u s le g a l is su e as t o w h e th e r o r n o t th e M ich igan L e g is la tu re w o u ld h a v e th e p o w e r t o a b o l is h s c h o o l d is tr ic ts a lt o g e th e r . [ 8 9 ] C le a r ly , G om illion v . L igh tfoo t, 3 6 4 U .S . 3 3 9 , 5 L .E d .2 d 1 1 0 (1 9 6 0 ) a n d R eyn old s v . Sims, 3 7 7 U .S . 5 3 3 , 1 2 L .E d .2 d 5 0 6 ( 1 9 6 4 ) a re d e te rm in a t iv e o f th e q u e s t io n o f t h e u lt im a te p ow er o f t h e fe d e r a l c o u r t w it h r e s p e c t to s c h o o l d is tr ic t l in e s . T h is p o w e r w a s in e f f e c t e x e r c is e d in Wright v . Emporia, supra, a n d U .S . v . Scotland N eck , supra. T h is is in n o w a y , h o w e v e r , deter m in a t iv e o f th e q u e s t io n p o s e d at th e b e g in n in g o f th is b r i e f —W h a t is th e v io la t i o n th a t is b e in g r e m e d ie d ? It is o n l y w h e n t h e a n s w e r t o th a t q u e s t io n is d e t e r m in e d , th a t th is C o u r t n e e d d e c id e th e m a n n e r in w h ic h it w il l exercise t h e ra w p o w e r w h ic h it p o s s e s s e s . In a n y e v e n t , h o w e v e r , it is c le a r that in d e v is in g a r e m e d ia l o r d e r , w h e r e it is n o t essential t o d is re g a rd p o litica l b o u n d a r ie s , th e C o u r t m u s t ta k e th e m i n t o a c c o u n t a n d r e s p e c t th e ir exis t e n c e , e s p e c ia l ly w h e r e t h e y p r o m o t e a le g it im a t e S ta te in te r e s t . T h is was e x p l i c i t ly r e c o g n iz e d m o s t r e c e n t ly in San A n ton io v . R odriquez, supra. 47 These s ta tem en ts are n o t determ in ative o f th e M e tro p o lita n deseg regation issues, h o w e v e r , b eca u se even th ou g h s c h o o l d istricts are n o t sa crosa n ct and m ay be su b je ct to m o d if ic a t io n , such m o d if ic a tion m a y b e ju d ic ia lly o rd e re d o n ly w h ere essential to re m e d y the in ten tion a l in fr in g e m e n t o f a fu n d a m en ta l c o n stitu t io n a l right. That is s o , un less it m a y be fo u n d th at the S tate o f M ich igan has been u n d e r an a ffirm a tiv e co n stitu t io n a l d u ty t o m a x im ize racial balance in th e s c h o o ls w ith in an y given geograp h ica l area in the State. T h is a ffirm a tiv e d u ty w o u ld co n stitu te the re co g n it io n o f yet a n o th e r n ew co n s titu t io n a l right, in c o n f l ic t w ith the m a in tenance o f the lo ca l s c h o o l d istrict as an in tegral and leg itim ate co n co m ita n t o f the e d u ca tio n a l system in M ich igan . C o n se q u e n tly , the s ig n ifica n ce o f th e lo c a l s c h o o l d istrict, and the la ck o f a f firm ative co n s titu t io n a l d u ty t o ch ange it , w ill be e x p lo r e d in som e deta il. T h e C o u rt o f A p p ea ls , in d iscussing th e status o f s c h o o l d is tricts u n d e r M ich igan law , has listed several ex a m p les o f th e ex er cise o f c o n t r o l b y th e S tate o v e r th e lo ca l s c h o o l d istrict, as ju s t ifi cation f o r th e ir e x is te n ce n o w b e in g ig n o re d (1 6 5 to 17 1 a ). [90] In turn , P e tit io n e r is able t o p resen t an exten sive list o f d iscre tionary p o w e rs and a u th orities gran ted to lo c a l s c h o o l d istricts b y [ P a r t ic u la r ly e m p h a s iz e d is th e fa c t th a t s c h o o l d is tr ic ts h a v e in th e p ast been r e q u ir e d t o b e r e o r g a n iz e d o r m e rg e d w it h o t h e r s c h o o l d is tr ic ts f o r re a sons o f a d m in is tra t iv e e f f i c i e n c y , f in a n c ia l n e c e s s it y , e t c . T h e c o u r t s e e m s t o m ake th e u n s u b s ta n t ia te d a s s e r t io n th a t b e c a u s e th e S ta te h a d th e p o w e r a n d e x ercised it f o r those r e a s o n s , th e re m u st n o w b e s o m e in v id io u s a n d d is c r im i n a to ry p u r p o s e b e h in d th e S ta te fa ilin g t o ta k e fu r th e r a f f ir m a t iv e a c t io n t o reo rg a n ize s c h o o l d is tr ic ts in th e S ta te t o a tta in th e d is tr ic t c o u r t ’ s “ s o c ia l g o a l” . 48 the M ich igan S c h o o l C o d e o f 1 9 5 5 .191 ] It is su b m itte d , h ow ever, that th ese lists and co u n te r -lis ts d o n o th in g m o r e than c lo u d the real s ig n ifica n ce o f lo c a l s c h o o l d is tr icts , b y la y in g em ph asis on th e o re tica l p o ss ib ilit ie s in th e ev e n t o f u ltim a te u su rp a tion . A s the D istr ict Ju dge s ta ted , h o w e v e r , “ su b sta n ce , n o t sem a n tics , m ust c o n t r o l ” . A n d th e su bstan tive status o f lo c a l s c h o o l d istricts in M ich igan is th at o f a u to n o m o u s p o lit ica l b o d ie s co r p o r a te , op era t in g th rou g h B oa rds o f E d u ca t io n p o p u la r ly e le c te d t9 2 ] b y their residen ts, w ith th e d a y t o d ay a ffa irs b e in g d e te rm in e d at the loca l level in a c c o r d a n c e w ith th e p len a ry p o w e rs gran ted t o th em . “ T h e p o l ic y o f th e S ta te has b e e n to reta in c o n tr o l o f its s c h o o l sy stem , to be administered throughout the State under State laws by local State agencies organized with plenary powers to carry out the delegated functions given it by the legislature.” Lansing Dist. v. State Bd. o f E due., 367 M ich . 591 (1 9 6 2 ) , at 5 9 5 (em ph asis a d d e d ) “ It is t o b e n o te d th at s c h o o l d istricts p ossess su ch p o w er as th e sta tutes e x p re ss ly or by reasonably necessary impli cation grant to them.” Senghas v. L ’Anse Creuse P .S ., 368 M ich . 5 5 7 ( 1 9 6 2 ) , at 5 6 0 (E m p h a sis in o r ig in a l) S c h o o l d is tr ic ts m a y fu n c t io n co o p e r a t iv e ly w ith tow nsh ips, co u n tie s an d c it ies in th e c o n d u c t o f e le c t io n s and th e assessm ent and c o l le c t io n o f ta x e s ; s c h o o l d istricts m a y b e su b je c t t o the [ 9 1 ] T o a c q u ir e r e a l a n d p e r s o n a l p r o p e r t y , M ic h . C o m p . L a w s A n n o ta te d ( M C L A ) § § 3 4 0 . 2 6 ; 3 4 0 .7 7 ; 3 4 0 .1 1 3 ; 3 4 0 .1 6 5 ; 3 4 0 .1 9 2 ; 3 4 0 .3 5 2 ; t o hire a n d c o n t r a c t w it h p e r s o n n e l , M C L A § 3 4 0 .5 6 9 ; § 3 4 0 .5 7 4 ; t o le v y ta x e s fo r o p e r a t io n s , M C L A § 3 4 0 . 5 6 3 ; t o b o r r o w a g a in st r e c e ip t s , M C L A § 3 4 0 .5 6 7 ; t o d e te r m in e le n g t h o f s c h o o l t e r m s , M C L A § 3 4 0 . 5 7 5 ; t o c o n t r o l th e adm is s io n o f n o n -r e s id e n t s t u d e n t s , M C L A § 3 4 0 . 5 8 2 ; t o d e te r m in e c o u r s e s o f s t u d y , M C L A § 3 4 0 . 5 8 3 ; t o p r o v id e a k in d e r g a r te n p r o g r a m , M C L A § 3 4 0 . 5 8 4 ; t o e s ta b lis h a n d o p e r a te v o c a t i o n a l s c h o o l s , M C L A § 3 4 0 .5 8 5 ; to o f f e r a d u lt e d u c a t io n p r o g r a m s , M C L A § 3 4 0 . 5 8 6 ; t o e s ta b lis h a tte n d a n ce area s , M C L A § 3 4 0 . 5 8 9 ; t o a rra n g e f o r t r a n s p o r t a t io n o f n o n -r e s id e n t stu d e n t s , M C L A § 3 4 0 . 5 9 1 ; t o a c q u ir e t r a n s p o r t a t io n e q u ip m e n t , M C L A § 3 4 0 .5 9 4 ; t o r e c e iv e g ift s a n d b e q u e s t s , f o r e d u c a t io n a l p u r p o s e s , M C L A § 3 4 0 .6 0 5 ; t o e m p lo y a n a t t o r n e y , M C L A § 3 4 0 . 6 0 9 ; t o s u s p e n d o r expel s tu d e n ts , M C L A § 3 4 0 . 6 1 3 ; t o m a k e ru le s a n d r e g u la t io n s f o r o p e r a t io n o f s c h o o ls , M C L A § 3 4 0 .6 1 4 ; t o ca u s e t o b e le v ie d a u th o r iz e d m illa g e , M C L A § 3 4 0 . 6 4 3 a ; t o a c q u ir e p r o p e r t y b y e m in e n t d o m a in , M C L A § 3 4 0 .7 1 1 et s e q . ; t o a p p r o v e a n d s e le c t t e x t b o o k s , M C L A § 3 4 0 .8 8 2 . [ 9 2 ] M i c h . C o m p . L a w s A n n o t a t e d § § 3 4 0 . 2 7 , 3 4 0 .5 5 , 3 4 0 .1 0 7 , 3 4 0 .1 4 8 - 9 , 3 4 0 .1 8 8 . 49 “ L eadersh ip an d gen eral su p erv is ion ” t9 3 l o f th e S tate B oa rd o f E du ca tion , an d s c h o o l d is tr ic t ’ s p o w e rs and resp on sib ilit ies m a y b e subject t o u ltim a te c o n tr o l o f th e S tate L egislature. t9 4 ̂ B ut w h en one steps b a ck t o lo o k at th e overa ll functional status o f s c h o o l districts, w h e th e r in M ich igan o r in any o th e r state w h ere th e lo ca l district has b e e n sim ilarly stru ctu red , is apparen t that in their day- to-day m a n a g em en t th e y are o p e ra tio n a lly a u to n o m o u s , exercisin g a m u ltitu d e o f d iscre t io n a ry d e c is io n s and b e in g respon sive t o the needs and desires o f th e lo ca l c o m m u n ity and the ch ild ren th ey have th e re sp o n s ib ility t o e d u ca te . O n e o n ly has t o a tten d a p u b lic m eeting o f a lo ca l B oard o f E d u ca tio n and e x a m in e th e n orm al lengthy list o f adm in istrative m atters to b e a cted u p o n , and to hear p u b lic d e b a te o v e r a p articu larly d e lica te co m m u n ity ed u ca tional issue, t o rea lize that lo ca l s c h o o l d istricts are n o t th e illu sory a rtifa ct p e rce iv e d b y th e C o u rt o f A p p e a ls ; ex istin g so le ly fo r the p u rp o se o f fru stratin g m e tro p o lita n w id e in tegra tion o f the public s ch o o ls . i9 5 l [9 3 ) 1 9 6 3 M ich . C o n s t . , A r t 8 , S e c . 