Opening Brief for Plaintiffs-Appellants

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH'CIRCUIT

■ NO. 72-8002

RONALD BRADLEY., et al.,
P3.ain t if fs-Appellees

vs.

WILLIAM J. MILL IREN, et al,,
Defendants-Appellants

On Appeal frou the United States District Court 
for the Eastern District of Michigan, 

Southern Division

OPENING BRIEF FOR PLAINTIFFS-APPELLEES

J. HAROLD FLANNERY 
PAUL E. DIMOKD 
ROBERT FRES 8MAN

38 Kirkland Street 
Cambridge., Mass. 02138

JACK GREENBERG 
NORMAN J. CHACFKIN 

10 Columbus Circle 
New York, Haw York 100

'LOUIS R. LUCAS 
WILLIAM S. CALDWELL

525 Commerce Title Bid 
Memphis, Tennessee 381

NATHANIEL S. JONES 
1790 Broadway 
New York, New York 10019

E. WINTHEK McCROOM BRUCE MILLER
3245 Woodburn Avenue LUCILLE WATTS
Cincinnati, Ohio 45207 3246 Cadillac Towers

De tro i t, Michigan

Attorneys for Plaintiffs-Appellees

50 0



Table of Contents

Page
Table of authorities..........................

A Note on Record Citations ...................vi

Issues Presented ................  . . . . . . .  1

Statement of the C a s e ....................... 4

A. Introduction ........................  4

B. Statement of Facts.....................8

1. The Violation -- State-Imposed
r ' Public Segregation . 8

2. Faculty Racial Identifiabi'lity . . 40

C. The R e m e d y .......................... 48

Argument.................. ....................62
I. The Violation...................62
II. The Remedy.......................81
III. State Responsibility ...........  101
IV. Section 803, Education Amendments

of 1972 . . . .  108

A. Ripeness.................... 109
B. Applicability.............. 110
C. Constitutionality ..........  121

Conclusion.............................. .. 126

-i-



TABLE OF AUTHORITIES

Cases Pages

Adkins v. School Bd, of Newport New,
148 T. Supp, 430 (E.D. Va., 1957) ...........

Alexander v. Holmes County Bd. of Educ.
396 U.S. 19, 1218 (1963) ....................

Armstrong Paint & Varnish Works v. Nu-Enamel
Corn., 305 U.S. 315 (1968) ............... .

Attorney General v. Lowrey, 131 Mich.,
639 (1902) ...................................

Baker v, Cara*. 369 U.S. 186 (1962) .............. .

Barksdale v. Springfield School of Commissioners 
348 E.2d. 261 (2d. Cir 1965) ............. .

Bivins v. Bifcb- County Bd. of Educ. 424
F. 2d, 97 v 5th Cir. 1970) ...................

Boddie v. Connecticutt, 91 S. Ct. ,
780 (1971) ..................................

Booker v. Special School Dist. No. 1, Minneapolis 
F. Supp. (No. 4 71 Civil 382

D. Minn. May 24,'1972) ......................

Boykins v. Fairfield Bd. of Educ. F.2d. ,
No. 71-3028 (5th Cir. Feb. 23,”1972) . .77.77. ,

Bradley v. Milliken, 433 F.2d., 897 (6th Cir. 1970)

Bradley v. School Bd. of Richmond,
F, 2d,   (C. A . 4, 1972) .... .7............

Brown v. Bd. of Education, 349 U.S, 294 (1955) ....

Carter v. West Feliciana Parish School Bds. ,
396 U.S. 290 (1970) ....... ..................

Cisneros v. Corpus Christi Independent School
Dist., ___  F.2d, (No. 71-2397, 5th
Cir, August 2, 1972T ........................

?7r 9 8

us, es; /i/,

/oH,

/& $/

//£/

ers,

A/, lo,

/ooL

*7/

/?4>

5 % H  U,
-n, 7s;/«,



Clemons v, Bd, of Educ. of Hillsboro, 228 F.2d,
853 (6th Cir. 1956) ........................

Cooper v, Aaron, 358 U,S. 1 (1958) .............

Davis v. Bd. of Commissioners, 402 U.S.
33 (1971) ........ .........................

Davis v. School Dirt, of Pontiac, 433 F.2d. 573 
(6th Cir. 1971), cert, deviced, 402 U.S.
913 (1971) .................................

Deal v. Cincinnati Bd. of Educ., 419 F,2d. 1387
(6th Cir, 1969), 369 F.2d. 55 (6th Cir. 1966)

Dowell v, Bd, of Education of Oklahoma City ,
338 F. Supp. 1256 (W.D. Okla. 1972) ........

L,
Dunn v. Blumstein, U.S, , 31f'Ed. 2d.

274 (1972) ...7.7.7..... 7.7.7..............

Ex pqrte McCeBdie, 74 U.S. 506 (1869) ...........

Ex parte Young, 209 U.S. 123 (1908) ........... .

Forsyth County Bd, v. Scott, 404 U.S. 1221 (1971)

Franklin v. Quitman County Bd of Educ., 288
F. Supp. 509 (N.D. Miss. 1968) .............

Godwin v, Johnston County Bd, of Educ,, 301
F. Supp. 1339 (E.D. N.C. 1969) ..............

Gomillion v. Lightfoot, 364 U.S. 339 (1960) .....

Green v. New Kent County, 391 U.S. 430 (1968) ....

Griffin v. Prince Edward Co. 377 U.S, 218 (1964)

Guev Heung Lee v, Johnson. 404 U.S. 1215 (1971) ,.

Hall v, St. Helena Parish School Bd. , 197
F. Supp. 649 (E.D. La. 1961) ...............

Haney Bd. of Sev**r<.Co., 410 F,2d. 920,
same, 429 1.2,1. 364 (8th Cir. 1970).........

Hunter v. City of Pittsburg, 207 U.S. 161 (1907) .

Hunter v. Erickson, 393 U.S. 385 (1969) .........

.7/, 75,73,7^
■ H

9^,
<W //oo/

6.3 ,  . L &73, 7 7

.

.

• 9*,

. //7j 

. ?os,

. e?

. 70, 97, /0*t

, 93, 77,97, 78,

. /OS,

-HI ~

/23,



Jackson v. Marvell School Dist, No. 22, 425 F.2d.
211 (8th Cir. 1970) ............ ............... 7 S

James v. Valtiessa, 402 U.S. 137 (1971) .......................... / £  */

Jenkins v. Twp. of Norris School Dist., 279 A.2d. 617
(N.J. Sup. Ct. , 1971) ....................................... <98,

Johnson v Jackson Parish School Bd. 423 F,2d. 1055
(5th Cir 1970) .................  .............................  7 2 ,

Johnson v. San Francisco Unified Sep. School
Dist., 339 E. Supp. 1315 (N.D. Calif. , 1971) ...............  7 / ^ 7 5 ;

Jones v. Grand Ledge Public Schools, 349 Mich. 1
(1957) .... .................................. .............../ O*/>

Katzenbach v. Morgan 384 U.S. 641 (1966) ...... ............... /72,

Kelley v. Metro. County Bd., 436 F,2d. 856 (6th Cir. 1970) ........ /O ob,

Kelly v. Guinn, 456 F,2d, 100 (9th Cir, 1972) ..... ...............
ZOO C-y

Keyes v. School Dist. No. 1, 396 U.S. 1215 (1969) ................

Kramer v. Union Free School Dist., 395 U.S. 621 (1969) ...........  <?£’-?/,

Lee v, Macon County Bd. of Educ., 231 F. Sunp.
743 (M.D. Ala. 1963) ................ ........................<?(,, 98)

Lemon v. Bossier Parish School Bd., 444 F,2d.
1400, 446 F, 2d. 911 (5th Cir. 1971) ......................... /OO^t

McDonald v Bd. of Elec. Comm., 394 U.S. 802 (1969) ............... /

McLauRjn v. Oklahoma State Regents, 339 U.S. 637
(1950) ......................................................  7*7.,

McNeese v. Bd. of Educ., 373 U.S. 668 (1968) .....................  72 ,

Monroe v, Bd. of Comm . 391 U.S. 450 (1968) .......................  2 3 )

North Carolina v. Swann, 402 U.S. 43 (1971) ........  .......... . 9 7 ,? B ,/3

Northcross v, Memphis Bd. of Educ,, 333 a
F. 2d. 661 (6th Cir, 1964) ....................................  <>7,75,

Plaquenines Parish School Board v. United States
415 F.2d. 817 (5th Cir. 1969) ................................ M0/

IV



Reitman v, Mulkey, 387 U.S, 369 (1967) 

Reynolds v. Sims, 377 U.S. 533 (1969)

Reitman v, Mulkey, 387 U.S, 369 (1967) ..............................

Reynolds v. Sims, 377 U.S. 533 (1969) ............................... ?By

School Dist. No. 1 v. School Dist. No. 2, 390
Mich. 678 (1959) ...............................................

School Dist No. 7 v, Bd. of Educ., No. 9585
Kent Cir . Ct........................... .........................

Shapiro V, Thompson, 397 U.S. 259 (1970) ............................ /67j /0(et

Shelton v. Tucker, 369 U.S. 979 (1960) ..............................

Sloan v. Tenth School Dist., 933 F.2d.
587 (6th Cir. 1970) .............................................

Smith v. North Carolina Bd. of Educ. , 999
F.2d. 6 (9th Cir 1971) .........................................

Smuck v. Hobson, 908 F.2d. 175 (D.C. Cir. 1969) ..................... “70,

Spangler v, Pasadena City Bd of Ed., 311 F. Supp.
" 501 (C.D, Calif., 1970) ........................................

Stout v. Jefferson County Bd. of Educ,, F.2d,

7 0 ,  1 /, 7 2 ,  
73,7V, 7%

(No. 29886 5th Cir, 1971) ..................................... 97,
Stungis v. Allegan County, 393 Mich,, 209 (1955) .............. . /#Y,

Swann V. Charlotte Mecklenburg Bd, of Educ., 902 U.S. 1
(1971) ..... ..............•.................................... <

/Olt
Turner v. Warren Cor. Bd. of Educ., 313 F. Supp. 330

(E.D. N.C, 1970) .......................... .....................

United States v. Greenwood Mun, Sep. School Dist., 906

fa  74,
s;39

q  2., 100/oc 
/ooc. , / '<, /;$

F .2d. 1086 (5th Cir. 1969) ..................................... n

United States v. Bd of School Comm, of Indianapolis, 332
F. Supp, 655 ( S.D. Ind. 1971) ......... ........................ ' 70 , iS jto O o .

United States v, Jefferson County Bd. of Educ.,
372 F,2d, 878 (5th Cir. 1966) .................................. i l l , /'T,

United States v. Klein, 80 U.S. 128 (1872) ........ ..................

United States v. School Dist. 151, 909 F.2d,
1125 (1968) ___................................................. 7 1, l Y j H l j

V



u.s.United States v. Scotland Neck Bd, of Educ. ,
_____, 406 W. 4817 ...................

United States v. State of Texas, 447 F.2d. (5th Cir. 1971) ..

United States v. Texas Educ, Agency, (Austin Independent
School Dist.), __ F.2d. ____ (5th Cir. Aug, 2, 1972,
No. 71 2508) same ,431 F.2d. 1313 (5th Cir. 1970) .....

Wayne County Jail Inmates v. Wayne County Bd. 
of Commissioners, C.A. No. 173217, Wayne 
County Cir, Ct. , July 28, 1972) ......... .............

G%7/,
-13,?!^
/ &i / (& __
7 ^ 7 *

Wright v. Council of City of Emporia
U.S. __ 40 L.W. 4806 (1972) .

Yakus v. United States 321 U.S. 414 (1944)
/2-6,

Constitution and Statutes

Michigan Constitution, Art. VIII, Sects,, 2,3

Education Amendments of 1972 ................

Michigan Compiled Laws, 340,1 ..............

t o  8

/*¥ ■

Authorities

3yThomas, School Finance and Educational
Opportunity In Michigan (Lansing 1968)



A Note on Record Citations

Throughout this Brief references to matters contained

in the joint printed appendix will be in the form "A.___"

(e.g., A.Ia99)

Since a leage portion of the record below consists of 

large demonstrative exhibits (maps and overlays, etc.), as 

well as some rather voluminous documentary exhibits, there 

will, of necessity (and in some instances because of inad­

vertent omission from the appendix), be some citation to 

the original record, which will be in the following form:*

Transcript of the trial on the merits beginning April 6, 

1971, by volume number and page--e.g., 35 Tr. 99. Exhibits 

from the trial on the merits will be designated by the offering 

party and exhibit number--e.g., P.X. 99 (plaintiffs), D.X. 99 

(Detroit Board defendants), D.F.T.X. 99 (intervening defen­

dant Detroit Federation of Teachers).

Transcript of the hearing on Detroit-only desegregation 

plans beginning March 19, 1972, by volume number (Roman) and 

page number--e.g., IV Tr. 99. Exhibits from this hearing will 

be designated by C"~~e.g., P.C. 4 (plaintiffs), D.C. 4 

(Detroit Board), etc.

*Also, some matters which plaintiffs requested to be 
included in the joint appendix were omitted by defendants- 
appellants.

-vih-



Transcript of the hearing on a metropolitan remedy 

beginning March 28, 1972, by volume number (Roman), "M" 

and page--e.g., IVM Tr. 999. Exhibits from this hearing 

will also be designated by "Mn--e.g., P. M. 12, etc.

Citation to transcript of any other hearing will be 

indicated by the date on which the hearing began and the 

page number--e.g., 11/4/70 Tr. 99.

Pleadings and orders not contained in the appendix will 

be referred to by title and date of filing .

Where appropriate, appendix citations will be supported 

parenthetically with a designation of the matter referred to-- 

e.g., A. 999 (P. X. 13); this will be particularly true with 

regard to the district court's various rulings, to which the 

following abbreviations pertain:

"Mem. Op. " - Ruling on Issue of Segregation (Sept.

27, 1971).

"Prop. Op. " - Ruling on Propriety of Considering a

Metropolitan Remedy to Accomplish Desegre­

gation of the Public Schools of the City 

of Detroit (March 24, 1972).

"D-0 Op. " - Findings of Fact and Conclusions of Law on

Detroit-only Plans of Desegregation (March 28,1972).

VW-



."Metro Op." - Findings of Fact and Conclusions of Law

in Support of Ruling on Desegregation 

Area and Development of Plans (June 14, 1972). 

"Metro Order"- Ruling on Desegregation Area and Order

for Development of Plan of Desegregation 

(June 14, 1972).

To some extent in the Statement of Facts, the district 

court's findings are quoted verbatim with supporting record 

references contained in brackets.

i x
(



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 
NO. 72-8002

RONALD BRADLEY, et al.,
Plaintiffs-Appellees 

vs.
WILLIAM J. MILLIKEN, et al.,

Defendants-Appellants

On Appeal from the United States District Court 
for the Eastern District of Michigan, 

Southern Division

OPENING BRIEF FOR PLAINTIFFS-APPELLEES

ISSUES PRESENTED

Defendants-appellants1 challenges to the district 
court's orders present the following issues for resolution 
by this Court:

1. Whether the district court's findings that segre­
gation of black from white children in Detroit public



schools results, in substantial part, from racially 
discriminatory acts and omissions by state and local 
school authorities, are supported by substantial evi­
dence.

2. Whether the district court erred in finding 
that the remedy for the state-imposed segregation of 
black students, if confined to Detroit proper in the 
face of reasonable and more effective alternatives, 
would be constitutionally inadequate to eradicate the 
pattern of state-imposed segregation and its effects, 
root and branch.

3. Whether the state's delegation of responsibility 
for operation of the state system of public education to 
various subordinate entities limits the equitable powers 
and duties of a federal district court in fully remedying 
unconstitutional, state-imposed school segregation.

Additionally, this Court, by Order of July 24, 1972, 
has presented the following questions:

1. Does Section 803 of the Education Amendments of 
1972, Pub. L. No. 92-318 apply to Metropolitan transporta­
tion orders which have been or may be entered by the District 
Court in this case?

-2-



2. If Section 803 does apply, is it constitutional?
3. What is the precise legal status under State 

law of local school districts and boards of education 
vis-a-vis the State of Michigan?

4. Whether the expenditures required by the District 
Court to be made in this case at State expense are autho­
rized by current Acts of the Legislature of Michigan now
in effect.



STATEMENT OF THE CASE

A. Introduction
Two years ago, almost to the day, this case began 

as a challenge to the State of Michigan's then most 
recent direct imposition of school segregation in Detroit. 
Exercising the State's plenary power over schools, the 
legislature had adopted Act 48, which manipulated school 
attendance areas, mandated specific pupil assignment 
policies, and substituted (through a boundary commission 
appointed by defendant Milliken) racially segregated region­
al sub-districts for integrated ones. Its immediate effect 
was to nullify the first significant steps toward high 
school desegregation taken by the Detroit Board on April 7, 
1970. Fully implemented, as to its pupil assignment criteria, 
the Act would have preserved and reinforced the pattern of 
Detroit school segregation which, it was alleged, had been 
brought about by the policies and practices of the State 
acting both centrally and through its instrumentalities.



Portions of Act 4b were voided by this Court in 
its ruling of October 13, 1970 (433 F.2d b97).

After additional, largely preliminary hearings and 
appeals the parties undertook in the court below, begin­
ning on April 6, 1971 and continuing for 41 trial days, 
a painstaking inquiry into the factors and agencies 
responsible for the patent racial identifiability of most 
Detroit schools.

As to pupil assignment practices the court found, in 
brief, that sustained and systematic state action at all 
levels was responsible for school segregation within 
Detroit, and that by equally effective practices the 
Detroit system and its suburban neighbors had been rendered 
racially identifiable in the practical and legal senses.
No single school authority act effected racial separation 
as totally and efficiently as the pre-Brown laws of the 
South, but a variety of administrative practices combined 
effectively with several statutory policies to produce 
substantially similar results. In addition, all was done 
that needed to be done--including active participation in 
housing discrimination and massive segregatory practices of 
school construction and site location throughout the metro­
politan area--in order to insure that the extreme residen­
tial racial segregation which characterizes the Detroit

-5-



community would be reflected in its educational systems.
And where residential segregation--itself the product of 
comprehensive public (including school authority) and 
quasi-public racial discrimination--proved inadequate 
to the task, as in racially changing neighborhoods, still 
other supplements, such as the creation of optional 
attendance areas, transfer policies, and manipulation of 
school attendance zones, feeder patterns and grade struc­
tures, were added.

Querying whether a constitutionally adequate plan of 
desegregation could be limited to Detroit proper, the 
court directed that metropolitan alternatives also be 
developed for consideration. Based on the law and evidence 
the court's view, which is now the primary controversy here, 
was that the constitutional responsibility for remedying 
illegal segregation rests ultimately with the State acting 
centrally and through its instrumentalities, and moreover, 
that the obligation is particularly direct and immediate 
here in view of Lansing's sustained and effective partici­
pation in the violation.

Widely ranging proposals were duly presented by the
1/

parties (save only the surburban intervenors ) and con-

17 The suburban intervenors, declining the court's(cont'd next page)

-6-



sidered below. As reflected in its opinions of March 
24, March 2b, and June 14, 1972, the court below con­
cluded, in essence, that Detroit-only desegregation 
would be constitutionally defective as failing to dis­
establish the racial identifiability of Detroit schools; 
that considering the role and responsibility of the State, 
and the geographical scope of the violation, there could 
be no constitutional impediment to metropolitan school 
desegregation; and that considerations of soundness and 
practicability supported--indeed mandated--that approach.

Thereafter this Court stayed the non-planning aspects 
of the district court's order of June 14 and July 11, 1972,
and by its orders of July 20 and 24 took jurisdiction of

2 /
this appeal on the merits.

In our view, the district court was correct in holding:
(1) That the public schools of Detroit are un­

constitutionally racially segregated;

1 / (cont'd)
request for assistance in developing a metropolitan 

remedy, offered instead to prove the undesirability of 
school desegregation. The district court declined that gam­
bit, essentially on the ground that remedies for official 
school segregation are constitutionally mandated.

2/ The detailed procedural history of this litigation 
is set forth in Appendix A, attached hereto.

-7-



(2) that practically as well as legally, providing 
constitutional public education has been and
is the responsibility of the State of Michigan; 
and that,

(3) a school desegregation plan limited to Detroit 
proper would be constitutionally and educationally 
inadequate.

It may be premature to characterize here the positions 
of the other participants in this appeal. We deem it 
significant however, that no challenge is made to the 
educational practicability and soundness--the ultimate 
rightness--of the metropolitan framework set forth in the 
district court's opinion of June 14, 1972. Rather, we are 
disputing here whether the remedial powers of the federal 
courts are commensurate with the magnitude of constitutional 

wrongs.

B. Statement of Facts

1. The Violation--State-Imposed Pupil Segregation
This case deals with a long history of state action

resulting in massive school segregation. In 1960-61, of
3/

251 Detroit regular public schools, 171 had student en­
rollments 907> or more one race (71 black, 100 white); 65.87o

3 / By "regular" schools we refer to schools with 
designated attendance areas.

-8-



of the 126,278 black students were assigned to the vir­
tually all black schools. In 1970-71 (the school year in
progress when the trial on the merits began), of 282 Detroit

4/
regular public schools, 202 had student enrollments 907. 
or more one race (133 black, 69 white); 74.97. of the
177.079 black students were assigned to these virtually all 
black schools. In 1960-61, 126,278 (45.97.) of the 275,021 
pupils in Detroit public schools were black; in 1970-71,
177.079 (63.87.) of the 277,578 pupils were black. (A. IXa333,345
(P.X. 128A-B),IXa357 (P.X. 129),IXa467 (P.X. 150),IXa469
(P.X. 152A),IVa72-73).

5/
In the metropolitan areas surrounding the Detroit pub­

lic schools the pattern of segregation and containment was 
6/

primarily expressed in this record by effective exclusion 
of black children from a rapidly expanding set of new 
schools: between 1950 and 1969 over 400,00 pupil spaces

4/ In addition, the Detroit Board operated 23 various 
non-attendance-area schools enrolling 8,130 students (of 
whom 5,386 were black) from throughout the district and the 
metropolitan area in 1970-71. (P.X. 100J at p. 127). The
Board also had 4,146 students, of whom 1,798 were black, 
enrolled in special adult programs. (P.X. 100J at p. 6).

5 / Hamtramck(28.7 7> black) and Highland Park (85.17, black) 
are surrounded by the Detroit school district. (P.M. 13).

6 / There are also historic areas of black containment 
which are located in Ecorse, River Rouge, Inkster, West­
land, Old Carver School District (Ferndale and Oak Park),

(cont'd on next page)
-9-



were added in school districts now serving less than 2%
black student bodies. (A (P.M. 14, 15)). By 1970
these suburban areas assigned a student population of 
625,746 pupils, 620,272 (99.13%) of whom were white, to

V
schools.

Corresponding the massive pupil segregation is the 
clear racial pattern in the allocation of faculty to 
schools: throughout the metropolitan area black teachers
are disproportionately assigned to schools with predomi­
nantly black student bodies and white teachers are dispro­
portionately assigned to schools with predominantly white 
student bodies. (See pages 40 - 48, infra).

The facts disclose: two sets of schools, one virtually
all black, another virtually all white extending through­
out the area surrounding the geographical limits of the 
Detroit school district. Some 60 hearing days of trial 
proof, 8,000 pages of transcript, hundreds of exhibits con­
stituting thousands of pages of written material and over 
100 maps and overlays demonstrate the action and inaction

£>/ (cont'd)
and Pontiac. As in Detroit, the black children in 

these districts also remained substantially segregated in 
1970-71. (See P.M. 13).

]_/ Exclusive of the school populations of the districts 
named in notes 5 and 6, supra.

-10-



on the part of school authorities in coordinate step with 
other governmental and private discrimination which had 
the natural and foreseeable effect of segregating black 
and white children in their respective schools. To under­
stand how the present massive segregation of school 
children came about is to examine, as the court did below, 
the history of discriminatory state action which accom­
plished the present condition.

We shall briefly attempt to summarize this history 
as it is reflected in the record. At the outset, however, 
two points must be kept in mind. First, although the proof 
reaches back several decades it deals in great detail only 
with the period from 1959 and 1960 to date, the only period 
for which racial enrollment statistics and attendance zone 
and school location maps and data were available. Second, 
this case was filed by black and white school children and 
their parents and the Detroit Branch of the NAACP to dis­
establish the racial identity of Detroit public schools, to 
substitute just schools for black and white schools. So- 
called housing segregation proof was introduced by plain­
tiffs solely to show exactly the interdependence of the 
actions of various governmental authorities and those of 
school authorities in creating and maintaining school segre-

-11-



8/
gation. The case was intended to be, and remains, a 
narrow vehicle to disestablish the pattern of racial 
identification of hundreds of Detroit public schools.

From its inception the case focused primarily on the 
Detroit public schools, where over 150,000 black school 
children are now assigned to schools identified as black 
by state action. Yet, almost from the first day of the 
trial on the merits, in explaining how these black schools 
were created and maintained, the proof of the pattern of 
state action effecting school segregation, both its scope 
and causes, extended beyond the geographical limits of 
Detroit. And in considering remedy, the practical reali­
ties making impossible the substitution of just schools, 
for the black schools and the white schools within the con­
fines of the geographic limits of the Detroit school dis­

Htrict, became evident.

8/ Proof of housing segregation, as is usually the case, 
was introduced by plaintiffs for the precise purpose of 
showing the role of school authorities. Otherwise, "housing 
segregation" is the typical urban school area's first line 
of defense to a charge of school segregation. (Compare note 
27 , infra).

_y/ The proof of segregation resulting from state action 
did extend throughout the metropolitan area. Although, as 
the district courts notes, specific inquiry into each divi­
sion of the State education system (and each suburban dis­
trict) was not made, the State defendants, the chief State 
school officer, the State Board of Education which is

(cont'd on next page)
-12-



At trial plaintiffs presented extensive evidence--
10/ 11/ 12/ 

demonstrative and documentary exhibits, and factual 
13/

and expert testimony--establishing the fact that his­
torically and at present black citizens have been pur­
posefully contained in separate and distinct areas within 
the inner City and largely excluded from the outer areas 
of the City and from the Suburbs, and that the patterns 
and practices persist. (P.X. 184, 2, 16A-D, 136A-C (cen-

9/ (cont'd)
charged with general supervision of public education, 

the chief State legal officer and the State's chief execu­
tive, were defendants throughout. Evidence was taken as to 
the State's policy affecting Detroit as well as suburban 
districts with respect to school construction, merger of 
districts, pupil assignment across district boundaries for 
the purpose of segregation, and disparity of bonding and 
transportation funding as between the Detroit and suburban 
districts.

