Brief for Appellants; Affidavit of Paul Dimond

    IN THE UNITED STATES COURT OP APPEALS 
FOR THE SIXTH CIRCUIT

NO. c2/02(p

i?! I

RONALD BRADLEY, 
vs.

et al.,
Plaintiffs-Appellants,

WILLIAM G. MILLIKEN, et al.,
Defendants-Appellees,

DETROIT FEDERATION OF TEACHERS, LOCAL 231 
AMERICAN FEDERATION OF TEACHERS, AFL-CIO,

Defendant-Intervenor.

BRIEF FOR APPELLANTS

Of counsel;
J. HAROLD FLANNERY 
PAUL DIMOND

Center for Law and 
. Education, Harvard 
University
Cambridge, Massachusetts

LOUIS R. LUCAS 
WILLIAM E. CALDWELL . 

Ratner, Sugarmon & Lucas 
525 Commerce Title Bldg. 
Memphis, Tennessee 38103 

E. WINTHER McCROOM 
3245 Woodburn Avenue 

' Cincinnati, Ohio 45207 
NATHANIEL JONES
General Counsel, N.A.A.C.P. 
1790 Broadway New York, New York 

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

10 Columbus Circle 
New York, New York 10019 

BRUCE MILLER and 
LUCILLE WATTS, Attorneys for 

Legal Redress Committee 
N.A.A.C.P., Detroit Branch 
342b Cadillac Towers 
Detroit, Michigan

Attorneys for Appellants



TABLE OF CONTENTS
Page

Table of Cases................................... ii
Preliminary Statement ..........................  1
Issues Presented for Review ....................  3
Statement ......................................  4

Procedural History ..................  . . .  4
The Rulings Below ..........................  9
The April 7 P l a n ............................10
Alternative Proposals ....................... 14

A. The McDonald Plan .................... 15
B. The Campbell P lan....................18
C. Staff Proposals . .................... 19

Further Continuance of the Trial
on the Merits....................    2.1

ARGUMENT . ............................    25
Introduction  ...................... . 26
The District Court's Postponement of Relief 
Until September, 1971 Denies Plaintiffs' Constitutional Rights In Direct Violation Of The Rule Of Alexander v. Holmes County Board 
of Education and Carter v. West Feliciana 
Parish School Board . T .................... 28
The District Court Erred In Approving A Free 
Choice Plan Despite Compelling Evidence That 
The Technique Had Never Worked in Detroit,
And On The Explicit Ground of White Community 
Hostility To Other, More Effective Means Of
Desegregation . . . . .  ........  . . . . . .  32
Further Delay of The Trial On The Merits 
Results In Denial Of Plaintiffs' Fourteenth 
Amendment R i g h t s .......... ................42

Conclusion



Table of Authorities

Cases

Alexander v. Holmes County Bd. of Educ., 396 U.S.
19 (1969) .................................

Anthony v. Marshall County Bd. of Ed., 409 F.2d
1287 (5th Cir. 1969) ....................

Baird v. Benton County Bd. of Ed., 421 F.2d 700
(5th Cir. 1970) ..........................

Boykins v. Fairfield Bd. of Educ., 421 F.2d 1330
(5th Cir. 1 9 7 0 ) ............. .......... ..

Brunson v. Board of Trustees, Clarendon County,
429 F.2d 820 (4th Cir. 1970) . . . . . .

Brown v. Board of Educ., 347 U.S. 484 (1954);
349 U.S. 294 (1955) ......................

Buchanan v. Warley, 254 U.S. 60 (1917) ...........
Carter v. West Feliciana Parish School Bd., 396

U.S. 226 (1969); 396 U.S. 290 (1970) . .

Charles v. Ascension Parish Sch. Bd., 421 F.2d 656 
(5th Cir. 1970) ..........................

A. ■ . 'Christian v. Bd. of Ed. of Strong Sch. Dist. No.
83, #20038 (8th Cir., Dec. 8, 1970) . . .

Ex Parte Milligan, 71 U.S. 2 (1866) ...............
\ Green v. County School Bd. of New Kent County,

391 U.S. 430 (1968) . . . .  .............
Hall v. St. Helena Parish School Bd., 417 F.2d 801 

(5th Cir. 1 9 6 9 ) ............. .............
Hilson v. Ouzts, 421 F.2d 632 (5th Cir. 1970) . . .
Jones v. Caddo Parish Sch. Bd., 421 F.2d 313 (5th

Cir. 1970) ...............................
Jackson v. Marvell Sch. Dist. No. 22, 416 F.2d 380 

(8th Cir. 1969)(en banc) ...............

Page

2,28,29,30,31,
37.38.42.43
34

29

2,29

40

30.37.43 
40

28,29,30,31,34
38.43

29

30,31
43

17,20,37,38

34
29

29

31,34,40



Table of Authorities (Cases) - continued Page
Keyes v. School Dist. No. 1, Denver, 303 F.Supp.

279, 289, 313 F.Supp. 60,91 (D. Colo.
1969-70) ...........   33,45,46

Lemon v. Bossier Parish Sch. Bd., 421 F.2d 121 (5th
Cir. 1 9 7 0 ) ................................. 34

Monroe v. Board of Comm'rs of Jackson, 391 U.S. 450
(1968); 427 F.2d 1005 (6th Cir. 1970) . . 39,40

Moses v. Washington Parish Sch. Bd., 421 F.2d 658
(5th Cir. 1970) ...................... 2

Nesbit v. Statesville City Bd. of Educ., 418 F.2d
1040 (4th Cir. 1 9 6 9 ) ....................... 31,43

Singleton v. Jackson Municipal Separate School
Dist., 419 F.2d 1211 (5th Cir. 1969) . . . 2,34

Spangler v. Pasadena City Bd. of Educ., 311 F.
!' Supp. 501 (C.D. Cal. 1970) . . ...........  46
\ Stanley v. Darlington County Sch. Dist., 424 F.2d

195 (4th Cir. 1970) ................... . 30,31
Steele v. Bd. of Public Instr. of Leon County,

421 F. 2d 1382 (5th Cir. 1969) ...........  33
/ United States v. 'Board of Educ. of Baldwin County,

423 F.2d 1013 (5th Cir. 1 9 7 0 ) ........... 31,33,39
United States v. Sch. Dist. 151 of Cook County,

111., 286 F.Supp. 786; 404 F.2d 1125;
301 F.Supp. 2 0 1 .......................... 46

United States v. Sch. Bd. of Franklin City, 428
F. 2d 373 (4th Cir. 1 9 7 0 ) ................. 2

United States v. Greenwood Municipal Separate
School Dist., 422 F.2d 1250 (5th Cir.
1970) .....................................  29,34

United States v. Hinds County Sch. Bd., 423 F.2d
1264 (5th Cir. 1969) .................. .. . 31,40

Valley v. Rapides Parish School Bd., No. 30099
(5th Cir., August 25, 1970) ........... . . 29,47

Watson v. City of Memphis, 373 U.S. 526 (1963) . . . 28,40,42



Table of Authorities (Cases).- continued Page
Williams v. Iberville Parish Sch. Bd., 421 F.2d

161 (5th Cir. 1 9 7 0 ) ...................... 29
Williams v. Kimbrough, 421 F.2d 1351 (5th Cir.

1 9 7 0 ) .....................................  29
Walker v. County Sch. Bd. of Brunswick County,

413 F.2d 53 (4th Cir. 1 9 7 0 ) ............  34,40

iv



IN THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 
, NO. _____

RONALD BRADLEY, et al.,
Plaintiffs-AppeHants,

vs.

WILLIAM G. MILLIKEN, et al.,
Defendants-Appellees,

DETROIT FEDERATION OF TEACHERS, LOCAL 231 
AMERICAN FEDERATION OF TEACHERS, AFL-CIO,

Defendant-Intervenor.

BRIEF FOR APPELLANTS 

Preliminary Statement

Appellants file this Brief both as their submis­
sion in chief to this Court on the pending appeal, and also 
in support of their Motion for Summary Reversal or in the 
Alternative for Injunction Pending Appeal, and for Leave to 
Proceed Upon the Original Papers filed herewith.



The necessity for expedited action by this Court 
arises because this is an appeal from the denial of the motion 
below seeking implementation of the April 7, 1970 plan of 
school desegregation exactly as adopted and unrescinded by the 
Detroit School Board. Extraordinary procedures shortening 
th§ normal processing time for an appeal are required if 
tenth graders are to be accorded their Constitutional right 
to attend a high school with an improved racial balance effec­
tive with the February 1, 1971 commencement of the second 
semester of the current school year. Failure to give such 
relief would be to give full force and effect to the first 
sentence of Section 12 of Act 48 of the 1970 Michigan Legis­
lature —  a provision ruled unconstitutional by this Court on
October 13, 1970 in Bradley v. Mllllken, ___ F.2d __ , No.
20794 (6th Cir., October 13, 1970).

There is ample precedent in this and other Circuits 
for expeditious appeal in school desegregation cases. E.g., 
Bradley v. Milliken, supra; Singleton v. Jackson Municipal 
Separate School Dlst., 419 F.2d 1211, 1222 (5th Cir. 1969); 
Boykins v. Fairfield Bd. of Educ.. 421 F.2d 1330, 1331 n.l,
1332 (5th Cir. 1970); United States v. School Bd. of Franklin 
City, 428 F.2d 373 (4th Cir. 1970). Appellate procedures 
should be "suitably adopted" to follow the "immediacy" require­
ment of the substantive law as stated in Alexander v. Holmes 
County Bd. of Educ., 396 U.S. 19 (1969). See Moses v. Wash­
ington Parish School Bd., 421 F.2d 658 (5th Cir. 1970).

. . ■ • . • . • • ‘ ’ ’ • ., '• ■ :■ . ■ , ; . i . ■ ' : • , ~ - ' /■ / ’ . : . : ■ ! Y. '
2



Issues Presented for Review

On April 7, 1970, the Detroit Board of Education 
adopted a high school desegregation plan affecting twelve 
Detroit high school entering-tenth-grade classes in September, 
1970. The operation of that plan was suspended prior to its 
implementation by Section 12 of Act 48 of the 1970 Michigan 
Legislature. October 13, 1970, on appeal from the district 
court's denial of a preliminary injunction, this Court declared 
that section of the law unconstitutional and remanded the 
cause. December 3, 1970, the lower court denied plaintiffs' 
motion to implement the April 7 plan for the second semester 
of the current school year, delayed the trial on the merits 
a second time, and ordered into September, 1971 effect a "free 
choice" plan.

1. Did the court below err in perpetuating, for 
the second semester of the 1970-71 school year, the racial 
separation of pupils effected by Act 48?

J \/ 2. Did the court below err in granting defendants'
motion'for a second continuance of the trial on the merits?



