Bradley v. Milliken Sixth Circuit Court Opinion

    No. 20794

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Ronald Bradley, et  a l .,
Plaintiffs-Appellants,

v.
W illiam  G. Milliken, Governor of 

Michigan, et al.,
Defendants-Appellees.

Decided and Filed October 13, 1970.

Before Phillips, Chief Judge, and E dwards and Peck, Cir­
cuit Judges.

Phillips, Chief Judge. This case involves an effort by the 
Detroit Board of Education, as constituted on April 7, 1970, 
to effect a more balanced ratio of Negro and white students 
in twelve senior high schools. This effort was thwarted by 
an Act of the Michigan Legislature, Act No. 48, effective July 
7, 1970, a copy of which is made an appendix to this opinion.

The appeal is under 28 U.S.C. § 1292(a) from the inter­
locutory order of the District Court entered September 3, 
1970, which, among other things, refused to grant a preliminary 
injunction.

The plaintiffs are pupils and parents of pupils who attend 
the Detroit Public Schools, and the Detroit Branch of the 
National Association for the Advancement of Colored People. 
The defendants are the Governor of Michigan, the Attorney 
General of Michigan, the Acting State Superintendent of Pub­
lic Instruction, the State Board of Education, the Board of

A p p e a l  from the 
United States District 
Court for the East­
ern District of Mich­
igan.



2 Bradley, et al. v. Milliken, et al. No. 20794

Education of the City of Detroit, three members of the latter 
board,1 and the Superintendent of the Detroit Public Schools.

On April 7, 1970, the Detroit Board of Education adopted 
a plan which provided for changes in twelve high school at­
tendance zones, designed to effect a more balanced ratio of 
Negro and white students at the senior high school level. 
The plan was applicable to twelve of the twenty-one high 
schools in Detroit that serve particular neighborhood or geo­
graphical areas. The April 7 plan was to take effect over a 
three-year period, applying initially to those students enter­
ing the tenth grade in September 1970 at the beginning of 
1970-71 school year. In successive stages the eleventh grade 
was to have been affected at the opening of the 1971-72 school 
year, and the twelfth grade at the beginning of the 1972-73 
school year.

Dr. Norman Drachler, the Superintendent of the Detroit 
Public Schools, testified that the plan was adopted after an 
extended study. He described the purpose of the plan as 
follows:

“Q What was the purpose of the plan as adopted?

“A The purpose of the plan was, in addition to comply­
ing with the regulations of the State Act 244, to 
bring about a decentralized school system within the 
city which would allow for the election of regional 
boards which would bring about greater participa­
tion at the local level by the community. That it 
would undoubtedly, in the opinion of most of us, 
add towards the improvement of quality education, 
quality integrated education insofar as possible.

“The Board of Education has, as long as I can 
recall, always accepted the premise that the task of 
improving education is a very complex one in a

1 The Detroit Board of Education normally consists of seven mem­
bers. At the time the complaint was filed four of the members had 
been recalled in an election held August 4, 1970. On August 31, 
1970, the Governor appointed four new members to the vacancies 
created by the recall vote.



No. 20794 Bradley, et al. v. Milliken, et al. 3

large city, but they have consistently held to the 
premise that wherever possible, wherever reason­
ably we can bring about integration in the process 
of developing our educational program, that this 
would enhance the opportunity of all children, black 
and white, both in terms of their educational 
achievement as well as their potential as responsi­
ble citizens in a democracy.

“So in this plan the Board saw an opportunity, the 
majority, that we could at the high school level 
in some twelve high schools bring about over a 
three-year period a certain amount of integration 
although it involved only the movement of some 
ten to twelve thousand children over the three-year 
period, nevertheless, that is, the transfer of 12,000 
children in three years — nevertheless these children 
were in twelve schools which involved about 35,000 
students, which is over 50 per cent of our total 
high school enrollment.

“We have certain high schools that are already in­
tegrated. Thus, we saw this as a step not only 
toward achieving a goal of the decentralization 
act but also the broader goal which the Board has 
always had of quality integrated education.”

The Board of Education adopted the plan by a vote of four 
to two, with one member absent because of illness. This sev­
enth member, who is represented to have favored the plan but 
was unable to vote, has since died and his vacancy has been 
filled.

At the time the April 7 plan was adopted, Dr. Drachler, 
the Superintendent of Public Schools, issued the following 
statement:

“As an educator I support the proposed plan because 
I believe that it is educationally, morally and according to 
our attorney legally sound. Most of the research and



4 Bradley, et al. v. Milliken, et al. No. 20794

scholarship , both by blacks and whites that I respect, 
supports the view that integration, racial, religious and 
economic, has a positive effect on the learning of all 
children in a pluralistic society. As a student of Ameri­
can educational history I recognize that the above goal 
has been the dream of our nation for over a century. 
Local, state and national polls assert that the majority 
of our people concur with the desirability of integration 
and believe that eventually it will be a reality in our 
nation.

