Defendant's Reply Brief

    No. 72-8002

IN THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

BOARD OF EDUCATION OF THE SCHOOL 
DISTRICT OF THE CITY OF DETROIT, 
a school district of the first 
class,

Appellant,
vs.
RONALD BRADLEY, et al,

Appellees.

On Appeal from the United States District Court 
For the Eastern District of Michigan 

Southern Division

REPLY BRIEF
OF APPELLANT BOARD OF EDUCATION OF THE SCHOOL DISTRICT 

OF THE CITY OF DETROIT, A SCHOOL DISTRICT OF THE 
FIRST CLASS AMD OTHER DEFENDANTS

RILEY AND ROUMELL
George T. Roumell, Jr.
Louis D. Beer 
Jane Keller Souris 
Russ E. Boltz
C. Nicholas Revelos, Of Counsel 
720 Ford Building 
Detroit, Michigan 48226 
Attorneys for Appellants and 
certain other named Defendants



TABLE OF CONTENTS

PAGE

Table of Authorities
Statement of Issues and Reply for Review 
Argument

ii
iii 
1

I DESPITE TIIE EFFORTS OF COUNSEL
TO MAKE IT SEEM SO, THE FINDINGS 
OF THE DISTRICT COURT CANNOT BE 
READ TO BE THAT THE DETROIT BOARD 

. OPERATES A DE JURE SEGREGATED
SCHOOL SYSTEM, AS THE DISTRICT 

. COURT ELIMINATED THE STANDARD DE 
JURE FINDING REQUIREMENTS THAT 
THERE BE A PURPOSEFUL SYSTEMWIDE 
INTENT TO SEGREGATE AND THAT THIS 
INTENT IS THE CAUSE OF THE CURRENT 
CONDITION OF SEGREGATION IN THE 
SCHOOL SYSTEM. 1

II RECOGNIZING THAT THE STATE HAS SOLE 
RESPONSIBILITY FOR PUBLIC EDUCATION 
IN MICHIGAN, IF THERE IS A BASIS FOR 
A CONSTITUTIONAL REMEDY, THE DISTRICT 
COURT DID NOT ERR IN ORDERING A METRO­
POLITAN REMEDY WITHOUT REGARD TO ARTIFICIAL 
CITY OR MUNICIPAL BOUNDARY LINES, TO 
ELIMINATE UNCONSTITUTIONAL, RACIALLY I DEN- 
TIFIABLE SCHOOLS IN THE DETROIT METRO­
POLITAN COMMUNITY, AS DEFINED BY NUMEROUS 
GOVERNMENTAL AGENCIES AND AS PERCEIVED 
BY ITS CITIZENS. . 8

19Relief Requested 
Appendix II 20



TABLE OP AUTHORITIES
PAGE

Alexander v. Holmes County Board of Education, 
396 U.S. 19 (1963)
Benoit v. Gardner
351 F.2d 846 (1st Cir. 1966)
Carter v. West Feliciana Parish School Board, 
396 U.S. 290 (1970)
Davis V. Board of School Commissioners of 
Mobile County,'
402 U.S. 33 (1971)
Davis v. School District of the City of 
Pontiac, Inc.,
309 F. Supp. 734 (E.D. Mich. 1970)
Green v. County School Board of New Kent County, 
391 U.S. 430 (1968)
Kelley v. Metropolitan County Board of Education 
of Nashville and Davidson County, Tennessee,

F. 2d , No. 71 1778---79 , 6th Cir.,
May 30, 1972)
Keyes v. School District No. 1, Denver,
445 F.2d 990 (10th Cir. 1971)
Keyes v. School District Nol 1, Denver, Colorado,
313 F. Supp. 61 (D. Colo. 1970)
Moss v. Hornig,
314 F.2d 89 (2nd Cir. 1963) .
Raney v. Board of Education,
391 U.S. 443 (1968)
Swann v. Charlotte-Mecklenburg Board of Education,
40 2 U.S. 1 (19 71)
Wright v. Council of the City of Emporia,

U.S. , 33 L. Ed.2d 51, 92 S. Ct. --  (1972)
FEDERAL STATUTES

16

14

16

18

2

16

10

3

5

14

9
8, 9, 10, 
16, and 17

9

28 USC §2281 14

11



Mo. 72-8002

IM THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

BOARD OF EDUCATION OF THE SCHOOL 
DISTRICT OF THE CITY OF DETROIT, 
a school district of the first 
class,

Appellant,
vs .
RONALD BRADLEY, ET AL,

Appellees.