Statement

Procedural History
This action was commenced August 18, 1970 to deseg­

regate the public schools of the City of Detroit. The matter 
was tried August 27, 1970 before Honorable Stephen J. Roth,
United States District Judge, on plaintiffs-appellants'

1/ 2/Motion for Preliminary Injunction. (A. 1 J- 7 September 3,

1/ This action is a classic Fourteenth Amendment suit seek­
ing complete desegregation of the Detroit public school 

system, as well as declaratory and injunctive relief against 
certain provisions of Act 48 of the 1970 Michigan Legislature. 
By way of preliminary relief, plaintiffs sought to: (1) en­
join defendants from giving any force or effect to 912 of Act 
48; (2) require September, 1970 implementation of the April 7 
partial high school desegregation plan on an accelerated basis, 
eliminating therefrom the three-year stair-step approach and 
the brother-sister exception; (3) enjoin defendants from im­
plementing the eight racially segregated administrative 
regions drawn pursuant to Act 48, or from taking any steps 
which would impair implementation of the seven racially inte­
grated regions as adopted by the defendant Board on April 7, 
1970; (4) enjoin the defendant Board from all further school 
construction until a Constitutional plan of operation had been 
approved; (5 ) require September, I97O assignment and/or 
reassignment of faculty members in accordance with the system­
wide ratio of black and white faculty members.

The district court scheduled the August 27 hearing as a 
full trial on the merits, but on the second day of the hear­
ing (August 28, 1970), the court limited its scope to the 
matters presented in plaintiffs' Motion for Preliminary In­
junction. The thrust of plaintiffs' presentation on the 
trial days of August 28 and September 1, 1970 was directed at 
912 of Act 48 and implementation of the April 7 plan by the 
commencement of the school year, which began on September 8,

The relationship of 912 of Act 48 to the April 7 plan (i.e., 
§12 suspended and, in effect, prohibited implementation and 
operation of the April 7 plan) is set out in this Court's 
October 13, 1970 opinion. Bradley v. Milliken, supra, slip op. at pp. 5-8, 13.
2/ "A. __" references are to the Appendix to this Brief. By

separate motion filed herewith, plaintiffs seek leave to

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t



1970, the district court denied the motion for preliminary 
relief and dismissed the action as to the Governor and 
Attorney General of Michigan.

Plaintiffs immediately appealed to this Court; the
matter was heard by the Chief Judge upon plaintiffs' Motion
for Injunction Pending Appeal, and then by a panel of this
Court on an expedited basis pursuant to the order of the

3/Chief Judge denying the Motion. October 13, 1970, this
Court reversed the judgment of the district court insofar as
it dismissed the State defendants and insofar as it upheld
the constitutionality of §12 of Act 48. The district court's
denial of plaintiffs' motion for preliminary injunction was
affirmed, however, because

The complaint in the present case seeks relief 
going beyond the scope of the plan of April 7,
1970, and Act 48, such as the assignment of 
teachers, principals and other school personnel

2/ (continued) proceed on the original papers without the 
necessity of filing the Appendix required by Rule 30, 

F.R.A.P.. See Rule 30(f), F.R.A.P.. Due to printing limi­
tations, plaintiffs are filing only four (4) copies of the 
Brief Appendix at this time but will submit additional 
copies as soon as they are reproduced.
3/ The Motion for Injunction Pending Appeal, heard in Nash­

ville on September 8, 1970 before the Chief Judge pursuant 
to Rule 8, F.R.A.P., sought only to enjoin the effect of @12 
of Act 48 insofar as it impeded implementation of the April 7 
plan and to preserve the status quo by immediate implementation of the plan. In his September 11 order denying the Motion, 
the Chief Judge advanced the appeal for hearing on the merits 
before a panel of this Court on October 2, 1970 (A. 5 ).



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

Bradley v. Mllllken, supra, slip op. at p. 14.

Upon remand, plaintiffs filed in the district court
on October 30, 1970 a motion limited to requesting immediate

5/implementation of the April 7 plan. November 4, 1970, the 
district court continued the trial on the merits to December
8 and conducted instead a hearing on plaintiffs' motion to

6/implement the April 7 plan.

4/ The November 2 trial date was subsequently changed by the 
district court to November 4 because of a judges' confer­ence .

5/ This motion did not seek elimination of the stair-step 
and brother-sister features of the April 7 plan but 

merely implementation of the plan as to students who entered 
the tenth grade in September and as to those who will enter 
the tenth grade at the beginning of the second semester, February 1, 1971.
6/ Plaintiffs acquiesced in the continuance upon the basis 

that the district court set a definite December trial date.



At that hearing, Superintendent Drachler testified
that his staff was studying the April 7 plan in light of the 
pupil racial count which had just been completed, in an ef­
fort to determine whether the April 7 plan needed certain

i
modifications so as to accomplish the desired result (11/4 Tr. 

7/
38-40). At the conclusion of the hearing, the district 
court took under advisement the motion to implement the April 
7 plan, stating that

(i)n order to provide the Board of Education 
with an opportunity to demonstrate what Mr.
Bushnell (Detroit Board's attorney) says 
they are planning to do and what they hope to 
do and what they hope to achieve in the way 
of implementing the April 7, Plan or an updated 
version of it, I will give the Board an op­
portunity to, not later than November 16, 
submit a plan which the Court may find accept­
able and one designed to become effective as,u/ n /\ of February 1, 1971 (A. 16 ). \2/* 2/•

November 6, 1970, the district court entered an order
requiring

that no later than November 16, 1970, 
Defendant Detroit Board of Education submit

7/ The transcripts of tne three hearings in this cause nave 
not been paginated consecutively. Transcript citations 

are therefore preceded by the date on which each hearing 
commenced. The first hearing was held August 27, 28 and 
September 1, 1970; the second, November 4, 1970; and the 
third, November 18, 19 and 25, 1970.
8/ That portion of the November 4 transcript containing the 

district court's oral ruling was typed separately and is 
reproduced in the Brief Appendix, A. 15 -20 .
9/ The district court's reference to "what Mr. Bushnell says 

they are planning to do" relates to statements similar to 
the following: "And there has been a consensus as between
board superintendent and counsel that this board in light of 
the Court of Appeals decision is under an obligation to 
either implement the April 7 plan or its equivalent, depend­
ing upon how the facts develop . . . "  (11/4 Tr. 27). See 
also, 11/4 Tr. 53; 11/4 Tr. 55; 11/4 Tr. 56. ---

-7-



a high school attendance area plan to this 
Court consisting of that portion of tne 
action taken by Defendant Detroit Board of 
Education on April 7, 1970, going to the 
changing of attendance areas of certain 
named high schools in the City of Detroit, 
or an updated version thereof which achieves 
no less pupil integration; the said plan 
To be submitted to this Court is to become 
effective and shall be implemented on the 
first day of the Spring Semester of the school 
year 1970-1971, being February 1, 1971. (A.
21 )(emphasis supplied).

November 16, 1970, following a special Board of 
Education meeting, counsel for the Board filed, in addition 
to the April 7 (Plan "C") plan of integration,-^^ two addi­
tional plans referred to respectively as the "McDonald Plan" 
(Plan "A" or "Magnet School Plan") and the "Campbell Plan" 
(Plan "B" or "Magnet Curriculum Plan") (A. 23 -39 ). At its 
meeting, the Board designated "priorities," assigning top 
priority to the McDonald Plan, followed by the Campbell Plan 
and the April 7 plan. The district court conducted a hearing 
on the plans November 18, 19 and 25, 1970.

November 19, 1970, the Detroit Board filed a motion 
to continue the trial on the merits "from December 8, 1970 to 
a date certain on or after Monday, January 18, 1971" (A. 40 ). 
Plaintiffs opposed the motion for continuance (11/18 Tr. 236).

At the conclusion of the evidence and following 
arguments of counsel on November 25, 1970, the district court

10/ The April 7 plan is contained in plaintiffs' Complaint as 
Exhibit D thereto (A. 49 ) and also in the official minutes 

of the April 7» 1970 meeting of the Board (Defendants' Exhibit 
F, A. 6 3 - 6 5 ) .



took the case under advisement but stated that the pretrial 
conference which had been set for December 3, 1970 would go■ /V
on as scheduled (11/18 Tr. 368). On that date, however, the 
conference was obviated by the court*s "Ruling on School Plans 
Submitted" (A. 90 ) and "Ruling on Motion for Continuance"(A. 
100). The same day, the district court entered its order in
accordance with the rulings (A. 102) and plaintiffs filed■ ■
Notice of Appeal (A. 104).

The Rulings Below
In its "Ruling on Motion for Continuance" the dis­

trict court granted the Board's motion "for a continuance to 
a date to be fixed by the Court"; counsel for plaintiffs were 
subsequently advised in Chambers that the trial would take
place some time in late March or April, the exact date to be, .. . ■ | • ■ ' 
fixed at a later time.

In its "Ruling on School Plans Submitted," the 
district court, despite its finding "that any action or failure 
to act by the Board of Education designed in effect to 'delay, 
obstruct or nullify' the previous (April 7th) step toward 
improving racial balance in the Detroit schools is prohibited 
State a c t i o n , a p p r o v e d  the McDonald Plan and ordered that

11/ The court also held, on the basis of this Court's October 
13 decision and the cases cited by this Court in its 

opinion (slip op. at pp. 10-1 1 ), that "where a school district 
has taken steps enhancing integration in its schools it may 
not reverse direction. In the setting of our case nonaction 
is (or amounts to) prohibited action" (A. 98 ).

# f

■ • ' ■ .■ ' I ■ ■ ■ ' ' ■: ■ : ■ ■ ■ • •
-9-

• ' . . I ‘ . ' . .



"preparations should be started immediately for its insti­
tution at the beginning of the next full school year in 
September 1971'* (A.98-99)(emphasis supplied).

The April 7 Plan
This Court already has considerable familiarity with 

the April 7, 1970 plan of high school desegregation from the 
previous proceedings in this cause. By way of reiteration, 
the April 7 plan provided changes which would "affect 18 
junior high school feeder patterns out of 55 and will influence 
12 senior high schools" (Defendants' Exhibit F at 504, A. 64 ).