“Let us, therefore, have a plan for self renewal of 
our schools and our community rather than drift in the 
climate of uncertainty, fear and frustration. I recog­
nize that our primary objective as teachers is quality 
education but to repeat, the majority of accepted research 
and scholarship asserts that quality education in a hetero­
geneous society such as ours can not be attained to its 
fullest measure without integration. It is essential for 
white and black, for poor and rich.

“This plan directly affects only our high school stu­
dents. Without it each constellation will continue a 
growing pattern of segregated racial or economic en­
claves and be concerned only with the educational wel­
fare of its own immediate area. This proposal, however, 
encourages a broader community concern for educational 
improvement and assures greater interest and support for 
quality education for tens of thousands of children 
wherever they attend school.

“Since as a people we concur with the necessity for 
eliminating religious, racial and economic barriers, let 
us, therefore, begin with a plan, however limited it is, let 
us begin where we are and move forward.

“America has been willing to deprive itself of bil­
lions of dollars to travel 250,000 miles in space to reach 
the moon, I am confident Detroiters will be willing to 
accept the idea of traveling one or two additional miles 
to school for the sake of a better education for our young 
people and for a better future for our city.”



The plan was approved by the Michigan Association for 
Supervision and Curriculum Development by the following 
resolution:

“Whereas racial integration is legally, morally and sci­
entifically right, and Whereas, the President of the United 
States has stated that ‘quality is what education is all 
about’ desegregation is vital to that quality, and, Where­
as, the Board of Education of the Detroit Public Schools 
has approved a plan for high school students which effec­
tively increases racial integration, therefore, Be It Re­
solved, that the Michigan Association for Supervision 
and Curriculum Development recognizes, endorses and 
vigorously supports this long needed and forward step for 
the future of America.”

The plan was endorsed by other national and local agencies 
and organizations, including the United States Office of Edu­
cation, the defendant Michigan State Board of Education and 
the Michigan Civil Rights Commission.

Following adoption of the plan on April 7, 1970, Detroit 
School officials began to prepare procedures to carry it into 
effect at the beginning of the 1970-71 school year.

The Michigan Legislature enacted, and on July 7, 1970, the 
Governor of Michigan signed into law, Act No. 48, Public 
Acts of 1970.

Section 12 of this Act is as follows:

“Sec. 12. The implementation of any attendance pro­
visions for the 1970-71 school year determined by any first 
class school district board shall be delayed pending the 
date of commencement of functions by the first class 
school district boards established under the provisions 
of this amendatory act but such provision shall not impair 
the right of any such board to determine and implement 
prior to such date such changes in attendance provisions 
as are mandated by practical necessity. In reviewing, 
confirming, establishing or modifying attendance pro­
visions the first class school district boards established

No. 20794 Bradley, et al. v. Milliken, et al. 5



6 Bradley, et al. v. Milliken, et al. No. 20794

under the provisions of this amendatory act shall have 
a policy of open enrollment and shall enable students 
to attend a school of preference but providing priority 
acceptance, insofar as practicable, in cases of insufficient 
school capacity, to those students residing nearest the 
school and to those students desiring to attend the school 
for participation in vocationally oriented courses or other 
specialized curriculum.”

By its terms this statute applies only to “first class school 
districts.” The Detroit School system is the only “first class 
school district” in Michigan. Although on its face the statute 
is a general Act, it is applicable only to one local school 
system in the State.2

Following enactment of Act 48, the Superintendent of De­
troit City Schools requested an opinion from the attorney for 
the Board of Education as to the effect of this statute. This 
opinion, dated July 28, 1970, contains the following language 
with respect to § 12:

“The answer to this question is found in Section 12 of 
Act 48. Section 12 says:

‘The implementation of any attendance provisions 
for the 1970-71 school year determined by any first 
class school district board shall be delayed pending 
the date of commencement of functions by the first 
class school district boards established under the 
provisions of this amendatory act * # V

“This quoted portion of Section 12 obviously, albeit in­
directly, addresses itself to the action taken by the Board 
on April 7, 1970, with respect to establishing new high

2 Since the statute is local in application, it is conceded by all 
parties that its constitutionality can be determined by a one-judge 
District Court and by this Court on appeal, and that it is not 
necessary to convene a three-judge District Court under 28 U.S.C. 
§ 2281. Moody v. Flowers, 387 U.S. 97; Griffin v. County School 
Board of Prince Edward County, 377 U.S. 218, 227; Rorick et al. v. 
Board of Comm’rs of Everglades Drainage Dist. et al., 307 U.S. 208, 
212.



school attendance areas. In our opinion, the effect of 
this provision is to rescind — for at least one year — 
the attempt made by the Board of Education on April 
7, 1970, to achieve integration in its high schools. While 
Act 48 itself purports only to delay implementation until 
January 1, 1971, it is well known that no implementation 
begun even on January 1, 1971, could be placed into op­
eration earlier than the beginning of the Fall semester in 
September, 1971. For these reasons we deem it un­
necessary to recommend that the Board’s action on Ap­
ril 7, 1970, establishing high school attendance areas be 
rescinded.”