3 : “ L e a d e rs h ip a n d g e n e r a l s u p e r v is io n o v e r a ll p u b l i c e d u c a t io n , in c lu d in g adult e d u c a t io n a n d in s t r u c t io n a l p ro g r a m s in s ta te in s t i t u t io n s , e x c e p t as t o in s titu t io n s o f h ig h e r e d u c a t io n g ra n t in g b a c c a la u r e a te d e g r e e s , is v e s te d in a state b o a r d o f e d u c a t io n . It sh a ll se rv e as th e g e n e ra l p la n n in g a n d c o o r d i nating b o d y f o r a ll p u b l i c e d u c a t io n , in c lu d in g h ig h e r e d u c a t i o n , a n d sh all advise th e le g is la tu re as t o th e f in a n c ia l r e q u ir e m e n ts in c o n n e c t i o n t h e r e w ith .” P e t it io n e r s u b m its th a t th e s ta tu s o f s c h o o l d is tr ic ts in M ich ig a n is n o t a p p re c ia b ly d i f fe r e n t f r o m th a t o f s c h o o l d is tr ic ts in o t h e r S ta te s , n o t w i t h stand ing v a r ia n ce s in l o c a l la w s . I f a n y th in g , l o c a l s c h o o l d is tr ic ts in M ich ig a n e n joy a g re a te r d e g r e e o f a u t o n o m y th a n in o t h e r S ta te s . S e e , e .g . , t h e d e scr ip tio n o f t h e h is to r y a n d s ta tu s o f s c h o o l d is tr ic ts in T e x a s , in United States v State o f Texas, 3 2 1 F .S u p p 1 0 4 3 (E D T e x a s , 1 9 7 0 ) ; a n d th e f in a n c ia l d e p e n d e n ce o f s c h o o l d is tr ic ts in V ir g in ia u p o n th e lo c a l m u n ic ip a l i ty , d e scribed in Bradley v R ichm ond, 4 6 2 F 2 d 1 0 5 8 ( 1 9 7 2 ) . P la in t if fs m a y b e h e a rd t o sa y th a t th e im p le m e n t a t io n o f a m e t r o p o l i tan d e s e g re g a t io n p la n w il l h a v e n o e f f e c t o n th e v ia b i l i t y o f l o c a l c o n t r o l . O ne has o n ly t o e x a m in e th e m o d i f i c a t io n s t o th e a d m in is tra t iv e s t ru c tu re o f sch o o ls r e c o m m e n d e d b y th e d is tr ic t c o u r t ’ s D e s e g r e g a t io n P a n e l a n d th e State S u p e r in t e n d e n t as b e in g n e c e s s a ry in o r d e r t o e f f e c t u a t e im p le m e n t a tion o f th e p la n , t o r e a liz e th at th e v ia b i l i t y o f th e lo c a l s c h o o l d is tr ic t w o u ld be d e s tr o y e d . S ee th e r e c o m m e n d a t io n s o f th e S ta te S u p e r in te n d e n t at ( la 2 6 7 ) an d la 2 8 5 ) a n d p a r t ic u la r ly th e r e c o m m e n d a t io n s r e g a rd in g th e final p eriod o f d e s e g r e g a t io n , at ( la 2 7 8 ) . 50 T h e s ig n ifica n ce o f th e lo ca l s c h o o l d is tr ict w as re co g n iz e d in San Antonio v Rodriguez, supra. M r. Ju stice P o w e ll, w ritin g fo r a m a jo r ity o f th e C o u r t , a c k n o w le d g e d th e re lev a n ce o f th e local s c h o o l d istr ict in T ex a s , as fo l lo w s : “ In an era th at has w itn essed a co n s is te n t tren d tow ard ce n tra liza tio n o f th e fu n c t io n s o f g o v e rn m e n t, lo c a l sharing o f re sp o n s ib ility f o r p u b lic e d u c a t io n has survived . T h e merit o f lo c a l c o n t r o l w as r e c o g n iz e d last T erm in b o t h th e m ajor ity and d issen tin g o p in io n s in W right v . C o u n c il o f th e C ity o f E m p o r ia , 4 0 7 U .S . 4 5 1 , 3 3 L E d 2 d 5 1 , 9 2 S C t 2 1 9 6 (1972 ). M r. Ju stice S tew art sta ted th ere th at ‘ [ d j i r e c t c o n tr o l over d e c is io n s v ita lly a ffe c t in g th e e d u c a t io n o f o n e ’s ch ild ren is a n eed that is s tro n g ly fe lt in o u r s o c ie t y . ’ Id ., at 4 6 9 . The C h ie f Ju stice , in h is d issen t, agreed th at ‘ [ l j o c a l co n tro l is n o t o n ly vital t o c o n t in u e d p u b lic su p p o rt o f th e sch o o ls , but it is o f ov err id in g im p o r ta n ce fr o m an e d u ca t io n a l standpoint as w e l l . ’ Id ., at 4 7 8 , 3 3 L E d 2 d 5 1 .” t96] * * * “ . . . A lth o u g h p o l ic y d e c is io n -m a k in g an d su p erv is ion in cer tain areas are reserved t o th e S ta te , th e d a y -to -d a y authority o v e r th e ‘ m a n a g em en t an d c o n t r o l ’ o f all p u b lic elementary an d s e co n d a ry s c h o o ls is sq u a re ly p la ce d o n th e lo ca l school b o a rd s . It ca n n o t b e ser iou s ly d o u b te d that in T e x a s ed u ca tion re m ains largely a lo c a l fu n c t io n , an d th at th e preponderating b u lk o f all d e c is io n s a ffe c t in g th e s c h o o ls are m a d e and exe cu te d at th e lo c a l leve l, gu aran teein g th e greatest participa t io n b y th o se m o s t d ire c t ly c o n c e r n e d .” I97] T h e S tate o f M ich igan , as m o s t o th e r states, has crea ted a system o f p u b lic e d u ca t io n , gran tin g th e fro n t-lin e re sp o n s ib ility therefor to th e rep resen ta tives e le c te d b y th e c o m m u n ity w h o se children 96 [ 9 6 ] s an A n to n io v . R odriguez, supra, 3 6 L .E d .2 d at 5 2 . I9 7 ! Id ., at 5 4 , n . 1 0 8 . 51 are t o b e e d u ca te d . In establish in g th e b a s ic stru ctu re fo r such a system , a p rim a ry and leg itim ate in terest w as p r o m o te d b y the S t a t e - lo c a l c o n tr o l ov e r p u b lic e d u ca tio n . “ O n ly w h ere state a c tion im p in ges o n th e e x e rc ise o f fu n d a m en ta l c o n stitu t io n a l rights or lib erties m u st it b e fo u n d t o have ch o se n th e least restrictive alternative. ” 198] In d e e d , th e S tate o f M ich igan c o u ld have, and c o u ld n o w , volu n tarily e x e rc ise its legislative d iscre t io n b y ch o o s in g w h at th e p la in tiffs w o u ld v ie w as a “ less restrictive a ltern ative” : a ffirm a tively req u ir in g a rep resen ta tive racia l m ix in all s ch o o ls , in stead o f m aintaining lo c a l ly estab lish ed and fu n c t io n in g s c h o o l d istricts fo r the e d u ca t io n o f stu d en ts in th e lo c a l c o m m u n ity . I " ! S h ort o f the n ecessity o f d ism an tlin g o f th e p resen t e d u ca tio n a l adm inistra tive stru ctu re , b e ca u se th e stru ctu re it s e lf is w h at im p in ges o n th e exercise o f fu n d a m e n ta l co n s t itu t io n a l rights, h o w e v e r , th e S ta te ’s interest in m a in ta in in g th e m o n th e sam e basis as th e y w ere or ig in ally crea ted has a ra tion a l re la tion sh ip w ith th e leg itim ate state purpose o f lo ca l c o n tr o l , an d is n o t p ro h ib ite d b y the F o u rte e n th A m en dm en t. C o n se q u e n tly , unless it can b e establish ed that b y creating a n d /o r m a in ta in in g a state w id e system o f a u to n o m o u s and g eog ra p h ica lly in d e p e n d e n t s c h o o l d istricts , M ich igan has d e prived o r in te r fe re d w ith a fu n d a m en ta l co n s titu t io n a l right o f P laintiffs, it m u st b e c o n c lu d e d th at the state w as u n d e r n o a f firmative d u ty t o se lect th e “ least restrictive a ltern ative .” In th e ir a p p ro a ch t o th e q u e stio n o f th e legal status o f s c h o o l districts u n d e r M ich igan law , P la in tiffs and th e C o u rt o f A p p e a ls appear to p r o p o s e that all S tates have a co n s titu t io n a l d u ty t o take affirm ative a c t io n , w h en ev er p o ss ib le , t o m a x im ize in teg ra tion in education ; and b eca u se s c h o o l d istricts are n o t sovereign en tities , the State had th e d u ty to o rd e r ch an ges in b o u n d a ry lines o f its school d istricts, so as t o e ffe c tu a te th e m a x im iza tio n o f in tegrated [9g j San A n ton io v . R odriguez, supra, at 5 3 . See q u o t a t io n f r o m Swann, p g s . 3 6 - 3 7 , supra. 52 schooling throughout the Stated100] Petitioner submits, how ever, that the affirmative duty under Green, l1011 to maximize in tegration of schools wherever possible, in the process of . . .“ the dismantling of well-entrenched dual systems. . .” in historically dual school system states, is to be distinguished from the prohibi tion against taking any intentionally discriminatory action that may cause a segregated condition in schools; which is the standard applicable to non-dual states. As stated by Mr. Justice Brennan in Keyes, supra, referring to the Briggs v Elliott, t102! interpretation of no “affirmative duty to integrate” : “ But Green . . . rejected that interpretation insofar as Green expressly held that ‘School boards . . . operating state- compelled dual systems were nevertheless clearly charged [by Brown II] with the affirmative duty . . . to convert to a uni tary system. . . (emphasis added,____ U.S. at____ , 37 L.Ed.2d at 559, n. 11) As further stated in the text of Keyes that followed, “This is not a case, however, where a statutory dual system has ever [100] jn their opening brief to the Court o f Appeals, Plaintiffs argued, in referring to the maintenance of school district boundary lines, at page 105, “ To us, the power o f the Courts to require changes in schemes whose uncon stitutional effects were inevitable and foreseeable, and which have no non- discriminatory rationale, is self-evident.” In addition, the Court of Appeals stated, (174a), “ If school boundary lines cannot be changed for an unconsti tutional purpose, it follows logically that existing boundary lines cannot be frozen for an unconstitutional purpose.” [101] Green v County School Board o f New Kent County, 391 U.S. 430, 20 L.Ed.2d 716 (1968). [ i ° 2 ] 1 3 2 F.Supp 776 (1955). 53 existed, t103! The question of affirmative duty is further ad dressed in Swann at pg. 15: “The objective today remains to eliminate from the public schools all vestiges of state-imposed segregation *** That was the basis for the holding in Green that school authorities are ‘clearly charged with the affirmative duty’. . . . ” But there never has been state-imposed segregation in the State of Michigan, by constitution, statute or general policy, and the entire history of the State of Michigan on this score does not speak otherwise. While the duty to take affirmative steps to maxi mize integration within a school district may, under Keyes, exist where officials of a single school system have committed such sig nificant and pervasive discriminatory acts as to constitute it a dual system, the State of Michigan has never been dual, thereby negat ing any affirmative duty with respect to the State. Further instructive on this point is the following admonition in Swann: ̂ ̂ Petitioner believes that Mr. Justice Powell would concur with the re sult herein suggested, even under the view that the distinction between de jure and de facto segregation should be abolished. See Keyes, supra, dissent ing opinion-------- U.S-------- , 37 L.Ed.2d at 568, where Mr. Justice Powell states, at pg. 584: “ The neighborhood school does provide greater ease of parental and student access and convenience, as well as greater economy of public administration. These are obvious and distinct advantages, but the legitimacy o f the neighborhood concept rests on more basic grounds. (26) 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 o f the surrounding neighborhood. Community support, interest and dedication to public schools may well run higher with a neighbor hood 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 prople. I pass no judgment on this viewpoint, but I do believe that this Court should be wary o f compelling in the name of constitutional law what may seem to many a dissolution in the traditional, more personal fabric of their public schools. do not imply that the neighborhood concept must be embodied in every school system. But where a school board has chosen it, federal judges should accord it respect in framing remedial decrees.” See footnotes 21 & 23, supra. 