The passage of time has not made any basic change in
the effect. The staff task force report (see n.25 infra)
describes the situation as follows:

Although changes in racial percentages have 
occurred during the past year, the relation­
ship of the paired schools in that plan are 
still, relatively, the same. (12/) That is,
Redford, Cody, Osborn, Denby, Western and Ford 
have a significant majority of white students. 
Mackenzie, Cooley, Mumford, Pershing, Kettering 
and Southwestern have a preponderance of black 
students. It should be noted that all boundary 
changes occur within the established eight re­
gions, with the exception of the Denby-Kettering,._ yv 
areas. (Plaintiffs' Exhibit 13, A. 123). \±2/)

12/ An increase in racial isolation in Detroit's high schools 
was noted by Superintendent Drachler at the November 4 

hearing (11/4 Tr. 5).
13/ "If, the April 7 plan is compared to the current 8-region 

organization, it is apparent that all facets of that plan may be initiated within the current organization, except Denby- 
Kettering. The fact of a violation of region boundaries as a 
requirement to re-institute April 7 should not be a major de­
terrent to carrying out the plan. Precedent exists currently 
in the Post-Cooley, Burroughs-Kettering, and the Vernor- 
Vandenberg-Ford combinations for student attendance areas which do not fit adult voting areas." (plaintiffs' Exhibit ll, A. 126)*
■ . ' ■ V ■. . . j ' • ■ ■ < '

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The April 7 plan would be effectuated by changing 
the attendance area boundary lines separating the twelve 
high schools from a north-south to an east-west direction 
(11/4 Tr. 38), affording more efficient utilization of exist­
ing public transit routes in Detroit (11/18 Tr. 254-55). It 
would involve the movement of only 1% of Detroit’s public 
school enrollment for the 1970-71 school year (8/27 Tr. 222, 
231) and would affect only 3# to 4# of the total system popu­
lation over the three-year full implementation period (8/27 Tr 
232-33). The plan would not cause any increase in the number 
of schools operating on extended-day sessions (11/18 Tr. 295); 
with a few individual exceptions, there would be no problem of 
subject-matter continuity for those students who would change 
schools under the plan (11/4 Tr. 8-9); it would not require 
building or equipment changes (11/4 Tr. 13); and only one or 
two teacher changes would be necessitated by the April 7 plan 
(11/4 Tr. 16).

The following table demonstrates the effect of the
April 7 plan as compared to the current enrollment and 
racial composition of Detroit's 21 attendance-area high 
schools:

11



High Schools*
Current Enrollment** 

Total Black % Black

Projected 
% Black 
Without April 
7 Plan***

Projected 
% Black 
Under April 
7 Plan****

1. Central 2140 2140 100% -
2. Chadsey 1654 907 54.8%
3. CODY 3516 141 4% 3.3% 9.7%

* 4. COOLEY 2876 2192 76.2% 61.5% 53%
5. DENBY 2949 73 2.5% 2.4% 19.3%
6. Finney 2658 973 36.6%
7. FORD 3082 617 20% 13.5% 16.3%
8. KETTERING 3472 3373 97.1% 91.4% 81.3%
9. King 1879 1876 99.8%

10. MACKENZIE 3250 3145 96.8% 90.7% 83.8%
11. MUMFORD 3059 3001 98.1% 95.8% 94.9%
12. Murray-Wright 2072 1974 95.3%
13. Northeastern 1437 1339 93.2%
14. Northern 1767 1748 98.9% ' ;
15. Northwestern 2981 2977 99.9%
16. OSBORN 3071 431 14% 17.5% 22.6%
17. PERSHING 3244 2069 63.8% 58.3% 50.9%
18. REDFORD 3781 107 2.8% 3.6% 11.4%
19. Southeastern 2710 2630 97%
20. SOUTHWESTERN 1767 1312 74.3% - 71.3%
21. WESTERN 2241 827 36.9% ' — 39.2%

* The underlined schools are the twelve high schools affected 
by the April 7 plan.

** The "Current Enrollment" columns are taken from the defendant 
Board's Oct. 1970 racial count (Plaintiffs' Exhibit 10) and the 
percentages are computed therefrom.

*** This column is taken from the "Without Change" columns of the 
April 7 plan (Exhibit D to Complaint; A. 58 - 60 ) and repre­
sents the Board's April 7, 1970 projections as to the 1970-71 
racial composition of the 12 high schools without the April 7 
plan.

**** This column represents the April 7, 1970 projections as to the 
effect of the April 7 plan on the 12 high schools. (Exhibit D 
to Complaint; A. 58 - 60 ) .

. ! ■' ■
■ -12-



At the November 4 hearing, Superintendent Drachler 
reiterated his belief that integration is a necessary ingred­
ient of quality education (see Bradley v. Mllllken, supra, slip 
op. at pp. 3-4), stating that the April 7 plan was good and 
that it was his hope the Board would select a plan of inte­
gration along April 7 lines (11/4 Tr. 29). The Superintendent 
apparently now feels, however, that no plan should be imple­
mented until next September because of administrative difficul­
ties (11/18 Tr. 288, 295* 315), although he testified on 
September 1, 1970 (seven days before the school year began), 
that his staff "would need anywhere from four to six days to 
reschedule these approximately 3000 students (who would be 
affected by the April 7 plan)" (8/27 Tr. 224). The Superin­
tendent also testified at the first hearing that 50 to 100

attendance area changes are made each year (8/27 Tr. 188-91) w

Another member of the school administration and
two School Board members with training in education, supported

15/the April 7 plan.

14/ In contrast to the procedure followed with regard to the 
April 7 feeder pattern changes for the purpose of inte­

gration, the Superintendent normally makes changes in feeder 
patterns every semester without Board approval (11/18 Tr. 225).
15/ Board Member Dr. Cornelius Golightly, Associate Dean of 

the College of Liberal Arts and Professor of Philosophy at 
Wayne State University (11/18 Tr. 151) and a member of the 
Milwaukee Board of Education for six years (11/18 Tr. 155), 
testified that the April 7 plan "is educationally sound" and 
"in terms of the plans presented it is simple, straightforward, 
involves established and proven ways in which you would inte­
grate . . . ." (11/18 Tr. 156-57, 159-60).

Board Member Gardner, an attorney with a Master's Degree in Education who taught for 8 years in Detroit's public schools 
(11/18 Tr. 2l6, 218), testified that in his opinion "implemen­
ting the April 7, plan would bring about the immediate



The April 7 plan is the only one existing which 
has been worked out logistically and which has detailed pro­
cedures for implementation. It is the only plan that will
affect, by February, 1971* the students deprived of their

' ■ ■ ■ ■; . ■ .. / .........'
constitutional rights by §12 of Act 48.

Alternative Proposals
As previously stated, the Detroit Board on November 

16, 1970 submitted two alternatives to the April 7 plan: the
McDonald Plan and the Campbell Plan. Although the Board 
superficially assigned top priority to the McDonald Plan, four 
of the seven Board members who testified at the last hearing 
preferred plans other than the McDonald Plan: Campbell (11/18

15/ (continued) required integration and that at the very same
time one of the other plans can be included and join with 

the April 7, plan to give a wider integration to the system" 
(ll/l8 Tr. 217. See also, 11/18 Tr. 167-68 (Dr. Golightly); 
II/18 Tr. 99 (Mrs. Campbell)). "(T)he April 7, plan could be 
implemented faster and more complete than the other two plans.
I think it is less expensive and actually causes least movement 
than any of the other plans and it is just a matter of being 
a little simpler to accomplish" (11/18 Tr. 219. See also, 11/18 
Tr. 172*73 (Dr. Golightly)).

Dr. Freeman A. Flynn, Divisional Director of the Department 
of Intergroup Relations in the system's Division of School- 
Community Relations, who has been a teacher, department head, 
assistant principal and principal prior to assuming his present position in 1908 (11/18 Tr. 245), also testified in favor of 
the April 7 plan. Although he felt it "was a modest effort at 
desegregation," he favored the April 7 plan because he "felt 
that given the social dynamics of the community the plan might 
address itself to those social dynamics and might tend to im­
prove the emotional climate and psychological climate of the 
schools" (11/18 Tr. 253). As a professional educator, he felt "that the April 7, plan is a reasonable program for the school 
system to adopt" (11/18 Tr. 257). He supported it at the time 
it was adopted (11/18 Tr. 253) and believes "it is a reasonable 
plan to adopt in February" (11/18 Tr. 258). Dr. Flynn found 
that under the plan "there are probably no students who would 
have to go further to school than what students currently do who attend Finney High School or Southwestern High School under 
the currently operating high school plan" (11/18 Tr. 276).

-14-



f

Tr. 108-10); Rambo (11/18 Tr. 141-47, 149-50); Golightly 
(11/18 Tr. 156-57, 159-63); Gardner (11/18 Tr. 217-18).^

. -i- . t ’ : .

A. The McDonald Plan
The district court described the McDonald Plan as 

follows (A. 94 - 95):
The McDonald Plan is intended to achieve inte­
gration by providing a specialized curriculum 
at certain high schools. Each of such special­
izing schools would serve two of the eight 
regions of the school system, with the expecta­
tion of drawing students from a wider area, 
thus bringing about a built-in and, hopefully, 
a greater degree of integration. The categories 
of specialization would be Vocational, Business, 
Arts and Science. The plan is voluntary, and 
all high schools, including the so-called magnet 
schools, would offer a reguTar“high school 
curriculum for student's "living in the present 
high school attendance areas, "(emphasis supplied)

The McDonald Plan on the other hand, we believe, 
offers the student an opportunity to advance in 
his search for identity, provides stimulation 
through choice of direction, and tends to estab­
lish security. (17/) That it will promote 
integration to the extent projected remains to 
be seen, but based on the experience in this

16/ Member McDonald, of course, preferred his plan (11/18 Tr.
20), while Board President Hathaway, preferred either the 

McDonald or Campbell Plan over the April 7 plan (11/18 Tr.
229, 231, 232). (Both have opposed the April 7 plan since its 
inception). Member Mogk expressed no preference (11/18 Tr. 
173-79)* Thus, only two members actually expressed any sort 
of preference for the McDonald Plan. (Compare the district 
court’s finding that the Detroit Board "has "on its own shown 
a preference for the McDonald Plan . . ." (A. 95 )).
17/ These "identity," "stimulation" and "security" criteria 

are nowhere found in the record, in the form of expert 
testimony or otherwise, but apparently stem from the District 
Judge's personal views on education and what the law ought to be.

-15-



same school system, i.e., Cass Technical 
High School (18/) it holds out the best 

, promise of effective, long-range integration.
. It appears to us the most likely of the three

plans to provide the children of the City of 
Detroit with quality education as we have 
defined it. The McDonald Plan has been char­
acterized by the plaintiffs as an experiment.
The short answer to this is that all plans 
are experiments, just as is life itself. To 
sum up, in our view the McDonald Plan is the 
best of the plans before the Court.