On Appeal from the United States District Court 
For the Eastern District of Michigan 

Southern Division

REPLY BRIEF
OF APPELLANT BOARD OF EDUCATION OF THE SCHOOL DISTRICT 

OF THE CITY OF DETROIT, A SCHOOL DISTRICT OF THE 
FIRST CLASS AND OTHER DEFENDANTS

STATEMENT OF ISSUES IN REPLY PRESENTED FOR REVIEW

Despite the efforts of Plaintiffs1 counsel to make it 
seem otherwise, can the findings of the District Court be read

iii



to be that the Detroit Board operates a cle jure segregated 
school system when the District Court eliminated the standard 
de jure finding requirements that there be purposeful systemwide 
intent to segregate and that this intent be the cause of the 
current condition of segregation in the school system.

The District Court answered this question "yes".

The Appellant-Defendant Detroit Board contend the 
answer is. "no".

Recognizing that the State has sole responsibility for 
public education in Michigan, if there is a basis for a Constitu­
tional remedy, did the District Court err in ordering a metropoli­
tan remedy without regard to artificial city or municipal boundary 
lines, to eliminate the unconstitutional, racially identifiable schoo 
in the Detroit metropolitan community, as defined by numerous gov­
ernmental agencies and as perceived by its citizens?

The District Court said "no".

Assuming there must be a remedy the Appellant-Defendants 
say "no". .

IV



ARGUMENT
I.

DESPITE THE EFFORTS OF
OF THE DISTRICT COURT CANNOT

EL TO MAKE IT i 
BE READ TO BE

;EEM SO, THE FINDINGS 
THAT THE DETROIT

BOARD OPERATES A DE JURE SEGREGATED SCHOOL SYSTEM, AS THE DISTRICT 
COURT ELIMINATED THE STANDARD DE JURE FINDING REQUIREMENTS THAT TH 
BE A PURPOSEFUL SYSTEMWIDE INTENT TO SEGREGATE AND THAT THIS INTEN 
IS THE CAUSE OF THE CURRENT CONDITION OF SEGREGATION IN THE SCHOOL 
SYSTEM.

The first comment made by the Court from the bench on 
July 17, 1972, at which time the issues of this appeal were 
first argued was "It is a fundamental principle of lav/ that Courts 
speak through their orders". This message seems to have been 
lost by various parties, or at least ignored for their own purposes.

The District CouFt has not found a dual, or de jure, 
segregated school system operating in Detroit. The District Court 
has not found that the Detroit Board operated the Detroit School 
system v/ith the purpose of intent of segregating the System. Nor 
did the Court properly find that the acts of the Detroit Board v/ere 
the "principal" or proximate cause of the "current condition of 
segregation that does exist" in Detroit.

Plaintiffs have presented a sixty-two page synopsis of 
the evidence they presented to the District Court in attempting 
to persuade that Court the Detroit Board did act v/ith a system­
wide segregatory purpose. Their recitation only underscores the 
fact that the District Court when presented with evidence on which

1

i-3
 H



it was urged to make a de jure finding of a purposeful pattern
of segregation, such as that found in Davis v. School District 
of the City of Pontiac, Inc. 309 F. Supp. 734 (E.D. Mich. 1970} 
aff'd. 443 F.2d (6th Cir.1971), chose not to do so. In Davis 
the District Court Found:

"This Court finds that the Pontiac Board of 
Education intentionally utilized the power at 
their disposal...in such a way as to perpetuate 
the pattern of segregation within the City and 
thereby, deliberately prevented integration."
(Emphasis added).

No such finding is made in the case at bar. Indeed the 
District Court in its second conclusion of law denies the neces­
sity for such a finding, thereby undertaking to change the law 
rather than meet the current standard. (App. Ia211).

To be sure the District Court does not entirely abandon 
the concept of purpose, as it does state that there must be some 
purposeful act. (App. Ia210). But, this statement, when read with 
the District Court's Conclusion of Law, denying the intent require­
ment, clearly refers to the mere existence of some act of discrimi­
nation not to the existence.of a pattern of such actions from which 
intent to segregate the system can be inferred.- No specific inferene 
or finding of a purposeful pattern of discriminatory acts is ever

2



specifically made with regard to the acts of the Detroit Board.

With the possible exception of the location of one 
school there is no finding of purpose or intent with regard to any 
individual act of the Detroit Board. While the Court did find that 
the "natural probable and actual" consequence of certain acts was 
a segregated condition at a particular point in the past at 

certain schools the Court never specifically made the inference 
from this that the foreseeability of such a result indicates segre- 
gatory intent. If it was the meaning of the Court to infer purpose 
merely from the result of certain actions the Detroit Board would
note that the standard is a novel one, having been rejected by

» ;
the appellate court in Keyes v. School District No. 1, Denver,
445 F.2d 990 (10th Cir. 1971).