10/ P.X. 16A-D (1940-70 census maps), 23 (public housing 
map), 48 (racial covenant map) and 184 (tri-county 1970 cen­
sus map) .

11/ P.X. 15, 17, 18A-B, 19, 21, 23, 24, 25, 27, 28, 29
31, 32, 37, 38, 56
122 and 123 •

12/ 1 Tr. 131
seq 2 Tr. 232 et
seq 5 Tr. 591 et
seq . ; 6 Tr. 630 et
seq .; 6 Tr. 686 et

11/ 1 Tr. 131
et seq. ; 6 Tr. 686

56A-B (A.IXa306 ) ,

et seq.; 2 Tr. 185 
seq.; 3 Tr. 398 et 
seq.; 5 Tr. 608 et 
seq.; 6 Tr. 636 et 
seq.; 7 Tr. 720 et
et seq.; 3 Tr. 322 
et seq.; 7 Tr. 754

57, 58, 59, 60, 61A-B,

et seq.; 2 Tr. 200 et
seq.; 5 Tr. 522 et
seq.; 5 Tr. 617 et
seq.; 6 Tr. 665 et
seq.
et seq.; 4 Tr. 427 
et seq.

-13-



sus maps), 48 (map of racial covenants); 1 Tr. 144 et

seq.; 5 Tr. 522 et seq. ; 6 Tr. 686 et seq.; 7 Tr. 720 et

seq. ; 7 Tr. 766 et seq. ; 5 Tr. 591 et seq.; 5 Tr. 608 et

seq. ; 5 Tr. 617 et seq. ; 6 Tr. 630 et seq.; 6 Tr. 636 et

seq. ; 6 Tr. 655 et seq. ) • The pervasive, long;-standing

residential segregation is the direct result of discrimi­

natory action and inaction at all levels of government-­

federal, state and local, including state and local school

authorities. This extensive proof stands unrebutted in 
the record and uncontradicted by any defendant; it was 
properly conceded by counsel for the Detroit Board to be 
a "tale of horror... degradation and dehumanization." (5 Tr. 
607 ; also see A. Ila 99; 4 Tr. 505; 6 Tr. 672, 680-81).

The defendant school authorities not only had full
14/

knowledge of this situation, they became active partners

14/ The Detroit Board's chief school planner and prin­
cipal fact witness, Merle Henrickson, was employed by the 
Detroit City Plan Commission (from 1943 until his employ­
ment with the Board in 1959) and worked on the master plan 
which, with modifications, is still in effect and included 
generally existing and proposed school locations. (A.IVal09-13). 
The Detroit Board acts jointly with city planning officials, 
public housing authorities, park commission authorities and 
federal agencies in the acquisition and sale of land and 
location and construction of schools. (A.IXa405 (P.X. 147),
IXa475 (P.X. 148)lXa475 (P.X. 167); P.X. 19 at p. 37; A.IVall3-16
IIIa60“61). The State Board and the Michigan Civil Rights 
Commission jointly directed, in 1966, that school authorities, 
in their site location, construction and pupil assignment 
policies, avoid incorporation of housing segregation into

(cont'd on next page)

-14-



• •
in the entire process. The Detroit Board, with the 

sanction of the State Board and support of the State 

bonding authority, actively accommodated the housing 

discrimination and built upon and advantaged itself of 

the segregated residential patterns to create, maintain, 

magnify and perpetuate racial segregation in the public 

schools. For example, as the major area of black con­

tainment expanded to the west (after a decision by white 

realtors to open the area to blacks) in a pattern of 

neighborhood succession from Woodward Ave. to Livernois 

Ave. to Greenfield (P.X. 2, 184, 16B-D, 136A-C; A.Ha21-22,71;3Tr. 

364 - 70 ), school attendance boundaries were either 

altered, made optional zones, or maintained in a general

north-south direction and, often, in an overcrowded con-
24-29

dition (see pages 16-18.infra). (P.X. 109A-Q, 110A-S,

137A-C).

Additionally, many schools were built for public housing 

projects designated "black" or "white"; sometimes these 

schools were located on the site of the public housing

14/ (cont'd)
the schools (A. IXa281 (P.X. 174)); and the 

State Board, in 1970, re-emphasized this position in its 
"School Plant Planning Handbook" (A. (P.X. 70)).

-15-



15,/
project. (A.IXa405 (P.X. 147), IXa437 (P.X. 148);

P.X. 19 at pp. 32, 37; P.X. 149; A.IIIal82 The schools 

constructed to accommodate the housing projects which 

were built for black occupancy remain virtually all 

black, as do the housing projects. (P.X. 149).

Identifiably "white" schools were often constructed 

and maintained on lands with covenant restrictions prohi­

biting Negro use or occupancy (A.IXa493 (P.X. 172), P.X.

172A-Z); and in at least one instance, in 1954, a racial 

covenant was continued pursuant to a special agreement 

between the seller and the purchaser Detroit Board. (A.IXa495 

(P.X. 172W)).

Just when racial discrimination in Detroit’s public 

schools began is not known, but the record establishes its 

existence throughout the 1950s and its continuation to the 

time of trial.

As noted above, "/_d/uring the decade beginning in 1950 

the Board created and maintained optional attendance zones 

in neighborhoods undergoing racial transition /by permission

15/ Indicative of the Board's color consciousness is 
the reference in the Superintendent's Minutes of November 2, 
1953, to using a "colored church" to relieve overcrowding 
caused by black housing projects. (A IXa422 (P.X. 147);
A. IIIal84“85).

-16-



and designation of the white real estate industry/ and 

between high school attendance areas of opposite pre­

dominant racial compositions. /A.IVa96-101, IIa261 62, 

IIa267-314,Ila 11-14 _/. In 1959 there were 8 basic

optional attendance areas _/P.X. 109A (1959-60 overlay)/
16/ _

affecting 21 schools. j_P.X. 155A at p. 44; A . m a36,37
_/." (Mem. Op., A. Ia20 ). The certain "effect

of these optional zones was to allow white youngsters to
17/ _

escape identifiably 'black' schools /A. IIa311-14,

IIIa37, IVa97-101; A.IXa373 (P.X. 132); P.X. 109A-L, 78A-L

16/ "Optional attendance areas provided pupils living 
within certain elementary a_reas a choi.ce of attendance at 
one of two high schools. /A. IVa96_/. In addition there
was at least one optional area either created or existing 
in 1960 between two junior high schools of opposite pre­
dominant racial components. /_A.IIa311 -14,II178_/ . All of 
the high school optional areas, except two, were in neigh­
borhoods undergoing racial transition (from white to black) 
during the 1950s. The two exceptions were: (1) the option
between Southwestern (61.67<> black in 1960) and Western (15.37, 
black); (2) the option between Denby (0% black) and South­
eastern (30.9% black). /AJXa333 (P.X. 128Aj>/. With the 
exception of the Denby-Southeastern option (just noted) all 
of the options were between high schools of opposite pre­
dominant racial compositions. The Southwestern-Western and 
Denby-Southeas tern optional ajreas are all white on the 1950, 
1960 and 1970 census maps. /_P.X. 136A-C, 109A/. Both 
Southwestern and Southeastern, however, had substantial 
/black/ pupil populations, and the optjlon allowed whites to 
escape integration /AJIa298-311 _/." (Mem. Op., A.ia201

17/ "There had also_been an optional zone (eliminated 
between 1956 and 1959) / A. IVa75 _/ created /in the words of 
Board counsel agreed to by Mr. Henrickson/ 'in an attempt.._. 
to separate Jews and Gentiles within the system' /AJIIa219/, 
the effect of which was that Jewish youngsters went to Mum-

(cont'd on next page)
-17-



136B, 136C/." (Mem. Op., A Ia202 ). "Although many of
18/

these optional areas had served their purpose by 1960 

due to the fact that most of the areas had become predomi­

nantly black _/P.X. 136B/, one optional area (Southwestern- 

Western, affecting Wilson Junior High graduates) continued 

until the _/1970-7JL/ school year (and /continues to effect/ 

11th and 12th grade white youngsters who elected to escape

from predominantly black Southwestern to predominantly white
19/ _

Western High School) /A IVa99-100;A.IXa73 (P.X. 132); 

A.IXa384 (P.X. 1382/. 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 stu­

dents escape from predominantly Negro surrounding schools.' 

/A.IVa77- 78;A. IXa398 (P.X. 13827." (Mem. Op., A.ia202 ).

Yet, the option continued in effect until the 1970-71 

school year. "The effect of eliminating this optional area

17/ (cont'd)
_ ford High School and Gentile youngsters went to 

Cooley /A. IVa74_/." (Mem. Op., A. Ia202 ). (See also 
A. Xa31-32 ).

18/ Mr. Henrickson admitted, however, that even in 1959 
some of the optional areas "can be said to have frustrated 
integration and continued over the decade." (A.iVa96~97 )•

19/ The Board had eliminated the other optional areas 
by 1965 (P.X. 109G). With regard to two such areas (Sherrill 
and Winterhalter-McKerrow) the effect by 1960 was that black

(cont'd on next page)
-18-



(which affected only 10th graders for the 1970-71 school

year) was to decrease Southwestern from 86.77o black in
20/ _  _

1969 to 74.3% black in 1970 /A.IXa345 (P.X. 128B2/."

(Mem. Op., A.Ia202 ).

Working hand-in-hand with the optional zoning prac­

tices for segregation results were the Board's transporta­

tion practices. "The Board, in operation of its transpor­

tation to relieve overcrowding policy, has admittedly bused 

black pupils past or away from closer white schools with 

available space to black schools. /_A.IVa86-88,91-93, 203-08, 

214 18; IllalS-31, 145-46; Ila 318-29 J .  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. _/A.Hal44-68,

19/ (cont'd)
students were electing to attend white high schools. 

In both instances the Board initially proposed to eliminate 
the optional area by including it (in the usual segregatory 
manner) in the black high school zone. Both proposals 
resulted in community opposition and one resulted in the 
Sherrill School lawsuit. (A.lIIal47-48).

20/ The Board failed to present any valid, not to men­
tion compelling, justification for its optional attendance 
policy and practice. Dr. Foster, plaintiffs education ex­
pert, found no valid administrative reasons for creation 
or maintenance of any of the optional areas. (A.IIa 267-318). 
The Board, through Mr. Henrickson, spent much time talking 
about the relative capacities of the various high schools 
involved in options. Even if there were capacity problems, 
this is an insufficient administrative justification, fox;

(cont'd on next page)
-19-



IVa84 - 85, IIa23, IIIa25 - 30, Xa39 - 40/."

(Mem. Op., A.Ia202 ). Even when the Board, prior

to 1962, bused black pupils to white schools, it did so

under its "intact busing" (busing by grade, class and

teacher) practice which kept black youngsters segregated
21/

in the receiving schools. (8/28/70 Tr. 140-41; P.X.

3 at 62; A.IIIal8-20).

"With one exception (necessitated by the burning of 

a white school), defendant Board has never bused white

20/ (cont'd)
it is clear that capacity problems are more easily 

and predictably eliminated by establishment of firm atten­
dance boundaries.

21/ The secretary of the Citizens' Association for 
Better Schools presented one particularly demeaning exam­
ple of "intact busing" to the EEO Committee in 1960: "the
fourth grade at the Thirkell School was bussed because of 
the overcrowded condition of the school... These children 
do not eat in the lunchroom at the same time that the 
children in the White _/name of the receiving schooJL/ school 
do. They are not integrated at all in the White school... 
This is now the beginning of the third year for them and 
for three years they have been a segregated part of this 
school. Now the association has teachers telling them that, 
in instances where white children in the school misbehave, 
these children are told, 'Now, if you don't behave, we're 
going to send you over there with those little colored kids 
from Thirkell school.'" (P.X. 105 at pp. 465-66; App. B, 
attached hereto, at pp. 4b-5b).

-20-



22/  _
children to predominantly black schools /A.IVa85, 

IIa264_/." (Mem. Op., A. Ia202 ). And the Board has 

persisted in refusing to bus white pupils to black 

schools "despite the enormous amount of space avail­

able in inner-city schools _/A.lVa232-36; P.X. 181.7 .

/In 1970-7// J_t/here were 22,961 vacant seats in schools 

90% or more black /A.iXa372 (P.X. 131//." (Mem. Op.,

A. Ia202 ).

In 1962 the Detroit Board-appointed Citizens Advisory

Committee on Equal Educational Opportunities concluded:

Numerous public schools in Detroit are 
presently segregated by race. The alle­
gation that purposeful administrative 
devices have at times been used to per­
petuate segregation in some schools is 
clearly substantiated. It is necessary 
that the Board and its administration 
intensify their recent efforts to desegre­
gate the public schools.

22/ One of the most flagrant discriminatory uses of 
busing occurred in the transportation, from 1955-1962, 
of black junior high pupils from the black Jeffries public 
housing project to black Hutchins Junior High in another 
high school constellation, rather than allow them to walk 
across the street to the majority white Jefferson Junior 
High. Although Jefferson Junior High was at capacity, the 
Board could have assigned white students from the Tilden 
Elementary area in the northernmost part of the Jefferson 
zone (and much closer to Hutchins than to the Jeffries 
project) to Hutchins, thereby making available space for 
the Jeffries project youngsters at Jefferson. (P.X. 109M; 
A. IIa318-29; IVa87~88, 214-18).

-21-



•  •

(P.X. 3 at p. 61, excerpts from which are.attached hereto

as Appendix C} p. 2c). This finding and recommendation

remained mere words on paper, however, for, as we shall

show, the practices continued virtually unabated.

As the more patently discriminatory techniques of

dual zoning and busing for segregation were beginning to

be eliminated, the Board adopted an open enrollment policy

which permitted any pupil to transfer to any school in the

system with available space. (8/27/70 Tr. 50-52; A.IIIa32-35,IVa

237-38;22Tr.2519-20)On September 18, 1964, Judge Kaess

entered "Interim Findings" in Sherrill School Parents

Committee, et al., v. The Board of Educ. of the School Dis-
23/

trict of the City of Detroit, C.A. No. 22092 (E.D. Mich.),

concluding, inter alia, that:

The present "Open School" program does 
not appear to be achieving substantial 
student integration in the Detroit 
School system presently or within the 
foreseeable future. Accordingly, the

23/ The Sherrill School lawsuit was filed as a result 
of the discriminatory elimination of an optional zone (see 
note 19, supra) and, although the complaint challenged the 
alleged existence of a dual school system, the suit was 
never prosecuted.

-22-



Board should commit itself to 
devise and propose other methods of 
speeding up the racial integration 
of students. The goal should be 
the achievement of substantial 
student integration in all High 
Schools and Junior High Schools 
by the beginning of the February,
1965 term. 24/

(A. IXa303 (P.X. 6)). The Board, with one member dissenting, 

expressed complete agreement with these findings on April 

20, 1965. (P.X. 6A). Yet it was not until September,

1966, that the open enrollment policy was modified to re­

quire that any transfer thereunder have a favorable effect 

upon integration at the receiving school. (A.iva237 ; A.ixa395

(P.X. 138)). Although some black pupils had elected to go 

to predominantly white schools, "the greater effect of the 

policy to that date _/_September, 196_6/ had been to draw 

white students away from inner city schools." (A.IXa397 

(P.X. 138); A.IVa237-38). Even under the post-1966 policy 

the favorable effect on integration has been negligible, 

with some black students continuing to elect predominantly

24/ The record of junior and senior high segregation 
from 1965 to date clearly indicates the continued and 
obviously deliberate maintainance of segregation. Whether 
the delay from 1965 to April 7, 1970 for the first small 
beginning of desegregation was the result of fear of 
community reprisal is not clear. In view of the violent 
public and legislative reaction to the April 7 attempt to 
begin desegregation this continued discrimination may be 
explained, but is in no way constitutionally or morally justi­
fied.

-23-



white schools, but almost no white students opting for 

predominantly black schools. (A.IIIa90-91,239-40;IIa264).

The policy continues to focus on the receiving school and 

permits white students to transfer from black schools to 

schools which are less black. (A.IIa264, 20 Tr.2190-92). 

Furthermore, pupil transfer requests for explicit racial 

reasons have been and continue to be regularly granted. 

(A.IIIa63-76, ; (P.X. 168); A.IVa72-78;

A. IXa387, IXa398 (P.X. 138)).

The Board has created and altered attendance zones, 

grade structures and feeder school patterns in a manner 

obviously designed to exclude blacks from white schools 

and whites from black schools. (Mem. Op., A.Ia202-03; 

A.IIa318-IIIal3,IIIa39-40 ). "The Board admits at least 

one instance /Higginbotham/ where it purposefully and inten­

tionally built and maintained a school and its attendance 

zone to contain black students _/A.IVa248,IIIal45-49,IIa339-42V 

(Mem. Op., A.Ia203 ). The segregation of the Higginbotham

school is an example directly linked to racial discrimina-
25/

tion in housing : the school's boundaries were built upon

25/ The Higginbotham community had been built up by 
temporary war housing (P.X. 19, at p. 71), designated for 
black occupancy, and extended beyond the City limits into 
Oakland county and the old, almost all-black Carver School 
District. (P.X. 184; A.Xa 8-9 ,Xa38 39 ). The small

(cont'd on next page)
-24-



actual physical barriers erected by neighboring whites
26/

intent on keeping blacks out.

Numerous examples of similar zoning and feeder pattern

gerrymandering were presented to the district court. The
27/

Center (administrative) District is a classical example. * 8

25/ (cont'd)
Carver school district lacked high school facilities. 

The state defendants and the Detroit Board accommodated these 
students by busing them past "white" schools to "black" 
schools in the inner city. (A.IIal93~94; Xa8-9,38-39;
8 Tr. 885; P.X. 78A). These black students were refused by 
suburban districts and were, therefore, for the purpose 
of maintaining the segregation in the suburbs, bussed across 
school district boundaries to segregated black schools in 
Detroit. The Carver school district finally was split and 
merged into the Ferndale School District and Oak Park School 
District. (A. Xa8-9 ; P.X. 184 (census map); A.iXa556 (P.X. 
185)). In these districts at the elementary level in the 
1968-69 school year, the students from this still black 
residential pocket (P.X. 184 (census map)) were assigned 
to two virtually all black schools. (A.iXa556 (P.X. 185)).

26/ One witness who described the general pattern of 
containment as being "just as effective a barrier as if a 
wall were built in the community" (A.I Tr.163), then went 
on to describe the Higginbotham area in the 8 Mile-Wyoming 
area where a builder, who had title to property adjacent to 
the black residences, "actually put up a cement wall, brick, 
mortar and brick wall, which for years was a symbol in 
/Detroit/ of the way in which the Negro was an undesired 
neighbor." (A. I Tr. 163).

27/ An assistant superintendent, Charles Wells, testi­
fied from the minutes of the EEO Committee (P.X. 105 at p. 
478) with respect to a letter presented to the Committee 
by the Citizens' Association for Better Schools (of which 
Mr. Wells was a member) at an EEO meeting in 1960 attended 
by Mr. Wells. After outlining the hopes and dreams of 
equal educational opportunities of Detroit's black citizens, 
particularly the hopes inspired by the favorable millage 
vote in 1959, the Association stated:

(cont'd on next page)
-25-



A home owners association presented evidence of another 

example to the EEO committee in 1960: the school zone

boundary changes in their area "were exact to the street, 

to include the total Negro population to the east in the

27/ (cont'dj^ _
Their /black people/ 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 accomplished 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 
predominantly uniracial school system to 
which he had formerly been accustomed in the 
City of Detroit.../Protestations/ resulted 
in only rationalizations concerning segre­
gated housing patterns, and denials of any 
attempts to segregate. When it was pointed 
out that regardless of motivation, that segre­
gation was the result of their boundary changes, 
little compromise was effected, except in one 
or two instances, where opposition leadership 
was most vocal and aggressive.

(A.IIIal41-42) . These charges, joined in by Mr. Wells, were 
supported with statistical data showing the disproportionate 
size, inferior iacilities and unequal resources relegated 
to the Center District. (See generally A.IIIal40-45) Jhe 
Center District exemplified "a policy of containment of 
minority groups within specified boundaries.jj (A.IIIal42-43) . 
Its boundary line was described as "looking/ like the 
coastline of the Eastern United States where the Negro popu­
lation is on one side and the white population on the other." 
(A.IIIal47 ).

-26-



reassignment to Central High School." (P.X. 105 at p.

425, Appendix B, attached hereto, at p. 3b). To the EEO 

committee these boundary changes "appear/ed/ to be a 

result of racial discrimination," a proposition with 

which the representatives of the home owners association 

agreed, "not only in their area but in other areas of 

the city." (P.X. 105 at pp. 426-27, App. B at p. 3b).

As long ago as 1967 Mr. Henrickson pointed out to 

the Board various obvious examples (e.g., Burton-Franklin 

Area; Wilson-McMillan Junior High area) where boundary lines 

separated white and black school zones which could easily 

be integrated by simple boundary line revisions. (A.IVal04-09; 

accord, A.IIa329-32; IIIa51-56).But. the Board declined to act, 

although it had changed the Vandenburg-Vernor (A.IIa333-37), 

Jackson Junior High(A.IIa345~47),Davidson-White (A.IIIal-4) , 

Parkman (A.IIIa4-7), Sampson(A. Illall-l^and other zone lines 

and feeder patterns in a manner which has created and per­

petuated racial segregation in the schools in the face of 

equally feasible alternatives which would enhance integra­

tion. (A.IIIa39 ). And the Board created and maintained

attendance areas such as Hally(A.11342-43) and Northwestern-
28/

Chadsey (A.IIIaS 11) in a patently segregatory manner.

28/ Defendants responded to these and similar examples 
generally by pointing out alleged capacity problems and the

(cont'd on next page)
-27-



And even at the time of trial the Board planned on

removing the last predominantly white elementary school

(Ford) from the black Mackenzie high school feeder pattern,

the only justification being that the regional board

created by the state legislature (via Act 4b) so willed.

(A.IVa94 ). Even in two of the 8 minor changes (including

elimination of 3 optional areas) during the past decade

which the Board pointed to as improving integration, sub-
29/

sequent changes negated or modified the meager results.

28/ (cont'd)
desire to maintain "articulated" feeder patterns 

which would keep the same students together as they pro­
gressed from elementary to junior high, then from junior 
high to senior high. These proffered justifications are 
unconvincing, if for no other reason because of the incon­
sistency of their application. For example, the Board 
attempted to justify the removal of the white Parkman ele­
mentary from the black Mackenzie High feeder pattern by 
pointing out that the receiving white high school (Cody) 
was much less overcrowded than Mackenzie. Yet, at the 
same time Cooley (predominantely black) was similarly less 
overcrowded than nearby white Redford, but the Board made 
no change in the feeder patterns. (A.IV93-96). The arti­
culated feeder pattern principle has not been, nor is it 
now, a valid justification for maintaining or failing to 
alleviate segregation. This principle was violated in 
feeder patterns such as the Custer in 1959-61 (A.iVa209-ll) 
and the Davison in 1969-1970(A - IVa211-14) , which had the 
effect of creating and perpetuating segregation. And the 
concept was wholly disregarded in the feeder patterns pro­
posed in the April / plan. (A,IVa201 -03) .

29/ The two negative changes were the return of black 
Custer to the black Central High feeder pattern (A.IVa209-ll, 
IV213-14) and the return of black Davison from the white

(cont'd on next page)
-28-



(A.IVa208~13). "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 direction would result in
30/ _

significant integration j_P.X. 105 at p. 450; A.Xa43-55;

11/4/70 Tr. 38; A.IXa201-03; A.IXa393 (P.X. 138); A.IIIa51-567." 

(Mem. Op., A.Ia2C3 ). And although the Board was speci­

fically aware, since at least 1967, of contiguous atten­

dance zones which could be paired or altered to accomplish 

integration, it failed to act (A.IVal05-09;A.IXa384 (P.X.

138)) until adoption of the April 7, 1970 Plan which was 

promptly snuffed out by the Michigan Legislature.

The most invidious and lasting segregatory device, how­

ever, has been defendant school authorities' school site 

selection and construction practices which, coordinated 

and interrelated as they were with housing segregation, have re­

sulted in a brick and mortar dual school system. Between 1940 and

29/ (cont'd)
Osborn feeder pattern to the predominantly black 

Pershing feeder pattern. (A.lVa211-14).

30/ With the exception of the April 7 plan, the Detroit 
Board "has never made a feeder pattern or zoning change 
which placed a predominantly white residential area_into a _ 
predominantly black school zone or feeder pattern j_k. _/. "
(Mem. Op., A. Ia203 ).



•  •

195b the Board constructed 36 new elementary schools and 

4 new high schools, and additions to 55 elementary schools,

1 junior high school and 3 high schools, for a total addi­

tional capacity sufficient to house 69,000 students. (A.IVal09-10 

P.X. 101 at p. 233). The new school construction during 

this period was located largely in accordance with general 

site designations set forth in the Detroit Master Plan of 

1946, which was developed by the City Plan Commission in 

conjunction with school authorities. (A.IVallO-l1,113-14,.

Most, if not all, of this construction was to accommodate 

the out-migration of whites moving to all-white residential 

areas in the northwest and northeast areas of the City.

No doubt, this construction had a corresponding magnet 

effect, attracting even more whites (blacks not being 

allowed to live in these areas) away from the inner city.

In 195b, the Board-appointed Citizens Advisory Commi­

ttee on School Needs pointed up inadequacies in school plant 

facilities, particularly the failure to build new schools 

and upgrade deteriorating facilities in and near the areas 

of black concentration. (P.X. 101). In 1959 the Board 

designated a $90 million dollar building program; $30 million 

came out of the millage package and the remaining $60 million 

from the first bond issue the Board had ever placed before 

the public. (A.Xa24-25 ). The 1959 building program was

-30



specified in a "priority list" of projects; this list 

was transmitted by the school authorities to the City Plan 

Commission which resulted in joint conferences between 

these two agencies and other city agencies, such as the 

Department of Parks and Recreation, for the purpose of 

determining site locations (A.IVall4 ). Many of the pro­

posed attendance areas were designated in iy59 and specific 
site locations were thus determined within the confines 

of the established attendance areas; by iy62 all atten­
dance areas and site expansions were designated for the 

school construction proposals on the 1959 priority list 
and published in The Price of Excellence (P.X. Ilk). (A.IVa 

226-27). Almost all of these attendance areas were drawn 

in such a manner that the Board knew or should have known

that the schools, when constructed, would open as segre-
31/

gated schools.