The plan "is based upon the concept of excellence in education
acting as a magnet to voluntarily draw students of all races
and socio-economic classes together for educational progress"
(A. 25 )(emphasis supplied). Parents desiring to send their
children to another high school would bear transportation
expenses, unless the majority of the parents in a particular
region favored transportation at Board expense (11/18 Tr. 55).
However, four of the current seven Board members believe that
the McDonald Plan would not result in pupil integration because

19/, 20/of its "free choice" aspects.—

18/ See pp. 34 -35 infra.
19/ Board member Campbell criticized the voluntary aspect of 

the McDonald Plan on this basis: "It seems to me that
the specialization, that students would voluntarily leave the 
familiar and move into a strange situation for their entire 
high school career because it had a better teacher or because 
it had more automobile engines than their home school had. I 
find that assumption difficult to accept" (11/18 Tr. 108).
Two of Mrs. Campbell's responses to the district court's ques­tions are representative:

THE COURT: You put it in this focus, then, as 
I see it, basically the difference between the approach 
in Plan B, and Plan A, is that Plan A is purely voluntary, isn't it?

A. That's correct. (11/18 Tr. 109)
'» ‘ '' ' , I ' . • ' . .

} ' 1 I ' • . ' *



A concept similar to the current McDonald Plan 
was previously rejected as a substitute to the April 7 plan 
by the Detroit Board as it was constituted on April 7, 1970.

,
19/ (continued)

THE COURT: . . .It's your Judgment that the 
voluntary aspect of the plan will be its defeat 
so far as substantial progress is concerned, that 
is, Plan A; that that is really the achilles heel 
of Plan A. You don't think it will bring forth 
the response that is expected.

A. That's correct. (11/18 Tr. 110).
Board member Rambo, in reference to the voluntary aspect 

of the McDonald Plan, said: "my reading of past experience in
other places leads me to feel that it would not be an unsound 
thing to consider some —  and you (the Court) used the term —  
help in the choice of selecting a curriculum, help possibly from the system" (11/18 Tr. 14b).

Similarly, Board member Golightly had reservations about 
the voluntary aspects of the McDonald Plan and preferred the 
April 7 plan as a plan of school desegregation (11/18 Tr. 167). 
Board member Gardner preferes the April 7 plan supplemented by 
the Campbell Plan "because I happen to believe that no inte­
gration will occur in the City of Detroit if there is not an 
element of requirement. I think the voluntary concept of the 
A plan proposed by member McDonald . . .  it is impractical in 
this world today and particularly in the City of Detroit to accomplish integration" (11/18 Tr. 217-18).
20/ The McDonald Plan as presented to the district court also 

contained a proposal for February 1, 19 71: that "all
senior high schools shall be open to enrollments which will 
contribute to the integration of the school up to a total 125# 
of their capacity . . . with the further provision that any 
high school already in excess of 125 per cent shall receive 
open enrollments up to 10 per cent over their current enrol­
lment" (A. 31 ). Plaintiffs urged that any plan of integration 
which placed the burden on black children and their parents 
would be unconstitutional (11/18 Tr. 334) and, in view of 
the testimony of Superintendent Drachler and Member McDonald 
(based on past experience with open enrollment ), that such a 
policy would at best result in one-way integration. The 
court apparently perceived the defect: (question to Dr. Drach­
ler) "As I understand it, you have misgivings about the effect 
or about Plan A, bringing about integration in terms of white 
students moving into black schools, predominantly black 
schools" (11/18 Tr. 291). Cf. Green v. County School Bd. of 
New Kent County, 391 U.S. 430, 441-42 (196*8).

-17-



Board Member McDonald was one of the two Board members who 
voted against the April 7, 1970 plan of desegregation (the 
other being current Board President Hathaway)(A. 83, 87). As 
the defendant Board states in its Answer to the Complaint,
'as recently as April 14, 1970 • • • Member Patrick A. McDonald 
formally introduced a 'magnet' plan to the Detroit Board of 
Education . . . "  (A. 113). (The plan itself is attached to 
defendants' Answer as Exhibit 2, A. 118). This "magnet" 
plan was introduced by McDonald as an alternative to the April 
7 plan (ll/l8 Tr. 30, 36-37)* but was tabled by vote of the 
Board on April 14, 1970 (11/18 Tr. 32-33)

B. The Campbell Plan
The district court referred to the Campbell Plan 

as follows (A. ):
/ For the purposes of our present ruling we 
/ consider the Campbell, or "Magnet Curriculum"
1 Plan, albeit perhaps an "exciting concept of 

1 secondary education," as one which does not *
lend itself to early implementation because 
of the programming and operational difficulties 
which attend it. It is a distinctive departure 
from past and present practices, and lacks a 
background of experience. The most obvious 
question mark concerning it is its impact upon

21/ The "magnet" plan which was rejected on April 14, 1970 is 
like the plan approved below, with the exceptions that it 

involved 5 geographic areas rather than the present 4, and it 
did not contain the "middle school" (see n. 22 infra) and "open 
enrollment" aspects of the present plan (11/18 TrT"31, 34-35).
22/ In addition to magnet high schools and open enrollment, the 

McDonald Plan also contains a "middle school" proposal to 
create one school in each of the eight regions housing the fifth 
sixth, seventh and eighth grades. Enrollment would be limited 
to 500 in each of the schools, and each would have a controlled 
racial quota 50$ black and 50$ white. Admission "would be on 
a voluntary basis and would necessitate application by inter­
ested parents" (A. 27 ; 11/18 Tr. 12-14).



the achievement of identity. It is best 
viewed as an educational concept meriting 
study by our educators.’ i ■
The Campbell Plan (A. 36 - 39) is to some extent. . .  j . . ..

similar to the McDonald Plan in that it provides that certain 
high schools would offer specialized curricular

C. Staff Proposals
At least three other proposals for desegregation 

originated within the administrative staff, and one was

23/ The difference between the Campbell Plan and the McDonald
Plan lies in the proposal that a student would attend his 

base, attendance area high school for approximately one-half 
of his courses, those being the courses which are required for 
graduation. In addition, a student would participate in stu­
dent activities, athletics, student government and graduation 
ceremonies at his base high school (11/18 Tr. 74). The 
remaining one-half of his studies would be electives and might 
require attendance at another school. If his base school was 
the locale of the electives he chose, he would remain there.
Some testimony indicated that some method could be devised to 
eliminate this problem (11/18 Tr. 74, 80-81). The plan would 
be effectuated by providing a series of free shuttle buses to 
take students between schools (11/18 Tr. 78)• The premise, 
in the written plan submitted to the court, is that since stu­
dents would be able to take certain non-required courses in 
other schools, all required courses would continue to be pro­
vided at each base school.

The Campbell Plan has not been "fleshed out" in detail (11/18 
Tr. 84), but one of its problems at this stage of development 
is that required courses predominate in the first and second 
years of the high school curriculum while electives are generally 
taken in the junior and senior years (11/18 Tr. 144). Much of 
the operation of the plan, insofar as integration is concerned, 
depends on the selection of course offerings by the students 
(11/18 Tr. 95-96); the plan too easily lends itself to classroom 
and curriculum segregation. (See 11/18 Tr. 92-95).
24/ The Board also considered and rejected two other proposals

proffered by members: an open enrollment plan suggested by
Board member Mogk (11/18 Tr. 182) and a different "magnet" plan 
offered by member McDonald himself (11/18 Tr. 189-90)*



presented to the Board of Education. The proposals contained. '■ ■
alternatives but basic to each one was February 1 implementa­
tion of the April 7# 1970 plan as the starting point for

25/further desegregation.— '

25/ One of the rejected alternatives was a November 9 staff
task force "Proposal for School Desegregation" which had 

been presented to the Board by Dr. Freeman Flynn (11/18 Tr. 
187-88). (Plaintiffs' Exhibit 13, A. 123). There are three 
aspects to this proposal: (1) implementing the April 7 plan
as it affects those students entering school on February 1, 
1971; (2 ) reorganizing the grade structure on a 4-4-4, rather 
than 6-3-3, basis "(a)s part of a long-range plan to provide 
further desegregation . . . "  (A. 123)(in essence, this is a 
pairing proposal); (3) refining and expanding the magnet 
school approach (A. 123) by "clos(ing), as regular Junior or 
senior high schools, those schools with seriously declining 
enrollments, and reorganiz(ing) them as specialized schools 
or as experimental 'open' schools with a city-wide enrollment" 
(A. 124)(11/18 Tr. 265-68). In contrast to this latter pro­
posal to utilize underfilled high schools to increase 
desegregation, the present Board policy with regard to over­
crowding —  to bus students to underutilized schools so as 
to increase integration at the receiving schools —  is not 
applied at the high school level (8/27 Tr. 153-54), despite 
the existence of six inner-city black high schools which are 
under capacity and six outer-city white high schools which 
are over capacity. Last year, 2000 to 3000 lower grade pupils 
were transported at Board expense under this policy (8/27 Tr. 
153).

In addition to the staff proposal of November 9> Dr. Flynn 
testified about two other desegregation proposals which were 
made following this Court's October 13 opinion: one recommen­
dation dated October 24, 1970 from Dr. Flynn's Department of 
Intergroup Relations to its parent Division of School-Community 
Relations (Plaintiffs' Exhibit 11, A. 126); and a series of 
"Proposals in the Matter of School Integration" dated November 
2, 1970, submitted to the dtaff task force (which subsequently 
made the November 9 proposal to the Board discussed above) by 
the Division of School-Community Relations (Plaintiffs' Exhibit 
12, A. 130), These last two suggestions (Plaintiffs' Exhibits 
11 and 12) were objected to and were not admitted into evidence 
by the district court but were filed as an offer of proof 
under Rule 43(c), F.R.C.P. (11/18 Tr. 265). Plaintiffs offered 
these three proposals not as alternatives to the McDonald and 
Campbell plans but to demonstrate the availability of more 
effective techniques of desegregation. Compare Green v. County 
School Bd. of New Kent County, supra, 391 U..S. at 439:



Further Continuance of the Trial on the Merits
This Court, on October 13, 1970, in refusing to 

disturb the district court's denial of a preliminary injunc­
tion, noted the extent of the relief requested by plaintiffs 
(see note 1 supra) and the fact that the District Judge "has 
advanced the case on his docket to November 2, 1970 and 
allotted two weeks for the trial." Bradley v. Mllliken, supra, 
slip op. at p. 14.

25/ (continued)
Of course, the availability to the board of 
more promising courses of action may indicate 
a lack of good faith; and at the very least it 
places a heavy burden upon the board to explain 
its preference for an apparently less effective 
method. . . .  It is incumbent upon the district 
court to weigh . . .  (a proposed plan) in 
light of the facts at hand and in light of 
any alternatives which may be shown as feasible 
and more promising in their effectiveness.