54 “ At some point, these school authorities and others like them should have achieved full compliance with this Court’s deci sion in Brown I. The systems would then be ‘unitary’ in the sense required by our decisions in Green and Alexander. 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. 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.” 402 US at 31; 28 L.Ed.2d at 575. Thus, once a formerly dual state or school district becomes “uni tary” , there is no longer a Green affirmative duty on the part of school officials. However the State of Michigan has always been unitary, and consequently, under Swann, the school authorities never were charged with the responsibility to “make year-by-year adjustments” to school district boundary lines in order to take into account population shifts. Although Michigan school district boundary lines have not necessarily been “ frozen” , I105' neither has there been an affirmative duty on the part of the State to modify them, and therefore, the decision as to how, when and if school districts will be modified lies within the exclusive province of the Legislature of the State of Michigan. There being a legitimate state interest in maintaining the in tegrity of the local school district so that it will have the primary responsibility for the education of its resident students, and be cause the State of Michigan has no constitutional duty to take af firmative action to adjust school district boundary lines so as to f 105l See note [100], supra. 55 periodically respond to racial population shifts, local school dis tricts cannot simply be ignored in order to attain the District Court’s desired social goal. Petitioner also submits that under Keyes, local school dis tricts in Michigan have yet another significance; that is, they may appropriately be viewed as separate, identifiable and unrelated to each other. One aspect of the holding in Keyes is that even within a single school district that has practiced deliberate racial segrega tion in a significant or substantial portion of its system so as to render it a dual system, there may be “natural boundaries” within the system so as to divide it into “separate, identifiable and unrelated units” . In such case, the Green affirmative duty will not apply with respect to the unrelated area, where no causal con nection between the discriminatory actions and the segregated condition in the unrelated area is established. In discussing the question of whether several areas in Denver were indeed separate, identifiable and unrelated, the Court queried whether there was a high degree of interrelationship among the schools in a certain area. It appears that the logic behind such in quiry is fully applicable to the instant case. It may be that there are geographical and natural boundaries in the Detroit metropolitan area so as to render Detroit and its outlying districts separate, identifiable and unrelated for that rea son, and only a trial on that issue would establish that fact. Peti tioner submits, however, that there is no necessity for building a further record in this case, for it is the autonomous nature of local school districts in Michigan that renders them separate, identifi able and unrelated. Within any single school district, all of its schools are admin istered on a day-to-day basis by the same administrative staff, under operational policies established by the same Board of Edu cation. Children are routed from the various elementary and junior high schools to the high schools within the same system, and changes in those feeder patterns, for deliberately discriminatory purposes, will necessarily have a reciprocal effect on the other schools within the system-because they are interrelated. Changes in attendance zones will also have the same effect; the gerryman- 56 dering of an attendance zone necessarily causing a child to attend one school instead of another within the same system. To the ex tent it may be established that families have a tendency to select residences near schools to which their children are assigned, such discriminatory acts might then have the effect of encouraging Black or White families to select homes near one school or an other; [1°61 but always within the same school system. These re sults arise out of the commonality of jurisdiction with respect to the operation of such schools. In the event school district boundary lines were gerryman dered for deliberately discriminatory reasons, or in the event Black and White students were exchanged across school district lines for the purpose of maintaining one race schools within the respective districts and, most importantly, save in exceptional situa tions, t109l there is no interrelationship of their respective student bodies. Changes in attendance zones, feeder patterns, and Under Michigan law local school districts have the responsi bility to educate the students resident within their own bound aries, and no others. [108 ̂ There is no administrative or opera tional interrelationship between several geographically proximate districts and, most importantly, save in exceptional situa tions, t1091 there is no interrelationship of their respective student bodies. Changes in attendance zones, feeder patterns, and [106] jf one Qf thg potential effects o f discriminatory school assignments is to cause or maintain a concentration o f Blacks in certain areas, the phenome non has apparently not occurred within Detroit. This is indicated by the rapid outward growth o f blacks into previously all White neighborhoods during the “ critical years” . The Black population in Detroit increased from 16.2% in 1950 to 43.9% in 1970. If anything, it would appear that discriminatory acts, if any, were totally ineffective in this regard and the Black population in De troit rapidly expanded to make it a city with a predominantly Black student body; not because o f discriminatory factors, but because of the lack of them. [107] But oniy jf school assignments do, in fact, have the “ profound recip rocal effect on the racial composition o f residential neighborhoods” as ob served in Keyes, relying on Swann. With all due respect, however, Petitioner seriously questions the validity o f this statement as a matter o f actual fact, as opposed to sociological theory. Substantive authority that this phenomenon exists to any significant extent appears to be lacking. [108] Jones v Grand Ledge Public Schools, 349 Mich 1 (1957). [109] por example, pupil exchanges for the education o f physically and mentally handicapped children. 57 the location of a new school within one school district could not possibly have a reciprocal effect upon the residential patterns in another school district, due to the lack of interrelationship be tween them. I1101 The assignment of Black students in Detroit to a predominantly Black high school rather than to a predominantly White high school, could not conceivably have had the effect of deterring Black families from moving into another city outlying from Detroit, because so long as such students remained residents of Detroit, they could not have attended school in such outlying area in the first place. In summary, due to their autonomy of operations, one from the other, Petitioner submits that local school districts are in fact “ separate, identifiable and unrelated units” . — C — Summary as to New Constitutional Rights Plaintiffs have sought to have the lower courts judicially sanc tion the social goal which they wish to attain — racial balance in all schools in the Detroit metropolitan area. In responding to the Plaintiffs request, however, the lower courts have failed to pro perly assess the constitutional violations which were alleged to have occurred, so as to determine if there was a judicially cogni zable factual predicate for the implementation of the proposed metropolitan relief. Because the above analysis indicates that such predicates do not in fact exist, it only follows that new constitu tional violations have been declared. Additional analysis reveals, however, that the racial identifiability theory is inapposite to Brown, and there is also no affirmative constitutional duty im posed on the State to modify the manner in which it has chosen to educate its children, through the locally controlled school district. Thus, Plaintiff’s desired social and educational ends may not be judicially obtained through the guise of the enforcement of Plaintiffs will undoubtedly argue that the interrelationship lies in the ■act of ultimate State control over school districts. The answer is, however, that this is only theoretical control (as might be the case with actual adminis trative power of a single school board over geographically unrelated units within a single district), as opposed to functional control, which simply does not exist at the State level, in any significant manner, with respect to the operations of local districts. 58 constitutional rights, because no violation of such rights has oc curred which would authorize judicial interference of the scope requested. In such regard, Plaintiffs are cautioned to accept the following advice from Rodriguez, supra: The ultimate wisdom as to these and related problems of education is not likely to be divined for all time even by the scholars who now so earnestly debate the issues. In such circumstances the judiciary is well advised to refrain from in terposing on the States inflexible constitutional restraints that could circumscribe or handicap the continued research and experimentation so vital to finding even partial solutions to educational problems and to keeping abreast of ever changing conditions.” 