Further, a movement was initiated by certain Detroit 
voters to recall the four members of the Detroit School Board 
who had voted in favor of the April 7, 1970, plan. The re­
call movement was resolved at the August 4, 1970, election, 
which resulted in the recall and removal from office of the 
four board members who voted in favor of the April 7 plan. 
As stated in footnote 1, these four positions were vacant at 
the time the complaint was filed and on August 31, 1970, 
were filled by appointment by the Governor.

In accordance with the opinion of the attorney for the Board 
of Education quoted above, Detroit school officials did not 
put the April 7 plan into effect for the 1970-71 school year 
beginning in September 1970. The Superintendent of City 
Schools testified that he instructed regional superintendents 
that “we had to go back to the plan of April 6.” The princi­
pals of the affected high schools sent out letters or otherwise 
notified students that regardless of any previous instructions 
to the contrary, they should attend the high school they would 
have attended prior to April 7. It is undisputed that, obedi­
ent to the mandate of § 12 of Act 48, the plan adopted by 
the Board of Education on April 7 has been suspended, or 
at least deferred to a time beyond January 1, 1971. The high 
schools in question have reverted to the attendance zones 
which were in effect prior to the April 7 action of the Board.

No. 20794 Bradley, et a t  v. Milliken, et a t  7



8

The tenth grade students who would have attended a high 
school with an improved racial balance as determined by 
the Board of Education on April 7 have been deprived of that 
opportunity from the beginning of the 1970-71 school year 
until the time of the rendering of this opinion.

On August 18, 1970, plaintiffs filed their complaint in the 
present case as a class action, attacking the constitutionality 
of § 12 of Act 48. Among other things the complaint prayed 
for a preliminary injunction requiring defendants to put into 
effect the plan adopted by the Detroit Board of Education on 
April 7 and restraining defendants from giving any force or 
effect to § 12 of Act 48 insofar as it would inhibit immediate 
implementation of the Board’s plan of April 7.

District Judge Stephen J. Roth advanced the case and sched­
uled a prompt hearing. Evidentiary hearings were conducted 
by Judge Roth for three days on August 27-28, and Septem­
ber 1, 1970. The testimony at these hearings comprises three 
typewritten volumes. On September 3, 1970, Judge Roth re­
leased a written opinion denying the application for a pre­
liminary injunction and granting a motion to dismiss the Gov­
ernor and Attorney General of Michigan as parties defendant. 
The District Court did not pass upon the issue of the consti­
tutionality of § 12 of Act 48.

The case was advanced on the docket of the District 
Court for hearing on its merits beginning November 2, 1970. 
The trial is scheduled to start on that date. Two weeks have 
been ailoted by the District Court for this trial.

On September 3, the same day the decision of the District 
Court was announced, defendants filed a notice of appeal and 
a motion in this Court for injunction pending appeal. Oral 
arguments on this motion were heard in Nashville, Tennessee, 
by the Chief Judge of the Circuit September 8, 1970, pur­
suant to Rule 8, Fed. R. App. P.3 The Detroit public schools

3 Rule 8 provides: “The motion . . . normally will be considered 
by a panel or division of the court, but in exceptional cases where 
such procedure would be impracticable due to the requirements of 
time, the application may be made to and considered by a single 
judge of the court.” s

Bradley, et al. v. Milliken, et al. No. 20794



opened for the 1970-71 school term on September 8, the day 
of the hearing before the Chief Judge in Nashville.

The Chief Judge entered an order denying the application for 
injunction pending appeal and advanced the appeal for hearing 
on its merits before this Court in Cincinnati, Ohio, on October 
2, 1970, at 2 p.m. This opinion is rendered after considera­
tion of the briefs and oral arguments of the parties and the 
record and transcript of the evidence and proceedings in the 
District Court.

Three questions will be disposed of at the present stage of 
the proceeding:

(1 ) The issue of the constitutionality of § 12 of Act 48 
(Appendix hereto);

(2 ) Whether the District Judge abused his discretion in 
denying the application for a preliminary injunction;

(3 ) Whether the District Court erred in dismissing the 
Governor and Attorney General as parties defendant.

1) The Michigan Statute

We first consider the issue of the constitutionality of the 
statute.

As previously stated, the plan adopted by the Detroit Board 
of Education was designed to provide a better balance between 
students of the Negro and white races in twelve high schools. 
If this plan had come into existence under a judgment of 
the United States District Court for the Eastern District of 
Michigan, there could be no question that § 12 of Act 48 
would be void. The Legislature of a State cannot annul the 
judgments nor determine the jurisdiction of the Courts of the 
United States. United States v. Peters, 9 U.S. 115 (1809).