The October 24 proposal by the defendant Board's Depart­
ment of Intergroup Relations made four recommendations for 
integrating Detroit's public schools: (l)reinstate the April
7 boundary changes on February 1, 1971 and increase the ef­
fectiveness of the April 7 plan by applying it to all 
incoming tenth graders and all students presently enrolled in 
the tenth and eleventh grades; (2 ) pair certain junior high 
schools; (3) close certain inner-city junior and senior high 
schools with declining enrollments and reorganize them as 
specialized or "open" schools together with a magnet concept; 
(4) transport students as in Berkeley, California to achieve 
a structured student racial ratio at each school in the 
system of at least 40$ minority race students (A. 126-129;
11/18 Tr. 249-52, 258-62).

The November 2, 1970 submission by the Division of School- 
Community Relations to the staff task force contained five 
alternative suggestions: (1) implement the April 7 plan on
February 1, 1971; (2) increase the scope of the April 7 plan by 
making it effective as to eleventh graders, as well as current 
and incoming tenth graders; (3) pair certain junior high and 
elementary schools with less than 5$ of either white or black 
students (the proposal notes that there are currently "(t)hirty nine elementary schools (which) have less than 5# black 
students and 94 schools have less than 5# white students" (A.



Following this Court's remand on October 13, 1970, 
plaintiffs, in an effort to avoid confusing the issues sur­
rounding the April 7 plan and §12 of Act 48 with the issues 
involved in the trial on the merits, filed a limited motion 
to require the Detroit Board to implement the April 7 plan.
On November 4, 1970, the scheduled trial date, the district 
court sua sponte continued the trial on the merits to December
8, 1970* and conducted a separate hearing on plaintiffs'

26/motion to implement the April 7 plan.—

During the course of the latest hearing, which 
commenced on November 18, the defendant Detroit Board on 
November 19 filed a motion to continue the trial on the merits 
"from December 8, 1970, to a date certain on or after Monday, 
January 18, 1971" (A. 40 ). As grounds for the motion, the 
defendant Board set forth four reasons: (l) "Plaintiffs'
counsel has estimated that presentation of his proofs will

25/ (continued) 132)); (4) utilize a magnet concept by
reorganizing inner-city schools with declining enrollments 

(5) cross-bus as in Berkeley, California "for a structured student ratio" (A. 134; 11/18 Tr. 263-64). .
The Division's report to the task force notes one 

disadvantage of the magnet concept —  "integration of students 
will not immediately result from the magnet school concept.
The city-wide attraction to both white and black parents is 
a function of sufficient time to 'prove' to the community 
the educational strength and the merit of the specialized 
magnet schools" (A. 134).
26/ As previously noted (n. 6 supra), plaintiffs assented to

tnis procedure on the condition that the district court set 
a definite December trial date, as plaintiffs had gone to 
considerable trial preparation, scheduled the appearance of 
numerous witnesses, and desired a speedy determination of their 
rights.



and "Defendants*
proofs will require a minimum of two weeks" which would cause 
interruption of the trial by the holidays; (2) the Detroit 
Board is in the process of administrative decentralization 
pursuant to Act 48; (3) ten new Board members would be taking 
office on January 1, 1971, and it would "be a severe denial 
of due process" not to give the incoming board "full opportunity 
to have actively participated in the trial on the merits" 
should the court order any relief; (4) the trial on the 
merits should await action by the Supreme Court on scnool 
desegregation matters now pending before it (A. 40 - 43).

In its "Ruling on Motion for Continuance" the 
district court granted the Detroit Board's motion, stating as 
its reasons: (1) commencing trial on December 8 "would
result in fragmentation of the proceedings because of the 
impending holidays"; (2) the Detroit Board was engaged in 
preparation for administrative decentralization to take effect 

■ on January 1, 1971; (3) "it would be grossly unfair to the new 
central Board of thirteen members, only three of whom would be 
carry-overs, not to allow them time in which to warm their 
chairs and prepare for their participation in the trial on 
the merits"; (4) "there is a possibility that decisions in 
cases now before the Supreme Court of the United States

27/ This same estimate was given to the court on November 4,
1970, at which time it selected the December 8 trial date.

require eight to twelve trial days"'



will be forthcoming In the near future, and they may well 
affect the format and trial of this cause"; (5) that the 
Court's ruling on plaintiffs' motion to implement the April 
7 plan had resolved "the most urgent issue in the case" (A.100-0 1).

Plaintiffs were subsequently advised in Chambers 
that the district court would not schedule the trial on the 
merits to commence until some time in late March or April.

1

:

it
Jf-[

■24



ARGUMENT

"THE COURT: ... Naturally, but for the 
legislative action and the recall move­
ment, the April 7 plan would have been 
fully implemented this fall, would it not? 
A [Superintendent Drachler] Yes, sir." 
(11/4 Tr. 33).

.

.

!

—25”



Introduction

Before embarking upon an analysis of plaintiffs’ 
position and the opinion of the court below, it seems 
pertinent to summarize, stripped of legal formalism, what 
has happened to the rights of Negro plaintiffs in the 
context of this case.

On April 7, 1970, the Detroit Board of Education 
as then constituted adopted a plan of desegregation designed, 
in the words of former Board President Rev. Darneau L. 
Stewart, to correct the effects of the racial discriminatory
policies of the past: "This Board in past years helped to

. . . I
perpetuate segregation and must now undo the wrongs of the 
past" (8/27 Tr. 327-28). The plan adopted was a simple 
pairing plan. It paired predominantly white high schools 
with predominantly black high schools merely by redrawing 
the attendance boundaries for the schools in an east-west 
rather than north-south direction. By so redrawing the 
boundaries, because of the pattern of racial containment in 
Detroit, substantial numbers of black and white children
would be included in each high school.

. ‘ •
The plan was a "modest" one (11/18 Tr. 253),

but in the words of Superintendent Drachler, "(w)ithout
it each constellation (high school attendance area and
feeder schools) will continue a growing pattern of segregated
racial or economic enclaves . . . "  (quoted in Bradley v.
Mllllken, supra, slip op. at p. 4).



This modest effort at desegregation was met, however 
by a massive outpouring of white community hostility, racial 
fear and general furor in Detroit (E.g., 11/18 Tr. 160). The 
four School Board members who voted in favor of the April 7 
plan were recalled by Detroit's 6o$-white electorate;^1' 
the Michigan Legislature passed Section 12 of Act 48 which 
purposefully nullified the April 7 plan. To black parents 
in Detroit, the lesson of 812 and the recall movement was 
crystal clear: the schools which their children must attend
would remain segregated so long as a majority-white Legis­
lature and a majority-white electorate could so maintain 
them.

t. - ' • SSKft -i

In this situation, as Dr. Golightly said (11/18 
Tr. 171), "since as a minority they (black people) could 
not win politically they need to have the support of the 
courts." Yet plaintiffs return to this Court four months 
after the filing of this lawsuit, after three extensive 
hearings and one earlier reversal by this Court of a district 
court ruling, because black plaintiffs and parents in Detroit 
have been told that desegregation under the effective and 
simple April 7 plan need not occur precisely because of 
the same hostility to desegregation which spawned the recall 
movement and §12 of Act 48 itself.

28/ Although Detroit's public school enrollment is 65# black, 
its voters are 60# white (11/18 Tr. l6l).



, The District Court's Postponement
Of Relief Until September, 1971 
Denies Plaintiffs' Constitutional 
Rights In Direct Violation Of The Rule Of 
Alexander v. Holmes County Board 
of Education and Carter v. West 
Feliciana Parish School Board

The Fourteenth Amendment rights which plaintiffs- 
appellants assert in the present litigation "are, like all 
such rights, present rights; they are not merely hopes to some 
future enjoyment of some formalistic constitutional promise.
The basic guarantees of our Constitution are warrants for the 
here and now, and, unless there is an overwhelmingly 
compelling reason, they are to be promptly fulfilled." Watson 
v. City of Memphis, 373 U.S. 526, 533 (1963)(emphasis in 
original). "(A)ny deprivation of constitutional rights calls 
for prompt rectification." Id. at 532-33.

In its October 13, 1970 opinion in this case, 
this Court held that the State of Michigan, through legislative 
enactment, had deprived plaintiffs of their Fourteenth Amend­
ment rights. The Court said: "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." Bradley v. Mllliken, Bupra, slip op. at p. 8.

I

-28



The order now appealed from, postponing any relief'
until September, 1971# deprives the Detroit students whom 
this Court found had been denied their constitutional rights 
by action of the Michigan Legislature of any opportunity to 
enjoy their rights as tenth grade students.

Alexander v. Holmes County Bd. of Educ., 396 U.S.
19 (1969) commands that deprivations of the Fourteenth Amend­
ment right to equal educational opportunity be vindicated 
"at once"; the certainty of that command was made indelible 
in Carter v. West Feliciana Parish School Bd., 396 U.S. 226
(1969)(injunction pending certiorari), 396 U.S. 290 (1970)

29/(per curiam reversal of delay).— '

29/ Following Alexander, the Fifth Circuit delayed pupil 
integration3n sixteen school districts until September,

1970. Pending action on the petition for certiorari in 
Carter v. West Feliciana Parish School Bd., the Supreme Court 
entered an order (396 U.S. 22b (December 13, 1969)) requiring 
the school boards, pendente lite, to "take such preliminary 
steps as may be necessary to prepare for complete student ' 
desegregation by February 1, 1970." Following the Supreme 
Court's interim order in Carter, the Fifth Circuit, ruling on 
motions for summary reversal, for injunctions pending appeal 
and on petitions to recall and amend mandates, ordered school 
districts to take all steps preliminary and preparatory to 
second-semester implementation of complete pupil desegregation 
plans. Baird v. Benton County Bd. of Educ., 421 F.2d 700 (5th 
Cir. 1970); galley v. Rapides Parish School Bd., 422 F.2d 814 
(5th Cir. 1970); United State's v. Greenwood Municipal Separate 
School Dist., 422 F.2d I250 (5th Cir. 1970); Hilson v. Ouzts,
421 F.2d 632 (5th Cir. 1970); Jones v. Caddo Farish SchooT'Bd., 
421 F.2d 313 (5th Cir. 1970); Boykins v. Fairfield Bd. of Educ., 
421 F.2d 1330 (5th Cir. 1970); Williams v. Iberville Parish 
School Bd., 421 F.2d l6l (5th Cir'. 1970); Charles v. Ascension Parish School Bd., 421 F.2d 656 (5th Cir. 1970); Williams v. 
Kimbrough"," 421" F.2d 1351 (5th Cir. 1970). On January" 14"“ 1970, 
the Supreme Court entered its per curiam opinion in Carter 
(396 U.S. 290), reversing the Fifth Circuit insofar as it had 
delayed complete student desegregation for one semester. It 
was now crystal clear to all that the "at once" command of

-29-



In Christian v. Board of Educ. of Strong School
Dist. No. 83, No. 20038 (8th Cir., December 8, 1969), the

.
Eighth Circuit entered an order summarily reversing a 
district court's one-year delay in desegregating a school 
system which had come under court order for the first time 
(p. 2):

Upon review of the abbreviated record before 
us it is clear that the district has not 
taken steps to effectively implement a 
desegregated unitary school system and is 
operating contrary to law and the Constitution 
of the United States. The only defense pre­
sented is that this is the first time the 
district has been compelled to act by court 
decree and that it would be impractical and 
detrimental to the educational process to 

. require immediate desegregation. These 
claims can no longer serve as deterrents to 
immediate compliance with the law. Alexander 
v. Holmes, supra. It has long been incumbent 
upon the school boards to voluntarily accom­
plish an end to segregation without judicial 
prodding. See Brown v. Board of Educ., 347 
U.S. 483 (1954)1 (emphasis in original)

29/ (continued) Alexander meant exactly what it said. In 
Stanley v. Darlington County School Dlst., 424 F.2d 195, 

196 (4th Cir. 1970)1 Chief Judge Haynsworth,on the basis 
of Alexander and Carter, ordered mid-year "reassignment of 
58,00u pupils and their teachers"(424 F.2d at 197;* noting that

These decisions leave us with no discretion 
to consider delays in pupil integration 
until September 1970. Whatever the state 
of progress in a particular school district 
and whatever the disruption which will be 
occasioned by the immediate reassignment 
of teachers and pupils in mid-year, there 
remains no judicial discretion to postpone 
immediate implementation of the constitu­
tional principles as announced in Green 
. . .  Alexander . . . Carter . . . .