The segregatory purpose and effect of the site selec­

tion and construction practices, coupled with the attendant

31/ As previously noted, much of plaintiffs' proof 
consisted of demonstrative presentation. For example, the 
school site location and construction practices were demon­
strated to the district court in part by comparing over­
lays reflecting site locations and construction (P.X. 153, 
153A-B) with the appropriate federal census data as reflected 
on maps color-coded to the racial composition of the City's 
population. (P.X. 136 A-C).

-31-



zoning practices, is demonstrated in considerable detail 

in plaintiffs' proposed Findings of Fact and Conclusions 

of Law (at pp. 23-28) submitted to the court below and 

which defendants have included in the printed appendix,

A. Ial70-77.
In addition to the 84 projects undertaken pursuant to 

the 1959 Construction Program (see P.X. 75), the Board 

has, during the last decade, undertaken additional con­

struction with its normal millage authority (recently 

increased to 5% to equalize Detroit's capital outlay autho­

rity with that of the rest of the state). (See P.X. 77). 

Defendants' Exhibit NN (A.IXa571 ) reflects that the Board 

has completed construction of and additions to 91 schools 

since 1959. According to defendants' own exhibit (NN), 48 

of these schools were to serve areas which were over 807. 

black in pupil population when the construction was autho­

rized, all of which opened over 807. black and remain so; 14 

schools were in are s over 807. white (by the Board's own 

estimates) when authorized, opened over 807, white and have 

remained so. Plaintiffs' Exhibit 70 shows the construction 

of 63 new schools since 1960: 44 of these schools opened

over 807, black in student enrollment, and 9 opened less 

than 207, black. This new school construction is depicted on 

overlays (P.X. 153, 153A and 153B); when the overlays are 

compared to the 1960 and 1970 census maps (P.X.

-32-



136B and 136C) and the percentage black when each school

opened (P.X. 70), it appears beyond peradventure that

the Board, with few exceptions, knowingly constructed a

dual school system (A.IIIa40-51,IVall6-18).

In 1966 the defendant State Board of Education and

the Michigan Civil Rights Commission issued a Joint Policy

Statement on Equality of Educational Opportunity (A.IXa281

(P.X. 174)), requiring that:

Local school boards must consider the factor of 
racial balance along with other educational 
considerations in making decisions about selec­
tion 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"

(A. (P.X. 70)) requires that:

Care in site location must be taken if a serious 
transportation problem exists or if housing pat­
terns in an area would result in a school largely 
segregated on racial, ethnic, or socio-economic 
lines.

Yet the Detroit Board has paid little, if any, heed to the 

obvious truth of these statements and guidelines, and the 

"State defendants have similarly failed to take any action
32/

to effectuate these policies." (Mem. Op., A.Ia204;A.IVall8-19).

32/ Since 1959 the Board, with the obvious knowledge 
that small schools "defeat the intended objective of large 
service areas with heterogeneous social and racial composi­
tion" (A.IXa391 (P.X. 138); A. IVa257»38)'has constructed
at least 13 small primary schools with capacities of from

(cont'd on next page)
33-



Defendants' "Exhibit NN /A.IXa571_/ reflects construction

(new or additional) at 14 schools which opened for use in

1970-71; of these 14 schools, 11 opened over 90% black and

1 opened less than 107, black." (Mem. Op., A.ia204 )•

School construction costing $9,222,000 was scheduled to

open in 19/1 at Northwestern High School (99.97. black),

and new construction was similarly scheduled at Brooks
33/

Junior High (1.5% black) at a cost of $2,500,000. (A.

(P.X. 151)).

The segregated construction pattern within the Detroit 

school system was significantly influenced by the State's 

discriminatory scheme of allocating State funds for pupil 

transportation. State aid for pupil transportation is 

provided to bus all students who live over 1\ miles from 

their assigned schools, but, by virtue of State law, simi-

32/ (cont'd) _ _
300 to 400 pupils _/A.IVa236-37./ •" (Mem. Op., A.Ia204).

This practice negated opportunities to integrate and furthered 
the racially dual construction pattern. Construction of 
such primary units usually adjacent to an existing segre­
gated school mandates a small enough attendance boundary 
to keep the boundary within the area of black residence and 
therefore segregated. Obviously, a larger school requires 
a larger attendance area making it more likely that black 
and white students would be included in the school. In most 
cases the small primary unit retained the boundary of the 
already segregated elementary school.

33/ "The construction at Brooks Junior High plays a 
dual segregatory role: not only is the construction segre­
gated, it will result in a feeder pattern change which will

(cont'd on next page)
-34-



•  •

larly situated students in Detroit and most other city 

school districts (whose boundaries are coterminus with 

those of their respective cities) in Michigan are denied 

any portion of the State transportation fund ($29,000,000)
34/

for such regular pupil busing. (A. Ilia 93 95, 223).

The effect for Detroit and segregation was this: rather

than transport pupils to alleviate crowding problems, 

whether in the short or long run, the Detroit Board was 

economically encouraged to construct new classroom spaces; 

their site choices, together with the State's negative 

incentive, always having the effect, as shown above, of 

compounding segregation. The Board's choice in the matter 

resulted from its relatively favorable position with regard 

to construction monies, which derive from bonding authority 

but are limited by law to capital improvements, as com-
35/

pared to operating monies which are at a deficit in Detroit.

33/ (cont'd)
remove the last majority white school from the 

already almost al^-black Mackenzie High School attendance 
area. /A.IVa94 _/." (Mem. Op., A. Ia204 ).

34/ Some suburban districts, which would not be elibible 
for state transportation money because of their status as 
cities or villages, nevertheless receive it by virtue of a 
"grandfather clause," i.e., they retain for this purpose 
their status of some years ago. See, e.g., S.B. 1269, 1972 
Reg. Sess., Sec. 71 (2) (a) (b).

35/ And this was so despite the fact that the State's 
bonding capacity laws also discriminated against the Detroit

(cont'd on next page)
-35-



•  •

(A.IVal29-30) . (Since the district was deprived of any 

State busing funds, the transportation which was abso­

lutely necessary was financed out of the operating budget). 

(A.IIIa223-24) The converse of the foregoing--i. e., the 

favorable treatment accorded many of the suburban school 

districts surrounding Detroit--has worked hand-in-hand 

with intra-Detroit discrimination practices to contain 

black children in black schools within the City of Detroit 

and, at the same time, provide white enclaves (with white 

schools) in the outer parts of the Detroit metropolitan 

area. And, of course, families desiring school transpor­

tation for their children were induced to move to where it 

would be provided; because of housing discrimination 

white families were more mobile than black families. The 

segregatory school construction practices, and their link 

with housing discrimination, discussed above, knew no 

political boundaries. The pattern is a continuous one, 

uninterrupted by political subdivision boundary lines: 

black schools were constructed and are maintained within 

the center of Detroit, while white schools were constructed

35/ (cont'd)
district: all school districts in the State of

Michigan, save Detroit, have had a capital improvement bonding 
authority of 57, of equalized valuation not requiring voter 
approval; in Detroit alone the level was held to 270 until 
1969 when the legislature increased it to 37,, and finally 
to the state-wide level of 57, in 1970. (A. IVal32-34) .

-36-



and are maintained on the periphery of Detroit and 

throughout the surrounding suburban communities. Between 

iy50 and iy6y in the Detroit tri-county area, approximately 

13,y00 "regular classrooms," capable of serving and 
attracting over 400,000 pupils, were constructed, with the 

approval of state authorities and with the help of the 

discriminatorily favorable bonding authority accorded the 

school districts in this area by the State (see note 35, 
supra), in districts less than 2?0 black in pupil enroll­

ment in iy/0-/l. (P.M. 14; P.M. 15). Obviously, white

families either within Detroit or moving into the area 

were attracted to these schools (assured of their white­

ness by the pervasive discrimination in housing) away

from blacker schools in Detroit and the blacker Detroit
36/

school district. (A,VIIa36~38 ). The attraction of white

36/ In building racially exclusive communities for the out­
migration of whites, and the location of both newly forming 
white family groups and white families moving into the Detroit 
area, "white" schools were a necessary precondition to 
"stable" and "desirable," i.e., white neighborhoods, in the 
formerly stated view of the F.H.A. (P.X. 56b, iy36 F.H.A.
Manuel §§256, 265, 266):

"Of prime consideration to the Valuator is the 
presence or lack of homogenity regarding types 
of dwellings and classes of people living in 
the neighborhood... Distances to the schools 
should be related to the public or private 
means of transportation available from the

(cont'd on next page)
-37-



•  •

suburban schools to white families was certainly faci­

litated by the discriminatory allocation of state 

transportation aid to most (A Xal27-28,153-64 ) of these 

suburban districts: whites seeking homes and schools

were assured that the State and its education agents
37/

would provide the means to get their children to school --

36/ (cont'd)
location to the school. The social class 

of the parents of children at the school will 
in many instances have a vital bearing... Thus... 
if the children of people living in such an 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 neighborhood under consideration 
will prove far less stable and desirable than 
if the condition did not exist. In such an 
instance it might well be that for payment of 
a fee, children of this area could attend 
another sc .?ol with pupils of the same social 
class."

The 1936 manual also reflects F.H.A.'s understanding 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 neighborhood under consideration 
will prove far less stable and desirable than if 
the condition did not exist."

37/ In those suburban districts eligible for state 
transportation aid, the percent of pupils bused in 1969-70 
ranged from 427, to 52%. (A.Xal26-29 ).

-38-



as opposed to the setting in Detroit where publicly-financed 

school busing was available only in emergency situations 

and over-crowded schools.

Prior to 1962 the defendant State Board supervised

school site selection and construction throughout the state

and in the Detroit metropolitan area in p; rticular, where,

as seen above, construction and site selection practices
38/

served to create and compound school segregation. And

despite the State Board's policy statements in 1966 and

1970 recognizing site selection and construction practices

to be important factors determining whether integration

or segregation is the result (see page 33 , supra),

no action of any nature, insofar as the record reveals,

has ever been taken to implement or enforce these policies.

As the district court concluded (Metro. Op., A.Ia516 ):

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 substantial. Unfortunately,

38/ The legislature removed those supervisory powers 
in 1962 because the State Board had used them as a lever 
to reduce the number of school districts in Michigan from 
6,000 in 1945; in 19/1 there were 617 school districts in 
the State. (A.IIIa99-100,104).

-39-



the State, despite its awareness of the 
important impact of school construction 
and announced policy to control it, acted 
"in keeping generally, with the discrimina­
tory practices which advanced or perpetuated 
racial segregation in these schools." Rul­
ing on Issue of Segregation at 14; See also 
id., at 13.

The foregoing policies and practices have accomplished 

the expected and forseeable result. In 1970-71, 74.9%. of 

Detroit's black public school children were in State-identi­

fied 90% black schools. (A.IXa357 (P.X. 129); A.IVa43-74).

Every school which was 90% or more black in 1960, and 

which was still in use in 1970, remained 90% or more black. 

(A.IXa467 (P.X. 150); A.IV72-73 ). As Deputy Superinten­

dent Johnson acknowledged, "we still live with the results 

of discriminatory practices." (A.IVa344~45).

2. Faculty Racial Identifiability

The record stands uncontroverted that there is a per­

sisting racial pattern in the allocation of teachers to 

schools: with few exceptions from 1960-61 to 1970-71,

despite recent good faith efforts by the Detroit School 

Board to remedy the situation, disproportionate numbers of 

white faculty generally are assigned to schools with predomi 

nantly white student bodies and disproportionate numbers of 

black faculty are generally assigned to schools with black

-40-



39/
student bodies. With some amelioration in recent years 

within the city, the racial composition of faculty at

most schools remained roughly proportional to the racial
40/

compostion of the student population at these schools

39/The district court found tha : "The allegation that 
the Board assigns black teachers to black schools is not 
supported by the record" (Mem. Op., AIa206 ) (emphasis added) 
"The Board did not segregate faculty by race, but rather- 
attempted to fill vacancies with certified and qualified 
teachers who would take offered assignments" (Mem. Op.,
A.Ia209 ) (emphasis added): "Substantial racial integration 
of staff can be achieved, without disruption of seniority 
and stable teaching relationships, by application of the 
balanced staff concept of naturally occurring vacancies and 
increases and reductions to teacher services." (Mem. Op., 
A.Ia209 ) (emphasis added) . Although plaintiffs believe that 
the district court committed clear error in failing to find 
a faculty segregation iolation on the following (in text), 
largely uncontrovered proof (See, e.g., Davis v. School 
Dist rict of Pontiac, 443 F. 2d 573 (6th Cir.), c.err. denied, 
402 U.S. 913 (1971); Kelly v. Guinn, 456 F. 2d 100 (9th Cir. 
1972); Booker v. Special School Dist. No.1, Minneapolis,
No. 4-71 Civil 382 (D. Minn. May 24, 1972)), we have chosen 
not to perfect a cross appeal on this issue. Our reason is 
that the error has been effectively rendered harmless 
(compare Uni-ted States v. Bd. of Ed. of Green Co. , 332 F. 2d 
40, 46 (5th Cir. 1964)), by the metropolitan faculty relief 
granted in the court's order of June 14, relief which is 
not challenged by the primary party defendant on this issue, 
the Detroit Federation of Teachers. Indeed, all present 
parties appear to agree that, if the district court was 
correct in ordering metropolitan student desegregation, then 
parallel faculty relief was appropriate as reasonably 
related to the primary relief and necessary to insure its 
effectiveness. Courts of equity have long possessed and 
frequently exercised that power.

We include these data in our recitation primarily to 
illustrate die vigorous standard of proof to which plain 
tiffs were held in : he court: below.

40/ In I960*-61 23.9% of the Detroit teachers were 
black; in 1970 71, 41.8 were black. (A.IXa 470)

41-



This racial pattern was established by documentary 

exhibits setting forth the racial composition of faculty 

and students at each school (P.X. 100A-J), summaries of 

teacher and pupil statistics (P.X. 165A-C), graphs pre­

sented by both plaintiffs and the Detroit board showing 

how the percentage black faculty in schools tracked the 

percentage black students in schools (P.X. 154A-C; D.X. 

FFFF), statistical correlations (A.IXa471(P.X. 161A),IXa472 

(P.X. 162A); P.X. 161B-C, 162B-C; A.IXa585 (D.X. MMM)), 

maps (P.X. 3 at p. 7B), and a large "hour-glass" repre­

sentation showing the pattern of faculty assignment which 

mirrored pupil segregation (P.X. 166). For example, the 

Board-appointed Citizen's Advisory Committee on Equal 

Educational Opportunities concluded for the 1960-61 school 

year:

/P/lacement of teachers by the Detroit Board of 
Education follows in general, and with some depar­
tures, a definite racial pattern, which is illus­
trated in the graphs showing percentages of Negro 
pupils and Negro teachers by districts... Where 
the schools are mixed, Negro teachers are sent to 
these areas. Where the student membership is all 
white, Negro teachers are rarely sent.

A second fact which is very clearly established 
is that Negro teachers, while on a stated basis of 
assignment close to home, are actually assigned in­
stead on the basis of the racial composition of the 
schools. For example, in the Jackson Junior High 
School, which is in a predominantly white neighbor­
hood, the student membership is mixed by busing 
from an overcrowded area, and 5 Negroes have been 
placed on the staff.

-42-



Data also show that Negro administrators 
are placed only where Negro children and Negro 
teachers are in the majority. There is but 
one exception to this--the placement of a spe­
cial-education assistant principal in a school 
where there are some Negro children in atten­
dance. 41/

(App. C, attached hereto, at p. 6c (P.X. 3)). In recom­

mending that the Detroit Board take corrective measures 

to end this racially discriminatory pattern of faculty 

assignment, the Citizen's Committee also noted:

The data contained in the Board of Education 
report, "Personnel Changes by Buildings--By Dis- 
tricts-~October 2, 1959 to June 24, 1960" indi­
cate that there were approximately 750 personnel 
changes such as reclassifications, promotions, and 
transfers from one school to another school within

41/ Table I below is one of the many ways the racial 
pattern was reflected by the Board's own data (from App. C, 
attached hereto, at p. 4c):

TABLE 1

CENTRAL TENDENCY, AVERAGE PERCENTAGE, AND RANGE 
OF PERCENTAGES OF NEGRO FACULTIES FOR ALL WHITE, 
PREDOMINANTLY WHITE, MIXED, PREDOMINANTLY NEGRO,

AND ALL-NEGRO SCHOOLS--FEBRUARY 1961

Number Faculty-
Pupil Membership of Central % Negro Faculty
___________ ______ Schools* Tendency Average ' Range

All White 7 5 All White .17 0.0 to 3.1
Predominantly White 31 All White 4.7 0.0 to 31.i
Mixed 89 Mixed 21.0 0.0 to 72.
Predominantly Negro 70 Mixed 51.7 6.6 to 87.
All Negro 8 Mixed 73.0 50.0 to 88. ‘

*When a single school having more than one unit (e.g.
elementary junior high, or special) is counted as one 
school, the February 1961 total is 273.

-43-



the same job classification.
In view of the continuing distributional 

pattern previously described under Recommenda­
tion 2, more easily identifiable on a color 
basis, this great shift of personnel must have 
occurred within two distinct "racial" sub­
systems: one Negro, one white, implicitly
understood and maintained.

The probability is remote indeed that this 
considerable amount of personnel activity has 
resulted in the placement of only 5 Negroes in 
all-white schools (which is the case) purely 
as a chance result. It is not be accident 
that Negroes do not find themselves assigned 
or transferred to certain neighborhoods.

(App. C. at pp. 6c-7c).

In 1963 and 1964 the Committee on Schools of the

Detroit Commission on Community Relations conducted a

study at the request of the Board and found that the

racial pattern in the assignment of faculty persisted,

despite the obvious opportunities for faculty integration

created by personnel transactions involving over 50% of the

total Detroit faculty. (A,IXa497,513 (P.X. 177, 176)).

In 1964 District Judge Kaess entered interim findings in
42/

the Sherrill School Case : "The Board should commit it­

self to the immediate and substantial reduction of the 

number of schools in which there are no Negro teachers and 

other professional personnel. Substantial integration of 

faculty and professional personnel should be achieved in 

all schools in the beginning of the February, 196j term.

42/ See note 23, supra.
-44-



In 1968 another Board-appointed advisory committee examined

the racial pattern In several Detroit public high schools

(P.X. 107 at p. 294):

The percentage of Negro teachers^ while 
being very low in the "fringe" /Northeast, 
and Northwest sections of the city;/ schools, 
approaches 50 percent in the two inner 
schools. The percentage of Negro teachers 
corresponds to the Negro population of 
the student body.

As noted, in 1970-71 the pattern persists; the 

vestiges of the racial pattern inherited in 1960-61 still
43/

identify Detroit schools as black or white. This racial 

pattern of faculty assignment resulted, at least in part, 

from three admitted attempts by the Detroit Board to 

accommodate "community" pressures:

(1) Until 1955 the Detroit Board never assigned 

black teachers to schools which were 507. or more white. 

(A.mal37) •
(2) Thereafter, for several years at least, some 

black teachers were assigned to predominantly white schools.

43/ In the Fall of 1971 the Detroit Board applied to 
the federal government under the Emergency School Assis­
tance Program for $18 million to finance the Magnet School 
Program. (A.Va 15 ,35 ). All funding was denied,
however, because of the racially identifiable pattern of 
faculty assignment.

-45-



but only on a. trial11 basis: if the "community" objected 

to the assignment the black teacher was withdrawn. (A.iTr 
45-47 49).

(3) The availability of positions in virtually all 

whlte suburban schools during the 1950's and 1960's, coupled 

with a shortage in the supply of teachers, made recruit­

ment and assignment of white teachers for black schools 

difficult. (A.iva 363, 365; Mem. Op.,A. Ia208) ~

Despite some recent efforts by the Detroit Board and 

the Detroit Federation of Teachers to overcome such "commu­

nity hostility to desegregation," the racial Dattern in the
. 45/assignment of faculty still persists. In the words of 

Detroit Board Deputy Superintendent Johnson (A.IVa339; IVa345

I think the pattern, Mr. Flannery, is the result 
of discrimination.

kkkk

I think we have the results, we still live with 
the .results of discriminatory practices... and 
the results count. (emphasis added). *

44/ One other "community" pressure may also have been 
a factor: recent black community pressure for black male
role models as teachers in black schools coupled with the 
asserted importance of such role models in certain grades 
for black students. (See Mem. Oo., A.Ia207 ). Such fac­
tor, however, insofar as it serves to explain or justify 
the existing racial pattern in the allocation of faculty, 
is premised and had validity only on the existing system 
of pupil segregation.

~ /  bis f&ct simply has not and cannot be controverted. 
And, just as clearly, the Detroit Board failed to carry its 
explanatory burden for justifying the faculty assignments,

(cont'd on next page)
-46-



Meanwhile, in the suburban areas surrounding Detroit, 

the racial pattern in the allocation of faculty identi­

fying schools as white by reference to the racial compo­

sition of the faculty was even more evident; in school 

districts with less than 2°L black student populations in

45/ (cont'd)
quite apart from the uncontroverted racial pattern. 

The Board's primary defense was the even-handed application ' 
of the "balanced staff concept," which seeks to "balance 
faculties in each school with respect to race, sex and 
experience, with primary emphasis on race." (Mem. Op.,
A.Ia205 ). No party introduced evidence on the distri­
bution of faculty on the basis of sex. But with respect 
to experience it remains uncontroverted that (1) emergency 
substitute teachers are assigned more heavily to black 
schools than white schools, (2) more experienced teachers 
are assigned to black than to white schools. (P.X. 1.61A-C, 
162A-C, 164A-C; D.X.NNN; P.X. 3 at 83, 96-97; P.X. 107 at 
298; A.IX A&B ). A summary of these experience and quali­
fication factors is revealed by the difference in the 
average salary of a teacher assigned to a black school as 
compared with a white school: the average salary of
teachers assigned to black schools is between $1800 and 
$1400 less than the average salary of teachers assigned to 
white schools. (P.X. 163A-C, 164A-C, 163AA-CC; D.X. NNN). 
Insofar, therefore, as experience and qualification factors 
played a part in the assignment of teachers to schools, 
they reflect only a pattern of "systematic differentiation 
paralleling rac-'al lines." Whatever the intent, the opera­
tion of the schools with respect to average faculty experience 
and qualifications have been ineffective to remedy past 
discrimination. Therefore, if race was a primary factor 
in faculty assignment, the primary effect was not to inte­
grate faculty fully and insure equally well-qualified 
faculty segregation. Apparently the explanation for the 
failure of the "balanced staff concept" to eliminate the 
pattern was the limitation of its operation to voluntary 
transfers. Such "explanation," however, does not qualify 
as constitutional justification.

-47-



1970-71, only 0.4% of the approximately 30,000 classroom
46/

teachers were black. Throughout the metropolitan area, 

the task has not been completed; schools with virtually 

all white student populations are served by identifiably 

white faculties; and, as student populations in a school 

become increasingly black, the proportion of black 

teachers increases.

C. The Remedy

Having concluded that state action segregated children 

in the Detroit public schools on a racial basis, the dis­

trict court undertook to find an adequate remedy for

46/ In the school districts with more than two per 
cent black student populations, the racial pattern in the 
allocation of faculty in 1970-71 is also apparent. For 
example, consider the following:

Per Cent Black Students Per Cent Black Faculty
Inkster 88.0 80.0
Highland Park 85.1 43.9
Detroit 63.8 41.3
Ecorse 50.8 45.2
River Rouge 43.2 43.3
Wes twood 39.9 23.8
Hamtramck 28.7 12.5
Mt. Clemens 21.3 12.3
Romulus 16.5 21.6
Oak Park 10.1 8.6
Ferndale 9.5 12.8

And within many of these school districts, the racial pattern 
in the allocation of faculty was merely compounded. (See 
e.g., P.M. 13) (State 19/0-71 racial census)



the state-imposed school segregation.

Metropolitan desegregation was first suggested to 

school authorities July 1, 1969 in a proposal submitted to 

the Detroit Board by its then president. The Zwerdling Plan, 

as it came to be known, was predicated on the desegregation 

and fiscal needs of children in the Detroit area. It 

proposed combining Detroit high school constellations with • 

suburban districts, much as ultimately proposed and accepted 

by the district court. (A.IXa560(P,X. 169); 41 Tr. 4633-34).

From the earliest witnesses inquiry was made by both 

plaintiffs and at least one of the defendants (intervenor 

Magdowski) into discriminatory causes and effects in the 

metropolitan area. The court, noting that it already had 

enough (and all it wanted, to consider permitted very limited in­

quiry (over the objection of the Detroit Board) at the begin­

ning. As the scop■ of the violation and the State's role

therein became increasingly clear, however, broader inquiry
46A/

was permitted looking toward the question of relief. * I

46A/ "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....

"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.

-49



Finally, the Detroit Board, as part of its proof, made

inquiry of its own witnesses:

Q. Now, do I also hear you saying, and this 
is to ask you to track me very carefully, 
that given the facts of the Detroit School 
District within the boundaries of that school 
district: as they now exist, that: in your 
opinion it appears that we cannot provide 
maximum educational opportunity on...the integra­
ted basis for the low SES children that we have 
in this system?

A. Absent any miraculous mechanism to work on 
non-public school I agree with that statement.

(Direct testimony of Dr. James W. Guthrie, 37 Tr.4134 35)

On cross-examination, Dr. Guthrie went on at some

length to discuss the lack of any educational basis for

separating children and their school attendance on the basis

of existing school district boundaries. (A,IVa293-95)
The district court thus came to the remedy in this case not

as the result of some abstract theory as to what "ought" to 

be, but as a result of the hard facts which, as they were 

developed, caused even the defendants to conclude that the 

effects of long-standing school segregation could not be 

eliminated by a remedy limited to one state-established sub­

unit of public education, the Detroit School District.