In the present case the April 7 plan came into being, not 
as the result of a judgment of a District Court, out by the 
voluntary action of the Detroit Board of Education in its effoit 
further to implement the mandate of the Supreme Court in 
Brown v. Board o f Education, 347 U.S. 483, 349 U.S. 294, and

No. 20794 Bradley, et al. v. Milliken, et al. 9



10 Bradley, et al. v. Milliken, et al. No. 20794

succeeding cases, such as Alexander v. Board o f Education, 
396 U.S. 19, and Green  v. County School Board o f Kent Coun­
ty, 391 U.S. 430. The implementation of the April 7 plan was 
thwarted by State action in the form of the Act of the Legis­
lature of Michigan.

In numerous decisions the Supreme Court and other federal 
courts have held that State action in any form, whether by 
statute, act of the executive department of a State or local 
government, or otherwise, will not be permitted to impede, 
delay or frustrate proceedings to protect the rights guaranteed 
to members of all races under the Fourteenth Amendment. 
See:

Hunter v. Erickson, 393 U.S. 385, holding that the re­
peal by referendum of the fair housing ordinance previously 
adopted by the City Council of Akron, Ohio, “discriminates 
against minorities, and constitutes a real, substantial, and invidi­
ous denial of the equal protection of the laws.” 393 U.S. at 393.

Reitman  v. Mulkey, 387 U.S. 369, holding invalid a pro­
vision of the Constitution of California, adopted by state-wide 
referendum, which nullified previously enacted statutes regu­
lating racial discrimination in housing and authorized “racial 
discrimination in the housing market.” 387 U.S. at 381.

Griffin v. County Board o f Education o f Prince Edw ard  
County, 377 U.S. 218, and cases cited therein, invalidating 
the “massive resistence” legislation enacted by the Virginia 
Legislature designed to prevent or delay school integration, and 
requiring reopening of public schools of Prince Edwards 
County.

Cooper  v. Aaron, 358 U.S. 1, 9, nullifying a 1956 amendment 
to the Constitution of Arkansas which commanded the Arkan­
sas legislature to oppose “in every constitutional manner the 
unconstitutional desegregation decisions” of the Supreme 
Court, and various State statutes enacted for that purpose.

Kelley  v. Board o f Education o f the City o f Nashville, 
270 F.2d 209 (6th Cir.), cert, denied, 361 U.S. 924, holding 
a Tennessee statute authorizing separate segregated schools



No. 20794 Bradley, et al. v. Milliken, et al. 11

on a voluntary basis to be “patently and manifestly unconstitu­
tional on its face.” 270 F.2d at 231.

L ee, et al. v. Nyquist, Commissioner o f Education o f the 
State o f New York, (W.D. N.Y.) —  F.Supp. —  (three-judge 
court, Sept. 29, 1970), which held invalid under the equal pro­
tection clause of the Fourteenth Amendment § 3201(2) of the 
New York Education Law, which “prohibits State education 
officials and appointed school boards from assigning students, 
or establishing, reorganizing or maintaining school districts, 
school zones or attendance units for the purpose of achieving 
racial equality in attendance.” ---- F.Supp. — .4

Keyes v. School District Number One, Denver, Colorado, 
313 F.Supp. 61, 303 F.Supp. 279, and 303 F.Supp. 289 (D. 
Colo.), 396 U.S. 1215, involving a school desegregation plan 
adopted by a school board and an effort to rescind this plan 
made by the same Board after changes in membership fol­
lowing a school board election.

Holm es v. Leadbetter, 294 F.Supp. 991 (E.D. Mich.) en­
joining a proposed referendum to submit an open housing 
ordinance to voters of Detroit.

Bush v. Orleans Parish School Board, 188 F.Supp. 916 
(E.D . La.), aff’d, 365 U.S. 569, holding invalid twenty-five 
measures adopted by the Louisiana Legislature in an effort to 
circumvent partial desegregation of New Orleans public 
schools.

Aaron v. McKinley, 173 F.Supp. 944 (E.D. Ark.), affd, 
sub nom Faubus, Governor v. Aaron, 361 U.S. 197, holding 
unconstitutional two Arkansas statutes authorizing the Gov­
ernor to close schools and to call for school district elections 
on the question of whether schools in such districts be inte­
grated, and withholding State school funds from districts in 
which schools have been closed because of integration.

The foregoing are a few cases selected from the many de­

4 The case of North Carolina State Board of Education v. Swann, 
involving the validity of the North Carolina anti-busmg law, is now- 
pending before the Supreme Court of the United States. U.S.L.W. 3U6.



12 Bradley, et al. v. Milliken, et al. No. 20794

cisions holding that State action cannot be interposed to de­
lay, obstruct or nullify steps lawfully taken for the purpose 
of protecting rights guaranteed by the Fourteenth Amend­
ment.