The same arguments which were urged upon the Eighth
Circuit in the Strong case were pressed upon the court
below; indeed, those very same reasons for deferring the
enjoyment of plaintiffs' constitutional rights were argued
to this Court in October. But the response of this Court can
be no different from that of the Fourth, Fifth and Eighth 

30/Circuits;,— 1 the constitutional rights involved are those
guaranteed by the Fourteenth Amendment —  the remedy must be

I ■accorded "at once."

Despite the district court's attempted distinction 
(A. 97), Alexander and Carter do apply to this case Just as

jthis Court held in October that the principles announced in
• I . . .  • !other school desegregation cases applied in determining the

constitutionality of §12 of Act 48 (Bradley v. Mllllken,
supra, slip op. at pp. 10-1 1 ); and the order below must be
reversed because it fails utterly to provide a timely remedy
for the deprivation of constitutional rights.

30/ Since the Supreme Court’s command in Alexander (with the 
emphasis added by Carter), the federal courts have not 

hesitated to carry out the mandate in mid-year and often in 
mid-semester. See^ e.g., Stanley v. Darlington County School 
Plat., supra (discussed in note 29 supra); United States v. 
Hinds County School Bd., 423 F.2d 1264, 1268 T5!H Cir. I969) 
(implementing the Supreme Court's decision in Alexander by 
ordering mid-year "transfer of thousands of schoolchildren and 
hundreds of faculty members to new schools"); Nesbit v. 
Statesville City Bd. of Educ., 4l8 F.2d 1040 ('4't'h""Ci'r. 1969) 
(en banc)"; United States v. Board of Educ. of Baldwin County, 
423" f72cT 10T3 (^th Cir .' 1970) (mid-semester) ; Christian v.
Board of Educ. of Strong School Dist. No. 83, supra. In a 
pre-Alexander case, the Eighth Circuit sitting en banc ordered 
a complete desegregation plan fully implemented-!)/ the start 
of the^second semester. Jackson v. Marvell School Dist. No. 
22, 4l6 F.2d 380 (8th Cir. 1969)(en banc)'.



II
The District Court Erred In Approving 
A "Free Choice" Plan Despite Compelling 
Evidence That The Technique Had Never 
Worked In Detroit, And In Basing That 
Approval On The Ground Of White Community 
Hostility To Other, More Effective Means 
Of Desegregation

Aside from the patently impermissible delay, the 
district court has erred substantively by ordering into 
September, 1971 effect a plan of high school organization 
which in effect has no relationship to plaintiffs' Fourteenth 
Amendment rights.

The district court makes the following findings:
1. "(W)e have in Detroit a community (society) 

generally divided by racial lines" (A. 92).
2. "A good education, to say nothing of the best 

education, cannot be achieved without integration" (A. 92).
3. The April 7 plan's "principal aim is to improve

integration by the 'numbers' . . (A. 94).
4. "(W)here a school district has taken steps

enhancing integration in its schools it may not reverse 
direction. In the setting of our case nonaction is (or amounts 
to) prohibited action . . . (A)ny action or failure to act
by the Board of Education designed in effect to 'delay, 
obstruct or nullify' the previous (April 7th) step toward 
improving racial balance in the Detroit schools is prohibited 
State action" (A. 98).

-32-



In the face of these conclusions and this Court's 
opinion, the district court has denied plaintiffs' motion 
to adopt "the best available plan" in the record^/ (United 
States v. Board of Educ. of Baldwin County, supra) which 
will effectively integrate a "number" of black and white 
children in the Detroit public schools pending the trial 
on the merits at which a more comprehensive desegregation 
plan for all schools may be ordered. In doing so, the court 
has permitted a reversal of direction by the Detroit Board, 
i.e., from a pairing plan of desegregation with the pupil 
assignments by the Board to a "free choice" or "magnet school" 
plan effective not September, 1970 or February 1, 1971 but 
"delayed" until September, 1971*

The McDonald Plan is but "freedom of choice" (South)
gone North ("open enrollment"); the McDonald open enrollment
concept has already proved itself to be as ineffective in

32/Detroit as "free choice" has been in the South.— ' The

31/ The district court is simply incorrect, however, when it 
states: "it is plaintiffs' view, as we understand it,

that the Court is limited to considering only the April Plan 
at this time" (A. 93). Plaintiffs initially opposed a 
hearing on the two alternative plans because on their face, 
they did not promise as much integration as the April 7 plan 
as required by the district court's November 6 order (ll/l8 Tr 
4-5). And in closing argument, in response to a direct ques­
tion by the court, plaintiffs' counsel stated that the Court 
was not limited to consideration of the April 7 plan but 
that the McDonald and Campbell plans were simply inadequate. 
(11/18 Tr. 335-36). Cf. Keyes v. School Dist. No. 1, Denver, 
303 F. Supp. 289, 296T5. Colo." 1969)'. *
32/ No "free choice" or "free transfer" plan has been approved 

in any reported post-Green decision of which plaintiffs 
are aware; such plans have teen rejected in numerous decisions 
of federal courts. See, e.g., Steele v. Board of Public 
Instruction of Leon County, 421 F.2d 1382 (5th 6ir. I969)S



Detroit experience with past "open enrollment" programs 
portends the failure of the McDonald Plan. Prior to 1966, 
the Detroit Board operated an open enrollment policy which 
provided that any pupil in the system could transfer to 
certain under-capacity schools which were listed as "open 
schools" each semester (8/27 Tr. 63-64). Because the policy 
operated in a manner adverse to integration, it was modified 
in 1966 by adding the qualification that a student could 
transfer to an "open school" only if his entry into that 
school would enhance integration. But, even with this 
qualification, as both the Superintendent and Member McDonald 
admitted, the policy resulted in a few blacks exercising the 
option to go to white schools, but no whites exercising 
the option in reverse (8/27 Tr. 53; 11/18 Tr. 17, 290, 291, 
315).

The McDonald Plan, in contrast to the April 7 
plan of two-way integration, will thus operate "simply to

32/ (continued) United States v. Greenwood Municipal
Separate School Dlst., 422 F.2d I250 (5th Cir. 1970); 

Singleton v. Jackson Municipal Separate School Dlst., 419 
F.2d 1211 (5th Cir. 1969), rev'd on other grounds sub nom. 
Carter v. West Feliciana Parish ScTTool B~3Y, 396 U.S. 2$0 
(1970); Lemon v. Bossier Parish School Bd., 421 F.2d 121 
(5th Cir. 1970); Hall v. St. Helena Parish School Bd., 417 
F.2d 801 (5th Cir. 1969)(38 school districts); United States 
v. Hinds County School Bd., 417 F.2d 852 (5th Cir.' "l'$6$) ('33” 
school districts); Anthony v. Marshall County Bd. of Educ., 
409 F.2d 1287 (5th Cir. 1969); Walker v. County School Bd. 
of Brunswick County, 413 F.2d 53 (4th Cir. 1970); Jackson, 
v. Marvell School Dlst. No. 22, 4l6 F.2d 380 (8th Cir. 1969) (en banc). ' — — — —



burden children and their parents with the responsibility 
which Brown II placed squarely on the School Board." Green 
v. County School Bd, of New Kent County, supra, 391 U.S. at 
441-42.

Conclusive evidence of the ineffectiveness of the 
McDonald Plan appears in past efforts by the Detroit Board 
to duplicate the integration which has occurred at Cass 
Technical High School,— ^ relied on so heavily by the district 
court and the plan itself. This effort, known as "Project 
One," arose out of concern by the Board in 1965 or 1966 that 
three of its high schools were becoming increasingly black 
in student enrollment. In an effort to stabilize the racial 
balance by attracting and retaining white students, the Board 
concentrated its specialized Science and Arts program in these 
three high schools and spent $1 million a year trying to 
implement the thesis of the McDonald Plan. Superintendent 
Drachler testified that the project was abandoned last year 
as a total failure (11/18 Tr. 293-94) .

33/ Cass Tech is a non-attendance-area high school in the
Detroit School System which draws its pupil enrollment on 

a city-wide basis. (8/27 Tr. 53). Cass Tech is 60.9% black, 
enrolling 4,302 students (Plaintiffs' Exhibit 10). Cass Tech 
is utilized as a college preparatory school and accepts for 
admission only those public school children who graduate from 
junior high school with a minimum B average; because of this 
selectivity, it has a reputation for academic excellence which 
makes it attractive to all parents in the City of Detroit (11/18 
Tr. 56), demonstrated by its highest mean scores on tenth and 
twelfth grade achievement tests of any other high school (Plain- 
tiffs| Exhibit 9A, p. 28; A. 107). Because of its academic 
superiority Cass is able to draw from the other high schools 
in the City of Detroit the most qualified students and also, 
apparently, most of the better qualified white students who 
desire an integrated education. Cass Tech is distinguishable 
from the McDonald Plan since the latter does not (and could not) 
limit admission to academically superior students and it will 
not attempt to draw on a city-wide basis; rather, each high 
school will attempt to draw students from two regions, one 
black and one white. (See A. 34-35).