36 L. Ed. 2d at 49. * * * “ We hardly need add that this Court’s action today is not to be viewed as placing its judicial imprimatur on the status quo. * * * But the ultimate solutions must come from the lawmakers and from the democratic pressures of those who elect them.” 36 L. Ed. 2d at 57 & 58. V VIO LATIO N OF PETITIONER’S RIGHTS O F DUE PROCESS In the Introduction to the Argument of this Brief, Petitioner noted the fact that the lower courts and Plaintiffs prefer to com mence the discussion of the issues in this case with the question of remedy rather than that of violation. The question of the infringe ment of Petitioner’s rights of due process is also subject to this same problem of basic initial perspective, t111! If the question is solely one of the nature of the multi-district remedy that is to be [1 U ] a s stated in the dissenting opinion of Judge Kent: “ The suggestion by the District Court that the suburban school districts were only involved in the remedy points up the trap into which both the District Court and the majority o f this Court have fallen in failing to recognize the necessity for finding a violation before a remedy may be imposed. (238a emphasis added) 59 implemented in response to their “racial identifiability” thesis, the problem of Petitioner’s right to be heard on all matters, including violation questions, may be somewhat limited. Because no metro politan remedial order can permissibly be implemented without proof of some intentional violation having a causal effect within Petitioner’s school district, however, there is absolutely no way to avoid the fact that Petitioner is an essential and necessary party with respect to all issues in this cause — remedy and violation. In order to adequately present to the Court the basis upon which Petitioner claims a denial of due process, further elabora tion of the proceedings in the District Court is necessary. During the course of the trial on the merits the District Judge first acknowledged the possibility of a metropolitan plan issue in this case, when he stated from the bench, on June 24, 1971: . . [A] s I have said to several witnesses in this case: ‘How do you desegre gate a black city, or a black school system;’ ” (243a) On July 17, 1971, a Detroit homeowners group, Magdowski, et al., (which had previously been permitted intervention, without conditions), filed a Motion to Join Additional Parties Defendant, (la 119), request ing the District Court to join the 84 school districts in Wayne, Oakland and Macomb Counties so that “ complete relief [can] be awarded the plaintiff” , because without such districts there would be an “unconstitutional burden on the intervening defendant, in that the resulting school district of the City of Detroit would be and will remain as established by the proofs already submitted an inferior school district.” (Ia 120). This motion was never ruled upon by the Court, and was deemed by the Court to be withdrawn almost one year later. Thus, prior to completion of the trial on the merits, the District Court expressed the possibility that it might find it necessary to imple ment relief against Petitioner, and in addition, had before it a mo tion to add Petitioner as a party. The District Court followed its September 27, 1971 Ruling on Segregation with an Order on October 4, 1971 requiring the Defendants Milliken, et al, to submit a “Metropolitan Plan of De segregation” , within 90 days. With the filing of such a Plan by the State Department of Education on January 4, 1972, Petitioner and other suburban school districts were suddenly confronted 60 with the dilemma of either being subjected to a judicial remedy without ever having had the opportunity to be heard, or of seeking intervention. Because it appeared that the District Court intended to implement relief against Petitioner without offering it a “day in court” , Petitioner sought intervention, which was granted on March 15, 1972. (Ia 204). This grant of intervention proved to be illusory indeed, for the District Judge imposed extremely restrictive conditions on the participation of the intervenors (Ia 206-207), even though inter vention had been granted as a matter of right, pursuant to Fed. R. Civ. P. 24(a). Then, a rapid succession of events took place as follows. On the day intervention was granted, the District Court ad vised the intervening school districts that they would be required to adhere to the March 22, 1972 date the Court had previously set for filing briefs on the legal propriety of a metropolitan plan of desegregation. Consequently, Petitioner and the other intervening school districts had exactly one week to prepare and present to the District Court their legal arguments with respect to such an important and complex issue, in the form of written briefs, and without the benefit of oral argument. On March 24, 1972, only two days following the due date for such briefs, the District Court issued its Ruling on Metropolitan Plan (48a). Seven separate briefs totalling 112 typewritten pages were simultaneously filed on March 22, t112l and yet the District Court wrote, typed, and dis tributed its Ruling within 36 hours after such briefs were filed. On March 28, 1972, the District Court commenced taking testimony on a metropolitan plan, which was the first opportunity which the intervening school districts’ attorneys had to appear in the District Court to participate in the proceedings. Only two hours later the District Court distributed its Ruling on Detroit- Only Plans (53a); concluding that a metropolitan plan was not only proper, but necessary. Thus, by the District Court’s control over the timing of events which occurred upon intervention, Petitioner was effec- In addition, at this time the United States filed a 27 page memoran dum in connection with its Motion to Intervene. 61 tively foreclosed from any meaningful participation in the pro ceedings relative to the necessity or propriety of a metropolitan plan. Indeed, one can only conclude that the District Court had in fact determined prior to intervention that it would be necessary to desegregate the Detroit Public Schools by involving Petitioner’s children, and consequently the fundamental predicates for the im position of judicial sanction-claim, proof, finding of a wrong and causation-were either ignored by the District Court or inten tionally given minimal consideration. Under Michigan law, Petitioner is a municipal body corpor ate, having the power to sue and be sued, and having an indispen sable right to be heard with respect to any proceedings involving issues affecting the education of its resident students.!113] This was acknowledged by the District Court in granting intervention of right under Fed. R. Civ. P. 24(a) and by the Court of Appeals in ordering joinder of the remaining districts under Fed. R. Civ. P. 19. As such, Petitioner was and is entitled to fundamental rights of due process of law, including the opportunity to be heard in a meaningful way: “A fundamental requirement of due process is ‘the opportunity to be heard.’ . . . It is an opportunity which must be granted at a meaningful time and in a meaningful manner.” Armstrong v Manzo, 380 U.S. 545, 522 14 L. Ed. 2d 62(1965). “We have frequently emphasized that the right to con front and cross-examine witnesses is a fundamental aspect of procedural due process.” Jenkins v McKeithen, 395 U.S. 411, 428 23 L. Ed. 2d 404 (1969)!] 141 However, Petitioner never was given an opportunity to participate in the trial of the essential issues concerning the violations which form the predicate for Petitioner’s inclusion in a plan of metro- [U3] Mich. Comp. Laws Annotated, §340.352. 11141 See also In Re Oliver, 33 U.S. 257 92 L. Ed. 682 (1948) and Railroad Commission o f Calif, v. Pacific Gas & Electric, 302 U.S. 388 82 L. Ed. 319 (1938). 62 politan relief. I115 ̂ The failure of the District Court to afford Pe titioner an opportunity to be heard, when these issues which so vitally affect it were being judicially determined, constitutes a blatant denial of fundamental due process of law guaranteed under the Fifth amendment. The Court of Appeals did not address itself to the issue of Petitioner’s denial of due process by the District Court, but only to the question of the applicability of Fed. R. Civ. P. 19, so as to require the inclusion of all other potentially affected school dis tricts before the remedy is implemented. The Court of Appeals refused, however, to vacate the District Court’s order that there would ne a metropolitan style remedial order implemented, af fecting the outlying school districts, thus, the Court of Appeals actually compounded the due process problem by ordering additional outlying districts to be joined, as indispensable parties, and at the same time denying them the right to introduce any evidence on the basic issues of whether or not the violation was in fact of such a scope as to require the implementation of a plan substantially affecting the educational process of their children. The error committed by the lower courts with respect to both the intervenor school districts, and the newly joined districts, was separately expressed by all three dissenting judges, as follows: “However, in its opinion the majority did provide for amend ment o f pleadings on remand, making new party defendants, for intervention, and for offering additional testimony. These provisions are wholly illusory with respect to the issues of segregation, the ‘Detroit-Only plan’ and the ‘Metropolitan plan’, as the opinion expressly excludes these items from reconsideration upon the remand. ” (Judge Weick, 206a, em phasis added). * * * [115] p or an exampie 0f a case where such rights were properly safe guarded, see Higgins v Bd. o f Educ. o f City o f Grand Rapids, supra, where the District Court ordered joinder as parties defendant 11 suburban school dis tricts prior to the trial on the merits of the de jure segregation claim. The District Judge stated: “ Thus all parties who might be affected by any judg ment o f the court were given the opportunity to defend on the issues of constitutional violations charged against them by the plaintiffs.” Slip opinion, pg. 3. See also, Bradley v. School Board o f the City o f Richmond, 338 F.Supp. 67 (E.D. Va. 1972). 