46A/ (cont'd)
But the State defendants should not hide, put their heads 

in the sand and avoid considering what may happen if certain 
developments already made plain in this case take shape....
'How do you desegregate a black city, or a black school system?'...

-50



Following its finding of unlawful segregation, the court, 

on October 4, 1971, informed the parties of their basic 

constitutional duties, and in particular that school authori­

ties bore the initial burden of coming forward with effective 

plans "to achieve the greatest possible degree of actual 

desegregation, "aking into account the practicalities of the 

situation." (A.IVa456) The Court ordered (1) the De'roit 

Board t submit within sixty days a plan of desegregation '

for the Detroit public schools only and (2) the state 

defendants to submit a metropolitan plan for the desegrega 

lion of the Detroit Public S' hool.s within 120 days. (A. IVa457-58, 

). Pursuant to these orders, various plans were 

submitted, hearings were held, and rulings were issued o ver 

the next nine months. Throughout the proceedings on remedy, 

the district court attempted "to assess the effectiveness 

of proposed plans of desegregation in the light of the 

circumstances present and ihe available alternatives, and 

to choose f: e alterna ive or alternatives which promise 

realistically io work now and hereafter to produce the 

maximum actual desegregation." (Prop. Op., A.IaAAl ).

To understand fully the measured, sequential exami 

na:ion of rev ady which compelled the findings and order of 

June 14, 1972, a recital of some of the practicalities of

46A ' (cont1d)
Now, State defendants pan icularly _/Stated School 

Board as well, ought to be thinking in these terms indeed if 
that's whai develops." (The Court, A.IVa256-60, June 24, 1971)

- 51



•  •

the situation and the relative effectiveness of the plans 

is in order.

The district court, deferring first to the school 

authorities, received from them two plans neither of which 

included affirmative reassignment of pupils. In default 

of such a plan the court permitted plaintiffs to file a 

plan based on affirmative reassignment of pupils. After 

a hearing limited to Detroit-only remedy, the court found 

the Board's proposals inadequate and in some respects 

segregatory in themselves. ( D-0 Op., A.Ia456 )

Plaintiffs' plan was also found(as conceded by plaintiffs) to 

be inadequate to eliminate the pattern of state-imposed segre­

gation, although it was vastly superior to any other Detroit- 
47/

only proposal.

In evaluating the effectiveness of any proposed remedy, 

the court, below was forced by the record to consider the 

realistic effect of physical facts and the historic patterns 

of discrimination.

47/ As is the case in most actual desegregation plans, 
plaintiffs’ plan first examined contiguous pairing, 
clustering and redrawing of attendence zones. However, 
examination quickly revealed that the nature of urban 
segregation patterns in Detroit, just as in metropolitan 
Mobile, Charlotte-Mecklenberg, and Tampa, required that 
non-contiguous pairing and zoning be utilized to eliminate 
the pattern of racially identifiable schools.

-52-



(1) In 1970 there were more than 175,000 black

children assigned to Detroit public schools, almost all

in schools identified as black, 74.9°L in schools with
4b/

more than 907, black student enrollments. This over­

whelming pattern resulted from the force of discriminatory 

state action and infected the entire Detroit area.

4b/ At least at the elementary level, the vast majority ' 
of the remaining black children In the metropolitan area 
are assigned to predominantly black schools in the few 
suburban districts in which they are contained. (See A. IXa556 
(P.X. 185); P.X. Ibl). As an example, consider the 
practices with respect to the children in the old Carver 
School District. Originally, merely an extension of the 
black war housing project in the Eight-Mile Wyoming Area, 
the children at the elementary level attended schools in 
the all-black Carver School District but at the high school 
level were assigned to schools in Detroit. This assign­
ment, approved by the state, required crossing school dis­
trict boundaries, away from white schools in white suburban 
districts which refused to accept black children and past 
white schools In Detroit to segregated black Detroit 
schools. Later, around 1969, the Carver School District 
was abolished and split between two suburban districts; 
but the elementary schools remain virtually all black 
in their pupil enrollment to this day. (P.X. Ibl, 185;
P.M. 14; A.Hal93-94; Xa8-9,35-36 ). (See also Metro Op.,
A. ). The pattern of racial containment and segre­
gation in separate schools extended throughout the metro­
politan area. (Metro Op., A. Ia534 ).

53-



•  •

(2) The location and expansion of schools throughout 

the metropolitan area had effected not only school segre­

gation but also residential segregation, and school authori­

ties and state defendants, having extensive knowledge of 

the nature of residential segregation, had acted, both in 

Detroit and the suburbs, with the natural, inevitable and 

and foreseeable effect of incorporating in the schools the 

residential segregation of the races. The imposition of 

school attendence barriers, or boundaries, upon the 

historic pattern of governmentally-imposed and facillitaed 

marked residential segregation that existed in the Detroit 

metropolitan area, equated the residential homogeny to 

ethnic and racial homogeny in the public schools producing
48/

inevitable segregation. In particuliar in the Detroit area 

this was reflected by building new schools either in hegro 

population centers or in areas where they were not permitted

to live.
(3) Local school districts are, like intermediate 

and regional school districts, subordinate governmental 

entities which have been carved out by the state and 

given varying powers to assist in carrying out the state 

responsibility for education and whose size and boundaries

48/ Cf. Cisneros v.  C o r p u s  Christi, slip op. at p. 14.

-54-



are uneven, often are crossed by school children and

school programs, and bear little relationship to other
49/

governmental units.

(4) The result, as the district court noted, is 

"that the metropolitan area is like a giant jigsaw puzzle 

with the school districts cut into irregular pieces, but 

with the picture quite plainly that of racial segregation." 

(A.iVa454 )

(5) The metropolitan area has grown as a series of 

interrelated and overlapping economic, recreation, service 

and governmental units with many persons moving to the 

suburbs but working and enjoying services in Detroit, and 

others living in Detroit but working and enjoying services
50/

in the suburbs.

49/ "In 1900 there were 156 local school districts in 
Wayne County... During the next 40 years reorganization 
took place in piece-meal fashion... The period from 1940 to 
1950 was one of great activity in reorganization..." (P.X. 
180A at p. 13) Since 1965 school districts in Wayne County 
were merged in accordance with legislative command. They 
include Nankin Mills, with Livonia and the Wayne Community 
District; School District of the City of Dearborn merged 
with Crestwood School District, Fairland School District, 
School District No. 8 Fr. of Township and School District 
of North Dearborn Heights. A number of other districts, 
including districts in the Romulus area, were also merged. 
(P.X. 180A).

50/ The school and housing choices in the Detroit area 
of black citizens have been and remain restricted by dis­
criminatory state action to separate and distinct areas

(cont'd on next page)

-55-



•  •

(6) Transportation of students to school for upwards 

of one hour has long been a state-supported practice and, 

in conjunction with inequities in both bonding authority 

and transportation reimbursement, has effected school 

segregation throughout the area.

(7) As a result, the black student enrollment has 

grown, while the white student enrollment has declined in 

the city and the white student enrollment in suburban 

schools has grown substantially.

50/ (cont'd)
within the City of Detroit, except in a few other 

areas of historic containment scattered throughout the 
metropolitan area (e.g., Inkster, River Rouge, the area 
of the old Carver School District, and, in more recent years, 
Highland Park). As an example, while over 20,000 blacks 
work in Warren, there are only a handful of black residences 
in that City. The Warren Consolidated School District, 
serves over 27,000 pupils. (P.M. 15) (And of over 1300 
teachers, principals, and assistant principals in 1971, 
only one was black. (P.M. 14)). The children of these black 
working families have been and are effectively excluded 
from the virtually all-white schools located within the City 
of Warren. These children have been and are effectively 
contained in the racially segregated Detroit public schools.
A similar situation exists in many other suburban communi­
ties whose industries hire black workers. (A. ,

; P.M. 14; P.M. 15). "Opposition to Negro housing 
was even more intense in most suburbs. Thousands of 
Negroes worked in Ford's Rouge Plant in Dearborn but the 
city's white citizens like to brag that 'the sun never sets 
on a Negro in Dearborn.'" The Detroit Race Riot, p. 125, 
Shogan & Craig (1964). The statement with respect to schools 
and residence remains all too true today. Dearborn City 
Schools in 1970 enrolled 20,603 whites and 2 black; Dearborn 
Heights Schools enrolled 5,604 whites and 0 blacks. (P.M. 14).

-56-



(8) There exists cooperative governmental authori­

ties to solve metropolitan-wide problems and a number of 

educational services are already provided to students on 

an interdistrict, county, intercounty: or metropolitan 

basis. Many support services including vocational educa­

tion are provided by the intermediate school district and 

the State Department of Education. (Metro Op., A.Ia517-18).

(9) A desegregation plan limited to Detroit would 

simply make all schools identifably black in the context 

of the Detroit community and would be entirely illusory, 

indeed, counter productive. The entire history of the 

action of the State attempting to retain segregation in 

Detroit and the similar effort to preserve the white subur­

ban wall would make not only each school but the entire 

Detroit school system identifably black vis-a-vis the 

other parts of the state system of education. ( D-0 Op.,

Ia 459 ).
S'

The State Board of Education’s submission of six "plans,"

51/ The district court held (Metro Op., A.Ia500-01);

Three of the Slate "plans" merely proposed concepts 
alternative to maximum actual desegregation. /One-way
busing, M.4; Magnet, M.6, A. ___; Neighborhood-based
or part- time desegregation, M. 1_/. The Racial Propor-

-57-



wither.it recommendation or preference, the filing of obiections 

to the plans by defendants Milliken and Kelley primarily 

on the basis of their assertions of their own and the court's 

lack of power, and the refusal to meet their burden to explore 

and develop the relative promise of alternative metropolitan 

proposals for accomplishing desegregation, all constituted 

a direct refusal by State defendants to assist the Court '

in defining even the area and planning necessary to develop 

an effective plan. (Metro Op., A. la 502 ). A similar

position was taken by the newly intervening suburban defen­

dants, who, rather than "assist the court in the task at 

hand , . . chose . . .  to suggest their views that separate

51/ (cont'd)
tion Plan described a statistical method 
of de-erming the number of transfers involved 
in achieving a particular racial ratio in 
each school once an area of desegregation had 
been chosen. t_M.3; A. __/ The Equal Educa­
tional Opportunity and Quality Integration Plan 
was admitted to be a non-plan /A. _/and des­
cribed criteria for education which, in whole 
or part, might, or might not, be applicable to 
any school system. J_M._8/. -

Only one State "plan,"_the Metropolitan District 
Reorganization Plan _fM._5/, attempted to describe 
an area within which desegregation should occur, 
called the "initial operating zone" (sometimes 
referred to hereafter as the "S'ate Proposal").
_/M.5,p. 16; A. __/ That "plan" however, was
primarily concerned with discussing a new governance 
structure for the desegregation area^ Pupil reassign­
ment was mentioned only in passing _/M. 5, p. 17;
A. / and no foundation was laid by S a fe defendants

-58-



schools were preferable. (Metro Op., A.Ia502 ).

Among the other parties, and the plans submitted, there 

was general agreement that: (1) the tri-country area consti­

tutes the relevant school comunity which can serve as an 

initial benchmark in beginning the evaluation of how to

effectively eliminate the racial segregation of Detroit
52/

schools (Metro Op., A.VIa46 ); (2) but in some instances * 6

51/ (coni'd)
for the particular area of desegregation described. 
/Cf. A.' _/ Further, it suffered foxn the
default of the State defendants by their stubborn 
insistence that under their selfserving, and 
therefore self limiting, view of their powers 
they were free to ignore the clear order of this 
court and abdicate thei responsibility vested 
in them by both the Michigan and Federal Consti­
tution for supervision of public education and 
equal protection for all citizens.

52/ Compare Section 720, Education Amendments of 1972:
(6) For the purpose of Section 7C6 (a) (2) and 
Section 709 (a) (1), the term "integrated school" 
means a school with an enrollment in which a 
substantial proportion of the children are from 
educationally advantaged backgrounds, in which the 
proportion of minority group children is at least 
50 per centum of the proportion of minority group 
children enrolled in all school sof the local 
educational agencies within the Standard Metropol­
itan Statistical Area, and which has a faculty and 
administrative staff with substantial representation 
of minority group persons, (emphasis added).

Paragraph (7) uses he standard for defining an 
integrated school as one which ahs a racial enroll­
ment "which will achieve stability and a faculty 
representative of the minority group and non minority 
group population "of the larger community in which 
it is located..." (emphasis added).

-59-



reasonable time and distance limitations for pupil trans­

portation, and in other instances the actual area required 

to eliminate the pattern of racially identifiable schools, 

limit the actual area within which pupil reassignment need 

occur. (See Metro Op., A.la504-05) In terms of proof, 

putting aside arguments of impotence by the State Board and 

intervening defendants, there was absolutely no contradic­

tory evidence on these two criteria. (See, e.g., M. 10-12; 

M.2, p.6; P.M. 10-12; A.Vila 211-15,219,209-10).

The testimony of all of the school authorities was 

that a metropolitan desegregation plan would eliminate the 

effects of racial segregation; that here would at: the same 

time be renewed opportunities for school authorities to 

eliminate inequalities of resources serving children and 

provide for desegrega ed teaching staffs at all schools. 

While there were a number of administrative decisions to be 

made, and various alternatives to be considered, all 

administrators 'estified that it coul 1 be done. Indeed the 

subsequent interim report of the State Superintendent states 

that even the somewhat magnified problems which he had 

identified were all solvable. There was uniform agree­

ment from all the educators that transportation times would

-60-



not be unreasonable or in any way impair the health or 

safety of any child. The modification ultimately selected 

by the court represented a choice minimizing the potential 

transportation times. The educators from the Detroit 

district built into their proposals various other educa­

tional goals which they sought to pursue. To the extent 

consistent with the court's power and Jurisdiction these 

goals are either endorsed or accomodated by the order 

below.

Of course, some decisions are yet to be made. The 

State Superintendent has suggested interim arrangements 

which can be effectuated witl minimum changes in the legal 

structure. In additon he has suggested that final arguments 

await some experience with the interim reccomendations and 

the giving of an opportunity to the Michigan Legislature 

to act on final arrangements.

-61-



ARGUMENT

I

The District Court's Findings That Racial 
Segregation of Pupils in the Detroit Pub­
lic Schools is the Product of Purposeful 
Segregation by the State and Local School 
Authorities are Supported by Substantial 
Evidence; the Quantum of Official Discrimi­
nation Found by the District Court is 
Overwhelmingly Sufficient to Support the 
Rulings Below

The two-year history of this litigation has been

attended by the most demanding, deliberate scrutinization

by a federal court of any school segregation case of which

we are aware. Notwithstanding efforts by plaintiffs to

expedite partial and then full relief (See 438 F.2d 945

(6th Cir. 1971)), the district court persistently required

further evidence, put plaintiffs to their case, and de-
53/

manded strict proofs. (See A.IIalO; 1 Tr. 37, 38, 40,

). There was no rush to judgment.

But when the proofs were in, the district court con­

cluded that black children in Detroit are relegated to

_/ The then counsel for the Detroit Board insisted 
from the outset that plaintiffs prove (dot every "i" and 
cross every "t") everything alleged in their complaint. 
(E.g., 1.Tr. 97 ).

-62-



segregated public education not because of individual 

choice or preference, not because of acts and omissions 

over which defendant school authorities had no control 

and did not participate in,but because of substantial 

unadulterated racial discrimination in the domain of 

public education. What the Michigan Legislature wrote 

large in §12 of Act 48 of the Public Acts of 1970, black 

Detroit school children and their parents, as the record 

below demonstrates, have known for years: it contravenes

the policy of the State of Michigan for black and white 

children to attend public school together in more than 

token numbers.

The State and Detroit Board defendants, having been 

unable to contradict the plain facts of discrimination 

or to explain them away, are reduced to "pounding on the 

table" and would have this Court ignore, as they have, the 

extensive record underlying the district court's findings.

But these findings are supported by more than substantial 

evidence, Davis v. School District of Pontiac, 443 F.2d 

573 (6th Cir.), cert denied, 402 U.S. 913 (1971), Deal v. 

Cincinnati Board of Education, 419 F.2d 1387 (6th Cir. 1969), 

cert. denied because of late filing, 402 U.S. 962 (1971); 

they are compelled by the massive record developed below.

-63-



Indeed, contrary findings would be clearly erroneous. Cf. 

United States v. Texas Education Agency (Austin Independent 

School District), No. 71-2508, slip op. at 29 (5th Cir.

Aug. 2, 1972)(en banc) /hereafter cited as "Austin"/.

The instant case involves much more than the neutral 

imposition by defendant school authorities of "a neighbor­

hood school plan, ab initio, upon a clear and established 

pattern of residential segregation in the face of an obvious 

and inevitable result, itself held unlawful, in the absence 

of a prior state segregation law, in Cisneros v. Corpus

Christi Independent School Dist., No. 71-2397, slip op.
“ 54/

at 15 (5th Cir. Aug. 2, 1972) en banc). The record

herein commands "the conclusion that a purposeful pattern

_/ But cf. Deal v. Cincinnati Bd. of Educ. (Deal I), 
369 F.2d 55 (6th Cir. 1966), cert, denied, 389 U.S. 847 
(1967); Deal II, 419 F.2d 1387 (6th Cir. 1969), cert, denied 
because of late filing, 402 U.S. 962 (1971). While we 
find the decision in Cisneros (cited in the text) to be quite 
persuasive, and although we question, because of subse- 
quest: developments in this Court and in the Supreme Court, 
the continuing vitality of many of the tenets of Deal I 
and Deal II, this Court need not revisit those decisions 
here for this case involves different findings than those 
in Deal, and, as in Davis, supra, requires a different re­
sult. We note, however, that Deal, was decided at a time 
when "freedom of choice" was thought by many to be all 
that Brown _I and Brown II required of state school authori­
ties (see 369 F.2d at 59). In fact, the theoretical choice 
found available to all children in Deal is made possible 
only by excluding from consideration housing discrimination 
and its interaction with various school policies; where

-64-



of racial discrimination has existed in the _/Detroi_t/ 

school system for at least 15 years." Davis v. School 

Dist. of Pontiac, supra, 443 F.2d at . Here we

deal with the "quantum of official discrimination...

_/sufficient/ to invoke the protection of the Fourteenth 

Amendment." Deal I. supra, 369 F.2d at 62.

Plaintiffs' purpose is not and has not been to label 

any person or group of persons serving as school authorities 

in Michigan as segregationists. Our purpose and responsi­

bility is to prove that the segregation which exists 

flows from and is effected by unlawful state action. The * 5

54/ (cont'd)
they operate in lock step, as here, it is uncon­

troverted that black children are effectively excluded 
from many schools. Alexander v. Holmes County Bd., 396 
U.S. 19 (1969). Such failure to test mere theory against 
the actual facts of the local situation overlooks crucial 
factors which may themselves reveal state-imposed school 
segregation. To the extent that Deal rejected proof of 
residential segregation and related site selection and 
school construction practices as having no Fourteenth Amend­
ment relevance, the Supreme Court and this Court have since 
held to the contrary. Swann v. Charlotte-Mecklenburg Bd. of 
Educ., 402 U.S. 1, 20-21 (1971); Davis, 'supra, 443 F.2d at

5 Sloan v. Tenth School Dist. of Wilson County, 433 
F. 2d 587 (6th Cir. 1970). Moreover, Swann holds that 
proof of housing discrimination by public authorities is 
relevant to possible Fourteenth Amendment violations after 
a unitary system has been accomplished (402 U.S. at 32): 

federal courts are /not/ without power to 
deal with future problems;... /upon/ 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 composition of the schools, 
further intervention by a district court...
/ma^/be necessary.

-65-



•  . •

district court clearly recognized, as its painstaking

inquiry below demonstrates, that judicial intervention is

authorized only upon a showing of constitutional violation.

(See Dec. 3, 1970 Op.). The district court considered

three factors prerequisite to judicial intervention: (1)

the State and its agencies "must have taken some action or
55/

actions with a purpose of segregation" ; (2) if any 

such actions were taken, they "must have created or aggra­

vated segregation in the schools in question"; (3) segre­

gation must currently exist. (Mem. Op., A,Ia210). The 

court concluded that "these tests... have been met in this 

case" (Id.):

We find 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.

The court below found that racially discriminatory acts

and results permeated virtually every facet of pupil

assignment in the Detroit district. Among the discriminatory

55/ This part of the district court’s test is too 
strict, indeed, unnecessary. See Wright v. Council of the 
City of Emporia, 40 U.S.L.W. 4806 (June 20, 1972); Cisneros 
supra, slip op. at 12, 13, 15-17, 18 n.7. In Cisneros a 
majority of the Fifth Circuit, sitting en banc, said(slip 
op„ at 12):

Brown prohibits segregation in public schools 
that is a result of state action. It requires 
simply the making of two distinct factual deter­
minations to support a finding of unlawful segre-

66-



causal factors, attributable directly to the defendants, 

were these: the creation and maintenance of optional

attendance areas (Mem. Op., A.Ia20!02); the busing of 

black pupils to black schools past or away from closer 

white schools with vacant space (Mem. Op., A.Ia202); the 

persistent refusal to bus white pupils to underutilized 

black schools (Id.); the creation, maintenance and altera-
t

tion of attendance zones, grade structures and feeder 

patterns in a manner which initiated, maintained and 

perpetuated racial segregation of pupils (Mem. Op., A.Ia202-03); 

the failure to heed and effectuate State Board guidelines 

for avoiding segregation and advancing integration through 

school construction and site location (Mem. Op., A.Ia203-04); 

the massive segregatory pattern of school site location and 

construction (Mem. Op., A. Ia204-05),the action by the 

Michigan Legislature, through Act 48, reorganizing the

5_5/ (conl'd)
gation. First, a denial of equal education 
opportunity must be found to exist, defined 
as racial or ethnic segregation. Secondly* 
this segregation must be the result of state 
action.

Moreover, held the court, it is sufficient "that action 
by the school district here has, in terms of cause and effect, 
resulted in a severely segregated school system. . .We need 
find nothing more. Discriminatory motive and purpose, 
while they may reinforce a finding of effective segregation, 
are not necessary ingredients of constitutional violations 
in the field of public education." (Slip op. at 13).

67



Detroit district into segregated regional sub-districts 

and nullifying the only meaningful desegregation ever pro­

posed by the Detroit Board. (Mem. Op., A. Ia205 ).

These acts of segregation were pervasive; they spoke 

not just to individual black children in particularized 

settings, but to black people as a racial class. The 

effect of each specific act of discrimination cannot be -

known with precision for these acts did not occur in iso­

lation but rather as part and parcel of a systematic pattern 

of racial discrimination in public schooling. But while the 

precise effect of each example on racial separation is 

inextricable from the discriminatory pattern itself, it is 

significant that each type of segregatory conduct has been

found by the courts to be an indicium of a covert dual 
56/

system.

Optional attendance zones, as they have operated in 

Detroit, are as old as the first Jim Crow law. They are 

Detroit's counterpart of the "dual overlapping zones" so 

long in use, both pre- and post-Brown, in Southern dual

5j5 / In Davis, supra, this Court noted that while some, 
discriminatory decisions "considered alone might not compel the 
conclusion that the Board ot Education intended to foster 
segregation taken together, they support the conclusion 
that a purposeful pattern of racial discrimination has 
existed." 443 F.2d at 576.

-68-



school systems. As comparison of P.X. 109A (1959 optional 

zone overlay) with P.X. 136A (1950 census map) clearly 

demonstrates, optional zones, created and maintained 

throughout the 1950's, occurred in practically every area 

of the City where conventional zoning would have resulted 

in pupil assignments on a substantially integrated basis; 

they demarked the areas of high white concentration from 

those of high black concentration, virtually surrounding 

the isolated black schools. The effect of these optional 

zones, as the statistics demonstrate (A.IXa373(P.X. 132)) 

and as the district court found, was that the black pupils 

within the optional areas were assigned to black schools 

and the whites to white schools. "This is unadulterated 

segregation." Austin, supra, slip op. at 33. See also 

Northcross v. Board of Edue. of Memphis, 333 F.2d 661 

(6th cir. 1964); C.A.No.3931 (W.D. Tenn. Dec. 10, 1971).

On the other hand, where neighborhood zoning had no

possibility of resulting in substantial student Integra-
■ _/

tion, it was consistently and persistently adhered to.

57_/ As will be recalled, by the time elimination of 
optional zones began they had largely served their purpose 
(see page 18, supra). Further evidence of their purpose 
is found in the fact that when two of the optional areas 
(by then all black) were eliminated they were attached not 
to the adjoining white school zone but to the adioining 
black school zone. (See note 19, supra). Thus, although 
strict zoning replaced optional ■ zoning, segregation con­
tinued unfei tered.

69-



No special insight is needed to conclude that segregation 

was the purpose as well as the effect of both optional and 

neighborhood zoning in Detroit. Other courts have recognized 

optional zones, as operated in Detroit, as the trappings 

of a dual school system. Hobson v. Hansen,269 F. Supp.

401, 49y 501 (D.D.C. 1967), aff'd sub nom., Smuck v.

Hobson, 408 F.2d 175 (D.C. Cir, 1969); United States v.

Board of School Comm'rs of Indianapolis, 332 F. Supp. 655 

(S.D. Ind. 1971); Spangler v. Pasadena City Bd. of Educ,,

311 F. Supp. 501 (C.D. Calif. 1970); Booker v. Special School 

Dist, No.l, Minneapolis, No. 4-71-Civil 382 (D. Minn.

May 24, 1972).

Defendants attempt to minimize the legal impact of

the dual zone policy by urging (1) that the policy aid not

apply to all schools, and (2) all dual zones have now been

eliminated. This argument overlooks the fact that such

discriminatory acts of the school authorities 
infect the entire school system; they are 
particularly obvious in the so-called 
"pockets." Some schools may be the "result" 
of state-imposed segregation even though no 
specific discriminatory school board may 
be shown as to those schools. Had the 
school authorities not specifically segrega­
ted the minority students in certain schools, 
other schools may have developed as desegre­
gated facilities. Thus, though they may 
not be "pockets of discrimination," these 
schools are the "result" of discrimination.

