Brief in Support of Petition for Rehearing

    RATNER, SUGARMON & LUCAS 
A T T O R N E Y S  A T  L A W

P H O N E  ( 9 0 1 )  5 2 5 - 8 6 0 1

S U I T E  5 2 5

M A R V I N  L .  R A T N E R  
R .  B .  S U G A R M O N ,  J R .  
L O U I S  R .  L U C A S  
W A L T E R  L .  B A I L E Y .  J R .  
I R V I N  M .  S A L K Y  
M I C H A E L  B. K A Y  
W I L L I A M  E. C A L D W E L L

C O M M E R C E  T I T L E  B U I L D I N G  

M E M P H IS ,  T E N N E S S E E  3 8 1 0 3

December 9, 1971 B E N  L .  H O O K S
OF C O U N S E L

Honorable Stephen J. Roth 
United States District Judge 
Federal Building 
600 Church Street 
Flint, Michigan 48502

Enclosed please find original and one copy of plaintiffs'
response to the plans filed by defendant Board and motion of 
plaintiffs to present a plan at the Board's expense.

It is our view that no hearing is necessary and that
our motion may be disposed of upon the pertinent papers now 
before the Court; we have therefore not noticed the motion for 
hearing. If, however, the Court feels that argument of counsel 
is necessary to properly resolve the motion, we would request a 
setting at the Court's earliest convenience, due to the importance of the subject matter.

WECrpw
cc: George E. Bushnell, Jr., Esq.

Eugene Krasicky, Esq.
George T. Roumell, Jr., Esq. 
Robert E. Manley, Esq. 
Theodore Sachs, Esq.
Alexander B. Ritchie, Esq.

bcc: Norman J. Chachkin n/
Nathaniel Jones 
E. Winther McCroom 
Paul Dimond'

RE: Bradley, et al. v. Milliken, et al.,
Civil Action No. 35257

Dear Judge Roth

Respectfully submitted,

William E. Caldwell



IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al., )
Plaintiffs, )

vs. )
WILLIAM J. MILLIKEN, et al. , )

Defendants, )
and ) CIVIL ACTION
DETROIT FEDERATION OF TEACHERS, ) No. 35257LOCAL No. 231, AMERICAN FED­
ERATION OF TEACHERS, AFL-CIO, )

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

Defendants-Intervenor. )

PLAINTIFFS' RESPONSE TO BOARD'S "PLANS" AND MOTION FOR ORDER 
ALLOWING PLAINTIFFS TO PRESENT DESEGREGATION PLAN AT THE

BOARD'S EXPENSE

On December 3, 1971, the defendant, Board of Education of 
the City of Detroit, filed a document with attachments entitled 
"Compliance With Court Order of November 5, 1971 And Request For 
Hearing." Despite the self-serving title, plaintiffs respectfully 
submit that the submission of the Board does not even approach com­
pliance with the Court's order of November 5, 1971. For reasons 
more fully set forth below, plaintiffs object to the plans submitted 
by the Board and move the Court for an order permitting plaintiffs 
to present a plan of desegregation for the Detroit school system at 
the expense of defendant Board.

On October 4, 1971, the Court allowed the defendant, Detroit 
Board of Education, sixty (60) days within which to submit a plan for 
the desegregation of the Detroit school system— i.e., a plan which



would "achieve the greatest possible degree of actual desegregation, 
taking into account the practicalities of the situation," Oct. 4,
1971 Tr. at 6 (quoting from Davis v. Board of School Comm'rs, 91 
S. Ct. 1279, 1292 (1971)). The Board's submissions of December 3,
1971 constitute a patent disregard for the Court's order; the sub­
missions reflect that the Board has devoted the entire sixty days, 
not to development of a plan of desegregation, but to devising new 
terminology for "freedom of choice" (now "Improved Incentives").

In support of our objection to the plans submitted by the 
Board, we adopt and incorporate herein by reference "Plaintiffs' 
Response to Defendant Detroit Board's Report on the Magnet School 
Program" [hereafter, "Response"], previously filed in response to 
the Board's November 3 submission on the Magnet School Program.
At page 12 of our Response we alleged "that the Board is rejecting 
consideration of desegregation plans proposed by its staff which 
place the burden of school desegregation where it belongs, on school 
authorities not the children and parents." The most recent sub­
mission by the Board verifies that allegation, and we reiterate what 
we said in our Response: "we respectfully submit that any presen­
tation to this Court by the Board...of a desegregation plan which 
is based on a magnet-type principle constitutes bad faith." (Response 
at 12) .

Although our previous response to the Magnet report applies 
to Plans A and C with equal force and relevancy, we add here a few 
brief comments about these new efforts to circumvent plaintiffs' 
constitutional rights.

Plan A Perpetuates The Ineffective Magnet School Program, Is Based 
On White Racism, and Does Not Desegregate The Detroit Public Schools

Plan A contemplates an expansion of the Magnet High School 
and Magnet Middle School programs. For the reasons stated in our 
previous response to the magnet school report this plan is uncon­
stitutional on its face. Even the self-serving projections contained 
at page 12 of the plan purport to affect only 42,000 pupils out of

2



Detroit's total public school population of over 275,000 pupils.—^
And even these meager projections will not be effectuated for at 
least four years.