63 The situation in this case is pointed up by the language found at 3B Moore’s Federal Practice %24.16[4], 2d Ed. “It would be meaningless to give him an absolute right to intervene in order to protect his interest, if once in the proceeding he were barred from raising questions necessary to his own protection.” (Judge Kent, 237a, emphasis added). * * * To permit these additional parties to be heard only in the re stricted sense set forth in the majority opinion is to deny them basic rights guaranteed not only by Rule 19, Federal Rules o f Civil Procedure, but by the Constitution itself. ” (Judge Miller, 240a, emphasis added). As indicated by his statement from the bench on June 24, 1971, 11161 it was apparent to the District Judge at that time that he might find it necessary to include suburban districts in a desegregation order. A few weeks later, a Motion to join all outlying school districts was filed. At this stage of the proceedings it was still quite feasible for all outlying school districts to have had full and meaningful participation with respect to all principal issues ultimately ruled on by the Court. Judge Kent expressed the problem as follows: “The errors to which we have already alluded were brought about by the failure on the part of the District Court to re quire that all interested parties be brought into the case at the earliest appropriate moment. I116 1171 (230a, emphasis in original) The presence of the State Defendants is no answer to the failure to join Petitioner and other school districts against whom relief might be granted. Petitioner is an independent municipal body corporate, and can be represented in this action by no other [116] Quoted above, at pg. 59. [117] jn addition to Petitioner and other intervening school districts, the 18 non-intervening districts are similarly affected. As Judge Weick observed of the 18 districts, “ They have surely been deprived of their property rights, not only without due process of law, but without any process of law.” (207a). 64 party. This basic proposition was last affirmed in the case of Zenith Radio Corp. v. Hazeltine Research, 395 US 100, 23 L.Ed. 2d 129 (1969), which involved the entry by the District Court of a judgment against a parent corporation, where the only defendant before the Court was a wholly owned subsidiary of the parent. There existed a commonality of officers, and the defendant sub sidiary had even entered into a stipulation that the parent and the subsidiary would be “ considered as one entity” for purposes of the trial. In holding that the parent corporation could not be represented by its subsidiary in the cause, however, this Court stated, at p. 110: “ It is elementary that one is not bound by a judgment in personam resulting from litigation in which he is not desig nated as a party or to which he has not been made a party by service of process.” Petitioner submits that the principle of Hazeltine is fully appli cable to the instant case, and the errors committed by the District Court in denying Petitioner due process of law are not mitigated by the presence of Defendants Milliken, et al. [1181 118 [118] As an indication o f the inability o f the State Defendants to represent the interest of Petitioner, at the same time that Petitioner was before the Dis trict Court in connection with the metropolitan remedy hearings, the Peti tioner was engaged in the trial o f a suit brought against Petitioner and two other school districts challenging the constitutionality o f Michigan’s system of financing public education. Governor v State Treasurer, supra. 65 CONCLUSION For the foregoing reasons it is respectfully submitted that the judgments of the courts below should be reversed. 11191 Respectfully submitted, DOUGLAS H. WEST 3700 Penobscot Building Detroit, Michigan 48226 962-6485 Counsel for Petitioner THOMAS E. COULTER, and HILL, LEWIS, ADAMS, GOODRICH &TAIT 3700 Penobscot Building Detroit, Michigan 48226 962-6485 Of Counsel December 28, 1973 U19] Should this Court determine that a remand of this cause is necessary, it should also be made aware of an additional problem which may be an ap propriate subject in an Order o f Remand. In their Brief to the Court of Ap peals, Petitioner school districts asserted that the District Court was without jurisdiction to order implementation o f a Metropolitan Plan of Desegregation for the reason that the granting o f such relief would necessarily constitute the enjoining, as a result o f the unconstitutionality thereof, o f the enforcement, operation or execution o f certain provisions of the Michigan Constitution and statutes of statewide application, in pursuance of which all independent Mich igan school districts are organized and operated. The Court of Appeals, how ever, chose to totally ignore this problem notwithstanding the provisions of 28 U.S.C. §2281 et seq. requiring the convening o f a District Court of three judges. laa CONSTITUTIONAL PROVISIONS, STATUTES AND RULES INVOLVED CONSTITUTIONAL PROVISIONS United States Constitution, Amendment V provides: AMENDMENT V - CAPITAL CRIMES; DOUBLE JEOP ARDY; SELF-INCRIMINATION; DUE PROCESS; JUST COMPENSATION FOR PROPERTY No person shall be held to answer for a capital, or other wise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against him self, 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. United States Constitution, Amendment XIV, Section 1, provides: Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or proper ty, without due process of law; nor deny to any person with in its jurisdiction the equal protection of the laws. Michigan Constitution of 1963, Art. 8, §2 provides in part: Free public elementary and secondary schools; discrimina tion. SEC. 2. The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law. Every school district shall provide for the education of its pupils without discrimination as to religion, creed, race, color or national origin. 2aa Michigan Constitution of 1963, Art. 8, §3 provides, in part: State board of education; duties. Sec. 3. Leadership and general supervision over all public education, including adult education and instructional pro grams in state institutions, except as to institutions of higher education granting baccalaureate degrees, is vested in a state board of education. It shall serve as the general planning and coordinating body for all public education, including higher education, and shall advise the legislature as to the financial requirements in connection therewith. UNITED STATES STATUTES Judicial Code, 28 U.S.C. § 1254(1) provides: 1254. Courts of appeals; certiorari; appeal, certified ques tions Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods; (1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree; Judicial Code, 28 U.S.C. § 1292(b) provides: §1292. Interlocutory decisions (b) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate terminationof the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay pro- 3aa ceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order. Judicial Code, 28 U.S.C. §2281 provides: §2281. Injunction against enforcement of State statute; three-judge court required An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the en forcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determin ed by a district court of three judges under section 2284 of this title. MICHIGAN STATUTES Act 34, Sec. 28, Mich. Pub. Acts of 1867 provides: (2271) Sec. 28. All residents of any district shall have an equal right to attend any school therein: Provided, That this shall not prevent the grading of schools according to the in tellectual progress of the pupils, to be taught in separate places when deemed expedient. Act 319, Part II, Ch. 2, Sec. 9, Mich. Pub. Acts of 1927, provides: SEC. 9. All persons residents of any school district, and five years of age, shall have an equal right to attend any school therein; and no separate school or department shall be kept for any person or persons on account of race or color: Provided, That this shall not be construed to prevent the grading of schools according to the intellectual progress of the pupil, to be taught in separate places as may be deemed expedient. 4aa Act 306, Mich. Pub. Acts of 1937, provides: A N A C T to p rom ote the sa fe ty and w e lfa re o f the p e o p le o f the state of M ich igan by reg u la tin g the co n stru ctio n o f certa in p u b lic b u ild in gs , and to define the class o f b u ild in gs affected b y th is a c t ; to p rescr ib e th e powers and duties o f the fire m arsh a l w ith resp ect th e re to ; to p rescr ib e penalties fo r the v io la tion o f th is a c t ; an d to repea l a ll a cts an d p a rts o f acts , general, lo ca l and specia l, in con s is ten t w ith or c o n tra ry to the p ro v is io n s o f this act. The People of the State of Michigan enact: P u b lic or p r iva te sch oo l b u ild in g s ; con stru ction regu la tion s an d require m ents. S ection 1. N o sch ool b u ild in g , p u b lic o r p r iva te , o r a d d itio n s th ereto , shall h erea fter be erected in the sta te o f M ich iga n ex cep t it be in co n fo rm ity with the fo l lo w in g p rov is ion s o f th is a c t : 1. T h is a ct sh a ll a p p ly to s ch oo l b u ild in gs h av in g m ore than one story. I f it shall be design ed fo r class room s in th e basem ent, then th e basement sh a ll be con sidered as on e floor. S ch oo l gym n asiu m s, s ch oo l ca fe ter ia s , school a u d itor iu m s and sch oo l p laces o f assem bly sh a ll be sp e c ifica lly in clu d ed under th e p rov is ion s o f th is act. 2. A ll p lan s and sp ecifica tion s , fo r b u ild in g s u n d er the scop e o f th is act, sh a ll be p repared by, an d the co n stru ctio n su pervised b y , an arch itect or en gin eer wdio is reg istered in th e sta te o f M ich igan . 3. A ll w a lls, floors, p a rtit io n s and ro o fs sh a ll be co n stru cte d o f fire-resist in g m ateria ls such as stone, b r ick , tile , con cre te , gypsu m , steel o r sim ilar fire- res is tin g m ateria ls. A ll steel m em bers sh a ll be p ro te c te d b y a t lea st three- fo u rth s o f an in ch o f fire -resistin g m ateria l. 4. N o wTood la th o r wTood fu rr in g sh a ll be used. Howmver, these regula t io n s shall n ot be con stru ed as p ro h ib it in g the use o f w o o d flooring on m ason ry sub floors, o r the use o f w o o d sleepers, w o o d cab in ets , o r w ood trim. 5. E very room e n clos in g a h eatin g u n it sh a ll be en closed b y w a lls o f fire- res is tin g m ateria ls an d sh a ll be equ ipped wdth a u tom a tica lly -c los in g fire- d o o r s ; and sa id h eatin g u n it sh a ll n o t be lo ca te d d ire c t ly ben eath a class r o o m : Provided further, T h at in an y sch oo l w'here n a tu ra l gas o r any other k in d o f gas shall be used fo r h ea tin g p u rp oses sa id gas sh a ll be chemically treated b e fore b e in g used in such a m an n er as to g ive a very distinguishable o d o r i f a n y leak shou ld develop in the h ea tin g system . 