-70-



Austin, supra, slip op. at 50. Moreover,

There is established here an overwhelming 
pattern of unlawful segregation that has 
infected the entire school system. To 
select other than a system-wide remedy would 
be to ignore system-wide discrimination and 
make conversion to a unitary system impossible.

Cisneros, supra, slip op. at 20.

Transportation practices were equally invidious, as 

the hoard bused black students past or away from underutilized 

white schools to identifiably black schools--just as much an 

indicator of dualism as the same practice in Southern dual 

systems. See Clemons v, Bd, of Educ. of Hillsboro, 228 F.2d 

853, 858 (6th Cir. 1056); Spangler v. Pasadena Bd. of Educ., 

311 F. Supp. 501, 511-12 (C.D. Calif. 19/0); United States 

v. School Dist. 151, 286 F. Supp /86 (N.D. 111. 1967) aff'd, 

404 F.2d 1125 (7th Cir. 1968), on remand, 301 F. Supp. 201, 

211-12 (N.D. Ill, 1969), aff'd, 432 F.2d 1147 (7th Cir. 1970), 

cert.denied, 402 U.S. 943 (1971); Johnson v. San Franscisco 

Unified School Dist., 339 F. Supp. 1315, 1338-39 (N.D. Calif. 

1971). And even as this more blatant segregatory practice 

was being eliminated and some busing of blacks to white 

schools began to occur, a new and equally demeaning segre­

gation practice was substituted--"intact busing," which

-71-



resulted in racially segregated classrooms within a single 

school building (see page 20 , supra). The Fourteenth 

Amendment violation (and the message to black Detroiters) 

continued. See McLaurin v. Oklahoma State Regents, 339 U.S.; 

637 (1950); McNeese v. Board of Educ., 373 U.S. 668 (1963) 

Jackson v. Marvell School District. No. 22, 425 F.2d 211 

(8th Cir. 19/0); Johnson v, Jackson Parish School Bd.,

423 F.2d 1055 (5th Cir. 1970); c_f. Clemons v. Bd, of Educ. 

of Hillsboro, 228 F.2d 853, 855 (6th Cir. 1956). -

If proof of malelovent racial purpose were required, 

surely it is found in the total refusal of the Board, despite 

the enormous amount of vacant space in inner-city black 

schools, to reassign white pupils from overcrowded white 

schools to black schools (see pages 20-21, supra). Clemons, 

supra, 228 F.2d at 855 (6th Cir. 1956); Spangler, supra,

311 F. Supp. at 512, 517; Johnson, supra. 339 F. Supp. at 

1338-39.

As the more obvious segregation practices were begin­

ning to be eliminated, the Board substituted the open enroll­

ment policy which, until its modification in 1966, primarily 

served "to draw white students away from the inner city."

- 7 2 -



(See pages 22 24, supra). The same result accomplished by the 

optional zoning practice was continued by the more sophisti­

cated but: equally effective open enrollment policy which 

permitted students to transfer from their "neighborhood"
J

school to any school declared "open." Cf. Monroe v. Board 

of Comm'rs, 391 U.S. 450 (1968); Austin, supra, slip op. at 36-37.

And, even after the 1966 modification, there is evidence that ' 

racial transfers were regularly granted. (See page 24 , 

supra). Spangler, supra, 311 F. Supp. at 520-21.

Throughout the last decade, the Board created and 

manipulated attendance zones, grade structures and feeder 

patterns in a segregatory manner. Although the Board 

offered various excuses for some of these discriminatory 

actions (see notes 20,28 ,supra), "/a/ttempted justification 

of those decisions in terms of proximity of school buildings, 

their capacity, and safety of access routes requires incon­

sistent applications of these criteria." Davis, supra,

443 F.2d at . The evidence of unconstitutional zone

and feeder pattern gerrymandering for racial reasons is 

established at pages 24-29, supra. See Clemons v. Board, of

58/ Despite the separatist history of the open enrollment 
policy, the State, vis sl2 of Act 48, in 1970 attempted__to _ 
reinstate in Detroit "a policy of open enrollment. . _/_which/ 
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 . . . ."

-73-



Educ. of Hillsboro, supra ; Johnson, supra; School Dist. 151 

supra; Snangler, supra .

The record, in clear and convincing terms, reveals 

that "school location and attendance boundary line deci­

sions, for the past 15 years, more often than not tended 

to perpetuate segregation." Davis, supra, 443 F.2d at

. In fact, almost without exception "school construc~ 

t ion planning has been designed to reinforce trends in 

population growth regardless of whether such planning 

reinforced and extended residential racial segregation."

Sloan v. Tenth School Dist.. 433 F.2d 587, 590 (6th Cir. 

1970). As we have shown in the Statement of Facts (pages 29 

40 , supra), throughout the Detroit metropolitan area

"the construction of new schools and the expansion of 

existing facilities /.has had the effect o_f/ creating or

59/

59/ In Clemons Mr. Justice (then Judge) Stewart 
recognized the forces which motivate such discriminatory 
action (concurring opinion, 22b F.2d at 859):

The segregation of school children 
because of their race has been contrary to 
the law of Ohio for seventy years. The 
Hillsboro Board of Education created the 
gerrymandered school districts after the 
Supreme Court had announced its first 
opinion in the segregation cases. The 
Board 's action was, therefore, not only

-74-



preserving the racial segregation of pupils in violation

of the Fourteenth Amendment..../and has/ incorporat/ed/. . .
60/

existing residential segregation into the school system."

Id. at 589. Accord, Davis , supra; Cisneros, supra; Brewer 

y. School Bd. of Norfolk, 397 F.2d 37, 41 (4th Cir. 1968); 

United States v. School Dist, 151, supra; United States v. 

Board of School Comm'rs of Indianapolis, supra; United 

States v. Board of Educ. of Tulsa, 429 F.2d 1253 (10th 

Cir. 1970); Spangler, supra; Johnson v. San Francisco 

Unified School Dist., 339 F. Supp. 1315, 1326 n.3, 1337

59/ (cont'd)
entirely unsupported by any color of 
state law, but in knowing violation of the 
Constitution of the United States. The 
Board's subjective purpose was no doubt, 
and understandably, to reflect the spirit 
of the community and avoid "racial problems," 
as testified by the Superintendent of Schools.
But the lav; of Ohio and the Constitution of 
the United States simply left no room for the 
Board's action, whatever motives the Board 
may have had.

60_/ These practices are made even more invidious by 
virtue of defendants' active partnership with the agents 
of racial discrimination in housing (see pages 14-16,supra). 
See Northcross v. Bd. of. Educ. of Memphis, C.A. No. 3ypi 
(W.D. Tenn. Dec. 10, 1971). The court below found that 
"/w/hile it would be unfair to charge the present defendants 
with what other governmental 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 governmental units." (Mem.
Op., A.Ia201 ). And, "this deliberate setting of residential 
pattens had an important effect not only on the racial com­
position of inner-city schools but the entire School District
of the City of Detroit." (Metro Op., A. Ia515 ) •

-75-



(N.D. Calif. 1971); Kelly v, Guinn, 456 F. 2d 100 (9th Cir. 

1972). As the Supreme Court held in Swann, 402 U.S. at 

20- 21:

People gravitate toward school facilities, 
iust as schools are located in response to the 
needs ot people. The location of schools 
may thus influence the patterns of residential 
development oi a metropolitan area and have 
important impact on composition of inner-city 
neighborhoods . 61/

The State school authorities and the State Commission 

on Civil Rights expressly recognized this self-evident 

fact in 1966, but no action has ever been taken to re­

verse the trend or, indeed, to halt its entrenchment.

As we demonstrated in the Statement of Facts (pages 36-40? 

supra), and as the district court found (Metro Op., Ala525 ):

School construction practices throughout 
the metropolitan area havu added to and 
reinforced the pattern of segregation 
referred to. Although there were vacant 
seats throughout the city to which students 
could have been assigned at lesser cost 
and with the achievement of integration, 
continued sums were expended for construc­
tion of new schools designed to service 
particular areas of racial concentration, 
and such schools opened as and have con­
tinued to be racially identifiable in vio­
lation of the Fourteenth Amendment.62/

61/ In the words of the district court (Mem. On., A.Ia201 ) 
"we note that just as there is an interaction between resi­
dential 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.'

62/ cf. Swann, supra, 402 U.S. at 32, where the Court, held



Yet the Si ate failed to act, not because it lacked the power

or authority/ but because such action would be out of harmony 

with the policies, practices, customs and usages of the

gatory effects, however, the State has been quite active:

it has affirmatively promoted segregation and restricted

desegregation alternatives by refusing state pupil trans-
64_/

portation aid to Detroit (see pages 34-36, supra ; it has

62J (cont'd)
that even after substituting just schools for racially 

identifiable schools: "a showing that either the school 
authorities or some other agency of the State has deliberately 
attempted to fix or alter demography patterns to affect the 
racial composition of the schools, /permits/ further inter­
vention by a district court...."

63_/ Indeed, much of the segregatory construction pattern 
received, pursuant to state law, explicit State approval 
until 1962 (see page 39 ,supra). Without state accredi­
tation, state school aid, state approval of building and 
site location plans, state bonding approval, etc., very 
little that has been done for good or bad could have been 
or could be done in the school districts of metropolitan 
Detroit.

64J State defendants, in their "Emergency Application 
for Slay" previously filed with this Court, argue (at p. 16) 
that the statutory denial of state transportation aid to 
Detroit and similarly situated city school districts is a 
rational statutory distinction between urban and rural 
school districts and, therefore, not constitutionally 
proscribed. Cf., Sparrcw v. Gill, 304 F. Supp. 86 
(M.D.N.C. 1969). Whatever the merits of this argument, it 
misses the point. Plaintiffs have not and need not challenge 
the statutory distinction. The significance of the distinction 
for the State and Detroit is not its per se validity or 
invalidity; rather, it is the effect of the discriminatory

62 /

63 /
State of Michigan. For segregatory purposes or segre

-77-



affirmatively promoted the massive segregated pattern of 

school construction by the favorable (vis-a-vis Detroit) 

bonding authority accorded the suburban school districts
65/

in the Detroit metropolitan area (see page 38 , supra).

But the true measure of the State's power, and the 

discriminatory exercise thereof, is Act 48 of the Public 

Acts of 1970. As this Court held, I12 of Act 48 "was inter­

posed to delay, obstruct or nullify steps lawfully taken for 

the purpose of protecting rights guaranteed by the Four­

teenth Amendement," 433 F.2d at 903, namely, the Detroit

Board's plan of partial high school desegregation adopted 
66 /

April 7, 1970. The April 7 desegregation plan, though

64/ (cont'd)
scheme on pupil segregation in the Detroit schools 

which, though not precisely measurable, is certain--it has 
involved the State in the imposition and perpetuation of 
segregation.

65_/ The State Superintendent testified that under the 
1963 Michigan Constitution the State Board had much 
potential, but unexercised, authority and power. ( 19 Tr.2097).

66_/ By Act 244 of the Public Acts of 1969, the Michigan 
Legislature required the Detroit school district "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 _/Detroi_t/ district 
board." (Title of Act 244). Pursuant to this legislative 
directive, the Detroit Board,on April 7, 1970, adopted 
jurisdictional boundary lines for the regional boards designed 
to result in substantial integration in each of the 7 proposed

-78-



wholly inadequate to deal with the problem, was the first

meaningful integration proposal ever adopted by the 
67/

Detroit Board. Adoption of the April 7 plan immediately 

spawned explicit legislative statement of Michigan's 

theretofore unwritten school attendance policy: racial 

segregation. The legislature promptly intervened to mandate

66/ (cont'd)
regions. (P.X. 143B). At the same time, the 

Board adopted its plan of partial high school integration.
(See P.X. 143A). Thereafter, on July 7, iy70 the 
defendant Governor signed_Act 4b into law, thereby "thwart- 
J_ing/, or at least delay_/ing/" (433 F.2d at 904) the desegre­
gation plan and nullifying the 7 desegregated regions drawn 
by the Board. s2a of the Act proscribed 8 regions to be 
drawn within / days, by resolution of a three-fourths maiori- 
ty of both housgs of the legislature. Failing this (as 
was the case), s2a commanded appointment by the Governor of 
a three-member boundary commission to "determine the boun­
dary lines of such regions, . ../which/ shall be as compact, 
contiguous and nearly equal in population as practicable." 
s2.a also required the Detroit Board, and, upon its failure 
the State Board, to redraw the boundary lines following 
each federal decennial census.

The boundary commission appointed by the Governor 
determined the eight regional boundary lines on August, 1970; 
predictably, the regions were effectively segregated by race 
as compared to the Detroit Board's April 7 regions. (P.X. 144),

67__/ For the first time the Board adopted attendance zone 
and feeder pattern changes resulting in two-way integration: 
white students were assigned to black schools as well as 
blacks to white schools (compare pages 20-21, and note 30, supra

-79-



racially segregated pupil assignments and racially segrega­

ted political and administrative sub-units (see note 8, 

supra) within the City of Detroit. Yet the State defen­

dants urge in this Court that they have no powers or 

responsibilities in these areas:

We conclude this section as it began: this case

involves state-imposed and state-enforced racial segrega­

tion in the public schools. The Fourteenth Amendment 

demands judicial intervention--now. At least

A whole generation of school children 
has gone through the complete school 
system of Metropolitan ]_Detroit/... 
under circumstances now determined to 
have been violative of their constitu­
tional rights. A second generation of 
school children is now attending school 
under similar circumstances--and the remedy 
is not in sight.

Kelley v. Metropolitan County Bd. of Educ., 436 F.2d,

856, 858 (6th Cir. 1970).



II. .
Defendants-Appellants Have Presented No 
Justification Adeauate To Avoid Their 
Present Duty to Substitute "Just Schools"
For "Black" Schools and "White" Schools 
In Order to Establish A Racially Unified, 
Non-discriminatory System of Public Edu­
cation

Having found the constitutional violation, i. e., 
that official acts and practices had effected racial segre­
gation of Detroit school children, the court below turned 
its attention to questions of remedy. That inquiry proceeded 
within the framework of well-developed constitutional and 
equitable principles:

(1) That the obligation of the defendants and 
the district court is to adopt a plan that 
promises realistically to eliminate now, root 
and branch, the illegal policies and their vest­
igial effects;
(2) that the remedial obligation is affirmative 
as well as prohibitory, namely, that the defen­
dants' obligation is to operate now and hereafter 
unitary schools in which white and black children 
sit and learn together side by side; 3
(3) that the remedial authority of district 
courts is commensurate with the magnitude, nature, 
and scope of the violations found, and that the 
greatest possible degree of actual, practicable 
desegregation must be achieved.
The defendants-appellants would have this court

believe that the district court leaped from finding limited
violations to fashioning virtually unlimited relief. The
record, however, discloses not only that the court's remedy
is mandated by the above principles, but also that the court
proceeded from consideration of the least relief that might
be plausible to its order of June 14 by a process that can
fairly be termed cautious.

-81-



•  •

We do not represent that no one ever thought of 
metropolitan school desegregation until the eleventh hour 
of this litigation. Certainly some commentators and 
perhaps one or more of the parties may have longingly 
eyed that approach early on because they apprehended 
continued "white flight" from Detroit, because they dis­
favor majority black school system, because they per­
ceive the irrationalty of mechanistic adherence to district 
lines, or for some reasons that might commend themselves 
to legislative attention. The question for this Court, 
however, which we believe must be answered in the affirmative, 
is whether the district court was moved to that relief by 
a compelling evidentiary showing of the constitutional insuf­
ficiency of lesser remedies. Put differently, district 
courts need not always employ to the fullest all of the 
remedial powers that are theirs measured by the scope and 
magnitude of the violation; but to fail to use such powers 
where lesser remedies are constitutionally inadequate would 

be reversible error.
The court began its remedial inquiry with considera­

tion and detailed evaluation of Detroit-only plans of de­
segregation. The Detroit Board seemed to find itself between 
Scylla and Charybdis: it maintained on the one hand that a
comprehensive Detroit-only plan would be so untenable as to 
be practically unthinkable and constitutionally deficient.
It remained unclear, however, whether the plans it tendered 
to the court, "A" and "C", were sponsored by the Board or

-82-



were only possibilities cherished by individual members 
or factions.

In any event, the proofs disclosed that Plan "C" 
promised not more than part-time desegregation for a 
limited number of children. Its constitutional inadequacy 
was patent and the court properly so held. Dowell v. Board 
of Education of Oklahoma City, 338 F. Supp. 1256 (W. D. Okla. 
1972). Bivins v. Bibb Co. Bd. of Ed. 424 F 2d 97 (5th Cir.
1970).

Plan "A" was more earnestly endorsed, if only by 
its Board-member sponsor. Upon examination, it turned out to be an 
elaborated version of the 1971-72 plan, which not only failed 
to achieve substantial desegregation but had in practice 
operated to aggravate matters by facilitating white pupils' 
choices away from desegregated schools. In addition to these 
shortcomings, further inquiry disclosed grave doubts as to 
the feasibility— or at least the likelihood— of implementation.
The court properly held that the plan, operating at its 
highly problematical most promising, would be legally insuffi­
cient. Green v. County School Board of New Kent County, 391 
U.S. 430 (1968).

The state defendants offered no alternatives, saying 
in effect, to Detroit, it's your problem.

Attention turned therefore to the Detroit-only 
plan prepared and offered by plaint iffs-appellees, after 
the failure of any school authority to present a plan 
which reassigned students.

-83-



It was virtually undisputed that, if circumstances 

beyond the control of the court or the parties limited 
the relief to Detroitproper, then of the plans in the record 
only that of plaintiffs could pass constitutional muster.
It was equally clear, however, that such a plan— in light of 
the scope of the violation and the prima facie practicability 
of other alternatives-would suffer irremediably from an 
ultimate constitutional defect: failure to dis-establish the
identity of Detroit as an educational system for black 
children parallel to a correlative component of the state 
system for white children.

Thereupon the district court, bearing in mind the 
Supreme Court's holding that school authorities bear a 
heavy burden of justifying a remedial plan which perpetuates 
racially disproportionate schools, Swann, supra, effectively 
asked the defendants to sustain their burden of justification 
in this setting. Anti-climactically, the court was told 
that existing school district lines rendered Detroit like an 
island to which relief would be perforce limited.

The plaintiffs, the Detroit defendants, and defendant- 
intervenors Magdowski urged not only the constitutional 
insufficiency of such a limitation, but also that it defied 
reason and experience. Legally, district lines are not 
more than artifacts of convenience which may not

‘

-8H-



impair constitutional rights. Moreover, Michigan
authorities have traditionally used the powers that
are theirs to cross district lines (as in the Carver
School example), to educate children on a multi-district
basis (as with intermediate districts), and to consolidate
and realign existing districts for the familiar purposes
of economy, effiency, and the like (as in the wholesale68/
consolidation of districts between 1955 and 1962).

It Is significant that the surburban and state defen­
dants argued for the constitutional sufficiency of Detroit- 
only relief primarily on the supposition that the district 
lines imposed a sacrosanct constraint upon the Court's 
remedial power. It was not seriously disputed, nor could it 
be, that a most obvious feature of such relief would be 
judicial perpetuation of racially dual school systems.

Viewing the same issues from the perspective of results, it 
is not seriously disputed that the approach embodied in the 
district court’s order of June 1^ practicably achieves sub­
stantial desegregation —  if the district court's power is 
commensurate with the constitutional requirements articulated 

in Swann, supra.

68/ Thomas, School Finance And Educational Oppor­
tunity In Michigan 299-300 (Lansing 1968)

-85-



•  •

At issue on appeal is what standard- should be 
applied to review the desegregation remedy ordered by the 
District Court. The test of any plan of desegregation 
is not some vague standard of reasonableness (see Swann v.
Charlotte-Mecklenberg, F 2d.,rev'd 402 U.S. 1); nor is the 
test of actions by school authorities or other state officials 
one of motive, primary or otherwise (see Wright v. Council
of the City of Emporia,___F 2d_, rev ’ d 4 0 U.S. L.W . 4 8 0 6 ;
U.S. v. Scotland Neck Board of Education, ___F.2d.____ rev1d
40 U.S.L.W. 4817). Rather,"the measure of any desegregation 
plan is its effectiveness." Davis v. Board of School Commis­

sioners , 402 U. S. 33, 37 (1971).
What does "effective" mean? Effective in doing 

what? In Green v. New Kenty County, 391 U.S. 430 (1 9 6 8), the 
Court held that upon finding a violation school authorities 
had the duty to come forward with a plan that "promises 
realistically to work, and promises realistically to work 
now." Schools must cease to be "black" and "white" schools; 
they must become "just schools." 391 U. S. 430 (196 8 ). In 
SwTann and Davis the Court faced lower court applications of 
this standard to fact situations in large metropolitan areas 
for the first time. In Swann the Fourth Circuit had approved 
and required the use of pairing and non-contiguous zoning 
for secondary schools but reversed a district court's use 
of the same steps for elementary schools. In Davis the 
Fifth Circuit had approved a desegregation plan which treated 
a boundary (a super-highway) as a barrier to desegregation 
by permitting consideration of the "eastern part of metropol­

itan Mobile" in isolation from the remainder of metropolitan
-86-



Mobile. In the Supreme Court, the various state education 
agencies raised almost every conceivable argument against 
substantial two-way desegregation in an attempt to limit 
desegregation even more than had the two circuit courts.

The Court's response in Swann and Davis was a 
restatement of Brown I and Brown II, a patient exploration 
of the meaning of Green, and a detailing of the tools 
available and which must be used to accomplish an effective 
remedy: restructuring of attendance zones, pairing, split­
zoning, contiguous and non-contiguous zoning, and transpor­
tation of pupils. The Supreme Court reversed the two 
Circuits, specially holding in each instance that the limit­
ations on desegregation accepted by the circuit courts were 
in error. In a final effort to eliminate all the posturing 
and posing by school authorities, and indeed some district 
and circuit courts, the Supreme Court said: "the remedy...
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 system." Swann, k02 U. S at 
28. Finally, the Court, after reviewing all of the words 
of art used by it and other courts, concluded: "Substance,
not semantics must govern."

-87-



If, after plans are adopted and implemented, the 
schools retain their racial character, then there has not 
been constitutional desegregation. To remove the pattern of 
schools racially identified by state action means that not 
only the present actions must cease, but effects of past 
action, and their possible recurrence in the future, must 
be considered together to eliminate school segregation "root 
and branch." The only limit set in Swann relates to the 
time and distance of transportation; within that limitation, 
the district court's duty, as outlined by the opinions of 
the SupremeCourt and this Court is to insure prompt approval 
and implementation of a plan which promises realistically 
that black and white children will sit together in the same 
classrooms and schools to the end that the pattern of schools 
or classes identified as black or white will be totally 
eradicated. This is the meaning of effective. In the words 

of Mr. Justic Black:
...there is no longer any excuse for 

permitting the "all deliberate speed" 
phrase to delay the time when Negro 
children and white children will sit 
together and learn together in the same 
public schools." Alexander v. Holmes 
County Bd., 396 U.sT l2lB^ 1220 (19697 .
"(Black’,' J. j In chambers).

This is the substance behind the three talismanic

phrases oft quoted from Swann and Davis:
The district judge or school authorities 

should make every effort to achieve the greatest 
possible degree of actual desegregation....

Having once found a violation, the district 
judge or school authorities should make every ef­
fort to achieve the greatest possible degree of 
actual desegregation, taking into account the

- 88-



practicalities of the situation.
In a system with a history of segregation 

the need for remedial criteria of sufficient 
specificity to assure a school authority’s 
compliance with its constitutional duty war­
rants a presumption against schools that are 
substantially disproportionate in their 
racial composition.
That is the substance of what the Supreme Court held 

in evaluating metropolitan plans of desegregation in Mobile 
and Charlotte-Mecklenberg. That is the substance of what thi 
Court held in evaluating a metropolitan plan of desegregation 
in Nashville. And that is precisely, with due deliberation 
and care, what the district court has done in this case. No 
more and no less.

The District Court found that Detroit-only plans 
did not promise to work in the constitutional sense: they
failed to dis-establish the racial identifiability affixed 
to the Detroit public schools by state action. In the cir­
cumstances of the local situation, particularly the pattern 
of massive construction of virtually all white schools on 
the periphery of and in the areas surrounding Detroit and 
the availability of more promising alternative plans, Detroit 
only desegregation would merely substitute a set of identi- 
fiably black schools throughout the Detroit school district 
for two sets of schools, one black and one white. Under the 
standards of Green and Swann, therefore, it is patent that 
schools originally identified as black by discriminatory 
state action would remain black schools; the object of

- 89-



desegregation would not be achieved. The Court was therefore 
forced by the record to begin consideration of relief beyond 
the geographic limits of the Detroit school district.

Just as the remedy for a black school within the 
geographic limits of the City of Detroit cannot be compart­
mentalized in a state system of public education, so too 
the violation found in this case knows no such conceptual 
boundaries.

Yet to justify the maintenance of school segregation 
in the Detroit public schools, the appellants-defendants 
offered but one justification to the Court below: existing
state lav; arrangements, which describe particular local school 
district coundaries and provide for the allocation and 
administration of literally hundreds of millions of dollars, 
preclude operation of a non-discriminatory system of public 
education in the Detroit area. This justification represents 
no more than the familiar cries of "administrative convenience" 
and "money" which have often been asserted by state and local 
officials as justifications for avoiding the obligation to 
remedy unconstitutional conditions. Accepting such asserted 
justifications as adequate has the inevitable effect of per­
petuating the constitutional violation. '

In a series of cases the Supreme Court has held that 
such asserted justification can only be adeauate if necessary

69/
to promote a"compelling state interest." (See, e.g. Kramer

6 9/ By use of this phrase we once again speak of 
substance not semantics. The courts have used other terms, 
and searched in other cases for "less drastic" or "less 
restrictive" alternatives which would permit the state to carry

- 90-



v. Union Free School District 395 U.S. 621 (1969)« If 
the state interest is not compelling, i. e., can be promoted 
by a less restrictive or drastic alternative, or has been 
so inconsistently asserted as to be an advocate's argu­
ment for purposes of litigation, the asserted justification 
must fail. The Court has specifically applied these standards 
to the asserted justifications of "money" and "administra­
tive convenience" in school desegregation cases and found 
them inadequate to support continued segregation.