Plan A would continue the Magnet High School and Magnet 
Middle School programs, with the following additions:

(1) One "academic high school" would be established in 
each of the four paired regions with each such high school to have 
a maximum capacity of 1,500 students. It is not clear whether this 
part of the plan contemplates the construction of four new high 
schools (a process which previous testimony in this case indicates 
would take at least two years), or whether existing high schools 
would be converted to "academic high schools." At any rate, "site 
selection by regional boards and procedures for applications will 
be developed later." (Plan A at 3). The "academic high schools" 
would operate in a manner similar to the present middle school pro­
gram with its demonstrated inadequacies. (See Response at 6-8).

(2) The existing Magnet High School program would be 
modified so that "each high school will become more specialized
and will not compete with other high schools in the paired regions." 
(Plan A at 3). The plan also contemplates expansion of the areas 
of specialization and emphasis, as well as refinement and restruc­
turing thereof. (Plan A at 3-4). In any event (and contrary to 
Alexander v. Holmes County Board, 396 U.S. 19 (1969)), this aspect 
of Plan A will not become fully effective until the beginning of 
the 1975-76 school year. (Plan A at 3).

(3) Another high school level aspect of Plan A has to do 
with the equalization of grade levels "so that all students attending 
a given school will have an equal experience in that school, and so 
that the ninth grade will not be racially skewed in comparison with 
other grades in the same school" (Plan A at 5). Whatever this 
aspect of Plan A means, it does not appear to advance the cause of

1/ By saying that 42,000 pupils will be affected by Plan A does 
not, of course, mean that 42,000 additional pupils will have 

an integrated education. As pointed out in our Response,the magnet 
school approach serves to perpetuate and create segregation more 
than it does to alleviate it.

3



integration in the Detroit school system nor does it purport to 
be a device for increasing desegregation. The ambiguous state­
ment just quoted from the plan is preceded by a statement which 
is even less comprehensible: "Students will attend their present
elementary and junior high school, but may be advanced into a 
senior high school with a larger service area at a lower grade 
level." From the prior testimony in this cause regarding over­
crowding at most white high schools and at some black high schools, 
plaintiffs do not comprehend how a Detroit high school service 
area can be expanded and at the same time additional grade levels 
be added (other than at the undercrowded black high schools which 
are located in black regions where expansion of the service area 
will not futher desegregation). Nevertheless, nothing contained 
in the section of Plan A entitled "Equalized Grade Entrance" has 
anything to do with increasing the degree of integration in Detroit 
high schools.

(4) The fourth aspect of Plan A has to do with an expansion 
of the Magnet Middle School concept. In our previous Response to 
the Magnet School Program report we noted (p. 6) the Board's failure 
to admit "the absolute bankruptcy of the concept of the Magnet 
Middle School as a plan of desegregation" and stated our "fear that 
we may hear all too much about the concept in the future." Again 
our fears have been borne out in the Board's submission of Plan A. 
Once again the Board proposes to make some schools in Detroit better 
than other schools and to give some students (in projected integrated 
schools) a better education than other students (in continued 
segregated schools). Plan A comprehends that the present eight 
middle schools would remain; that each of the eight regions would 
establish at least two new magnet middle schools for grades 6-8; 
and that each region would establish at least two new magnet ele­
mentary schools for grades 3-5. Thus, the plan comprehends rather 
than just one projected!/ integrated school in each region there

V  We use "projected" in a light favorable to the Board, notwith­
standing the fact that prior experience with the magnet middle 

school concept demonstrates (1) that the Board's projections will 
not come to pass and (2) that whatever integration does occur will be 
to the detriment of existing integration in other Detroit schools. 
(See Response at 6-8). Our point is that taking Plan A and the 
Board's projections at face value, the plan is patently inadequate to 
remedy the existing segregation,even by 1975.

4



would be five projected integrated schools in each region, three 
serving grades 6-8 and two serving grades 3-5. The segregated 
attendance pattern in grades one and two would continue through­
out the system as would most of the other grade levels in the 
Detroit schools. Once again, however, whatever integration occurs 
depends upon the choice of parents and pupils. The Board again 
refuses to assign pupils to integrated schools, perhaps because of 
its desire to have "a wholesome, safe, non-coerced integrated 
experience for school children" (Plan A at 10). The Board does 
offer "additional funds in the amount of $30-$150 per student"
(Plan A at 8) for those middle schools which do attain integration, 
but this offer will obviously not attract many white students from 
white schools since, as previous proof shows, white schools already 
receive more Board dollars per pupil than do black schools. 
(Plaintiffs' Trial Exhibits 163 A-C, 164 A-C, 163 AA-CC; Defendants' 
Trial Exhibit NNN; 41 Tr. 4665-66). In any event, the fact that the 
Board has offered to pay black and white children to attend school 
together hardly constitutes compliance with the constitutional 
obligation imposed by this Court that the Board operate integrated 
schools.