6. In gym nasium s, fire -p roofin gs m ay be om itted fro m th e trusses and p u rlin s i f th ey are m ore th an sixteen fee t off the m ain flo o r le v e l ; also, from the steel su p p orts o f the ru n n in g tra ck . T he ru n n in g tra ck sh a ll be con stru cted o f w ood n ot less than twTo in ch es th ick . I t sh a ll be the d u ty of the a rch itect o r en gin eer to p ro v id e adequ ate ex its . In a ll cases th ere shall be a t least tw o sta irw ays an d the d ista n ce fr o m the d o o r o f an y class or as sem bly room to a s ta irw a y o r ex it sh a ll n o t exceed on e h u n dred feet. A rch ite c t or engineer, respon sib ilities. Sec. 2. T he a rch ite ct o r en g in eer p re p a r in g the p la n s an d specification o r su perv isin g the co n stru ctio n o f an y such b u ild in g sh a ll be responsibe fo r con stru ctin g the b u ild in g o f adequ ate stren gth so as to res is t fire, an con stru ctin g the b u ild in g in a w ork m an lik e m anner. 5aa Inspection d u rin g con stru ction b y state fire marshal, pow ers. Sec. 3. T he state fire m arshal shall inspect any such bu ild in g to determ ine Aether o r n ot the con stru ction thereof com plies w ith the provisions o f this let. E a ch b u ild in g shall be inspected by the state fire m arshal at least tw ice luring con stru ction , one in spection to be m ade o f the fram e w ork o f the milding p r io r to p lasterin g and one in spection shall be m ade on the com pletion o f the b u ild in g . W ith respect to such inspections, the state fire Marshal sh a ll have the sam e pow ers as set fo rth in a ct num ber one hundred w enty-eiglit o f the p u b lic acts o f nineteen hundred fifteen, as am ended, be ing section s s ix h undred three to s ix hundred tw enty, inclusive, o f the corn- pled la w s o f n ineteen hundred tw enty-nine. | V iolation o f act b y arch itect or engineer, penalty. Sec. 4. T he licen se or reg istra tion o f any arch itect or engineer convicted if v io la tin g any o f the prov isions o f this a ct shall be revoked. In addition , any a rch itect o r engineer v io la tin g any o f the provisions o f this a ct shall be kilty o f a m isdem ean or and upon con v iction shall be punished as provided |y the law s o f th is state. Severing clause. ' Sec. 5. S h ou ld any p rov is ion or section o f this a ct be held to be invalid or any reason , such h o ld in g shall not be construed as a ffecting the va lid ity )f any rem ain in g p ortion o f such section or o f th is act, it being the leg isla te in ten t th at th is a ct shall stand, n otw ith stan d in g the in va lid ity o f any inch p ro v is io n o r section. Exem ption. Sec. 5a. T he p rov is ion s o f th is a ct shall n o t ap p ly to the con stru ction or Aeration o f an y ru ra l sch ool bu ild in g or gym nasium w here the to ta l cost Hereof does n o t exceed five thousand dollars. Repeal. Sec. 6. A ll acts and p a rts o f acts, general, lo ca l and special, are hereby niperseded an d repealed in so fa r as in con sistent w ith the provisions o f this lot. This a ct is o rd ered to take im m ediate effect. | Act 231, Mich. Pub. Acts of 1949, provides: AN ACT to amend sections 1. ia. 2. 3 and Sa of Act No. 306 of the Public Acts of 1937, • entitled as amended “An act to promote the safety, welfare and educational interests of tie people of the state of Michigan by regulating the construction, reconstruction and re modeling of certain public or private school buildings or additions thereto, by regulating He construction, reconstruction and remodeling of buildings leased or acquired for school Purposes, and to define the class of, buildings affected by this act; to prescribe the powers ltd duties of the superintendent of public instruction, the state fire marshal, architects, WRineers and school board members with respect thereto; to prescribe penalties for the 'Violation of this act; and to repeal all acts and parts of acts, general, local and special, 'inconsistent with or contrary to the provisions of this act, as amended and added by Act No. 14S of the Public Acts of 1941. being sections 388.851, 3S8.851a. 388.852. 388.853 and I®.855a. respectively, of the Compiled Laws of 1948. 6aa The People of the State of Michigan enact: Sections amended. Section 1. Sections 1. la. 2. 3 and Sa of Act No. 306 of the Public Acts of 1937, as amended and added by Act No. 148 of the Public Acts of 1941, being sections 388.851, 388.831a. 3S8.S52. 388.833 and 3S8.855a. respectively, of the Compiled Laws of 1948, are hereby amended to read as follows: 388.851 Public or private school buildings; construction requirements. Sec. 1. No school building, public or private, or additions thereto, shall hereafter be erected, remodeled or reconstructed in the state of Michigan except it be in conformity with the following provisions: (a) All plans and specifications for buildings shall be prepared by. and the construction supervised by. an architect or engineer who is registered in the state of Michigan. Before the construction, reconstruction or remodeling of any school building or addition thereto is commenced, the written approval of the plans and specifications by the superintendent of public instruction or his authorized agent shall be obtained. In the approval of plans and specifications the superintendent of public instruction or his authorized agent shall con sider in addition to the considerations otherwise mentioned in this act the following fac tors: ( I f The adequacy and location of the site. (2 ) The educational usefulness of the building. (3) The provisions for health and safety. The superintendent of public instruction shall publish an informative bulletin which shall set forth good school building planning procedures and interpret clearly the provisions of this act. (b) All walls, floors, partitions and roofs shall be constructed of fire-resisting materials such as stone, brick, tile, concrete, gypsum, steel or similar fire-resisting materials. All steel members shall be protected by at least of an inch of fire-resisting material. (c) No wood lath or wood furring shall be used: Provided, however. That these regula tions shall not be construed as prohibiting the use of finished wood flooring, wood door and window frames, wood sash or wood furring and grounds, for the purpose of installing wood trim, panelling, acoustical units or similar facing materials on masonrv walls, struc tural steel or concrete ceiling members. (d ) Every room enclosing a heating unit shall be enclosed by walls or fire-resisting materials and shall be equipped with automatically closing fire doors: and said heating unit shall not be located directly beneath any portion of a school building or addition thereto which is constructed or reconstructed after the effective date of this act: Provided. That this regulation shall not be construed to require the removal of an existing heating plant from beneath an existing building when an addition to such building is constructed unless the state superintendent of public instruction or his authorized agent, acting jointly with the state fire marshal, shall so require in the interests of public safety: Provided further, That in any school where natural gas or any other kind of gas shall be used for heating purposes said gas shall be chemically treated before being used in such a manner as to give a very distinguishable odor if any leak should develop in the heating system. (e) In gymnasiums, fire-proofings may be omitted from the trusses and purlins if they are more than 16 feet off the main floor level. It shall be the duty of the architect or engineer to provide adequate exits from all parts of school buildings. In all cases there shall be at least 2 stairways and the distance from the door of any class or assembly room to a stairway or exit shall not exceed 100 feet. 7aa !8.851a Definitions. Sec. la. Words and phrases used in this act shall be defined as follows: (a) “School buildings” shall include all buildings used for school purposes. (b) “Remodeling” shall mean the alteration, construction or remodeling of partitions, illways, stairways and means of egress, the replacement, relocation or reconstruction of eating, ventilating and sanitary equipment. (c) “Addition” shall mean added space which results in additional cubic contents to isting building. (d) “Total cost” shall be interpreted to mean the monetary worth of the building when ady for occupancy, regardless of the source of funds, labor or material and shall include ie cost of general construction, plumbing, heating and ventilation, electrical work, all jed equipment, together with the cost of architects, engineers and building superintending (rvices. (e) A building having a basement shall be considered to be a 2 story building for the irposes of this act. 18.852 Architect or engineer, responsibilities. Sec. 2. The architect or engineer preparing the plans and specifications or supervising Se construction of any school building shall be responsible for constructing the building of lequate strength so as to resist fire, and constructing the building in a workmanlike man ia, according to the plans and specifications as approved. 18.853 Inspection during construction by state fire marshal; powers; duty of architect to notify. Sec. 3. The state fire marshal shall inspect any building to determine whether or not |e construction thereof complies with the provisions of this act. Each building shall be ispected by the state fire marshal at least twice during construction, 1 inspection to be tide of the frame work of the building prior to plastering and 1 inspection shall be made pa the completion of the building. The architect shall notify the state fire marshal when ie building is ready for inspection. With respect to such inspections, the state fire mar- si shall have the same powers as set forth in Act No. 207 of the Public Acts of 1941, samended. being sections 29.1 to 29.25, inclusive, of the Compiled Laws of 1948. 