First in Brown v. Board of Education, 3^9 U.S.
29^, the Court specifically held that in disestablishing 
state-imposed segregation:

... the courts may consider problems 
related to administration, 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 schools 
on a non-racial basis, and revisions of 
local laws and regulations which may be 
necessary in solving the foregoing problem. 70/

69/ cont'd
out its legitimate interest but without impinging 
so heavily on constitutionally protected freedoms. 
Such an inquiry always permits the court to accept 
the validity of a state policy, yet require its 
modification to avoid a more direct confrontation 
with the commands of the Constitution.

70/ The reliance of school authorities on the 
reference to the"revision of... attendance areas into 
compact units." Brown II, at 300, Is misplaced.
The enumeration in that opinion of considerations

- 91-



Second, in Swann the Court affirmed a district court 
order requiring relief analogous to that required by the 
lower court here: .

Absent a constitutional violation there 
would be no basis for judically ordering assign­
ment 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 remedy for such segregation 
may be administratively awkward, inconvenient 
and even bizarre in some situations and may impose 
burdens on some; but all awkwardness and incon­
venience cannot be avoided in the interim period 
when remedial adjustments are being made to eliminate 
the dual school systems.

70/ (cont’d)
to be taken into account by district courts was patently 
intended to be suggestive rather than exhaustive. The 
decision in Brown II to remand the cases decided in Brown I 
to local courts for framing of specific decrees was premised 
on a recognition that the Court could not at that time foresee 
the particular means which would be required to implement 
the constitutional principle announced. As said in Green, 
supra, at 439:

The obligation of the district courts, as 
it always has been, is to assess the effective­
ness of a proposed plan in achieving desegrega­
tion. There is no universal answer to complex 
problems of desegregation; there is obviously no 
one plan that will do the job in every case. The 
matter must be assessed in light of the circum­
stances present and the options available in 
each instance.

- 92-



Third, in Davis, the Supreme Court specifically held

that a lower court erred in limiting its consideration 

remedy by a practical physical barrier, much less an imaginary 

boundary line created' by the state itself to assist in 

administering the state system of public schooling. Finally, 

in Emooria and Scotland Neck the Court applied Brown II 

in holding that newly created school district boundaries, 

even where their effect was hardly of the magnitude presented
71/

here, co iId be disregarded to accomplish school desegrega­

tion .

The Fifth and Eighth Circuits have reached similar 

results with respect to school district boundaries.

United States v. Texas Educ. Agency, 447 F.2d 441 (5th 

Cir. 1971); Haney v. County Bd, of Educ., 410 F. 2d 920 

(8th Cir. 1969).

Under the Constitution of the United States, the 

State is ultimately responsible for public education and 

securing to plaintiff school children the equal protection 

of the laws. Hall v. St. Helena Parish School Board, 197 

F. Supp. 649, 658 (E.D. LA.. 1961):

71/ The dissenters in Emporia "voiced no opposition to 
the discarding of purpose and motivation, but objected only 
to the majority's factual determination...." Cisneros, supra at 17

- 93-



The equal protection clause speaks to 
the State. The United States Constitution 
recognizes no governing unit except the 
federal government and the State. A con­
trary position would allow the State to 
evade its constitutional responsibility 
by carve-outs of small units.

Accord, Cooper v. Aaron, 358 U.S. 1, 16-17 (1958): Haney v. 

County Board of Education, 410 F. 2d 920 (8th Cir. 1969).

Under the Constitution and laws of Michigan, as well, the 

responsibility for providing educational opportunity is 

ultimately that of the Sfate, and leadership and general 

supervision over all public education is vested in the 

State Board of Education, Art. VIII, 1-3, Michigan Const! 

tution of 1963. (The extensive duties of the State Board 

and State Superintendent of Public Instruction are summarized 

in the district court's Ruling on Issue of Segregation,

Mem. Op., A. Ia213-15).

The State defendants and intervening school districts 

attempt ot turn this assertion of state power on its head as 

somehow magically to insulate themselves, as subordinate 

instrumentalities of the state limited by state law, from 

taking steps necessary to remedy the constitutional violations 

found. Such sophistry has had no foundation in constitutional 

adjudication since at least Ex Parte Young, 209 U.S. 123

-94



(1908) Defendants have consistently mistaken the application 

of the Fourteenth and Eleventh Amendments, and the Supreme 

Clause, to the responsibility of state administrative 

and executive officials at all levels of government; at 

a minimum, when they are parties to a litigation, they must 

obey the commands of the Constitution, as interpreted by 

judical decrees enjoining the.

It is clear that "de jure" segregation is not limited 

to statutory segregation. Nor is it limited to any particular 

agent of the state.

Soon after the ratification of the Fourteenth 
Amendment, judicia' pronouncements decleared 
the prohibitions contained therein applicable 
to all agencies of the states as well as to 
all officers by whom the powers oF the state
are executed. See____ , Ex Parte Virginia, 1880,
100 U.S. 339, 346 347, 25 L Ed 667. A school 
board is an agent of the stave. See Cooper v.
Aaron, 1958, 358 U.S.l, 16, 78 S Ct. 1397,
3L Ed 2d 1 . . . .Here school authorities 
assigned students, faculty and professional 
staff; employed faculty and staff; chose sites 
for schools, constructed new schools and reno­
vated old ones; and drew attendance zone lines.
The natural and foreseeable consequence of 
these actions was segregation. . . .Affirmative 
action to the contrary would have resulted in 
desegregation.

Austin, supra, slip op. at 25 - 26 (emphasis added).

-95-



In this case a pattern and practice of constitutional-

violation on the pari: of the state officials has been 

established. The affirmative obligation under the Fourteenth 

Amendment is imposed or. all state actors, be they governors, 

stale superintendents or local officials; and this is so 

regardless of what particular person or office under color 

of what law, first caused the violation. Cooper v. Aaron,

358 U.S. 1 (1958); Griffin v. County School Board of Prince 

Edward County, 337 U.S. 218 (1953); Godwin v. Johnston 

County Board of Education, 301 F. Supp. 1337; Lee v. Macon 

County Bd. of Educ. 267 F. Supp. 458 (M.D. Ala) aff'd sub 

nom, Wallace v. U.S., 389 U.S. 315; Franklin v. Quitman 

County Board, 288 F. Supp. 509; Smith v. North Carolina
WState Board, of Education, 444 F.2d 6 (4th Cir. 1971).

72/ See also Lee v. Macon County Bd. of Ed., 231 
F. Supp. 743, 752 (emphasis added):

"the evidence in the case reflected that the 
Macon County S :hool Board and the individual 
members thereof, and the Macon County Super­
intendent of Education, have throughout this 
troublesome litigation fully and completely 
attempted to discharge their obligations as 
public officials and their oaths of office.
It is no answer however that ,h'-se Macon County
officials may have been blameless with respect
to the situation that has been created in the
school system in Macon County, Alabama. 1The
Fourteenth Amendment and the prior orders of :his
Court were directed against actions of the S’ate
of Alabama; not only the action of County school
officials, but ihe actions of all other ocficials
whose condact beers on this case is state action.

- 96-

%



Similarly, this Court has, in an earlier interlocutory 

appeal in this cause, reversed the lower court's dismissal 

of the defendants Governor and Attorney General pending a 

full hearing on the merits. Bradley v. Milliken, 433 F.2d 

897 (1971).

The Eighth Circuit applied the rule in reversing the 

failure of the lower court to devise an appropriate form 

of consolidation of school districts to accomplish desegre­

gation without limitations to state law:

Appellees' assertion that the District Court 
for the District of Arkansas is bound to 
adhere to Arkansas law, unless the state law 
violates some provision of the Constitution, is 
constitutionally sound where the operation of 
the state law in question fails to provide the 
constitutional guarantee of a non-racial uni­
tary school system. The remedial power of the 
federal courts under the Fourteenth Amendment: 
is not limited by state law.

Haney v. County Board of Education of Sevier County, 429 

F. 2d 364, 358 (8th Cir. 1970). Accord?Griffin v. Prince 

Edward County, 377 U.S. 218 (1964); North Carolina Board 

of Education v. Swann, 402 U.S. 43 (1971); Stout v,.Jefferson 

County Board of Education, No. 29886 (5th Cir. July 1971); 

U.S. v. Greenwood Municipal Separate School District-, 406 

F 2d 1086, 1094 (5th Cir. 1969) and Adkins v. School Beard

- 97-



of Newport News, 148 F. Supp. 430, 446-7 E. D. Va. 1957), 

aff'd 246 F 2d 325, cert, den. 355 U.S. 855 (1957).

In Board of Education v, Swann, 402 U.S. 43, 45 (1971), 

the Court said:

]_S/tate policy must give way when it operates to 
hinder vindication of federal constitutional 
guarantees.

And in Reynolds v. Sims. 377 U.S. 533, 575 (1964) 

the Supreme Court said:

Political subdivisions of States--Counties,
Cities, or whatever--never were and never have 
been considered as sovereign entities. Rather 
they have been traditionally regarded as subor­
dinate governmental instrumentalities created by 
the State to assist in the carrying out of 
state-governmental functions.

Again, in Haney, supra, "Political subdivisions of the

St_a-te are mere lines of convenience for exercising divided

governmental responsibilities. They cannot: serve to deny

federal rights." See also Jenkins v.  Township of Morris

School District, 279 A.2d 617, 628 (S. Ct. N.J. 1971);

Lee v. Macon County Board of Education, 448 F 2d 746, 752

(5th Cir. 1971), United States v. State of Texas, 447 F. 2d

441, 443-44 (5th Cir. 1971), affirming orders reported at

321 F. Supp. 1043 and 330 F. Supp. 235.

-98-



in

4Ht
Fourth, defendants urge that the/Circuit' s reve rsal 

Bradley v. School Board of the City of Richmond,

F. 2d (1972) suggests the district court’s ruling

is without legal foundation. In the first instance, the 

principal legal theory relied upon by the 4th Circuit in 

that reversal was precisely that relied upon by the same 

majority in two cases recently reversed by the Supreme Court. 

Wright v. Council of the City of Emporia, 40 U.S.L.W. 4806 

(June 22, 1972) and, United Slates v. Scotland Neck Board 

of Education, 40 U.S.L.W. 4817, (June 22, 1972). Mr. Justice 

Stewart in Emnoria said:

This "dominate purpose" test finds no 
precedent in our decisions. It is true that 
where an action by school authorities is motivated 
by a demonstrated discriminatory purpose, the 
existence of that purpose may add to the discrimi­
natory effect of the action by intensifying the stigma 
of implied racial inferiority....The mandate of 
Brown II was to desegregate schools, and we have 
said that "/t/he measure of any desegregation plan 
is its effectiveness." Davis v. Board of School 
Commissioners, 402 U.S. 33, 37. Thus, we have 
focused upon the effect--not the purpose or motiva- 
tion--of a school board's action in determining 
whether it is permissible method od dismantling a 
dual system. The existence of permissible purpose 
cannot sustain an action that has an impermissible 
effect.

_ 99_



In Richmond the Court of Appeals made "new" findings

contrary to those of the District Court that desegregation

was already complete at the time the District Court issued

its ruling requiring further desegregation. The Court of

Appeals characterized this as seeking"racial balance" and

reversed. Whatever the merits of the Court of Appeals

opinion, it cannot be said that desegregation has already

taken place in Detroit or, in even further distinction, in

Detroit's counterparts of Chesterfield and Henrico Counties,
IS ,its suburbs. The Court below/faced with the task of 

fashioning a remedy for the first time where it has found 

segregation. In that context its application of the 

Swann and Davis standards is entirely appropriate.

The obligation of district courts in school desegrega­

tion cases is not materially different from that of federal 

courts in other areas of public law involving the protection 

of public rights, such as anti-trust. The court must, for 

example, "prescribe relief which will terminate the illegal 

monopoly, deny to the defendants the fruits of its statutory 

violation, and ensure that there remain no practices likely 

to result in monopolization in the future." Unifed States 

v. United Shoe Machinery Corn., 391 U.S. 244, 250 (1968)

-100-



(emphasis supplied). Thus, the relief granted must be 

shaped in accordance with the factual circumstances existing 

at the time relief is fashioned rather than at the commence­

ment of the violation. E.g., United States v. Aluminum Co. 

of America, 91 F. Supp. 333, 339 (S.D.N.Y. 1950); United 

Stai;es v. Union P.R. Co,, 226 U.S. 470, 477 (1913); United 

States v. DuPont: deNemours & Co., 366 U.S. 316, 331-32 

(1961); cf. United States v. Board of School Comm'rs of 

Indianapolis, 332 F. Supp. 655 (S.D. Ind. 1971).

In anti-trust cases, the Supreme Court has held that 

the lower federal judiciary must guide the effectuation 

of the underlying public policy. Thus, in Unit ed States v. 

United Shoe Machinery Corn., suora, the government was 

permitted to reopen a case in order to achieve more effectively 

the purposes of the litigation, even though no material 

change in circumstances alone rendered the decree inade­

quate. 391 U.S. at 251; cf. King-Seely Thermos Co. v.

Aladdin Industries, 418 F.2d 31, 35 0969). Similar princi­

ples have in fact been applied to school desegregation 

litigation. The district courts are instructed to retain 

jurisdiction for such period of time as may be necessary 

to insure that the pervasive patterns and effects of segre-

-100a-



gation are, in fact, eliminated, and to mod:’ f y their decrees 

in the light of experience. Unitary schools "now and here­

after" (rather than resegregation plans) are the constitu­

tional requirement. Raney v. Board of Educ. of Gould,

391 U.S. 443, 449 (1968); c_f. Swann v. Charlotte-Mecklenburg 

Bd. of Educ., 431 F.2d 138, 141 (4th Cir. 197C), rey'd in *

part on other grounds, 402 U.S. 1 (1971); No. 71-1811 

(4th Cir. , Feb. 16, 1972), aff'g 328 F. Supp. 1346 (W.D.N.C. 

1971); Lemon v. Bossier Parish School Bd., 444 F.2d 140C,
446 F .2d 911 (5th Cir. 1971); Boykins v. Fairfield Bd. of 

Educ., No. 71-3028 (5th Cir., Feb. 23, 1972).

The orders below made plain that the district court 

did not and would not, order "racial balance." The district 

court, taking into account the "practicalities of the 

situation,11 (Davis, supra at 37), "devising plan/s/ to ter­

minate ... res idual ef f ects. . ._/ took/ note of the proportion 

of white and black students within the area and /sought/ 

as practical a plan as may be for ending white schools 

and black schools and substituting therefore schools which 

are representative of the area in which the students live." 

Kelley v. Metropolitan Bd. of Ed.. F2d Nos. 71-1778­

79, (6th Cir., May 30, 1972). We note that the proposals

-100b-



submitted to the court below have not yet been beard or 

decided by the district court.

The court rejected one Sta;e Board Proposal primarily 

on the ground that it contained no rational starting point 

"except a desire to achieve an arbitrary racial ration."

(Metro op. # 19)

Several District Courts and Courts of Appeal have gone 

further and have explicitly prohibited as a remedial measure 

the operation of schools above or below a specific ratio-- 

where such enrollments would be substantially disproportionate, 

to the overall student ratio. See Swann v. Charlotte-Mecklen- 

berg Board of Education, 328 F. Supp. 1346, affd No.71-._81i 

(4th Cir., Feb. 16, 1972); Kelly v. Guinn 456 F.2d 100 

(9th Cir. 1972); cfh Yarbrough v. Hulbert-West Memphis School 

District No. 71-1524 (8th Cir. March 27, 19/2).



Ill

Practically As Well As Legally 
Public Education In Michigan '
Is a Function of the State

In its order of July 24, 1972, this Court asked the 
parties to describe "the precise legal status under State 
law of local school districts and boards of education vis-a-vis 
the State of Michigan".

Throughout this case, we have emphasized our view 
that the burden of providing public education on constitutional 
terms rests ultimately upon the State of Michigan. The 
United States Constitution, and particularly the equal pro­
tection clause of the 14th Amendment, speaks to the states 
and imposes upon them responsibility for thefulfillment of 
constitutional commands. Turner v Warren County Bd. of Ed„
313 F. Suppl. 330 (E.D.N C. 1970); Godwin v, Johnston Co.
Bd. of Ed., 301 F. Supp. 1339 (E.D.N.C. 1969); United States 
v TEA ,431 F.2d 1313 (5th Civ. 1970); Hall v. St. Helena 
Parish School Bd, 197 F. Supp. 649, 658 (E.D.La, 1 9 6 1).

To be sure, the states may and do discharge their 
responsibility in a variety of ways, including for reasons 
of practicality and convenience through local units and in­
strumentalities. But such arrangements cannot change the 
constitutional equation; the obligation to do the job, directly 
or otherwise, is non-delegable. And where the immediate unit 
will not or cannot accomplish the required objective, the 
responsibility remains that of the state, which may not con­
stitutionally plead that its arrangements of convenience are 
bars to rights. This principle of compelling rearrangements,

-101 -



including financial reallocation, is established in other 
areas as well as school desegregation. United States v.
TEA ,above; Shapiro v Thompson, 397 U.S. 25^, 265-266 (1970); 
Reynolds v. Sims, 377 U.S. 533, 575 (1964); Jones v.
Metzger, - F 2d - (No. 71-1865, decided March 14, 1972,
6th Cir.); Wayne County Jail Inmates v Wayne County Bd. of 
Commrs., C.A. No. 173217, Wayne Co. Cir. Ct., decided 
July 28, 1972.

Michigan's central educational authorities, acting 
directly as well as through subordinate units , were parti­
cipants in the constitutional violations found here, so their 
remedial obligations are immediate as well as theoretical. 
However, we re-emphasize that, even if the constitutional 
violation had occured wholly outside of - or even contrary 
to - state-level policy and conduct, the constitutional 
responsibility for securing equal protection of the laws to 
Detroit school children is the State's.

We ask that the Court bear in mind these principles 
as the proper context for examining the legal status of 
local units under Michigan lav;.

We believe that this issue presents basically two 
questions: (1) are local educational units, speaking prac­
tically as well as constitutionally, totally subject now 
to state control in all relevant respects; and (2) may a 
federal court compel a state to use its present as well as 
as its sovereign powers to secure constitutional rights?

-102-



For the proper answer to the first question, this 
Court should look beyond today's mechanisms or arrange­

ments to the State's view of its authority. Michigan's 
constitutional, statutory, and decisional law confirm that 
local district's powers, duties, and very existence are

wholly subject to state control.
The creation of local districts can be 
considered to be part of the state's 
planning function. Local districts are 
legally arms of the state, and the 
state has the power to create or destroy 
districts, or to change their bound­
aries (footnote omitted).

*  *  *

However, responsibility at the state 
level goes beyond establishing local 
and intermediate school districts and 
defining their power. The state also 
has a long-term responsibility for pro­
viding these governmental units with 
access to "approved" inputs. For ex­
ample, the task of certifying teachers 
. . . is now assumed by the state.
States also certify the safety of 
school buildings. The state of Michi­
gan, to cite another example, exercies 
general control of school building 
financing through the "qualification" 
of school bonds ._/

This summary of actual state control reflects accur­
ately the longstanding view of Michigan courts. School Dist. 
No. 7 v. Board of Education, No. 4585, Kent Cir. Ct. Oct 16,

/ Thomas, School Finance and Educational Oppor­
tunity In Michigan, 295-298 (Michigan Dept, of 
Education, Lansing, 1968).

-103-



i96 7; Jones v, Grand Ledge Public Schools, 349 Mich . 1, 
84 N. W. 2d 327 (1997); School Dist. No. One Fractional,
Ira Twp. v School Dist. No. Two Fractional, Chesterfield 
Twp, 340 Mich. 6 7 8 , 66 N.W. 2d 72 (1954); Sturgis v, Allegan 
County, 343 Mich. 209, 72 N. W. 2d 56 (1955); Attorney
General v. Lowrey, 131 Mich. 639, 92 N.W. 289 (1902) 
affirmed, 199 U.S. 233 (1905); Art. VIII, ss 1, 2 Michigan 

Constitution of 1 9 6 3.
This totality of state control is seen in virtually 

every phase of public (and, to some extent, private) educa­
tion in Michigan; the nature of the State’s view of its 
authority is seen Public Act No. 2 6 9, 1955, Michigan com­

piled Laws, 340.1 :
AN ACT to provide a system of public 
instruction and primary schools; to 
provide for the classification, organ­
ization, regulation and maintenance of 
schools and school districts; to 
prescribe their rights, powers, duties, 
and privileges; to provide for regis­
tration of school districts and to 
provide powers and duties with respect 
thereto; to provide for and prescribe 
the powers and duties of certain boards 
and officials; to prescribe penalties; and 
to repeal certain acts and parts of acts.

In addition to the obvious subjects of legislation 
as such a universal mandate would suggest, the Code reaches
down to the most minute details of school district organiza­
tion and functioning. Dr. Porter, the State Superintendent, 
described in the court below some of state's functions vis-a­
vis local districts (A.Ill a 80-128; and see A.X a 157, et seq.

-104-



Furthermore, the education statutes have been supplemented 
by comprehensive Administrative Rules ranging from trans­
portation provisions to construction costs standards (General 
School Laws, 1966, Part IV, R. 3 8, 101-R.397.92.)

We reiterate that, even if Michigan had chosen to 
delegate irrevocably certain of its sovereignty in education­
al matters, that delegation would yield, if necessary, to 
the realization of federal constitutional rights. Here, 
however, the state has retained and exercises that sovereip;nty • 
so the only remaining question is Its amenability to federal 
court control.

This Court need not approach this question as an 
abstract problem in constitutional theory. The limitations 
upon the states when they are pursuing objectives committed 
to their sphere by the federal Constitution are not in issue. 
Cf. Hunter v. City of Pittsburgh, 207 U.S. 161, 178-179 (1907). 
The precise question is whether, when necessary for the vin­
dication of constitutional rights, the state may be required 
to adjust arrangements whose only asserted justification, 
on this record, is their present existence. To us, the power 
of the courts to require changes In schemes whose unconstitu­
tional effects were inevitable and foreseeable, and which have 
no nondiscriminatory rationale, is self-evident. Comillion v. 
Light foot, 36^ U.S. 339 (I960); Baker v, Carr, 369 U.S. 186 
(1962); Hall v. St. Helena Parish School Board, 197 F. Supp. 
6*19 , 658-659 (E. D. La.,1961), affirmed 368 U.S. 515 ( 1962).

-105-



Whether courts may order the raising or reallo­
cation of funds to afford constitutional rights and where 
remedial responsibility initially lies are two remaining 
questions. The power of the courts is clear, we believe, 
to order the reallocation, raising, and spending of money 
in order to vindicate constitutional rights. Griffin v.
Prince Edward County, 377 U.S. 218, 233 (1964); Shapiro v._
Thompson, 397 U.S. 254, 265-266 (1970); Boddie v. Connecticut, 
91 S. Ct. 780, 788 (1971); Plaquemines Parish School Board
v. United States, 415 F 2d 817, 833 (5th Cir. 1969); Brewer  
v. Norfolk School Board, - F 2d - (No. 71-1900, 4th Cir. 

decided March 7, 1972).
Lastly, we believe that, like the responsibility 

in this case, the opportunity to provide a timely, adequate 
remedy properly may rest initially with the State of Michigan. 
We expect that, very shortly following adjudication of the 
rights in this matter, the state will turn itself creatively 
to providing a remedy. It is true that the state's contri­
bution to planning has been to date negligible and unenthu­
siastic. Nevertheless, we remain optimistic, or at least 
hopeful, in that regard. Reynolds v. Sims , 377 U.S. 533,
584, 586 (1964), and other reapportionment cases, provide 
the basis, we believe, for authorizing courts to stay their 
hand -beyond short-term measures necessary for the present 
enjoyment of overdue rights - pending state legislative 
action during a reasonable interlude.

-106-



In final answer to the Court’s question: If the
remedy is constitutionally required, and if like the vio­
lation it must be state-imposed, then the federal court is 
empowered to compel the state to exercise any and all of its 
sovereignty to that end; state power like state responsi­
bility is complete but subject to the commands of the Con­

stitution. /

/ We have not prepared for this Brief an 
analysis of present state financial resources and commitments. 
However, withresPect to the expenditures required by the 
district court’s order as it is now being implemented, we 
invite the Court’s attention to the State’s Emergency Appro­
priation Act (A. IX a 641-6*12).

-107-



IV

If the Question is Ripe for Decision, 
Section 803 of the Education Amendments 
of 1972 May Not Constitutionally Operate 
To Suspend the Implementation of Any 
Otherwise Valid Pupil Transportation 
Order That the District Court May Enter 
in This Case.

In its Order of July 20, 1972, this Court issued its
CERTIFICATION pursuant to 28 U. S. C. 2403 and directed that * 1
"The United States may intervene for argument on the ques­

t
tion of the constitutionality of Section 803 /^of the 
Education Amendments of 1972, Pub. L. No. 92-3187 ." There­
after, in its Supplemental Order of July 24, the Court 
directed the appellate participants to answer:

1. Does Section 803 of the Education Amend­
ments of 1972, Pub. L. No. 92-318 apply to 
Metropolitan transportation orders which 
have been or may be entered by the district 
court in this case?
2, If section 803 does apply, is it constitu­
tional?

Section 803 provides:
Notwithstanding any other law or provision 
of law, in the case of any order on the part 
of any United States district court which 
requires the transfer or transportation of any 
student or students from any school attendance 
area prescribed by competent State or local 
authority for the purposes of achieving a 
balance among students with respect to race, 
sex, religion, or socioeconomic status, the 
effectiveness of such order shall be postponed 
until all appeals in connection with such order 
have been exhausted or, in the event no appeals 
are taken, until the time fox* such appeals 
has expired. This section shall expire on 
midnight on January 1, 1974.

-108-



A. Ripeness
Plaint iffs-appellees believe that questions con­

cerning the relationship of Section 803 to possible 
relief in this case may be premature. First, upon the 
basis of the district court’s Certification of July 19 
and this Court’s Order of July 20, the validity of the 
district court's metropolitan desegregation framework 
is at issue here, but resolution of that issue - by 
affirmance of that framework - should precede consider­
ation of the Section 803 questions. Secondly, that 
affirmance should thereafter be the predicate for pre­
sentation of the Section 803 issues to the district 
court, in the first instance, in the context of an 
actual pupil "transfer or transportation" order.