Defendants assert that § 12 is a valid exercise of legisla­
tive power. It is true that, as a general rule, a State legisla­
ture has plenary power over the arms and instrumentalities 
of State government, including local boards of education. This 
power cannot be exercised, however, so as to deprive indi­
viduals of constitutionally protected rights. Gomillion  v. Light- 
foot, 364 U.S. 339, distinguishing Trenton  v. New Jersey, 262 
U.S. 182, Hunter v. Pittsburgh, 207 U.S. 161, and related cases. 
Mr. Justice Frankfurter, speaking for the Court in Gomillion, 
said:

“When a State exercises power wholly within the do­
main of state interest, it is insulated from federal judicial 
review. But such insulation is not carried over when 
state power is used as an instrument for circumventing 
a federally protected right. This principle has had many 
applications. It has long been recognized in cases which 
have prohibited a State from exploiting a power ac­
knowledged to be absolute in an isolated context to jus­
tify the imposition of an unconstitutional condition/ What 
the Court has said in those cases is equally applicable 
here, viz., that ‘Acts generally lawful may become un­
lawful when done to accomplish an unlawful end, United 
States v. Reading Co., 226 U. S. 324, 357, and a consti­
tutional power cannot be used by way of condition to 
attain an unconstitutional result/ W estern Union T ele­
graph Co. v. Foster, 247 U. S. 105, 114.” 364 U.S. at 347.

Defendants rely upon the decision of this Court in D eal v. 
Cincinnati Board o f Education, 369 F.2d 55, cert, denied, 
389 U.S. 847, 419 F.2d 1387 (6th Cir.). D eal is distinguish­
able on its facts from the present case. In D eal this Court 
held that the school board of a long-established unitary non- 
racial school system had no constitutional obligation to bus



No. 20794 Bradley, et al. v. Milliken, et al. 13

white and Negro children away from districts of their resi­
dences in order that racial complexion be balanced in each 
of the many public schools in the City. In the present case 
the Detroit Board of Education in the exercise of its discre­
tion took affirmative steps on its own initiative to effect an 
improved racial balance in twelve senior high schools. This 
action was thwarted, or at least delayed, by an act of the 
State Legislature. No comparable situation was presented in 
Deal.

Defendants defend the constitutionality of the second sen­
tence of §12 of Act 44 on the ground that the word “shall,” 
which appears twice in that sentence, was intended to mean 
“may,” and that the sentence is not mandatory. We reject 
this interpretation of the sentence. We find nothing in the 
Act to indicate any intention on the part of the Legislature 
to leave the application of this sentence to the discretion 
of local school officials. We are cited to nothing in the leg­
islative history to support such an interpretation. The word 
“shall” is ordinarily “the language of command.” Anderson v. 
Yungkau, 329 U.S. 482, 485; Escoe v. Zerbst, 295 U.S. 490, 
493. We interpret the word “shall” in the second sentence of 
§ 12 as meaning precisely what the Michigan legislature said. 
We conclude that this sentence was enacted with the intention 
that it be mandatory.

We hold § 12 of Act 48 to be unconstitutional and of no 
effect as violative of the Fourteenth Amendment. By this 
ruling on the invalidity of § 12, we express no opinion at the 
present stage of the case as to the merits of the plan adopted 
by the School Board on April 7, 1970, or as to whether it 
was the constitutional obligation of the School Board to adopt 
all or any part of that plan.

2) Denial of Preliminary Injunction

Although holding that § 12 of Act 48 is unconstitutional, 
we cannot say that the District Judge abused his discretion 
in refusing to grant a preliminary injunction upon the basis



of the evidence introduced during the three days of hear- 
ings.

The granting or denial of a preliminary injunction pending 
final hearing on the merits is within the sound judicial discre­
tion of the District Court. On appeal, the action of the 
District Court denying a preliminary injunction will not be 
disturbed unless contrary to some rule of equity or result of 
improvident exercise of judicial discretion. Nashville 1-40 
Steering Com m ittee v. Ellington, 387 F.2d 179 (6th Cir.), cert, 
denied, 390 U.S. 921.

The complaint in the present case seeks relief going be­
yond the scope of the plan of April 7, 1970, and Act 48, 
such as the assignment of teachers, principals and other school 
personnel to each school in accordance with the ratio of 
white and Negro personnel throughout the Detroit school 
system, and an injunction against all future construction of 
public school buildings pending Court approval. As previously 
stated, the District Judge not only conducted an expeditious 
hearing on the application for a preliminary injunction, but 
has advanced the case on his docket to November 2, 1970, 
and allotted two weeks for the trial.

We conclude that the issues presented in this case, in­
volving the public school system of a large city, can best 
be determined only after a full evidentiary hearing.