18.855a Application of act; exemptions. I Sec. 5a. Except as hereinafter provided the provisions of this act shall not apply to (story school buildings or to 1-story additions thereto nor shall it apply, except as here after provided to the construction, reconstruction or remodeling of any school building fcre the total cost of such construction, reconstruction or remodeling is less than jl5.000.00. Subdivision (a) of section 1 of this act shall apply to the construction of all school Wildings and additions to school buildings regardless of the number of stories of such Gildings or additions where the total cost of such construction shall exceed $15,000.00. ; Subdivision (d) of section 1 shall apply to the construction of all school buildings and Editions thereto of 1 or more stories regardless of the cost of their construction. The provisions of this act shall also apply to the reconstruction of a school building de- jlroyed or partially destroyed by fire, windstorm or other catastrophe if more than oO per pit of the entire building is so destroyed. The state fire marshal acting jointly with the perintendent of public instruction may require that the damaged portion and/or the Gaining portion of the building be remodeled or reconstructed in accordance with the pro visions of this act. This act shall also apply to the remodeling of existing school buildings i other buildings to be used for school purposes. 8aa No existing building or part of building regardless of the number of its stories or its cosl to the school district which has not had prior use as a school building shall be so used until such use shall have been approved by the superintendent of public instruction and the state fire marshal. For all construction, reconstruction or remodeling of school buildings where the total cost is less than $15,000.00, it shall not be necessary that a registered architect or engineer be employed but the plans for such buildings shall be submitted to the superintendent o( public instruction or his authorized agent for criticism, suggestions and approval. This act is ordered to take immediate effect. Approved May 31, 1949. Act 175, Mich. Pub. Acts of 1962, provides: AN ACT to amend sections 1, 3 and 5a of Act No. 306 of the Public Acts of 1937, entitled as amended “An act to promote the safety, welfare and educational interests of the people of the state of Michigan by regulating the construction, reconstruction and remodeling of certain public or private school buildings or additions thereto, by regulating the construction, reconstruction and remodeling of buildings leased or acquired for school purposes, and to define the class of buildings affected by this act; to prescribe the powers and duties of the superintendent of public instruction, the state fire marshal, architects, engineers and school board members with respect thereto; to prescribe penalties for the violation of this act; and to repeal all acts and parts of acts, general, local and special, inconsistent with or contrary to the provisions of this act,” as amended by Act No. 231 of the Public Acts of 1949, being sections 388.851, 388.853 and 388.855a of the Compiled Laws of 1948. The People of the State of Michigan enact: Sections amended. Section 1. Sections 1, 3 and 5a of Act No. 306 of the Public Acts of 1937, as amended by Act No. 231 of the Public Acts of 1949, being sections 388.851, 388.853 and 388.855a of the Compiled Laws of 1948, are hereby amended to read as follows: 388.851 Public or private school buildings; construction requirements, waiver. Sec. 1. No school building, public or private, or additions thereto, shall hereafter be erected, remodeled or reconstructed in the state of Michigan except it be in conformity with the following provisions: (a) All plans and specifications for buildings shall be prepared by, and the construc tion supervised by, an architect or engineer who is registered in the state of Michigan. Before the construction, reconstruction or remodeling of any school building or addition thereto is commenced, the written approval of the plans and specifications by the super intendent of public instruction or his authorized agent shall be obtained. The superintendent of public instruction or his authorized agent shall not issue such approval until he has secured in writing the approval of the state fire marshal relative to factors concerning fire safety and of the health department having jurisdiciton relative to factors affecting water supply, sanitation and food handling. The superintendent of public instruction shall publish an informative bulletin which shall set forth good school building planning procedures and interpret clearly the provisions of this act. The bulletin shall be prepared in cooperation with the state fire marshal and 9aa 'j e state health commissioner and, insofar as requirements for approval of plans are con- J med, shall be consistent with recognized good practice as evidenced by standards adopted nationally recognized authorities in the fields of fire protection and health. I (b) All walls, floors, partitions and roofs shall be constructed of fire-resisting mate- ils such as stone, brick, tile, concrete, gypsum, steel or similar fire-resisting material. I I steel members shall be protected by at least of an inch of fire-resisting material. (c) No wood lath or wood furring shall be used: Provided, however, That these gulations shall not be construed as prohibiting the use of finished wood flooring, wood >or and window frames, wood sash or wood furring and grounds, for the purpose of stalling wood trim, panelling, acoustical units or similar facing materials on masonry ills, structural steel or concrete ceiling members. (d) Every room enclosing a heating unit shall be enclosed by walls or fire-resisting Materials and shall be equipped with automatically closing fire doors; and said heating sit shall not be located directly beneath any portion of a school building or addition iereto which is constructed or reconstructed after the effective date of this act: Provided, jhat this regulation shall not be construed to require the removal of an existing heating tint from beneath an existing building when an addition to such building is constructed iless the state superintendent of public instruction or his authorized agent, acting jointly 1th the state fire marshal, shall so require in the interests of public safety: Provided ■tiler, That in any school where natural gas or any other kind of gas shall be used for luting purposes said gas shall be chemically treated before being used in such a manner i to give a very distinguishable odor if any leak should develop in the heating system. (e) In gymnasiums, fire-proofings may be omitted from the trusses and purlins if they it more than 16 feet off the main floor level. It shall be the duty of the architect or igineer to provide adequate exits from all parts of school buildings. In all cases there fall be at least 2 stairways and the distance from the door of any class or assembly room )a stairway or exit shall not exceed 100 feet. ' (f) Provisions in subsections (b) through (e) may be waived in writing by the state lie marshal. 18.853 Inspection by state fire marshal; notice by architect; municipal fire prevention and safety measures. Sec. 3. Except as hereinafter provided, the state fire marshal shall inspect any building !»determine whether or not the construction thereof complies with the provisions of this (tt. Each building shall be inspected by the state fire marshal at least twice during instruction, 1 inspection to be made of the frame work of the building prior to plastering fid 1 inspection shall be made on the completion of the building. The architect shall :otify the state fire marshal when the building is ready for inspection. With respect to iich inspections, the state fire marshal shall have the same powers as set forth in Act No. p of the Public Acts of 1941, as amended, being sections 29.1 to 29.25, inclusive, of the compiled Laws of 1948. (a) The state fire marshal shall not be required to inspect or make any determination 'd fire safety in any existing school building insofar as operation, maintenance, remodeling, # repairs for fire safety is concerned if such school building is located in a municipality there both the school board of such a school and the governing body of the municipality I which such a school is located have certified to the state superintendent of public hstruction, in a manner prescribed by him, that the fire safety inspections and fire safety jtasures for the schools located in the municipality are provided for by a municipal code :,r ordinance that is administered and enforced by a full time fire prevention and safety Apartment, division, or bureau maintained by the municipality and are satisfactory to |h)th such school board and governing body. Either such school board or governing body % rescind the certification. lOaa 388.855a Application of act; exemptions. Sec. 5a. Except as hereinafter provided the provisions of this act shall not apply to 1-story school buildings or to 1-story additions thereto nor shall it apply, except as here inafter provided to the construction, reconstruction or remodeling of any school building where the total cost of such construction, reconstruction or remodeling is less than $15,000.00. Subdivision (a) of section 1 of this act shall apply to the construction of all school buildings and additions to school buildings regardless of the number of stories of such buildings or additions where the total cost of such construction shall exceed $15,000.00. Subdivision (d) of section 1 shall apply to the construction of all school buildings and additions thereto of 1 or more stories regardless of the cost of their construction. The provisions of this act shall also apply to the reconstruction of a school building destroyed or partially destroyed by fire, windstorm or other catastrophe if more than 50 per cent of the entire building is so destroyed. The state fire marshal acting jointly with the superintendent of public instruction may require that the damaged portion and/or the remaining portion of the building be remodeled or reconstructed in accordance with the provisions of this act. This act shall also apply to the remodeling of existing school buildings and other buildings to be used for school purposes. No existing building or part of building regardless of the number of its stories or its cost to the school district which has not had prior use as a school building shall be so used until such use shall have been approved by the superintendent of public instruction and the state fire marshal. For all construction, reconstruction or remodeling of school buildings where the total cost is less than $15,000.00, it shall not be necessary that a registered architect or engineer be employed but the plans for such buildings shall be submitted to the state fire marshal and to the superintendent of public instruction or his authorized agent for criticism, suggestions and approval. This act is ordered to take immediate effect. Act 244, Mich. Pub. Acts of 1969, provides: AN ACT to require first class school districts to be divided into regional districts and to provide for local district school boards and to define their powers and duties and the powers and duties of the first class district board. The People of the State of Michigan enact: 388.171 1 First class school district; division. [M .S .A . 