(5) The fifth general aspect of Plan A has to do with 
allowing majority-to-minority transfers and providing transportation 
therefor. Swann does require such a transfer provision, but only 
after "every effort" has been made to "achieve the greatest possible 
degree of actual desegregation, taking into account the practicalities 
of the situation." Majority-to-minority transfers are not substitutes 
for this primary obligation; only after the Board has complied with 
its main responsibility need we concern ourselves with whether or 
not a transfer provision is required.

Some additional comments are in order regarding Plan A.
One concerns the Board's attempt to insulate itself from the Court 
by interjection of the regional boards. At page 9 of Plan A the 
Board says:

5



•  ' ......~ “ ... • ................

Decision making with regard to site
selection and other items relating to 
implementation of this proposal shall 
reside with the respective regions, 
subject only to the present decentral­
ization guidelines and the provisions 
of this proposal as may be embodied in 
a Federal Court order.

We emphasize that the constitutional obligations declared by the 
Court's ruling of September 27, 1971, are imposed upon the Detroit 
Board of Education, and it, like the State, may not constitutionally 
pass the buck to sub-units such as regional boards.2/

Secondly, we perceive another evasion in Plan A's expressed 
concern regarding space availability in Detroit schools. At page 11,
Plan A speaks of various alternatives such as renting parochial 
buildings, redesignating existing buildings, new construction and 
double sessions. This expressed concern, though false, reflects the 
Board's continued refusal to utilize the 22,961 vacant seats in schools 
90% or more black. (See Ruling on Issue of Segregation at 12).

Finally, we note the true reason for the Board's continued 
refusal (by the submission of Plans A and C) to offer meaningful 
desegregation plans for Detroit —  i.e., that portion of the December 3 
resolution which states that "continuing decreases in the percentages 
of both white pupils and middle income families in Detroit have made 
effective integration within the city limits impossible." As was 
made clear at the trial on the merits, the Board equates "middle 
income" with "white" and "low income" with "black." The Board's 
position now, as it was then, is that integration will not succeed 
unless a majority of the pupils are white. The racism inherent in 
this "white majority thesis" was pointed out in our previous Response 
to the Magnet School Program report, at pages 10-12. For the reasons 
there stated, such justifications for continued segregation may not be 
allowed. We are constrained to add, however, that Plan A embodies 
more than a mere unwillingness to desegregate because the system is

V  That this is what the Central Board is attempting to do appears 
clearly on page 11 of Plan A: "In order to provide dollar

incentives to Regional Boards for optimum racial balances, special 
funds will be sought from the State Board of Education." {emphasis added).

6



majority black. We are confident that Plan A would be submitted to
the Court by the driving (predominantly white) forces of this Board 
of Education even if the Detroit system were 65% white. For the 
true thesis of Plan A is "free choice," and "free choice" plans have 
been and are proposed only by those who are opposed to desegregation; 
they are proposed by Boards of Education which seek to accomodate 
the hostility of the white community to sending their children to 
school with black students.£/ This we submit is the motivation behind 
Plan A and, as such, it constitutes an insult to black Detroiters 
equalled only by the past policies and practices of segregation as 
found by the Court in its ruling of September 27, 1971.

Plan C is not a Plan of Desegregation
Plan C proposes part-time (equivalent of 1 day a week) 

desegregation for grades 3-6 in schools over 80% black or 80% white 
"for special programs in humanities." (Plan C at 2). Plan C does 
nothing to alleviate segregation in other racially identifiable 
schools, nor does it even speak to the problem of segregation in 
grades 1-2 and 7-12. But even more critical, Plan C is not sufficient 
to meet defendants' affirmative duty to disestablish segregation in 
grades 3-6 in the schools which are affected by the plan. Plans of 
part-time desegregation have been consistently rejected as remedies 
for full-time segregation. See, e.g., United States v. Board of 
Education of Webster County, 431 F.2d 59, 61 (5th Cir. 1970); United 
States v. Board of Educ. of Baldwin County, 423 F.2d 1013 (5th Cir. 
1970). The Board is required to accomplish integration within the 
regular school program; proposals for extracurricular cross-racial 
contact are not only inadequate, they are demeaning.

£/ The record in this cause is replete with evidence of white 
Detroit's hostility to racial integration. This hostility 

was most notably manifested in the recall movement spawned by the 
April 7, 1970 plan of partial desegregation. (See Hearinq Trans­
cript of 11/18/70 at p. 160 (Board Member Dr. Golightly)).

7



Neither Plan A Nor Plan C Presents Any Question Which Calls For A
Hearing -- A Hearing Would Serve Only To Delay Vindication of 
Plaintiffs' Constitutional Rights "

Plaintiffs submit that no hearing need be held at this time 
on the submissions of Plans A and C by the defendant Board. First, 
neither of the plans contain the specifics necessary for approval 
by the Court. The plans do not designate schools or school sites; 
grade organizations and methods of pupil assignment are left to the 
future; attendance area boundaries are absent, as are specific school- 
by-school projections as to the plans' effects on segregation. Further­
more, the critical statistics which we urged as necessary in our 
Response (at 8-9) are not contained in either plan. In short, there 
is nothing to have a hearing on; no meaningful decree could possibly 
be formulated on the basis of the so-called "plans," as submitted.