In the trial of the case on its merits, the District Judge is di­
rected to give no effect to § 12 of Act 48, because of its uncon­
stitutionality.

3) The Governor and Attorney General as parties defendant

Defendants appeal from the order of the District Court dis­
missing the Governor and Attorney General of Michigan as 
parties defendant. We hold that the Governor and Attorney 
General are proper parties, at least at the present stage of 
the proceeding. Compare: Sterling v. Constantin, 287 U.S. 
378, 393; Ex parte Young, 209 U.S. 123, 157, 161; Arneson v.

14 Bradley, et al. v. Milliken, et al. No. 20794



No. 20794 Bradley, et al. v. Milliken, et al. 15

Denny, 25 F.2d 993 (W.D. W ash.); Jam es  v. Almond, 170 F. 
Supp. 331, 341-42 (E.D. Va.), appeal dismissed, 359 U.S. 1006; 
Bevins v. Prindable, 39 F.Supp. 708, 710 (E.D . 111.), aff’d, 
314 U.S. 573.

That part of the order of the District Court dismissing 
the Governor and Attorney General of Michigan as parties de­
fendant is reversed.

Affirmed in part, reversed in part and remanded to the 
District Court for further proceedings not inconsistent with 
this opinion.



16 Bradley, et al. v. Milliken, et al. No. 20794

A P P E N D I X

TEXT OF ACT 48 -  PUBLIC ACT OF 1970

Approved by the Governor — July 7, 1970 

State of Michigan — 75th Legislature — Regular Session of 1970

An Act to amend the title and sections 4, 5, 6 and 7 of Act 
No. 244 of the Public Acts of 1969, entitled “An act to re­
quire first class school districts to be divided into regional 
districts and to provide for local district school boards and 
to define their powers and duties and the powers and duties 
of the first class district board,” being sections 388.174, 388.175, 
388.176 and 388.177 of the Compiled Laws of 1948; to add 
sections la , 2a, 3a and 8 to 13; and to repeal certain acts and 
parts of acts.

The People of the State of Michigan enact:

Section 1. The title and sections 4, 5, 6 and 7 of Act No. 
244 of the Public Acts of 1969, being sections 388.174, 388.- 
175, 388.176 and 388.177 of the Compiled Laws of 1948, are 
amended and sections la , 2a, 3a and 8 to 13 are added to 
read as follows:

TITLE

An act to require first class school districts to be divided 
into regions and to provide for regional boards and to define 
their powers and duties and the powers and duties of the 
first class district board.

Sec. la. On or after January 1, 1971, in any first class 
school district with more than 100,000 student membership, 
the board membership of the board of education shall be 
composed of 8 members determined and elected as provided 
in section 2a plus 5 members determined and elected as pro­
vided in section 3a.



No. 20794 Bradley, et al. v. Milliken, et al. 17

Sec. 2a. Immediately following the effective date of this 
1970 amendatory act or any date on which a school district 
becomes a first class school district, 8 regions shall be described 
in each such first class school district by resolution concurred 
in by three-fourths of the members elected and serving in each 
House of the legislature and such regions so described shall 
be established as regions if and when approved by the super­
intendent of public instruction. If a concurrent resolution 
shall not be approved by three-fourths of such members 
within 7 days of the effective date of this amendatory act 
or within 30 days of any date on which a school district 
becomes a first class school district a first class district boundary 
commission consisting of 3 members appointed by the gov­
ernor shall determine the boundary lines of such regions 
within 21 days thereafter if in 1970 or within 30 days there­
after if in any later year. The members of the commission 
shall receive a compensation of $100.00 per diem per member 
from the funds appropriated to the department of education. 
The boundary lines of such regions shall be redetermined by 
the respective boards of such first class school districts fol­
lowing each federal decennial census but in no event later 
than April 15 of the first odd numbered year in which regional 
board members are to be elected following the federal decenni­
al census. In the event of the failure of such respective boards 
of such first class school districts to redetermine such regional 
boundary lines by such April 15, the state board of education 
shall convene within 10 days to make such redetermination 
and such redetermination of the state board of education shall 
be the regional boundary lines until the redetermination is 
made following the next succeeding federal decennial census 
as provided in this section. Regions shall be as compact, con­
tiguous and nearly equal in population as practicable.

Within each region, there shall be a regional board con­
sisting of 5 members. The members shall be nominated 
and elected by the registered and qualified electors of each 
district as is provided by law for the nomination and election



18 Bradley, et al. v. Milliken, et al. No. 20794

of first class school board members except that signatures 
required on nominating petitions shall be not less than 500 
nor more than 1,000. Any candidate properly filed for any 
educational position in any first class school district as of the 
effective date of this act shall be considered as a qualified 
candidate under sections 2a and 3a for the 1970 election pro­
vided such candidate makes a request, designation and selec­
tion to the election officer empowered by law to accept nom­
inating petitions for such office. No person shall be elected 
who is not a resident of the region from which he is elected. 
The members shall be elected in the general election to be 
held in November, 1970 and November of 1973 and every 2 
years thereafter commencing in 1975.