We emphasize that the ripeness problems, here go beybnd 
considerations of cautious judicial administration.
For example, the Detroit Board’s metropolitan pla.n 
(unlike that of the plaintiffs) included attention to 
socioeconomic desegregation, as does, apparently, the 
interim report of the district court's desegregation 
panelT^ Section 803, among other things, purports to 
stay orders"... for the purpose of achieving a balance 
among students with respect to... socioeconomic status..." 
In light of the possible constitutional differences 
between racial and socioeconomic school desegregation,

/ See Desegregation Panel’s Report of July 29, 1972
p . 6

-109-



we question the advisability of appellate considera­
tion of such questions without the benefit of a speci­
fic plan and a fully developed district court record.

Similarly, if Section 803 were ever to be held to 
apply to de jure desegregation relief, then it could 
arguably be interpreted to postpone reassignments 
("transfer or transportation") of pupils from distant 
segregated schools to nearer desegregated ones. The ,
point, of course, is not that such patent unconstitu­
tionality would give any court pause in the abstract, 
but rather, that such questions are more advisedly con­
sidered on the facts of anexisting reassignment order.

i
B, Applicability

Turning now to the substance of the Court's questions,
we urge that Section 803 is inapplicable to any otherwise
valid pupil reassignment relief for unconstitutional

_/school segregation. We reach that conclusion: (a) by a fair

/ We wish to underscore our view that the metropoli­
tan aspect of this case, while obviously the central question 
on appeal, is no different from any other case with respect 
to Section 803. If the district court's remedy for offi­
cial segregation is constitutionally required or permitted, 
as we contend, then the Section 803 issues, as to both appli­
cability and constitutionality, are no different from a 
case involving pupil transfers across the street.

- 1 1 0 -



reading of the plain meaning of the statute, and (b) by 

applying a familiar principles of statutory adjudication, 

which require courts to give to a statute that legiti­

mate interpretation which will avoid rather than raise 

constitutional doubts.

The provisions in question are unmistakably addressed 

to overcoming racial (and other) imbalance, which for more
t

than a decade has been a judicial and legislative term of

art meaning something quite different from remedying uncon-
_ /

stitutional segregation. If confusion has been engendered

in some quarters, that is a problem of false expectations 

or unfamiliarity with the history of school desegregation 

law, for the Congress has known and reflected the difference 

since at least the Civil Rights Act of 1964 - and indeed 

repeated it in this very legislation. Moreover, reliable 

history of legislative intent may properly be used to clari- 

by statutory ambiguity or to allay constitutional doubts; 

but legislative history may not be used selectively to in­

ject ambiguities or constitutional problems not otherwise 

presented.

_/ See, e.g., United States v. Jefferson County Board 
of Education, 372 F. 2d 87b et.seq(5th Cir. 1966); Swann v. 
Charlotte-Mecklenburg Board of Education; 402,U.S. 1(1971).

- I l l -



The subheading of Title VIII reads: "PROHIBITION

AGAINST ASSIGNMENT OR TRANSPORTATION OF STUDENTS TO OVER­

COME RACIAL IMBALANCE." The Title begins with Section 

801: "No provision of this Act shall be construed to

require the assignment or transportation of students or 

teachers in order to overcome racial imbalance." Simi­

larly, Section 803 speaks to orders requiring transfers 

"for the purposes of achieving a balance among students 

with respect to race, sex, religion, or socioeconomic 

status...." Section 802, on the other hand, which deals 

with the availability of federal funds for pupil trans­

portation, speaks clearly in the alternative to trans­

portation, "in order to overcome racial imbalance... or... 

in order to carry out a plan of racial desegregation..."

And Section 804 also seems addressed to all court orders, 

rather than only those to overcome racial imbalance.

Other sections of the legislation also confirm Congress's 

knowledge and employment of the distinction. See, e.g., 

Sections 703 and 706 (a) (1).

In addition, Congress debated and adopted Title VIII 

in the context of definitive judicial explication of its 

direct statutory antecedent, Section 407(a) of the Civil 

Rights Act of 1964. In the 5th Circuit in 1966, the

/ See Section 806 of the Education Amendments of 1972.

-112-



7t:h and 10th Circuits in 1068 and 1970, and elsewhere 

culminating in the Supreme Court's Swann opinion in 1971, 

all courts held "overcoming racial imbalance" to be con­

stitutionally different from remedying illegal segregation,

and that Congress had recognized and reflected the diffe-
_ /

rence in its legislation. It is settled that legisla­

tive use of judicially construed phrases implies adoption 

of the construction. Armstrong Paint & Varnish Works v. 

Nu~Enamel Corp., 305 U.S. 315, 332 (1938).

Still another aspect of Section 803's language gives 

credence to this interpretation. The constitutional his­

tory and status of official school racial segregation are 

very different - both as to violation and remedy - from 

sexual, socioeconomic, and perhaps even religious school 

segregation. Those forms of discrimination are, at least 

at their present stage of constitutional development, more 

like racial imbalance than de jure segregation. This 

relationship suggests that Congress intended to treat racial 

imbalance and other like issues together, rather than to 

co-mingle constitutionally dissimilar forms of discrimina­

tion. By way of contrast, when Congress chose to put

_/ United States v, Jefferson County, above; United 
States v. School District 151, 404 F.2d 1125 (7th Cir. 1968); 
same, 432 F.2d 1147 (7th Cir. 1970); United States v. Tulsa 
Board of Education, 429 F.2d 1253 (10th Cir. 1970).

-113-



different forms of racial isolation on the same footing 
for a specific purpose (eligibility for federal assis­
tance toward desegregation), it did so by identifying both 

explicitly. See Section 706.
It may be argued that, if Section 803 does not apply 

to de jure desegregation cases, then it applies nor ere 
because courts do not issue racial balance orders and 
Congress does not do futile things. We have already 
suggested the statute’s possibly different effect in 
socioeconomic or sexual balance cases, but even in school 
racial separation cases two possibilities come to mind. I 
a district court were to order a remedy without referennce 
to a violation, a stay under this statute - although pro­
bably superfluous - could possibly be had until the con­
stitutional violation had been shown, without raising the 
problems that attend constitutionally required remedies.
It may be objected that this example is unreal on the 
ground that courts do not grant remedies in advance of

/ Indeed, the government, perhaps in aneffort to 
save the statute, has already implied this analysis to 
this Court in this case, and we may not have heard the last 
of it. It was suggested in argument to this Court and in 
the memorandum of approximately July 15 on the stay motions^ 
for the first time since the government had been granted 
amicus status almost two months'before, that this may be, 
after all, a racial imbalance case. Two possible bases for

(cont’d on next page)

-114-



finding 
tion of 
one.

violations. 
this anomaly,

But this overlook 
which we believe

s a 
is

second explana-* 
the more likely

As
80 3 the

noted above, Congress carried forward in Section 
racial imbalance concept as it appeared and was

__/ (cont'd)
for this conclusion were advanced: (1) that Judge 

Roth had mandated pupil racial balance relief to an extent ' 
prohibited by Swann, and (2) that the case is one of a 
remedy without a violation in that relief affecting subur­
ban school districts was granted without proof of any vio­
lation on th'ier part. The district court's conventional 
use of traditional pupil racial composition criteria in 
fashioning relief, itself as yet unrefined, is too clear to 
require extensive citation. The government's second point 
is more important, although to raise it in the context of 
Section 803 confuses the issue unnecessarily. If the sub­
urban districts are properly part - f de jure desegregation-­
relief, as we have argued above in this Brief, then Section 
803 is either inapplicable or unconstitutional for the 
reasons set forth above and below. If they are not, then 
theywould be entitled to at least a stay even if Section 
803 'had never been heard of.

We note again our view that questions as to individual 
violations by particular suburban districts are a "red 
herring". Legally (and particularly, in view of Michigan's 
frequent local exercise of its central powers), thejsubur- 
ban districts are dependent units of the state, which can 
not without their participation discharge its constitutional 
obligation to desegregate Detroit's schools. In practice, 
just as the state acted sometimes centrally and sometimes 
through the Detroit Board to segregate the city's schools, 
so, too, it acted - sometimes centrally and sometimes with 
the suburban boards - to segregate the Detroit system.

In any event, the government's focus on the metropoli­
tan aspects tacitly acknowledges that Section 803 would 
not apply to Detroit-only relief, i.e., to more conven­
tional de jure desegregation, which is also our view.

We repeat that this doctrine of state responsibility 
has previously been applied practically as well as conceptu­
ally. Lee v. Macon Countv Board of Education, 231 F. Supn. 7̂ 3, 752HTO)7''Ala. lyFJT "

-115-



interpreted in the legislation of 1964. .But the debates, 
and even some judicial decisions, of that period disclose 
that the principles governing the availability of judi­
cial relief against fortuitous - as distinguished from 
official and illegal - school segregation were less clear 
than they are today. See, e.g., Barksdale v Springfield 
School Committee, 237 F. Supp. 543 (D.Mass., 19 6 5)
348 F.2d 261 (2d Cir. 1 9 6 5). If a statute stay-

t

ing desegregation relief pending the finding of a viola­
tion seems pointless today because the problem does not 
arise, it may signify only that the concepts of the early 
sixties werereiterated without reference to pertinent 
intervening judicial development. As the legislative 
history cited in the Jefferson County opinion and elsewhere 
confirms, as does the language of Section407 (a), which 
Section 803 so closely resembles, congressional con­
cern with the possibility of "de facto" desegregation 
orders was prominent.

If we are correct that this "page of history" explains 
the meanings of Section 803, then it would be similarly 
applied today, and the unlikelihood of a suitable case 
arising is no basis for attaching to it a new and unintended 

meaning.

-116-



We can not represent to this Court that the question 

of applicability can be clearly resolved by reference to 

Section 803's legislative history. Like the Good Book, 

there is something in it for everybody.

There is clear evidence that Section 803 as originally 

introduced by Representative Broomfield on November 4, 1971, 

was intended to postpone the effectiveness of only those 

reassignment orders that went beyond the requirements of 

de jure desegregation. Rep. Broomfield cited (Cong. Rec.

H. 10408, November 4, 1971) popular ’’opposition to forced 

bussing merely to arrive at a racial balance in our schools." 

He noted that Chief Justice Burger had expressed concern 

that some federal court transportation orders had exceeded 

the Swann guidelines, and also observed:

Nonetheless, some U.S. Federal courts 
have ordered busing in recent mouths. In 
many instances, I feel that these orders 
are breaking new constitutional ground-- 
that these orders have created a new and 
unprecedented extension of existing lav;.

_/ This was an accurate reference to the Chief Justice's 
memorandum in the Winston-Salem, North Carolina, case.
Forsyth County Board v, Scott, 404 U.S. 1221 (1971).

-117-



During the same debate, Reps. Ford, Fisher, and Nedzi 

commented to the same effect, the latter two also referring 

to orders exceeding Supreme Court decisions (H. 10409, 

10413, and 10416).

On the other hand, it is indisputable that on March 

8, 1972, and again on June 8, 1972, long after the provi­

sion had been originally adopted by the House and when 

the issue was acceptance of the conference committee re­

port, Rep. Broomfield engaged in colloquies (somewhat 

contrived, we would suggest) with Reps. Ford and O'Hara 

to the effect that Section 803 would postpone de jure as 

well as racial balance desegregation orders. (H. 1853, H. 

5416). Also on June 8, however, (H. 5419), Rep. Broom­

field added the confusing observation that he had included 

the socioeconomic notion to underscore that his proposal 

was not limited to orders requiring reassignments to 

overcome imbalance.

Similar conflicting interpretations characterized 

consideration of Section 803 in both houses throughout the 

deliberations on it. For example, Senator Baker's predic­

tion of its applicability to the Nashville case indicates 

his view of the Section's applicability to all orders

-118-



/
(S. 8279, May 23, 1972). Senator Javits disagreed, 

noting that it (S. 8288, May 23, 1972): "... does not

speak of desegregation. It speaks of balance... There­

fore, the courts have tended to say that these provisions 

are without effect."

On the House side, Rep. Ford was apparently still 

uncertain despite his earlier dialog with Rep. Broomfield:

In addition I must say that there are 
some legal authorities who question the 
effectiveness of the Broomfield amend­
ment. They allege that it appears to 
give relief but in effect it will not 
achieve that result. Only time will 
tell. I hope it is effective. (H. 5405,
June 8, 1972).

Rep. Hogan, apparently an unqualified opponent of pupil 

transportation, observed that "... my primary view of 

this bill is influenced by the busing provisions which the 

conferees’ compromise have rendered meaningless." (H. 5444, 

June 8, 1972.) Congressman Derwinski expressed the same 

view. (H. 5438-39, June 8, 1972).

Some supporters of desegregation busing had come to the 

same conclusion.

_/ A prediction that was not borne out. The appli­
cation for a stay of mandate pending certoriari has been
denied. Kelley v. Metropolitan County Board,_____ F. 2d
_____ (Order of July 25, 1972, Nos. 71-1778-79, 6th Cir.).

-119-



Howp”or, in reliance upon ray belief that 
the wording of the Broomfield amendment as 
it finally was incorporated in the con­
ference report does not attempt to inter­
fere with desegregation, but only with 
those situations where a court has 
erroneously mandated racial balance, I 
believe that this provision might pass 
the test of constitutionality. (Rep.
Anderson, H. 5426, June 8, 1972).

See also remarks of Reps. Rangel (H. 5435, June 8, 1972) 

and McCulloch (H. 5420, June 8, 1972). Rep. Culver per­

haps summed it up best, at least from plaintiffs' point 

of view, when he observed (H. 5437, June 8, 1972):

The antibusing amendment may be uncon­
stitutional; it may turn out to have 
only slight legal effect; it may sink 
in its own ambiguit ' . a s .

To summarize, Section 803 should be held inapplicable 

to this case because this Court should apply the plain 

meaning of what Congress did, not what some Congressmen 

may have intended to do. Moreover, it would be error for 

any court to base a constitutionally problematical statu­

tory interpretation on such extremely ambiguous legislative 

history as underlies Section 803.

1 2 0 -



C Constitutionality

If Section 803 does apply here, it is unconstitu­
tional on three grounds; (a) it arbitarily impairs consti­
tutionally required remedies; (b) it singles out for the
imposition of procedural burdens one class of constitu-

_/
tional claimants, without even a plausible rationale; 
it unjustifiably infringes the powers of federal courts.

(a) We urge that the right to immediate relief 
upon a finding of illegal school segregation is of con- 
stituional dimensions. Carter v West Feliciana Parish 
School Board, 396 U.S. 290 (1970); Alexander v Holmes 
County Board of Education, 396 U.S. 19 (1969). And unless

/ Whether Congress may never specially affect one 
class~~of litigants or rights need not be debated here.
A study of the congressional debates leading to enactment 
of Section 803 discloses that Congress had no basis or 
purpose other than mollifying popular opposition to school 
desegregation. Proponents of the bill repeatedly cited 
Gallup and other polls to that effect. Rep. Broomfield, 
Cong. Rec. H. 10*407-08, November 4, 1971; Rep. Whitten,
H. 10*111, November 4, 1971; Rep. Fisher, H. 10*113,
November 1971; Senator Byrd, S.8376, Hay 24, 1972. In 
a series of decisions, beginning in the second Brown 
case and continuing through the Swann decision, the 
Supreme Court has repeatedly held that popular opposition 
to these constitutional rights is an impermissible basis 
for impairing them. Yet, Congress has attempted to do 
just that, and the imposition of this burden must be ad­
judged in that context.

- 1 2 1 -



one of the parties or the government espouses different
rules for the North and the South, that principle
is as applicable to policy-segregated systems as it is 
to racially explicit dualism. In any event, the Supreme 
Court has not sanctioned any distinction between Southern 
and Northern unconstitutionality. See, e. g. Keyes v. 
School District No. 1 396 U.S. 1215 (1969) Guey Heung
Lee v Johnson, 40*1 U.S. 1215 (1971). Therefore, it seems 
inescapable that Section 803 infringes a constitutional 
aspect of the remedy. North Carolina State Board of 
of Education v.Swann, 40 2 U.S. 43, 45 (1971); Katzenbach 
v. Morgan , 384 U.S. 64l (1966).

We wish to emphasize that we are not arguing here 
that stays in school cases may never after Carter be 
granted. See, e. g., Corpus Christ! School District v. 
Cisneros , 4o4 U.S. 1211 (1971). The courts and perhaps 
the Congress may be empowered to fashion a rule care­
fully tailored to particular exigencies. But that is not 
this case; this Court’s questions are addressed to 
Section80 3. That provision is an unqualified broadside 
against the Alexander rule. It does not provide that 
stays may be had under certain circumstances or when a 
particular showing is made. Compare Shelton v. Tucker 
364 U.S. 479, 488 (i9 6 0 ); Bates v. City of Little Rock, 
371 U. S. 415, 438 (1963); Dunn V, Blumstein, - U.S.^31 
L. Ed. 2d 274 (1972). It purports to mandate stays in

- 1 2 2 -



all school "transfer or transportation" cases regard­
less of the circumstances.

Such a statute is unconstitutional per se because 
the proper test is not whether a stay might somewhere 
at sometime be reasonable, but whether as written it 
would here and uniformly infringe a constitutional right, 
to which the answer is yes. By its terms plaintiffs 
lose even the right to show that they are within the 
Carter rule.

(b) The recent history of school desegregation 
lav? has involved the immediate enjoyment by minority 
children, particularly blacks, of their right to be free 
from discriminationin public education. Section 803 
singles out primarily those children and particularly that 
right for special and adverse procedural treatment.
This flouts the holdings, we believe, in Hunter v. 
Erickson, 393 U. S. 385 (1969), and Reitman v. Mulkey,
387 U.S. 369 (1967). To be sure, Section 803, if 
applicable to official discrimination cases, would also 
suspend redress of constitutional deprivations related 
to sex, religion, and socioeconomic status. But that 
can not save it; both Reitman and Hunter involved pro­
tection against religious and national origin, as well 
as racial discrimination. In any event, this is a race 

case.

-123-



Once again, plaintiff need not argue here that 
government may never impose incidental burdens on 
identifiable groups in furtherance of legitimate public 
objectives. Compare James v. Valtierra. *i02 U. S.
137 (1971). We do argue, however, that the burdens 
and right are such that the imposition must be closely 
scrutinized to determine that the objective is proper 
and the means to it are the least discriminatory that 
are reasonably available. McDonald v. Board of Election 
Commissioners, 39^ U.S. 802, 806-807 (1969).

By that standard, Section 803> to put it charitably, 
falls apart. Its legislative history may not be free 
from doubt as to the scope of the Section's applica­
bility, but nothing could be clearer than that its objec­
tive was to accommodate (white) community hostility to 
desegregation. That is an impermissible purpose. Brown 
v. Board of Education, 3^9 U. S. 29^, 300 (1955). And, 
as we have suggested above, even a legitimate purpose 
would not warrant means so susceptible of unconstitu­
tional application, where more discriminating provisions 

could be drafted.
(c) We have previously briefed in this Court our 

view that Section 803 impermissibly infringes the consti­
tutional prerogatives of the federal judiciary, and we 
shall not labor it here. Suffice it to say that no one 
challenges in the abstract the power of Congress to

-124-



regulate in some respects federal court jurisdiction.
We believe simply that Section 803 imposes a specific 
result in particular cases, and that regulation of 
jurisdiction cases are inapposite. Compare Ex parte
McCardle, 7̂  U.S. 506 (1 8 6 9 ), with United States v .__

Klein, 80 U.S. 128 (1872)
In addition, remedies and procedures may be subject 

to some congressional adjustment. But we submit that 
all of the cases involving constitutional courts meet 
a number of tests which Section 803 does not. They do 
not snuff out a constitutional remedy or substitute 
another that results in an irretrievable loss; they 
involve Congress's authority to further a specific ob­
jective of clear national Interest; and they involve 
mechanisms which reasonable relate to that interest 
and avoid infringement on others. See, e. g. Yakus v 
United States, 321 U. S. HHl (19^).

In our view, Section 803’s purposeless, heavyhanded 
infringement on these rights cannot be reconciled with 
the constitutional obligation of the federal judiciary.

For these reasons, we urge that Section 803 be held
inapplicable to this case or, if applicable, unconsti-

_/
tutional.

_/ These questions continue to arise in scattered 
pending school cases, and we expect to present a current 
summary of their status in our Reply Brief on August 21.

-125-



CONCLUSION

The argument that the suburban district boundaries are 

inviolate because of their allegedly neutral and impartial 

creation an l maintainance is no different upon examination 

from similar excuses presented by others.

An assignment plan is not acceptable 
simply because it appears neutral; such a plan 
may fail to counteract the continuing effects 
of past school segregation resulting from 
discriminatory location of school sites or dis- 

■ tortion of school size in order to achieve or
maintain an artificial racial separation.
When school authorities 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 
nondiscriminatory assignments. 402 U.S. at 
28. (emphasis added). Cisneros, supra at 15.

The "ghetto line", the line of segregation, is surely 

marked at "Greenfield" in Detroit and as surely marked at 

Eight Mile Road between city and suburb on the east and 

west of the district. These "ethnic division points" in 

Detroit, as in Corpus Christi, have "infected the whole 

system " in this area and elimination of the effects,
|

the "root and branch", of segregation is required. (See 

Cisneros, supra slip on p. 39 (concurring opinion)).

The "loaded game board" presented to the district

- 1 2 1 , -



court below in large measure dictated the dimension of 

its remedy. The difficulty of the desegregation process 

is a measure of the nature and scope of the segregation.

The remedy is not simple; this is not a small rural system 

with few black or white children. Neither is the remedy 

granted in the context of context of county systems 

surrounded by other county-wide systems having similar 

proportions of black and white pupils. (Emporia, supra, 

Scotland Neck, supra). Detroit is not an island.

The Detroit district exists as a component of a state­

wide, state supported, and state-supervised of public educa­

tion. The other components of this state system included 

within the desegregation area are related by almost all 

elements of community life to Detroit and its schools.

They are, however, overwhelmingly white while Detroit is 

overwhelmingly black. Black people are systematically and 

effectively excluded from these suburban areas with the 

exception of the few contained areas where blacks have been 

permitted to live. The role of school authorities in this 

evolving pattern has been amply demonstrated below. As the 

Supreme Court noted in Swann, when considering the difficult 

task faced by district courts in effecting "maximum

/ 2 > -



. ..changes. in the structureeffective desegregation," ...changes... 

and patterns of communities, the growth of student popula­

tion, movement of families, and other changes..." have made 

the task far more difficult than it might have been in 1954. 

Swann, 402 U.S. 1, 20-21. Had Detroit been desegregated at 

that time the remedy, but not the ultimate power of the 

district court, would have been far easier.

Plaintiffs would respectfully suggest that the stay 

previously entered be vacated forthwith; that the orders 

on appeal be affirmed and the case remanded to the district 

court for hearing on objections and modifications of the 

recomendaticns contained in reports filed by the Panel and 

the State Superintendent. On remand the district court 

may well consider the recommendations of the State Superin­

tendent for an interim plan as well as the suggestion

that the Michigan legislature be given an opportunity to

determine the ultimate organizational and governance structure

of the desegregation area, subject, of course, to the

guidelines for re ief of unlawful segregation already

adopted below. If the legislature xails to act, or acts

in a manner which impairs either the promptness or effectiveness

~ / 2 2



of the desegregation decree, the district court may 

once again have to exercise ics jurisdiction. Plaintiffs 

will join in the Court below in that: portion of the State 

Superintendent's recommendation.

Respectfully submitted

William E. Caldwell 
Ratner, Sugarmon & Lucas 
525 Commerce Title Bldg^ 
Memphis, Tennessee

:old Flannel 
ful R. Dimond 

Robert Pressman 
Center for Law & Education 
Harvard University 
Cambridge, Massachusetts

Nathaniel Jones 
General Counsel 
N.A.A.C.P.
1790 Broadway 
New York, New York

E. Winter McCroom 
3245 Woodburn A -enue 
Cincinnati, Ohio
Attorney for Plaintiffs

Jack Greenburg 
Norman J. Chachkin 
10 Columbus Circle 
New York, New York

Frank J. Kelly 
Attorney General 
Robert A. Derengoski 
Solicitor General

Attorneys for Plaintiffs-Appellees

m -



Certificate of Service

The undersigned hereby certifies that two 

copies of the foregoing brief have been servei 

upon all counsel of record, either by hand 

delivery or U.S. postage prepaid, this 14th 

day of August, 1972.

Louis R. Lucas



.



APPENDIX A

PROCEDURAL HISTORY OF BRADLEY V. MILLIKEN

August 18, 1970, plaintiffs filed their complaint against
the Board of Education of the City of Detroit, its elected
members and appointed Superintendent of Schools, and the
Governor, Attorney General, State Board of Education and
Superintendent of Public instruction of Michigan, seeking:
(1) a declaration of constitutional invalidity as to (a) ll2
of Act 48 of the Michigan Public Acts of 1970, which, via
State interposition, nullified the partial plan of high school
desegregation adopted on April J, 1970, by the Detroit Board
and scheduled for implementation with commencement of the

s1970-71 school year, and (b) s2a of Act 48, which took away 
from the Detroit board the power to draw regional boundaries 
and substituted new criteria resulting in segregated regions 
for drawing the jurisdictional boundary lines dividing the 
Detroit district into regional administrative and political 
units and voiding the desegregated regions drawn on April 7 
by the Detroit board; (2) injunctive relief against enforce­
ment of iil2 and 2a of Act 48; (3) declaratory and injunctive 
relief against "the defendants herein, /who7, acting under 
color of the laws of the State of Michigan have pursued and 
are presently pursuing a policy, custom, practice and usage 
of operating, managing and controlling the /Detroit7 public 
school system in a manner that has the purpose and effect of 
perpetuating a segregated public school system (A. Ial7 );



(4) to enjoin defendants to prepare and implement a plan 
"for the elimination of the racial identity of every school in 
the system and to maintain now and hereafter a unitary system.. 
/by use of7  all methods of integration of schools including 
rezoning, pairing, grouping, school consolidation, use of 
satellite zones, and transportation." (A. Ia21 ), Simultaneous­
ly, plaintiffs moved for a preliminary injuction (1 ) requiring 
implementation of the April 7 plan, (2) restraining enforcement

g
of sl2 of Act 48, (3) restraining implementation of the new 
regional boundaries mandated by Act 48, (4) restraining all 
new school construction in the Detroit system, and (5) requiring 
complete faculty desegregation by the start of the 1970-71 school 
year.