4

For the reasons just noted, a hearing on the Board's plans
would not be beneficial to the Court or the parties; there is no
meaningful factual controversy to be resolved. The only issue which
requires resolution does not require an evidentiary hearing —  i.e.,
may Detroit operate a freedom—of-choice plan as a remedy for the
system-wide segregation it has created, fostered, and perpetuated,
or will it be required to implement a plan of school desegregation
as required by Swann and Davis and this Court? 1/ The answer to this
issue is, of course, found in the law, and no matter how much defendant
Board and some of its individual members prefer freedom of choice, the
law does not permit it. We find our position nowhere better expressed
than in the attached Detroit Free Press editorial of November 27, 1971:

The Detroit Board of Education's proposal 
to meet a court order requiring an accep­
table plan for desegregating the city's 
schools are more than an effort to maintain 
things as they are. They are cynical attempts 
to dodge the issue and force the courts to
take the burden of unpopular decisions.

* * * *
[M]ostly the plans are a rehash of the magnet 
and middle school programs already in operation 
which have proved almost totally ineffective in equalizing educational opportunity.

5/ See also Bradley v\_ Milliken, 438 F.2d 945, 947 n.l (6th Cir.
^1971)i (citing Supreme Court decisions which rejict "free

choice" plans because of their demonstrated failures to achieve desegre­gation) .

8



Basically, they all involve freedom of 
choice, a concept which has perpetuated 
school segregation around the nation and 
has been rejected repeatedly by the courts.

*  *  *  *

The Board of Education is not even close 
to meeting the requirements of the law of 
the land. The longer its members resist 
that, the more expensive and painful it is 
going to be to pick up the pieces later.

The Court Should Permit Plaintiffs To Present A Plan of Desegregation 
For Detroit At The Expense of Defendant Board

Clearly, the Board has defaulted in its constitutional 
obligations and has failed to comply with the Court's directives.
This default is apparently premised on the Board's preference for a 
metropolitan solution, and the Board appears to take considerable 
comfort from that portion of the order requiring the State Board to 
submit a metropolitan plan sixty days hence. The fact that the State 
Board also has an obligation does not, however, relieve the Detroit 
Board of its responsibilities. Furthermore, the Court has not decided 
the issue of metropolitan relief, and until that issue is ultimately 
resolved the Detroit Board is constitutionally bound to eliminate 
the segregation that exists within its present boundaries. §/

-/ },n i^S Memorandum Brief (at p. 4) defendant Board properly"defines desegregation as a situation in which black and 
white pupils go to the same schools and the same classrooms...," 
and it is true, as defendants say (ibid.), that "one must have 
an appreciable number of white as well as of black pupils in order 
to desegregate." But Detroit is hardly an all-black school system; 
as defendants also note in their brief, Detroit is 36.2% white.
Such a large percentage of whites is certainly not de minimis non 
curat lex. We but state the obvious to anyone who follows school 
desegregation matters when we point out that almost daily in this 
country school systems which are 36% black (or less) are being 
ordered to desegregate, and are desegregating. And this is being 
done without inquiry or concern about the "socioeconomic status" 
of the majority white pupils in these many systems. What then makes 
Detroit different? The answer is, nothing, except that Detroit is 
majority black, not white. That this excuse is born of racism is 
demonstrated by the fact that the Detroit Board made absolutely no 
efforts in 1950 or 1960 (when the system was majority white) to 
advance^integration. (On the contrary, at those times the Board 
was actively pursuing a practice of segregation!) The present 
majority black status of the system cannot justify segregation any­
more than did its 1960 majority white status. Nor do belated labels 
such as "socioeconomic status" and "middle income families" alter these truisms.

9



S S a s g ^  i- -- «*«;■ -sarSt̂sSjgSsjfc-' i

The law requires that effective, though imperfect, interim plans 
be implemented while broader plans are being prepared, or broader 
issues resolved. Carter v. West Feliciana Parish School Bd. , 396 
U.S. 226 (1969), 396 U.S. 290 (1970); United States v. Board of 
Educ. of Baldwin County, supra, 423 F.2d at 1014.

One of the more damaging aspects of the Board's default 
is that the Court and the parties will be without a model for 
comparison with the plan to be filed by the State Board (assuming 
that the State Board responds in better faith than has the Detroit 
Board). On the one hand, Detroit claims that a desegregation plan 
confined to the city' s political boundaries is not sufficient and 
that, therefore, metropolitan relief is necessary; on the other 
hand, the Board merely rests on this assumption and refuses to 
submit a plan achieving the greatest possible degree of actual 
desegregation, as required by the Court's order. The Court and the 
parties are thus left to evaluate the Board's contention and, 
ultimately, the State Board's plan without the benefit of some 
very crucial information —  namely, what desegregation can be 
accomplished(and with what effort) within the City of Detroit?

Ordinarily, the Court's contempt power would provide an 
adequate remedy for the disregard or default of court-imposed duties. 
But contempt is a rather empty remedy for defaults, such as the one 
here, which affect the constitutional rights of thousands of school 
children. Furthermore, plaintiffs did not institute this litigation 
to have defendants fined or jailed, but to secure for themselves 
constitutionally guaranteed equal educational opportunities. What 
this means, translated into the present posture of the case, is a 
plan of desegregation for Detroit.