In the year 1970 regional board members shall be elected 
in the November general election and candidates for such 
offices shall not be subject to the primary election. In 1970 
a person may qualify as a candidate for the election for regional 
board member by filing the required number of signatures 
on or prior to 4 p.m., August 18, 1970. In 1970 signatures 
of registered electors of the first class district shall be valid 
without regard to the place of residence of such registered 
elector. In any year the candidate for regional board mem­
ber receiving the highest number of votes in each region in 
the November general election shall be chairman of the regional 
board and a member of the board of education of his first 
class school district during his term of office. In case a 
vacancy occurs for any reason in the combined position of 
chairman of the regional board and member of the first class 
school district board of education, the regional board mem­
ber who received the next highest number of votes in the 
preceding general election shall assume such combined po­
sition. The number of members of each regional board shall 
be maintained at 5 and vacancies shall be filled from among 
residents of the region by the remaining board members of 
such region by a majority vote of those serving. No vacan­
cies shall be filled later than 60 days prior to a primary elec­



No. 20794 Bradley, et al. v. Milliken, et al. 19

tion at which regional board members are to be nominated. 
The 5 regional board members elected in each region shall 
commence their terms of office on January 1 following the 
election and the members shall serve until their successors are 
elected and qualified.

Sec. 3a. Effective January 1, 1971 there shall be 5 members 
on the boards of first class school districts elected at large. 
Members of such boards shall be nominated and elected at 
the primary and general elections of 1972 and 1974 for 3- 
year terms commencing on January 1 of the subsequent odd 
number year, 2 each to be elected in 1972 and 1974. In 
the year 1970 1 board member shall be elected in the Novem­
ber general election for a 3-year term commencing January 
1, 1971 and candidates shall not be subject to the primary 
election. In 1970 a person may qualify as a candadate for 
the election for first class school district board member by 
filing nominating petitions containing not less than 500 nor 
more than 1,000 valid signatures on or before 4 p.m., August 
18,1970. Commencing in 1973 and in all subsequent odd num­
bered years, a number of board members equivalent to the 
number of members whose terms expire on December 31 
of such year will be nominated and elected at the primary 
and general election. Such members so elected shall serve 
2-year terms commencing on January 1 of the subsequent even 
numbered year. To accomplish the provisions of this amenda­
tory act the terms of office of any first class district board 
members whose terms expire prior to December 31, 1971 
shall expire December 31, 1970; the terms of office of such 
board members whose terms expire between January 1, 1972 
and December 31, 1973 shall expire December 31, 1972 and 
the terms of office of such board members whose terms ex­
pire between January 1, 1974 and December 31, 1975 shall 
expire December 31, 1974.

In any year in which one or more board members of a 
first class district are commencing a term of office on January 
1 the board of such first class district shall redetermine its



20 Bradley, et al. v. Milliken, et al. No. 20794

selection of officers during the month of January of such year. 
Petitions to recall any member or members of the board of 
education of a first class school district filed and pending 
before this act becomes effective, or becomes operative in 
a school district that hereafter becomes a first class school 
district, may be withdrawn by the person or organization filing 
or sponsoring such recall petitions within 10 days after this 
act becomes effective or 20 days after the act becomes op­
erative in any school district that hereafter becomes a first 
class school district. Board members of first class school 
districts who are recalled in accordance with law may be 
candidates for the same office at the next election for such 
office at which the recalled member is otherwise eligible. In 
the case of any school district that hereafter becomes a first 
class school district, the term of office of each of the board 
members then serving in such school district shall expire on 
the next succeeding December 31 of an odd numbered year, 
provided however that if the school district becomes a first 
class school district later than April 1 of an odd numbered year, 
the term of office of each of its board members shall expire 
on December 31 of the next succeeding odd numbered year 
later than the year in which the district became a first class 
school district. For any district becoming a first class district 
5 school board members shall be elected in the general election 
of the odd numbered year in which such terms of office ex­
pire and the 5 school board members so elected shall com­
mence 2-year terms on January 1 of the even numbered year 
following such general election.

In case a vacancy occurs for any reason on the first class 
district board such vacancy shall be filled by majority vote 
of all persons serving as regional board and first class district 
board members at a meeting called by the president of the first 
class district board for such purpose. No vacancies shall 
be filled later than 60 days prior to a primary election at 
which first class district board members are to be nominated. 
Vacancies which shall occur prior to the effective date of



No. 20794 Bradley, et al. v. Milliken, et al. 21

this act or have occurred in 1970, shall be filled for a term 
ending December 31, 1972 in the same manner as provided 
in this section for the election of board members at large in 
the year 1970 and such positions shall then be filled in the 
primary and general election of 1972 for a 3 year term. In 
1970 the candidate receiving the highest number of votes 
shall be elected for the 3 year term and the candidates re­
ceiving the next highest number of votes shall be elected for 
2 year terms to fill vacancies.