August 24, 1970, defendants Governor and Attorney General 
mo\ 1 to dismiss the complaint as to them,

August 26, 1970, Detroit Board defendants filed their 
answer admitting their constitutional duty to operate a unitary 
school system, but averring that the system had been unitary 
since at least 1 8 6 9. (A. Ia59 ). Detroit Board defendants 
further denied all allegations of r; .daily discriminatory pupil 
and faculty assignment policies and practices.

August 26, 1970, defendants State Board and state Superin­
tendent filed an answer in opposition to plaintiffs' motion 
for preliminary injunctive relief.

August 27, 28 and September 1, 1970, the district court 
conducted an evidentialy hearing on plaintiffs' application

-2a-



for preliminary relief.
September 3, 1970, the district court denied plaintiffs' 

motion for preliminary relief and granted the motion of the 
Governor and Attorney General to dismiss as to them. (A. Ia72 )

October 13, 1970, thi3 Court, on plaintiffs' appeal, 
invalidated §12 of Act 48 on Fourteenth Amendment grounds and 
reversed the dismissal of the Governor and Attorney General.

433 F.2d 897 (6th Cir. 1970). ,
October 13, 1970, all State defendants filed their answer 

to the complaint generally denying all material allegations 

as to them. (A. Ia77 )
October 30, 1970, plaintiffs filed a motion seeking 

immediate implementation of the April 7 plan, which motion was 
heard by the district court on November 4, 1970.

November 4, 1970, the court granted leave to the Detroit 
Federation of Teachers to intervene as a party defendant. (A.IaSl).

November 6, 1970, the district court entered on order 
dir cting the. Board to submit the April 7 plan or an updated 
version by November 16, 1970, at which time the Board submitted 
April 7 and two alternatives, including the "McDonald" or 

^Magnet" Plan. (A. IaS2 ).
November 18, 19 and 25, 1970, the district court conducted 

hearings on the plans submitted.
December 3, 1970, the district court entered Rulings (1) 

ordering the McDonald Plan implemented pending ultimate decision

-3a-



on the merits, and (2) continuing the trial on the merits.
An order was entered accordingly the same day. (A.Ial0,104,112).

February 16, 1971, the district court entered an order 
allowing the action to proceed as a class action and defining 
the class as "all school children of the city of Detroit and 
all Detroit resident parents who have children of school age.’" 
(A.lall4 )

February 22, 1971, this Court, on plaintiffs' appeal , 
from the order of December 3, 1970, without passing on the 
merits of the appeal, remanded with directions to proceed forth­
with with the trial on the merits. 438 F.2d 945 (6th Cir. 1971). 
By order of the same date, the Chief Judge of this Court denied
a motion by pla intiffs for the appointment, pursuant to 

s
28 U.S.C. S292(b), of a new judge to conduct the trial on the 
merits (because of the crowded docket of the assigned judge).

March 22, 1971, the district court granted leave to 
Denise Magdowski, et al., to intervene as a party defendant.

April 6, 1971, trial on the merits commenced consuming 4l 
trial days and concluding on July 22, 1971. On June 8, 1971, 
following completion of plaintiffs' case-in-chief and pursuant 
to motion, the district court entered an order (amended on 
June 9, 1971) enjoining, with specified exceptions, all new 
school construction, pendente lite, on the grounds that 
plaintiffs had made out a prima facie case of unlawful segre­
gation. (A.Ial36 ) Also, at the close of plaintiffs' proof,

-4a-



on May 21,1970, the State defendants filed a motion to
dismiss as to them pursuant to Rule 4l (b), P. R.C.P. The
district court demied this motion on June 25,1970. (A. Ial34,135,153)

September 27, 1971, the district court issued its 
Ruling on Issue of Segregation, finding that pupil segregation 
by race in the Detroit district is the result of constitutionally 
proscribed state action, but rejecting a similar allegation 

regarding faculty assignments. (A.ial94 ). ,
October 4, 1971, the district court orally directed sub­

mission of desegregation plans by the Detroit Board (plan 
confined to Detroit proper) and State (metropolitan plan) 
defendants. This directive was reduced to written order on 
November 5, 1971, at the behest of State defendants. (A. Ia217,22C).

February 23, 1972, another panel of this Court dismissed 
appeals from the November 5, 1971 order taken by the Detroit 
Board and State defendants because of the non-appealability 
of the order. State defendants have since petitioned for 
certiorari, which petition is pending in the Supreme Court.)

March 15, 1972, the district court entered a ruling and 
order granting the motions to intervene of Allen Pari: Public 
Schools, et al., Grosce Pointe Public Schools, School District 
of the City of Royal Oak, Southfield Public Schools, Kerry 
Green, et al., denying other motions to intervene but with 
leave to appear amicus curiae, and placing certain conditions 
on the interventions granted. (A.Ia407 ).

-5a-



March 14, 15, 16 , 17 and 21, 1972, tie district court 
held hearings on two Detroit-only desegregation plans sub­
mitted by the Detroit Board and another such plan submitted 

by plaintiffs.
March 24, 1972, the district court entered its Ruling 

on Propriety of Considering a Metropolitan Remedy to Accom­
plish Desegregation of the Public Schools of the City of Detroit, 
holding it proper to consider metropolitan alternatives to thê  

Detroit-only proposals. (A. Ia439 ).
March 28, 1972, the district court entered Findings of Fact 

and Conclusions of Law on Detroit-Only plans of Desegregation, 
holding that while plaintiffs’ plan would accomplish more de­
segregation than the Board’s Detroit-only proposals, any plan 
confined to the city proper would be substantially less 
effective than metropolitan alternatives and would fail to 
eradicate the racial identifiabiltiy of the public schools in 

the Detroit district. (A. Ia456 ).
March 28, 1972, the district court commenced hearing on 

metropolitan plans of desegregation submitted by the parties, 
which hearing consumed 10 trial days and concluded with a 
hearing on various motions on Ap?’il 14, 1972.

May 9, 1972, the district court heard and denied a 
motion by the United States to intervene and to defer fur-, 
ther proceedings based on a meossage of the president to 
Congress and proposed legislation by the president. (A. VIIIall4-15).

June 14, 1972, the district court issued its Findings of

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Pact and Conclusions of Law in Support of Ruling on Desegrega­
tion Area and Development of Plans and its Ruling on Desegre­
gation Area and Order for Development of Plan of Desegregation, 
adopting an area within which metropolitan desegregation should 
and could occur and directing a court-appointed team to design 
interim and final pupil assignment plans within the designated 

contours. (A.Ia497,535).
July 7, 1972, the district court denied a motion by State- 

defendants for a stay of proceedings pursuant to the order of 
June 14. Also on July 7, 1972, the district court granted 
a motion by the defendant-intervener Detroit Federation of 
Teachers, joined in by plaintiffs, restraining the State and 
Detroit Board defendants, pending further order, from carrying 
out an announced decision by the Detroit Board to reduce the 
number of school days in the Detroit district for the 1972-73 
year from l8o to 117 and terminate 1.548 teachers employed 

by the Detroit district, (A.Ia574,571)
July 11, 1972, the district court, upon recommendation 

of the court-appointed panel and pending motion by plaintiffs, 
and after hearing, entered an order requiring the Detroit 
Board to acquire, and the State defendants to pay for, 295 
available school buses in preparation for September 1972 
implementation of an interim desegregation plan. (A.Ia576 )
By order of the same date, the Treasurer of the State of 
Michigan was joined as a party defendant. (AJ.a578 ) Also

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on the same day, the court denied a motion by State defendants
for a stay of the bus-purchase order.

July 13, 1972, this Court entered an interim order staying
the bus-purchase order pending disposition of State defendants’
motion for stay scheduled for argument on July 17, 1972.

July 17, 1972, this Court entered an order continuing
the July 13 order in effect until entry by the district court
of certification of an appealable question pursuant to 28 U.S.C. 
s
s 12 9 2(b).

July 20, 1972, the district court entered an order
s

pursuant to Rule 5Mb), F.R.C.P., and 28 U.S.C. sl292(b) making 
the rulings of September 27, 1972, March 24, 1972, March 28, 
1972, and June 14, 1972, and the bus-purchase order of July 11, 
1972, final and appealable. (A.Ia590 ).

July 20, 1972, this Court entered an order granting 
leave to appeal, expediting the appeals staying all orders and 
proceedings in the district court, except that planning pursu­
ant to the Juno 14 order was to continue unabated. By order
of the same date, this Court certified to the Attorney General

s
of the United States that the constitutionality of s803 of the 
Education Amendments of 1972 had been drawn into question and 
granted leave to the Attorney General to Intervene and defend

the statute. (A.Ia592,594).
July 31, 1972, the court-appointed panel and tie State 

Superintendent filed with the district court their plans and

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reports as directed by the June l4 order.
August 7, 1972, this Court denied motions by the State 

and intervening suburban defendants seeking to defer the 
district court's time schedule for filing responses to the 
reports of the panel and State Superintendent.

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APPENDIX B

EXCERPTS FROM PLAINTIFFS' EXHIBIT 105

Proceedings of the Citizens Advisory Committee 
on Equal Educational. Opportunities

February, 1960 - March, 1962

1 Page 307/

THIRTY-EIGHTH MEETING

13 February 1962 
McGregor Memorial Center

Present: Judge Nathan J. Kaufman, Chairman Mrs. Mildred Jeffrey
Mrs. David Barker 
Dr. Horace Bradfield 
Marion Carter 
Norman Drachler 
Herbert Eiges 
Rabbi Leon Fram 
Mrs. L. Hanavan

Absent: Dr. Robert M. Freh.e,
Frank G. Armstrong 
A1 Barbour 
Earl R. Church 
Dennis J. Clary 
John Dancy 
Willi, n Evraiff 
Jasper Gerarai 
George E. Gullen 
Msgr. E. J. Hickey 
Mrs. Lauretta Hyatt 
Arthur L. Johnson 
Walter Klein

•k ■k

[_ Page

Damon Keith 
Donald Leonard 
Ernest Marshshall 
Ben Nathanson 
Madeleine Schmid 
Mrs. H. Thornel1

Co-Chairman Robert Lanktoa 
Charles Lewis 
Dr. Marjorie Meyers 
Mrs. Claude Moore 
A1 Pelham 
Mel J. Ravitz 
Marjorie Readhead 
Rev. Lewis Redmond 
Ramon Scruggs 
Wayne Stettb: cher 
Charles Wartman 
Mrs. Arthur Yairoff

• k  ik

308 7

The committee was given a new proposed Recommendation #10 of the 
Physical Plant Report, as follows:



The curro-nt urban renewa 1 program i s dependent upon local and 
Federal i nancial support. For every dollar invested by the local 
community in an area which is considered essential for urban 
renewal, the Federal Government supplements such needs witn about 
$2.00, The erection of schools in an approved urban renewal area 
is a qu; 1IficatTon for supplemental Federal funds and is regarded 
as part of local 1/3 share.

In most large cities the finances of the school system are a 
part of the general city budget so that schools benefit directly 
from urban ronewal through the supplemental grants made by the 
Federal Government to the city's budget.

In Detroit, however, the school system is by law a separate govern­
mental unit. We cooperate with the city planners in selecting sites 
for school buildings and whenever and wherever the site selection 
contributes to urban renewal grants, this is done. The rec:ipient, 
however, of jtbo grant is the city government and not the schools. 
Thu?- urban renr val in Detroit, although it contributes directly 
to the total community, does not in any direct way supplement the 
budget of the school, system. We urge that this situ at ion be 
rectified.

The committee approved this recommendation.
*  -k ic *

J_ Page 425_/
TO: EQUAL OPPORTUNITY COMMITTEE

FROM: Frank Armstrong (absent)
A1 Barbour (absent)
Marion Carter 
Rabbi From (absent)
Boris Joffe (absent)
Arthur Johnson
Damon Keith
Mel Ravitz (absent)

RE: Meeting of Subcommittee on Administration and #3 Organization

DATE: A; ril 5, 1960

The subcommittee met in the offices of Mr. Damon Keith. Acting 
as temporary chairman, Mr, Keith called the meeting to order at

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3:15 p.m. Representatives from the Russell Woods Home Owners 
Association, Reverend Nicholas Hood, Dr. Edward Pintzuk, and 
Mr. Charles Wells were present.

Miss Marion Carter briefly reviewed the purposes and objectives 
of the subcommittee for the guests, Mr. Keith read portions of 
the previous subcommittee meeting pertaining to Dr. S. Brownell's 
comments on school boundaries,

Mr. Johnson asked what were the specific concerns of the resi­
dents of Russell Woods that might apply to the area of the sub­
committee. The following problems were posed by the guests for 
consideration by the committee.

1. The proposed boundary changes for the Russell Woods Area 
were such that the changes were exact to the street, to 
include the total Negro population to the east in the 
reassignment to Central High School.

2. While the apparent segregation may have been unintentional 
within certain schools, the Russell Woods Home Owners 
were strongly opposed to this change, first, because of 
the moral implications of such a change, secondly, because 
of poorer educational opportunities offered at Central 
High School as opposed to those offered at Mackenzie High 
School.

3. There appears to be a pattern of segregation in the estab­
lishment of boundaries. Excellent opportunities for inte­
gration o schools may have been overlooked. Bussing of 
children in many instances appears to be on a segregated 
basis.

*  -k k

/“Page 426-27_7

Specific Questions_Asked Russell Woods Home Owners Representatives

1. Boundaries as originally drawn in Russell Woods area appear 
to be a result of racial discrimination. This is at odds 
with Board of Education statements. Do you feel this is 
being done?

The general feeling of the representatives was that this appears 
to be happening not only in their area but in other areas of the 
city.

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2. Have you received any indication from the administration 
that boundaries will be reorganized, and attempts made to 
improve teacher attitudes toward inter ration?

The only positive answer given the homeowners was by the Princi­
pal of Winterhalter School that their standards will be maintained. 
Rev. Hood feels the Board of Education's attitude on community 
problems is sometimes rather blase.

•k * -k i:

J_ Page 463>_/

Subcommittee: School-Community and Organization and
Administration

3 November 1960 
McGregor Memorial Center

School-Community Organization and Administration

Present: Herbert Eiges Frank Armstrong
Judge Nathan Kaufman Dr. Horace Bradfield
Wayne Stettbacher, Chairman Damon Keith, Chairman 
Mrs. Harold Thornell Mrs. Arthur Yabroff

Absent: Earl Church
George E. Gullen 
Mrs, Mildred Jeffrey 
Charles Wartman

A1 Barbour 
Marion Carter 
Rabbi Leon Fram 
Arthur Johnson 
Walter Klein 
Mel kevitz

Special consultants: Citizens' Association for Better Schools

Herschel L. Richey, President 
Charles Wells, Vice-President 
Mrs. Gladys Stines, Secretary
Mrs. Kathleen Bell, Chairman of Program Committee

* * -k *

_/ Page 465-66_/

Mrs. Stines said that three years ago, the fourth grad at the 
Thirkell School was bussed becaus of the overcrowded c edition 
of the school. This was supposed to be a temporary measure and the

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Board gave as its reason for segregating these children that the 
parents of these children were told that their children would be 
separated from the other children in the school, insofar as they 
were only going to be in the White school for one year. These 
children do not eat in the lunchroom at the same time that the 
children in the White school do. They are not integrated at all 
in the White school. Now Thirkell has become so overcrowded that 
it is bussing the fourth grade, the fifth grade, and the sixth 
grade, so the children who were in the White school years ago 
and were separated from the other children, are still in the 
White school. This is now the beginning of the third year for 
them and for three years they have been a segregated part of 
this school. Now the association has teachers telling them that, _ 
in instances where white children in the school misbehave, 
these children are told, "Now, if you don't behave, we're going 
to send you over there with those little colored kids from 
Thirkell school." This is a deplorable condition to even be 
permitted, and the possibility is there is these children are 
contained by themselves in classes.

•k k k k

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3Exc from Plaintiffs' Ex hi

Findings and Recommendations 
of the Citizens Advisory Committee on 

Equal Educational Opportunities

C!T!7cNS ADVISORY COMMITTEE ON

EQUAL EDUCATIONAL OPPORTUNITIES
APPOINTED BY THE BOARD OF EDUCATION

Frank G. Armstrong

COMMITTf
I Ion. Nathan J. Kaufman. Chau man. 

Dr. Robert AT. Frehsk, Co-Chairman

Rabbi Leon Fram

AIrs. David S. Barker 
Horace Bradfield, M.D. 
Marion Carter 
Earl R. Church 
Dennis J. Clary 
Rev. Walton Cole 
John Dancy 
Dr. Norman Draciiler 
H erbert S. E ices 
Dr. W illiam Eyraiff

Jasper Gerardi 
George E. Cullen 
Mrs. Lola J. Hanavan 
AIrs. Lauretta Hyatt 
AIrs. Mildred M. J effrey 
Boris Jofff.
Arthur L. Johnson 
Damon J. Keith 
Walter E. Klein 
Dr, Robert S. La.nk.ton

STAFF
Dr. Paul E. Christensen 

Executive Secretary

Donald S. Leonard 
Dr. Charles S. Lewis 
Ernest Marshall 
Mrs. Claude AIoore 
Ben Nathanson 
Dr. Mel j . Ravitz 
Madeleine Schmid 
Ramon S. Scruggs 
Wayne Stettbacher 
Mrs. Harold E. T hornell 
Mrs. Arthur Yabroff

SUBCOMMITTEE CHAIRMEN
Dr. William Evraiff

Curriculum and Guidance

Mrs. Lola J effries Hanavan
Physical Plant and Facilities

Damon j. Keith
Organization and Ad: : listration

Ramon S. Scrucgs 
Personnel

Wayne Stettbacher
School-Community Relations

RECORDERS FOR THE SUBCOMMITTEES
Curriculum and Guidance 

Georce C. Monroe 
Mrs. Ada B. Kennard

Organization and Administration
Thomas G. Coote

Personnel
Don F uller

School-Community Relations 
Miss Helen Brewster 
Miss Helen P erry

Physical Plant and Facilities
Hartley II. Schaal

APPENDIX C

’ Deceased



ORGANIZATION AND ADMINISTRATION
C. Boundaries and Busing

Numerous public sch ols in Detroit are presently 
segregated by race. The allegation that purposeful 
administrative devices have at times been used to per­
petuate segregation in some schools is clearly sub­
stantiated. It is necessary that the Board and its 
administration intensify their recent efforts to dese­
gregate the public schools. (P. 61)

* * * *

PERSONNEL

Introduction

The subcommittee has found that the Board of Education 
has followed a practice of (1) assigning Negro teachers 
predominantly within certain districts where there are 
large numbers of Negro pupils, and (2) assigning Negro 
teachers chiefly to racially mixed schools, in many cases 
on a proportional basis. If there are no Negro children 
in a school, no Negro teachers are assigned there; this 
rule ha few exceptions to date. (P. 73)

* * * *

The subcommittee has examined the Board of Education’s 
hiring proct ares and believes that the Boa d of Education 
is making a very conscientious attempt to hire the most 
qualified teachers. However, it fir--Is that a significant 
problem in the field of personnel is making a uniform 
assignment, throughout the system, of Emergency Substitutes 
in Regular Positions, Probationary Teachers, experienced and 
inexperienced teachers, those with degrees and special 
qualifications, male and female, old and young. At the pre­
sent time, 23 per cent of the total teaching staff are 
Emergency Substitutes or beginning teachers commonly known 
as Probationary I’s and II's. There is evidence that 
Emergency Substitutes and Probationary I’s and 1 s are 
concentrated in some districts and found in smaller num­
bers in others. Undoubtedly the limited placement policy 
is a factor contributing to this problem: whenever Emer­
gency Substitutes or Probationary I’s and Il’s are Negroes, 
they are assigned to only 5 of the 9 districts. (P. 74)

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I. Discriminatory Practices

2.... As to placement of teachers, the subcommittee
finds that, with only a few exceptions, Negro teachers 
are placed only where there are Negro children in atten 
dance at the school. The same data bring out the fact 
that there is a tendency for the proportion of Negro 
teachers in a school to increase as the proportion of 
Negro pupils increases. (P. 75)

* -k * *

Inspection of the school populations under such a 
classification (see Racial Count Map, facing page 78) 
yields the following results:

Schools having "all" white pupil membership 
(75): the faculties are all white with only 5
exceptions. Average percentage of Negro facul“ 
ties for the 75 scho Is is 0.17; for the 5 having 
some Negro teachers, the average percentage is 
2.6; and the range of all schools is from 0.0 
to 3.1 per cent.

Schools having "predominantly" white pupil mem­
bership (31): the faculties are all white,
with 13 exception::. The average percentage of 
Negr . faculty for the 31 schools is 4.7; for 
the 13 schools having some Negro teachers, the 
average percentage is 11.3; and the range for 
all schools i from 0.0 to 31.8 per cent.

Schools having "mixed" pupil membership (89): 
the faculties are mi ?d in 52 of these schools; 
predominantly white in 30 schools; and all white 
in 7 schools. The average percentage of Negro 
faculties for the 89 schools is 21.0; for the 
82 school- having some Negro teachers, the 
average percentage is 22.8; and the range for 
all schools is from 0.0 to 72.2 per cent.

Schools having "predominantly" Negro pupil 
membership (70): the faculties are all
mixed, with a single exception, one school 
having a predominantly white faculty. The 
average percentage of Negro faculties for the 
70 schools is 51.7; and the range for all 
school: is 6.6 to 87.5 per cent.

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Schools having "all" Negro pupil membership 
(8): faculties are all mixed. Average
percentage of Negro faculties for the 8 schools 
is 73.0 per cent; and the range for all schools 
is 50.0 to 88.4 per cent.

The following table is a summary of these data:

TABLE I

CENTRAL TENDENCY, AVERAGE PERCENTAGE, AND RANGE 
OF PERCENTAGES OF NEGRO FACULTIES FOR ALL-WHITE, 
PREDOMINANTLY WHITE, MIXED, PREDOMINANTLY NEGRO, 

AND ALL-NEGRO SCHOOLS--FEBRUARY 1961

Pupil Membership
Number

of
Schools*

Faculty-
Central
Tendency

7o Negro Faculty 

Average Range

All White 75 All White .17 0.0 to 3.1
Predominantly White 31 All White 4.7 0.0 to 31.8
Mixed 89 Mixed 21.0 0.0 to 72.2
Predominantly Negro 70 Mixed 51.7 6.6 to 87.5
All Negro 8 Mixed 73.0 50.0 to 88.4

~^When " a"~sing 1 e school having more than one unit (e.g., 
elementary, junior high, or special) is counted as one school, 
the February 1961 total is 273.

An over-all interpretation of these data is offered:

(1) There is a strong tendency to avoid assigning Negro 
faculties to schools whose pupil memberships are all 
white or predominantly white. When the schools are 
classified into five groups by an ascending percentage 
of Negro pupils, the number of schools in each group 
having Negro faci Ity members also ascends.

(2) There is a tendency for Negro faculty members to be 
added or increased as the percentage of Negr. pupils 
increases.

(3) Dep; rtures from both tender ies are seen in the ranges 
of Negro faculty-percentages. (P. 76)

7 Append! 11-10, "Graphs Showing the Percentages of 
Negro Pupils and Staff by Districts."

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Analysis of Revised Court by Districts as 
of February 1967

TABLE 3

DISTRICT PERCENTAGES OF WHITE PUPILS 
AND PERCENTAGES OF WHITE TEACHERS

(Racial Count, February 1961)

District Pupils Teachers

NW 99.5 99.8
NE 99.0 • 99.0
W 93.0 99.4
N 64.0 87.0
SW 58.0 81.0
S 40.0 65.0
E 32.0 75.0
SE 28.0 55.0
C 5.0 55.0

TABLE 4

DIS1TRICT PERCENTAGES OF NEGRO PUPILS
AND PERCENTAGES OF NEG1.0 TEACHERS

(Racial Count , February 1961)

Distr' it Pupils Teachers

C 95.0 45.0
SE 72.0 45.0
E 68.0 25.0
S 60.0 35.0
SW 42.0 19.0
N 36.0 13.0
W 7.0 .5
NE 1.0 1.0
NW .5 .2

...............  (P.77 )

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Summary Statement

The overwhelming and incontrovertible inference to 
be drawn from these data is that placement of teachers by 
the Detroit Board of Education follows in general, and 
with some departures, a definite racial pattern, which is 
illustrated in the graphs showing percentages of Negro 
pupils and Negro teachers by districts. (See Appendix 11-10). 
Where the schools are mixed, Negro teachers are sent to 
these areas. Where the student membership is all white,
Negro teachers are rarely sent.

A second fact which is very clearly established is 
that Negro teachers, while on a stated basis of assign- '
ment close to heme, are actually assigned instead on the 
basis of the racial composition of the school. For ex­
ample, in the Jackson Junior High School, which is in a 
predominantly white neighborhood, the student membership 
is mixed by busing from an overcrowded area, and 5 Negroes 
have been placed on the staff.

Data also show that Negro administrators are placed 
only where Negro children and Negro teachers are in the 
majority. Ther is but one exception to this-~the place­
ment of a special-education assistant principal in a 
school where there are some Negro children in attendance.
(P. 79)

•k k  ‘k *

5. THE DETROIT BOARD OF EDUCATION SHOULD TAKE CORRECTIVE 
MEASUT; 3 TO END THE RACIAL DISCRIMINATION WHICH 
EXISTS IN PLACEMENT OF PERSONNEL IN THE DETROIT PUELIC 
SCHOOLS.

The data contained in the Board of Education report, 
"Personnel Changes by Bui' dings--By Districts-~Cctober 2,
1959 to June 24, 1960" in icate that there were approxi­
mately 750 personnel changes such as reclassifications, 
pr otions, and transfers from one school to another school 
wiv bin the same job classification.

In view of the continuing distributional pattern pre­
viously described under Recommendation 2, more easily 
identifiable on a color basis, this great shift of 
personnel must have occurred within two distinct "racial"

- 6 c  ~



sub-systems: one Negro, one white, implicitly understood
and maintained.

The probability is remote indeed that this consider­
able amount of personnel activity has resulted in the 
placement of only 5 Negroes in all-white schools (which 
is the case) purely as a chance result. It is not by 
accident that Negroes do not find themselves assigned 
or transferred to certain neighborhoods. (P. 80)

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