Plaintiffs would exercise their option under the November 5 
order and present an alternate (actually, it would be the only) plan 
of desegregation for Detroit, save for one factor: the substantial
(for plaintiffs) expense of preparing a detailed plan of desegregation 
for the city. Dr. Gordon Foster, Director of the Title IV Desegre­
gation Center at the University of Miami (who was qualified as a 
desegregation expert at the trial on the merits in this case) has, 
provided plaintiffs an estimate that he and another expert in

10 -



desegregation planning (Dr. Michael Stoley, Associate Dean, School 
of Education, University of Miami, formerly Director of the Title 
IV Center), along with two full-time staff members and a secretary, 
could prepare a detailed, desegregated pupil assignment plan (with 
attendance boundaries, grade structures and transportation estimates) 
for Detroit within 20 days, at a maximum estimated cost of $20,000. 
The estimate breaks down like this:

2 full-time experts at $200 each per day.........  $8,000
2 full-time support staff at $75 each per day....  3,000
Living expenses for 4 ............................ 2,800
Car rental ....................................... 1,250
Air travel for 4 (4 trips) ......................  3,520
Secretary ........................................ 500
Architectural draftsman and maps and overlays.... 1,0 00
Because of Dr. Foster's familarity with the system, and 

because of the existence of already-prepared maps and documents 
(trial exhibits) reflecting school boundaries, capacities, etc., the 
time, and thereby the expense, for preparing a plan may well be less 
than the above estimate. In addition, considerable savings would 
result from the provision by the Board of the two full-time support 
personnel and the secretary. Further additional savings will result, 
of course, from full cooperation by the Board and its staff. (We 
do not mean to intimate, however, that we think the maximum estimate 
of $20,000 is unreasonable for preparation of a plan which would at 
least result in partial vindication of plaintiffs' constitutional 
rights. Indeed, a mere $20,000 price tag is a gift compared to the 
more than $300,000 spent on preparation of the ineffective Magnet 
School Program.)

Although the projected cost of a meaningful desegregation 
plan is more than reasonable when compared to the Board's expendi­
tures for plans which even a majority of the Board and its staff 
believed would fail (see Reponse at 5), it is a burden which 
plaintiffs find difficult to bear. The Board has demanded from the 
outset that plaintiffs dot every "i" and cross every "t" in proving 
our allegations of unlawful discrimination. And plaintiffs have 
painstakingly, at great cost in money and time of Court and counsel, 
spelled 'segregation." Plaintiffs, who are Detroit taxpayers, 
therefore move the Court to require the Board to bear the reasonable

11



costs for preparation of a plan to disestablish the system-wide 
segregation which the Board in large part created. We base this 
request, however, not upon plaintiffs lack of financial resources, 
but upon (1) the primary obligation of the Board to desegregate 
the system, and (2) the Board's patent default in the submission 
of a true plan of desegregation.

We urge here the result reached in less compelling circum­
stances in Jackson v. School Board of Lynchburg, Civ. No. 534 (W.D.
Va. April 28, 1970) (order and opinion attached hereto), wherein the 
court authorized plaintiffs, because of the system's apparent default, 
to prepare a plan of desegregation at the system's expense. Only by 
granting plaintiffs the relief prayed for herein will a meaningful 
start toward alleviating segregation and segregation effects in 
Detroit be made. Furthermore, only by permitting plaintiffs to present 
a plan for Detroit will the Court and the parties be in a position to 
(1) determine the need for metropolitan relief and (2) make a complete 
evaluation of the metropolitan plan to be submitted by the State Board.

WHEREFORE, for the foregoing reasons, plaintiffs respectfully 
pray the Court to enter an order authorizing plaintiffs to obtain the 
services of an educational expert (and necessary staff) to prepare a 
constitutional plan for the Detroit school system with the reasonable 
costs of any such prepared plan to be assessed against the defendants. 
Plaintiffs further pray the Court to direct defendants to cooperate 
with plaintiffs' expert (and his staff), including, but not limited 
to, providing work space at the school administration building, and 
granting unto him full access to all information concerning all phases 
of the school system which he may deem necessary, and supplying him 
with any studies and plans and partial plans for desegregation of 
the schools which the Board and its staff have already considered, 
as well as any other plans they may have.

Respectfully submitted,

L C d d u r t / /
LOUIS R. LUCAS
WILLIAM E. CALDWELL

Ratner, Sugarmon & Lucas 
525 Commerce Title Building 
Memphis, Tennessee 38103

NATHANIEL R. JONES
General Counsel, N.A.A.C.P.
1790 Broadway
New York, New York 10019

12



OF COUNSEL:
J. HAROLD FLANNERY
PAUL R. DIMOND 
ROBERT PRESSMAN

Center for Law and Education 
38 Kirkland Street 
Cambridge, Mass. 02138

E. WINTHER MCCROOM 
3245 Woodburn 
Cincinnati, Ohio 45207

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs

CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing Response 

and Motion has been served upon each of the attorneys for defendants 
this 9th day of December, by United States Mail, postage prepaid, 
addressed as follows:

George T. Roumell, Jr., Esq.
720 Ford Bldg.
Detroit, Michigan 48226
Robert E. Manley, Esq.
3312 Carew Tower 
Cincinnati, Ohio 45202
Alexander B. Ritchie, Esq.
2555 Guardian Bldg.
Detroit, Michigan 48226

William E. Caldwell

George E. Bushnell, Jr., Esq. 
2500 Detroit Bank & Trust Bldg. 
Detroit, Michigan 48226
Eugene Krasicky, Esq.
Assistant Attorney General 
Seven Story Office Bldg.
525 West Ottawa St.
Lansing, Michigan 48913
Theodore Sachs, Esq.
1000 Farmer
Detroit, Michigan 48226

13



a /] w v  /^y i w ^ v
AN INDEPENDENT NEWSPAPER 

JOHN S. KNIGHT, Editor,al Chairman
LEE HILLS, President and Publisher JOHN B. OLSON, V. P. and General Manager

OERICK DANIELS, Executive Editor FRANK ANGELO, Assoc. Exec. Editor MARK ETHRIDGE JR.. Editor

Published every morning by Detroit Free Press, Inc., 321 W. Lafayette, Detroit, Michigan 48231

^ 4  ♦  4

S-A SATURDAY. NOVEMBER 27, 1971

As We See It

School Board Is Doctein
The Issue on Integration
THE DETROIT Board of Education's 

proposal to meet a court order requiring 
an acceptable plan for desegregating the 
city’s schools are more than an effort to 
maintain things as they are. They are 
cynical attempts to dodge the issue and 
force the courts to take the burden of un­
popular decisions.

There is a small amount of desegrega­
tion offered in one of the plans, involving 
the busing of 39,000 of the city's 285,000 
public school pupils.

But mostly the plans are a rehash of the 
magnet and middle school programs al­
ready in operation which have proved al­
most totally ineffective in equalizing 
educational opportunity.

Basically, they all involve freedom of 
choice, a concept which has perpetuated 
school segregation around the nation and 
has been rejected repeatedly by the courts. 
None of them can possibly be accepted by 
U.S. District Judge Steven J. Roth, who 
ruled in October that Detroit schools are

segregated and must come up with a plan 
to correct the situation.

The school board has admitted that the ! 
magnet and middle school plans put into l 
effect in September have been almost to- j 
tally ineffective. A net total of 592 black j 
students transferred from majority black 
to majority white high schools. A net 
total of 511 white students transferred 
from majority black to majority white 
high schools.

The middle schools, grades five through 
eight, is a similar plan to make schools ] 
so educationally attractive that white and ■ 
black parents will send their children to 
school together. It has clearly worked out 
to be a flight device used by white parents 
to get their children into schools where 
there was a greater proportion of whites.

In its opposition to the magnet plan, the 
Detroit NAACP gets to the real concern 
of the black community in a citing of a 
1970 court decision:

“The central proposition of the middle 
class majority thesis is that the value of 
a school depends on the characteristics of 
a majority of its students, and superiority 
is related to whiteness . . .
"The inventors of this theory grossly ! 

misapprehend the philosophical basis for 
desegregation. School segregation is for- 

' bidden -simply because its perpetuation is 
a living insult to the black children and 
immeasurably taints the education they 
receive.”

i Judge Roth’s hint that he might consider 
cross-district busing is new and controver­
sial. But in his consideration of the situa-
• tion within the city limits he is obligated 
to enforce a clear set of rules.
The Board of Education is not even 

close to meeting the requirements of the i
* law of the land. The longer its members I 
resist that, the more expensive and painful J 
it is going to be to pick up the pieces later. J



LYNCHBURG DIVISION

CECELIA JACRSON, ct el
V. CIVIL ACTION 

NO.____
THE SCHOOL EOARD OF THE CITY OF : 
LYNCHBURG, VIRGINIA, efc al :

O R D E R

For th© reasons stated In the memorandum of tha Court thia 
day filed, it is ADJUDGED find ORDERED:

That plaintiffs be, and they hereby are, authorised to 
prepare such plan for the operation of the public schools of the City 
of Lynchburg for the grados below Grade 7 as they docs appropriate 
and consistent with constitutional requirements.

considered by the Court as assessable costs against the defendant, and 
defendants are herewith granted leave to file within threa days from 
this date any argument and exception they wish to make to the Ccurc’e 
ruling in this regard, to the end that <his Court my, if doamad proper, 
vacate this portion of its order.

3. The defendants be, and they era hereby, directed to cooper**
ate with any consultant retained by plaintiffs in connection with their 
proposed plan, including but not limited to providing space for him at 
the headquarters of the Superintendent of Schools, and granting unto him

ten which he may deem necessary.

4. Plaintiffs are directed to file within seven days a state** 
ment concerning the anticipated time any such study will require.

l*et the Clork send copies of this order to all counsel of record.

2* The reasonable costs of any cuch prepared plan will b®

full access to all information concerning all phases of the school sys

United States District Judge

April 7 if 1970



LYdCiLTIAG Dlv'ICXOr?