Sec. 4. A candidate for a regional board must be 21 years 
of age at the time of filing and must reside in the region in 
which he becomes a candidate. If his legal residence is moved 
from the region during his term of office, it shall constitute 
a vacating of office.

Sec. 5. The first class school district board shall retain 
all the powers and duties now possessed by a first class school 
district except for those given to a regional board under 
tile provisions of this act and such other functions as are dele­
gated to the regional boards by the first class school district 
board.

Sec. 6. Effective upon the commencement of its term of 
office, the regional board, subject to guidelines established 
by the first class district board, shall have the power to:

(1 ) Employ a superintendent for the schools in the region 
from a list or lists of candidates submitted by the first class 
district board and to discharge any such regional superin­
tendent.

(2 ) Employ and discharge, assign and promote all teach­
ers and other employees of the region and schools therein 
subject to review by the first class school district board, which 
may overrule, modify or affirm the action of the regional 
board.

(3 ) Determine the curriculum, use of educational facilities 
and establishment of educational and testing programs in 
the region and schools therein.



22 Bradley, et al. v. Milliken, et a t  No. 20794

(4 ) Determine the budget for the region and schools 
therein based upon the allocation of funds received from the 
first class school district board.

Sec. 7. The rights of retirement, tenure, seniority and of 
any other benefits of any employee transferred to a region or 
schools therein from the first class district or transferred be­
tween regions shall not be abrogated, diminished or impaired.

Sec. 8. The first class school district board shall perform 
the following functions for the regions and schools therein:

(1 ) Central purchasing.
(2 ) Payroll.
(3 ) Contract negotiations for all employees, subject to the 

provisions of Act No. 336 of the Public Acts of 1947, as amend­
ed, being sections 423.201 to 423.216 of the Compiled Laws of 
1948, and subject to any bargaining certification and to the 
provisions of any collective bargaining agreement pertaining to 
affected employees.

(4 ) Property Management and Maintenance
(5 ) Bonding
(6) Special education programs.
(7 ) Allocation of funds for capital outlay and operations 

for each region and schools therein.
(8 ) Establish or modify guidelines for the implementation 

of the provisions of section 6. Such guidelines shall include 
but not be limited to the determination and specification 
of each regional board’s jurisdiction and may provide for 
regional board’s jurisdiction over schools not geographically 
located within their respective regions.

Sec. 9. Facilities and accomodations provided by the first 
class school district board for regional boards shall be selected 
with due consideration for accessibility, economy and utiliza­
tion of existing facilities. Employees assigned by the first 
class school district board to regional boards at the time of 
commencement of their functions shall be drawn, to the extent 
feasible, from persons employed at such time by the first class 
school district.



No. 20794 Bradley, et al. v. Milliken, et al. 23

Sec. 10. Regional board members shall be paid a per diem 
allowance of $20.00 for each meeting of their board attended 
and first class district board members shall be paid a per 
diem allowance of $30.00 for each meeting of their board 
attended, but in neither case shall such payments be for meet­
ings in excess of 52 meetings per annum. The chairman of 
each regional board shall be paid for up to 52 regional board 
meetings attended and up to 52 first class district board meet­
ings attended.

Sec. 11. First class school districts with 100,000 student 
membership or more shall have the same rights for initiative 
petition and referendum now granted by law to second and 
third class districts.

Sec. 12. The implementation of any attendance provisions 
for the 1970-71 school year determined by any first class school 
district board shall be delayed pending the date of com­
mencement of functions by the first class school district boards 
established under the provisions of this amendatory act but 
such provision shall not impair the right of any such board 
to determine and implement prior to such date such changes 
in attendance provisions as are mandated by practical necessity. 
In reviewing, confirming, establishing or modifying attendance 
provisions the first class school district boards established under 
the provisions of this amendatory act shall have a policy of 
open enrollment and shall enable students to attend a school 
of preference but providing priority acceptance, insofar as 
practicable, in cases of insufficient school capacity, to those 
students residing nearest the school and to those students 
desiring to attend the school for participation in vocationally 
oriented courses or other specialized curriculum.

Sec. 13. If any portion of this act or the application there­
of to any person or circumstance shall be found to be in­
valid by a court, such validity shall not affect the remaining 
portions or applications of this act which can be given effect 
without the invalid portion or application, and to this end 
this act is declared to be severable.



24 Bradley, et al. v. Milliken, et al. No. 20794

Section 2. Sections 1, 2 and 3 of Act No. 244 of the Public 
Acts of 1969, being sections 388.171, 388.172 and 388.173 of the 
Compiled Laws of 1948, are repealed.

This act is ordered to take immediate effect.