-35-



Further, this same "magnet" plan was presented 
to the April 7 Board by Mr. McDonald in the first attempt 
to halt the desegregation effected by the April 7 plan, but 
it was rejected by that Board on April 14, 1970 (see page 
18 supra). The next attempt to nullify the April 7 plan 
came in the form of §12 of Act 48 wherein the Michigan 
Legislature commanded the Detroit Board to operate on a 
"free choice" basis "but providing priority acceptance . . . 
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. 
Bradley v. Mllllken, supra, slip op. at p. 23. The "special­
ized curriculum" exception in the Section was added by the 
Legislature as a result of Board Member McDonald’s efforts 
to obtain legislative sanction for his "magnet" plan which 
had been rejected by the Board on April 14, 1970 (11/18 Tr. 
37).

This Court held §12 unconstitutional on October 13,
1970. Yet, §12 survives in the form of the district court’s
order as effectively as if this Court had never spoken. The
majority of the current Board do not believe that the McDonald
Plan will result in integration,iLi/ and the district court

35/itself has serious reservations.— •

34/ See note 19, supra.
35/ "That it will promote integration to the extent projected 

remains to be seen . . . " (A. 95 )• McDonald himself 
admitted that a valid projection could not be made (11/18 Tr. 
203).



In contrast to the demonstrated ineffectiveness
of the McDonald Plan, the professional staff^^ and two
Board members with backgrounds in educationr^ urged the 

38/April 7 plan.

In a community "generally divided by racial lines"
the adoption by the school board and approval by the court of
previously used and ineffective techniques for desegregating
or improving the racial balance of Detroit’s public schools
does not accord plaintiffs their constitutional rights. This
Court, noting that "the April 7 plan came into being . . .  by
the voluntary action of the Detroit Board of Education in its
effort further to implement the mandate of the Supreme Court
in Brown . . . and succeeding cases, such as Alexander . . .
and Green • . ." (slip op. at pp. 9-10), held that the tenth
grade students in the twelve April 7 high schools have been
deprived of.their constitutional rights by §12 of Act 48.
Those students and others similarly affected and to be affected
are clearly entitled to a remedy for the wrong done them by
----------------------------- ; . • .
36/ See pages 19-20, supra, and note 25, supra.
37/ See note 15, supra.
38/ Dr. Golightly testified (11/18 Tr. 156-57, 158-59):

"(T)here is something fundamentally good about 
integrated education, or desegre^ed education, 
even if it merely means having in the classroom 
a black person and a white person together. . . .
If the issue is integration the simplest way to 
integrate a school system is to irtegrate it. I 
feel that in terms of the plans presented it 
(April 7 plan) is simple, straightforward, 
involves established and proven ways in which 
you would Integrate, you start out with elementary 

j schools that feed into junior high schools and

-37



•I

7>rI
Act 48. On remand, the lower court's obligation was to 
assess available methods of operating the Detroit public

'Kt

schools according to accepted judicial standards to determine 
what method would best vindicate the rights of plaintiffs.
The McDonald Plan should have thereby been rejected, for 
"if there are reasonably available other ways, such for 
illustration as zoning (e.g., the April 7 plan) . . .
'freedom of choice' must be held unacceptable." Green v.
County School Bd« of New Kent County, supra, 391 U.S. at 441.

Yet even a hurried reading of the district court's 
"Ruling on School Plans Submitted" reveals that the court has 
substituted its own educational theories for constitutional 
principles, and has dignified in a most unseemly manner the 
white hostility to desegregation which led to Act 48, the 
recall election, and the submission by the new Board of "free 
choice" plans by finding in that very hostility a justification 
for less effective means of desegregation than the April 7,
1970 plan.

The district court did not weigh the plans before 
it according to the result-oriented test of Green v. County 
School Bd. of New Kent County, supra; it did not implement 
the rule of Alexander v. Holmes County Bd. of Educ., supra

■ ■

38/ (continued)
junior high schools that feed into senior high 
schools. Now the April 7 plan was not as compre­
hensive as that. I understand they merely wished 
to start feeding from certain junior high schools 

. into the senior high schools but I repeat in terms of simplicity . . .  I have always felt if you are going to hire a black man, you hire him, if you are going to integrate, you. simply put whites and 
blacks together. _



and Carter v. West Feliciana Parish School Bd., supra 
that Fourteenth Amendment rights must be immediately vindi­
cated; it did not order into effect the plan before it which, 
however imperfect, promised the greatest immediate progress 
toward redressing the loss of plaintiffs' rights, United 
States v. Board of Educ. of Baldwin County, supra* In fact, 
these and other decisions which appellants suggest are very 
relevant (and many of which were cited in this Court's 
opinion at pp. 10-1 1 ), are conspicuously absent from the 
lower court's ruling. Instead, the court implicitly premises 
its decision upon the white flight-community hostility theories
rejected by the Supreme Court and this Court in Monroe v.} .
Board of Comm'rs of Jackson, 391 U.S. 450 (1968), on appeal

'
following remand, 427 F.2d 1005 (6th Cir. 1970).

Board member McDonald testified that his plan was 
the best because it had the support of the community and 
warned that if the April 7 plan were implemented, white 
people would resist and would send their children to other 
schools "or else they would block admission to the school 
or would keep their children from attending such schools"
(11/18 Tr. 46). The district court adopted the McDonald view 
of the April 7 plan: "It appears to us that the April Plan's
principal aim is to improve integration by the 'numbers,' as

(39/)several witnesses described it. — . . . Whether in the

39/ The only witnesses who so described it were McDonald and 
Hathaway (who were not recalled since they voted against 

the April 7 plan)(ll/l8 Tr. 223, 228). Member McDonald objects 
to the April 7 plan because it "makes integration the goal 
itself" (11/18 Tr. 23). The district court's ruling tracks



long run it would do even that is a serious question" (A. 94) * 
The McDonald Plan itself proceeds from the premise that 
"(t)ime would be required to create a community climate of 
acceptance for the concept" (A. 32).12/

This reason for refusing to implement the April 7 
plan cannot stand in the face of Monroe v. Board of Comm'rs 
of Jackson, supra; Watson v. City of Memphis, supra; Cooper 
v. Aaron, 358 U.S. 1 (1958); and Buchanan v. Warley, 254 U.S.
60 (1917). Accord, Walker v. County Bd. of Educ. of Brunswick 
County, 413 F.2d 53 (4th Cir. 1970); Jackson v. Marvell School 
Dist. No. 22, 416 F.2d 380 (8th Cir. 1969) (en banc); United 
States v. Hinds County School Bd., 417 F.2d 852 (5th Cir. 1969).

Again, McDonald in the language of the school board 
in Monroe equated effective integration with whites leaving 
the system. The proper deterrent, however, in the view of 
both Dr. Golightly (11/18 Tr. 165-66) and Dr. Flynn (11/18 Tr. 
253), is not capitulation .

39/ (continued) this reasoning: "Instead of offering a change
of diet, it offers forced-feeding" (A. 94-95). Indeed, the 

District Judge injects some new ideas of his own in preferring 
the McDonald Plan because "(i)t places the emphasis not on 
'desegration' (sic) (representing the legal rights of Blacks), 
but on 'integration' (an ideal of social acceptability)" (A. 96) 
While we disagree with the Court's distinction, we are quick to 
agree that the McDonald Plan does not "represent the legal 
rights of Blacks."
40/ The record indicates that the "acceptance"- sought is "accep­

tance" on the part of the white community only. Dr. 
Golightly testified that although "the April 7 plan has consid­
erable support in the community" (11/18 Tr. 159) , "I understand 
there is a real problem about obedience to the law on the one 
hand and consent on the other. But I also feel that speaking

-40-



to "freedom of choice," but implementation of the April 7
plan which would limit the number of "safe white havens" and
thereby seriously curtail the options available for white 

41/flight.— ' As Dr. Drachler testified, under the April 7 plan 
the boundary lines of the twelve affected high schools were 
changed from a north-south direction to an east-west direc­
tion, running to the city limits; thus, so long as white fam­
ilies remain in the City of Detroit, they cannot escape 
integrated high schools by merely moving across attendance 
area boundary lines (11/18 Tr. 310-11).

As a remedy for the constitutional deprivations suf­
fered and to be suffered by Detroit's students, therefore, the 
record categorically refutes the two proposed alternatives to 
the April 7 plan. The April 7 plan must be implemented by the 
start of the second semester, for "the road to integration is 
served neither by covert capitulation nor by overt compromise. 
. . ." Brunson v. Board of Trustees, 429 F.2d 820, 827 (4th 
Cir. 1970)(concurring opinion of Sobeloff and Winter, JJ.).

40/ (continued) for the black people of the community that 
we always have a feeling that obedience to the law re­

quires acceptance on the part of the black, obedience to the 
law requires an element of consent involving whites and that 
we all recognize one of the basic objections to the April 7 
plan, was the resistance of a large part of the white community" 
(11/18 Tr. 160).
41/ Dr. Golightly points out that "one of the reasons why we 

have had shifts in population has been an effort on the 
part of some members of the community to move into areas where 
they would have a homogeneous population and that the experience 
has been, I believe in some places and has been argued at least 
theoretically that if it is understood that there will be a ra­
cial balance in the far northwest side of the City of Detroit 
then there is no special reason to move to an all-white enclave. 
So that one possibility might be to have some sort of commitment 
such as the April 7, plan that it might conceivably stabilize 
neighbors" (ll/l8 Tr. 165-66).

-41- I' . '



Ill

•i
{:

Further Delay Of The Trial On The Merits 
Results In Denial Of Plaintiffs'
Fourteenth Amendment Rights

Plaintiffs have since August sought a hearing on 
the merits of their complaint. The Court has "cleared its 
docket" )■ three times to hear the case on the merits. In 
August, after one trial day, the scope of the hearing was 
altered (and properly so) to a hearing on the application 
for a preliminary injunction. Thereafter, the district court, 
as this Court noted in its October 13, 1970 opinion, set 
aside two weeks for the trial beginning November 2, 1970. The 
district court on November 4, on its own motion, delayed the 
trial for a month - with full knowledge of the estimates of 
trial time. Then despite this Court's opinion and the mandate 
of Alexander,' it on motion of the defendants continued (pre­
sumably after "clearing its docket" again) the trial until 
late March or early April or perhaps until all "outsiders" 
go away and give the defendants a "moratorium on all outside 
help". (See Exhibit A to this Brief.)