CYCTLIA JACuCOII, c t fll :
«

' ** 1 CT7IL ACTION
m s ecitool Ea\rj> of roj city of j — — —
LYKCHLUZIC, VmCIULT, c t a l j

I-rCI'OAATOTH

Xfeo defendants heroin hsva filed with cha Ccort en eic&mcta 
propo^l to thair esandal p3.cn in regard to tha dsKssrcgntica of the 
Lynchburg schcol systaa. Plaint if fa have filed to c— epeion to certain 
portions of tha eugsasted proposal having primarily to do with tha epara* 
tion of ths cchoolc carving gredea 7 through 12. They hova, however, 
filed exceptions to tha defendants* proposed plan having to do with tha 
•Mifpmeat of students below grade 7.

Tha lntua imadlotoly ponding bolero tha Court ta plaintiffs* 
■wttoo that tha Court direct tha dafonianta to devita and eutalt a 
thar plan for organising and conducting onroltaant la tha . 1 ^ . . ^, 

Khoola. or, ta an alternate tharoto, that they, tha plaintiffs, ha 

aueheriaad to prepare, at tba eapanaa of the dafondentc. a plan la rafar- 
• « .  to th. elemontary cchoat. which would provide for tha csotguMut of 
.pprozlrataly tha cent parcentcgo of black condense end appraaiaataly tha 

**"* p°rcaa“ S« of "Mto atudento ca represented by tha'school papulatloa, 
to each of tha clcaantery achoola. In acaooca, they Cnolra to propara a 
Plan which would aacura a achool population of epprenisotoly 65 to 75X 

’*!'* a“I 25-33* atudonta la aach of tha achoola.
Tha dofoodnnte have reproeonted ta the Ccart, both In tholr 

Ptapa^d plan and through ehalr counMlf that In davtetng th. plan aub- 
altted they gave conaidcration ta cany factcro Including toning, pairing.



v < th'V havo represented further taut they hew. been

wftble( to develop a ay plea which they consider appropriate to sufcaic 
to tLi Court a5 ca cltcmstiva to the plea which they have submitted.

Rsfcrulcss of the coed faith of the cchool authorities, the 
fK3 t̂ y tot in any tenner cercuro u failure to afford each end every 
ctwdsnt, regardless of iacc, their constitutional ri&hts. See v.
Tr** ?>'■'■£ County, 391 U.S. 430 (126o).

Tna Court 1ms found that the dafondanta* in opita of thoir 
pood filth efforts, have been unable to develop a plea which will, os 
to the aloaoctary cchoolo* result in ft cchcol cyetca vicltcuv & va*.t». 
school1 cad ft ‘Negro echcal*, but juct ecUoolo." New heat, ruarn. It 
eey be, of course, that no ouch plan can ba daviccd. This Court, hew- 
ever, ift net yet reedy to agree that the task is irrpoteiblo.

In view cf the defendant a’ seed faith representations, it dcaa
r>*r» cppoftT that any ucofal purpose would bo carved in oixccti&c ®t thi# 
tiao that they eubtiit an additional £las, at least until they have had 
the t&smfit of the views cop re a red in the plan vhich tho Court to S©in3 

# to porsdLt tho plaintiffs to file.
Tho defendant# in their proposed plan ca to tho olecsatcry

cchoolo *aftirp little rofarsneo to tho traueporting of such students except
to cvggect that ’'because of tho wldo dieparcrvl of eleractary cchoolo in 
ell a?&aa of tho city, tha ccbsol board has never eperated any typo of 
school transportation eye ten and has no porscvnsl, fee ill tic a or etfuip** 
cent to <lo co,M and further, o mforcoco is sscco to tho board having 
determined that “tho aeolsrsxmt of pupils at tt*o olesentary crada level 
to schools outo ice of tbsir gccaml raoidccoo arcs which ail cush pupils 
#ra in end could feasibly bo «o eastcoed, cons plan of gcc-'yrnphis 
would havo to bo forssuletnd, corbiaad with tha pairing ©f certain c-ohoolft 

whom feaoilila , end with tho right of majority transfer - -

’2‘



o o

sV

u

I t  i s  a p p a ren t th a t  under th e  p rep a red  p la n  ac c u b u ittc d  

by th e  d e fa n ia n to , c e r t a i n  o f  th e  c le fro n ta ry  sch o o ls  would )xs r e a d i ly  

I d e n t i f i a b le  as  ’'w h ite” cchoolo  and c e r t a in  o f  th e n  would be r e a d i ly  

i d e n t i f i a b le  as  ’'b la c k ” s c h o o ls . I t  has a lre a d y  been j u d i c i a l l y  d e t e r ­

mined th a t  eicgrcgaticm  o f  w h ite  and c o lo re d  c h i ld r e n  In  p u b lic  s c h o o ls  

has A d a tr irv s n tn l  ©f f a c t  upon th o  c o lo re d  c h i ld r e n .  See Brewa v . Board 

of Edgestton. 347 U.S. 483 (1954).

All .parties cast recognize that drawing school zon a lines, or 
utilising freedea of choica, or pairing, or clustering, or any other 
technique,. la not cu and la Itself any cars than busing is.