15.2298(1)] Sec. 1. Not later than January 30, 1970, the school board of each first class district shall divide its district into not less than 7 nor more than 11 regional school districts with not more than 50,000 nor less than 2 5,000 students in each district. 388.172 Same; board; regional members; present members, term. Sec. 2. In addition to the present members of the first class board there shall be elected by the registered and qualified electors of each district to the first class board 1 member from each of the districts for a term of 4 years. The members of the first class school district board provided in section 2 to be elected by regions shall be elected in the general election to be held in November, 1970 and every fourth year thereafter for a term commencing on January 1 next following their election. The candidates shall be nominated in primary elections in the manner provided by law for the present first class school district members. 1 laa The term of office of the present first class school board members shall hereafter be 0 ears. The terms of office of present first class school board members which expire le 30, 1971 are extended to January 1, 1973. The term of office of present first class g iool board members which expire June 30, 1973 are shortened to January 1, 1973. The )■ 1 large positions on the first class district school board which expire January 1, 1973 >1 ill be filled at the general election to be held in November, 1972 for a term of 4 years, b i terms of office of present first class school district board members which expire on «e 30, 1975 are extended to January 1, 1977 and shall be filled at the general election d ibe held in November, 1976 for a term of 4 years. g 1.173 Regional boards; size; qualifications; election; term. 1 Sec. 3. In each regional district there shall be elected 9 members to the regional board. 5 ) person shall be elected who is not a resident of the regional district from which he : elected. The members shall be nominated and elected by the registered and qualified 1 ttors of each district as is provided by law for the nomination and election of first jss school board members except that signatures required on nominating petitions shall i not less than 500 nor more than 1,000. The members shall be elected for terms of 4 Jrs. Except that of the members elected at the general election in 1970. the 5 members ‘ Jiving the highest number of votes shall be elected for a term of 4 years and the 4 sibers receiving the next highest number of votes shall be elected for a term of 2 years. 1174 First class district board, powers. Sec. 4. The first class school district board shall retain all the powers and duties now sessed by a first class school district except for those given to a regional school district }rd under the provisions of this act. 1175 Regional board, powers. Sec. 5. Effective upon the commencement of its term of office, the regional school jlrict board, subject to guidelines established by the first class district board, shall have ! power to: (1) Employ and discharge a superintendent for the regional school district from a list lists of candidates submitted by the district board. (2) Employ and discharge, assign and promote all teachers and other employees of the lional school district, subject to review by the first class school district board, which may trrule, modify or affirm the action of the regional district board. 1(3) Determine the curriculum, use of educational facilities and establishment of educa- tal and testing programs in the regional school district. (4) Determine the budget for the regional school district based upon the allocation of 9ds received from the first class school district board. 18.176 Employee rights. Sec. 6. The rights of retirement, tenure, seniority and of any other benefits of any 'ployee transferred to a regional school district or between regional school districts from £ first class district shall not be abrogated, diminished or impaired. ,18.177 First class district board, functions. Sec. 7. The first class school district board shall perform the following functions for £ regional school districts: 1 (1) Central purchasing. (2) Payroll. 12aa (3) Contract negotiations for all employees, subject to the provisions of Act No. 336̂ of the Public Acts of 1947, as amended, being sections 423.201 to 423.216 of the Compiled Laws of 1948, and subject to any bargaining certification and to the provisions of any collective bargaining agreement pertaining to affected employees. (4) Property management and maintenance. (5) Bonding. (6) Special education programs. C7) Allocation of funds for capital outlay and operations to each regional school district. (8) On or before November 1, 1970, establish guidelines for the implementation of the provisions of section S. Act 48, Sec. 12, Mich. Pub. Act of 1970, provides: 3 88.182 Attendance provisions, implementation; condi tions. [M.S.A. 15.2298(12)] Sec. 12. The implementation of any attendance provi sions for the 1970-71 school year determined by any first class school district board shall be delayed pending the date of commencement of functions by the first class school dis trict boards established under the provisions of this amenda tory act but such provision shall not impar the right of any such board to determine and implement prior to such date such changes in attendance provisions as are mandated by practical necessity. In reviewing, confirming, establishing or modifying attendance provisions the first class school district boards established under the provisions of this amendatory act shall have a policy of open enrollment and shall enable students to attend a school of preference but providing prior ity acceptance, insofar as practicable, in cases of insufficient school capacity, to those students residing nearest the school and those studnets desiring to attend the school for participa tion in vocationally oriented courses or other specialized cur riculum. Michigan Compiled Laws Annotated, §340.1 et seq, being the Michigan School Code of 1955, provides, in pertinent part, as follows: Michigan Compiled Laws Annotated, §340.352 provides: 340.352 Body corporate; powers, rights, liabilities; pre sumptions 13aa SEC. 352. Every school district shall be a body corporate under the name provided in this act, and may sue and be sued in its name, may acquire and take property, both real and personal, for educational purposes within or without its corporate limits, by purchase, gifts, grant, devide or bequest, and hold an use the same for such purposes, and may sell and convey the same as the interests of such district may require, subject to the conditions of this act contained. As such body corporate, every school district shall be the successor of any school district previously existing within the same territorial limits and shall be vested with all rights of action, with the title of all property, real and personal, of the district of which it is the successor, and the indebtedness and obliga tions of the district superseded shall become and be the in debtedness and obligations of the succeeding district, except as otherwise provided in chapters 3, 4 and 5, part 2 of this act. Every school district shall in all cases be presumed to have been legally organized when it shall have exercised the franchises and privileges of a district for the term of 2 years; and such school district and its officers shall be entitled to all the rights, privileges and immunities, and be subject to all the duties and liabilities conferred upon school districts by law. Because of the extensive list set forth therein, those portions of the Michigan School Code of 1955, referred to in note 91 on pg. 48, are not reprinted herein. FEDERAL RULES OF CIVIL PROCEDURE Fed. R. Civ. P. 19 provides: Rule 19. Joinder of Persons Needed for Just Adjudication. (a) Persons to be Joined if Feasible. A person who is sub ject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede 14aa his ability to protect that interest or (ii) leave any of the per sons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and his joinder would render the venue of the action improper, he shall be dis missed from the action. (b) Determination by Court Whenever Joinder not Feas ible. If a person as described in subdivision (a) (l)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent per son being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judg ment rendered in the person’s absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of re lief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for non joinder. (c) Pleading Reasons for Nonjoinder. A pleading asserting a claim for relief shall state the names, if known to the plead er, of any persons as described in subdivision (a)(l)-(2) here of who are not joined, and the reasons why they are not joined. (d) Exception of Class Actions. This rule is subject to the provisions of Rule 23. Fed. R. Civ. P. 24(a) provides: (a) Intervention of Right. Upon timely application any one shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to 15aa intervene; or (2) when the applicant claims an interest relat ing to the property or transaction which is the subject to the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to pro tect that interest, unless the applicant’s interest is adequately represented by existing parties. Fed. R. Civ. P. 54(b) provides: Rule 54. Judgments; Costs (b) Judgment upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counter-claim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudi cates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabili ties of all the parties.