In Watson v. City of Memphis, 373 U.S. 526, 532-33 
(1963) the Supreme Court said: "[A]ny deprivation of constitu­
tional rights calls for prompt rectification." Alexander v . 
Holmes County Board of Educ., 396 U.S. 19 (1969), commands 
that plaintiffs be accorded their constitutional rights "at 
once"; the certainty of that command was made indelible in

-42-



Carter v. West Feliciana Parish School Board, 396 U.S. 226.
The delay by the district court until September of

any relief is part and parcel of the delay in a trial on the
merits. If the trial were promptly held as required and a
necessity for relief determined, sufficient time will be
required to fashion the appropriate remedy. No novel issues
of fact or law are presented by the trial on the merits and
there is no jury. Plaintiffs seek relief on classic Fourteenth

action
Amendment grounds alleging state/and non-action amounting to 
state action. See Brown v. Bd. of Ed., 347 U.S. 483 (1954). 
Alexander and Carter have set an emphatic standard of immediacy 
and "at once" with immediate hearing, prompt appellate review 
and implementation of the most effective plan pendente lite.
See, e.g., Nesbit v. Statesville City Bd. of Ed., 418 F.2d 
195 (4th Cir.). Our courts and our Constitution are founded 
upon the notion that constitutional rights will be protected 
and claims adjudicated by an independent judiciary which 
decides cases on the evidence and arguments before it accord­
ing to its best understanding of the law. See, e.g., Ex parte 
Milligan, 71 U.S. 2 (1866). In those unusual circumstances in 
which a lower court is Unable because of time or other factors 
to render a determination, special procedures are provided.
28 U.S.C. Sec. 1254, 1292(b); 28 U.S.C. Sec. 291(c), 292(b)

' • ; ' : . 4■ ' ^ ’ ' : ' V 4 ’ ' . '
and Rules 2 and 8 of the Federal Rules of Appellate Procedure.

> . .

43-



Conclusion

The April 7 plan if fully implemented for the 
second semester for all tenth graders will at least in part 
return the Detroit school system to a status quo similar to 
where it would have been but for the prohibited state action 
thwarting its implementation. There will then be time, 
after an immediate hearing on the merits, to determine whether 
and what further remedy is appropriate to eliminate the 
racially identifiable schools whose separateness was labeled 
and tainted by legislative command that they not be changed. 
Other proof may at the trial on the merits amplify and detail 
the 1962 "Finding and Recommendations of the Citizens Advisory 
Committee on Equal Educational Opportunities" that the Detroit 
System had engaged in acts and practices which had the purpose 
and effect of-separating pupils on the basis of race.il/ 
implementation of the April 7 plan for the second semester, 
however, will prevent the unconstitutional state act and 
community hostility to desegregation from having the exact 
intended effect of further depriving plaintiffs of a minimal 
start in enjoying their rights under the Fourteenth Amendment. 
To do otherwise is to give full force and effect to Section 12

~  lfH'esP (8/27XTr3 129"30) ? optional attendance

children S f e ' S T

-44-



while at the same time declaring it unconstitutional - a cruel 
mockery and an enduring lesson in civics for all Detroit black 
people and in particular the tenth grade students deprived of 
their opportunity to attend schools with a better racial mix.

The protestations of good faith and compliance with 
Keyes by counsel for the Board— / were subsequently repudiated 
by the Board's action in effect substituting Plan A - the 
McDonald "free choice" magnet plan - for April 7 and effective 
rescission of the April 7 Board plan of desegregation. Although 
the Board was, no doubt on advice of counsel, careful not to 
formally rescind April 7 and equally careful not to formally

43/ Counsel for the Detroit Board made the following concessions 
and assurances: "And there has been a consensus as between 

board superintendent and counsel that this board in light of 
the Court of Appeals decision is under an obligation to either 
implement the April 7 plan or its equivalent, depending on how 
the facts develop ... " (11/4 Tr. 27); "there is absolutely 
nothing in this record, or that could ever be put in this record 
to give any indication that this Board of Education is backing 
away or regressing from the April 7 plan. That is the Keyes 
[v. School District Number One, Denver, Colorado, 303 F.Supp.
279 and 289, 313 F.Supp. 61, 90 (D. Colo. 1970)] case in Denver. 
We accept that law. Once you take this step you can't back away 
from it" (11/4 Tr. 53); "I have advised them [the Board] and 
there has been absolute consensus on this last point, that in 
no event can this Board of Education take any action whatsoever 
that detracts from or tampers with that April 7 plan" (11/4 Tr. 
55); and, "On behalf of the Board of Education I say to this 
Court it really doesn't make any difference whether it was a 
constitutional obligation to adopt that plan or not, it is 
adopted. I also say on behalf of the Board of Education it 
will be implemented" (11/4 Tr. 56). •



adopt either Plan A or B, it effectively did both by sub­
mitting them to the Court and assigning priorities. Their 
concern and care are understandable if not effective. In 
Keyes v. School Dist. No. One, Denver, 313 F.Supp. 61, 66 
(D. Colo. 1970) , the new Board after rescinding previous 
desegregation resolutions, "passed Resolution 1533 which sought 
to achieve desegregation on a voluntary basis." The action of 
the present Detroit Board, no less than the action of the 
Denver Board; the rejection by the School Board in District 
151 of a desegregation plan proposed by the Superintendent 
because of community hostility, U.S. v. School District 151 
of Cook County, Illinois, 286 F.Supp. 786, 794, 796; 404 F.2d 
1125, 1113; 301 F.Supp. 201, 216-217; and the rejection by 
the Pasadena, California, Board of desegregation options 
because of racial hostility, Spangler v. Pasadena City Bd. of 
Ed., 311 F.Supp. 501, at 508 (D.C. Calif. 1970) constitutes 
impermissible "state action" which delays, impedes or frustrates 
efforts to effectuate rights of plaintiffs under the Fourteenth 
Amendment. Bradley v. Milliken, supra.

WHEREFORE, plaintiffs-appellants respectfully pray 
that the panel of this Court which rendered the October 13,
1970 decision in this matter be convened forthwith, and that 
the Court; enter its order (1) summarily reversing the December 
3, 1970 order of the district court and (2) requiring the



1971 (the commencement of the second semester of the current 
school year); or in the alternative, that the panel be convened 
forthwith and the Court enter an injunction pending appeal 
(1) requiring the appellee Detroit Board of Education to take 
all steps necessary and preparatory to the implementation on 
or before February 1, 1971 of the April 7 plan, (2) setting 
this cause down for an emergency expedited hearing, and (3) 
allowing appellees ten days in which to file any response to 
this Brief and accompanying Motion for Summary Reversal or in 
the alternative for Injunction Pending Appeal; and, in either 
event, providing that "The mandate in this cause shall issue 
forthwith. No stay shall be granted pending petition for 
rehearing, or application for certiorari." Valley v. Rapides 
Parish School Board, 422 F.2d 814 (5th Cir. 1970).

appellee Detroit Board of Education to implement the April 7
plan of high school desegregation on or before February 1,

Respectfully submitted,

LOUIS R. LUCASN* 
WILLIAM E. CALDWELL

E. WINTHER McCROOM Ratner, Sugarmon & Lucas
3245 Woodburn Avenue 525 Commerce Title Building 
Cincinnati, Ohio 45207 Memphis, Tennessee 38103

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

10 Columbus Circle 
New York, New York

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

10019
Of Counsel: BRUCE MILLER and

LUCILLE WATTS, Attorneys for 
J. HAROLD FLANNERY Legal Redress Committee
PAUL DIMOND N.A.A.C.P., Detroit Branch

Center for Law & Educ. 3426 Cadillac Towers 
Harvard University Detroit, Michigan
Cambridge, Massachusetts

Attorneys for Plaintiffs-Appellants 
-47-



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

For Appellants and a copy of the Appendix to Brief of Appellants 
has been served on counsel for the defendants, Mr. George E. 
Bushnell, Jr., 2500 Detroit Bank & Trust Building, Detroit, 
Michigan 48226, Mr. Theodore Sachs, 1000 Fanner, Detroit, 
Michigan, and Mr. Eugene Krasicky, Assistant Attorney General, 
Seven Story Office Building, 525 West Ottawa Street, Lansing, 
Michigan 48913, by United States airmail, postage prepaid, this

t

ij

-48-



i

s IN THE UNITED STATES COURT OP APPEALS 
FOR THE SIXTH CIRCUIT 

NO.

RONALD BRADLEY, ET AL,
Plaintiffs-Appellants,

vs.
WILLIAM G. MILLIKEN, ET AL,

Defendants-Appellees,
DETROIT FEDERATION OF TEACHERS, LOCAL 231 
AMERICAN FEDERATION OF TEACHERS, AFL-CIO,

Defendant-Intervenor.

AFFIDAVIT

PAUL R. DIMOND, being first duly sworn, deposes and says that 
he makes this affidavit:

I am a staff attorney at the Center for Law and Education, 
Harvard University, Cambridge, Massachusetts, and have participated 
of Counsel for the plaintiffs in this cause.

On Thursday, December 3, 1970, Honorable Stephen J. Roth held 
a press conference in his chambers concerning his rulings of that 
date in this cause. I was present during the entirety of the press 
conference which began at approximately 11:15 A.M. and ended at 
approximately 11:50 A.M.

Judge Roth stated that defendant school board's motion for con­
tinuance of the trial on the merits was granted because of the Court

; . ' ■ ■. ■ ■ ■ ■ ' | .. .

"EXHIBIT A"



The Judge stated that the trial on the merits would take at 
least 4 to 6 weeks trial time and would require the readjustment 
of his calendar to permit trial some time late in the spring.

The Judge further stated, concerning his ruling on plaintiffs' 
motion to implement plan, that the voluntariness of the so-called 
"McDonald plan", ordered into effect for the fall of 1971, was a 
virtue; that the Court's acceptance of such plan represented merely 
the "gentlest" and "beneficial nudge" rather than a judicial "shove".

Judge Roth stated that the McDonald plan would bring about 
integration although he was not sure when. Judge Roth stated that 
"forced integration" was not in keeping with the goals of quality 
and equality in education despite the trend of most federal court 
orders to "force integration", but that community hostility was not 
a factor in his decision. The Judge stated that he thought the 
experience with Cass High provided support for his view that the 
McDonald plan would promote integration.

Judge Roth stated that the McDonald plan presented a conflict 
with 8 region decentralization by pairing the 8 regions at the high 
school level. Judge Roth further stated that he could see no way to 
avoid such "jurisdictional overlaps."

The Judge stated that the issue to be decided at the trial on 
the merits is whether the Detroit public schools are segregated. A
reporter asked Judge Roth about the effect of a spring trial on the

. ;• . ' • ■■/.;! : ■
" . ' , •. ■. r. ■ . .

ruling on plaintiffs' motion to implement plan.

!



merits on the implementation of the McDonald plan in the fall of 
1971. The Judge replied that he had already heard a great deal 
of testimony, much of which would be incorporated into or repeated 
at the trial on the merits, and that it was his view, therefore, 
that it was "possible but unlikely" that the McDonald plan would 
be reversed by the trial on the merits.

Judge Roth concluded by stating that school administrators 
need a "moratorium on all outside help" in order to implement the 
"direction" they had been given by the Court's order.

Further affiant saith not.

*

STATE OF TENNESSEE: 
COUNTY OF SHELBY :