Vbat tha Court Kust be satisfied of la that It receives all 
poaslbla &ud faaslblo plans toward tho ultixeate geel.

Obviously, practical aspects nact fca considered. While tha 
high cost of daxegregating cchoolo, if cash vara tho situation, would ^  

hi a valid legal ergussent against desegregation, eoa Griffin v.
County School Board of Prince Edward County. 377 U.S. 218 (1964); U.8. 
v* -^221 District #151 of Cork County. 111.. 404 P. 2d 1125 (7th Cir.
1968) , eeca recsonahlo degree of practicality cast ba considered. Ca- 
«joestii3anbly, oca trcssmdcuoly large cchaol for the uca of ail olerantary 
pwpUa la tha Lynchburg school -syctesa would result ia there tains no 
"bUck* or "v^ite” schools, hut one trould hardly anticipate that cay

arranstecont wsxild bo constitutionally dssaendsd. Ubore pupils reside 
*a«t act ncccacarlly control where they are cssigend to cchcols if coco 
«har cpprcach ia necessary la order to eliminate racial segregation.

*** ~ ~ £ 3  F ^ 3 l *>-ys y. gonrar, 303 P. £cp?. 2-39 (1969) ;
Butoycr County Forth Carr-llsa P-nnrfjt of (E.D. 1J.C.

Ju ly  U# l5 ^  * clAO S>y-n V. Chftr3otto-?':nklrahorg E rrai o f  K-Veatica,

^   ̂U.D, n.C. Uov, 7, 1939). Whom rcaidiutloi eogrwgztics; emicta
J-tcctly osvioua that the neighborhood ochsol coaeept if accepted 

**** ce a practical natter, would resale in die calnleiolcg of the



r,c.f m  co f.?c f3 the r-V. "V;?? o- ctd: .*3 .d c ' "vt-.". .«
Indtcsl, the Cedurt Is catisfie2 eh si th?.rcs r:r-v irc'-fja uat-sU 
Jjsva ca yot cos bswa cforjsnscd that raise ha c^cs-T-nv^. to th is e l l  

t©$ vssdr<5 prcblca. Considsratlcctfj of Ccyyyrc;vhy tt-y to e £-stew 
to to  coasi&ared; tra ffic  patterns; both blighted cocoa, £* cny, ecu 

fif fluent croc© end their effect, if any, vr.ca the chile ran ro^uored 
to attend Cwtools In any cuch crcao. Un^cubccdly the fee tore to to 
cc-ssidazed ere, aa previously etc ted, cony ecu d iverts.

Tho Court is  net prepared to cud dees vest c ooi—2 feet the 

constituCioaal requirements for tho operation of public tchoolo 

require tho assignment of eppxcirimato ly  tha csoa parccstcga of “ otUCt-**

students end cpprcjdLoataly tha coca parcentcca of 'Hdiito*1 otto, ante ca 
represented by tha school pope le t ion, in  ouch of tea c- i  cccu tc ry  cchcolo. 

Any each proposal, however, is unc^ucetioua11 y v ice Is  cud i t  vrcsiid is  ^  

feet elim inate ,rb-l£«k" and/or "white" schools.

Are now ponding in  tho cypellets courts license in  

echcol cults  the determination of which cay v e i l  ho blueing upon th is  

Cou r t  and w i l l ,  i f  enunciated by e ith e r tho United States Court of 

Appeals fo r tha Fourth C irc u it  or the United States Cuprersa Court bo

binding. Kowovar, tho constitutional right3 of all stwi-uiE ©f tho 
Lynchburg ochcol eyetcm cast not he withhold tha Court cimply ©a 
tha basis of awaiting *ppol?.ete rulingo. If, unhappily, no ouch rulings 
sro available by the time tha Court secures all of tho information that 

it hopes to secure, a ruling will bo forthcoming.
In the interim, it is entirely appropriate that on order be

entered that the plaintiffo be authorised to prepare a cugyostcd plan
for tho operation of tho public echoolfi of tha City of Lynchburg for 
the grades below Grade 7 aa ehay deem appropriate and consiotont with 
constitutional requirement);. They are reminded, however, of tho Court's 
prior statements in this ojiaoraadua that it be considered

-4



iu cclcticnslift? to all rector c~.l cot* r.e c; 
cotlon, ccloly o plea which eculd rigidly r,ri 
oil ctuemsta os tu vnna, although* of ccurcs* 

ercii appropriate ratiots-Tithin too dojrcsa of 
C».S.tut*oiinx rocpiice~3at5 would ba desirable.

Toa Court will withhold any ruling

f-— t!r.oj t:.sir
sly a particular ratio 
the fitto.icnesnt of 007 

practicalities and eta-

on the Lalccea of dafan-
doato1 proposed p ita , c l  though the Court dccisa i t  epprepriato to ie d i-  

caCo* 6c^ dcoa co iuuicata, that the plea for cha Optratica of gredoa 

Sbova Credo 7 appcarc to coaforn to ccmotitut focal rsSquirossnto.

Aa appropriate order w i l l  bo entered in  accord with th is  

Bjeaaaraadum.

t' ” * V tK.•/s/ WOSSR? h.
United States District Judjta

April l  1 # 1970.

1