Plaintiffs, of course, cannot be heard to impeach their 
own judgment and the Detroit Board does not understand them to 
argue that the findings of the District Court were "clearly erroneous 
Therefore, the Detroit Board does not choose to reply in kind and 
defend the absence of a finding by the Court of the existence of 
a purposeful pattern of segregation.

1. The Detroit Board takes no position on the question of whether 
the findings made against the State Defendants are traditional de 
jure findings, contemplating both intent and causation. Whether- 
such findings are in error has been argued by other parties. It is 
entirely possible that in finding that some purposeful act of segre­
gation had been committed the District Court had reference to the 
acts of the State, not to the various actions of the Detroit Board 
which the Court criticized without specifically finding segregatory 
system-wide intent.



Suffice it to say that the Detroit Board on the issue 
of a purposeful intent to segregate the system presented consider­
able testimony of its own, both in refutation of the charges made 
by Plaintiffs at trial and repeated in their brief here, and, of 
equal importance, substantial testimony on the many programs of 
the Detroit Board designed to counteract segregation including 
its outstanding successful faculty integration program. On this 
point the Detroit Board prevailed. Indeed, the District Court 
dwelt at considerably more length in its Ruling on Issue of Segre­
gation on the acts of the Detroit Board it found praiseworthy, 
than it did on those v/ith which it found fault. (App. Ia205-210). 
Plaintiffs' assertion that the April 7, 1970 plan was the "first 
significant act" of integration in the Detroit schools is simply 
that, an assertion unsupported either by the evidence or the 
opinion of the Court.

Similarly Plaintiffs at this late date seek to repair 
the absence of either evidence or findings of the District Court 
that there was any direct causal connection between the acts of the 
Detroit Board and the current condition' of segregation. In so 
doing, they both underscore - the absence from the findings of the. Corn 
that the Detroit Board is causally responsible for the current 
condition of segregation and highlight the absolute necessity 
that such a finding be present. It is of considerable signi­
ficance that in setting forth the "principles essential to a

4



finding of de jure segregation" this Court sets forth virtually

verbatim three of four such principles set forth in the 
Court Opinion in Keyes v. School District. No. 1, Denver 

313 F. Supp. 61 (D. Colo. 1970), to-wit:

District 
Colorado,

"1. The State, or more specifically, the school 
administration, must have taken some action with 
a purpose to segregate;
2. this action must have in fact created or 

aggravated segregation at the school or schools 
in question;
3. a current condition of segregation must 

exist;"313 F. Supp. at 73.

The fourth principle, which the Keyes Court found to be essential 

has been omitted:

"4. There must be a causal connection between 
the acts of the school administration complained 
of and the current condition of segregation."
313 F. Supp. at 73.

This principle, lacking here, is, in the view of the 

Keyes Court, the most important:

"The final and most important element in this case^ 
is that of a causal relationship between the discrimi­
natory action complained of and the current condition 
of segregation in the school or schools involved. Thus 
it would be inequitable to conclude de jure segregation 
exists where a de jure act had no more than a trifling 
effect on the end result which produced the condition. 
In such a case, no relief can be granted, for it is not



the duty of a Court of equity to punish a school 
board for all past sins, but rather to afford a 
remedy only where past sins have resulted in present 
injury." 313 F. Supp. at 74-75. (Footnote omitted).

Plaintiffs, finding their appellee posture uncomfortable
on this point, apparently abandon it and suggest in arguments to
this Court which will fill this void in the District Court Opinion!!1/
They do this by the assertion that it is "obvious" that the
construction of new schools to serve newly-developed areas drew
more Whites to those areas. Why this should be so obvious as
to escape both the record and the opinion of the Court'is not made
c l e a r . I t  is equally unclear why this should be considered true .
when the evidence before the Court with regard to housing patterns

* :

reveals not the building of schools in anticipation of housing, but 
school construction to relieve conditions of overcrowding in establish* 

though racially-changed, neighborhoods.

Plaintiffs thus, by their attempts to reargue the case 
and improve upon the judgment they have obtained before the 
District Court, evidence that they understand, as does the Detroit 
Board, both that the law requires findings of a pattern of purposeful 
segregation and a finding of a causal relationship between purposeful 

la. See page 6a overleaf.
2. Plaintiffs make no reference to the record or opinion in support 
of this position.

6



from page? 6

la. In virtually every instance where Plaintiffs 
of segregation by drawing attendance lines so as 
White and one Black school, the school allegedly 
Whites is presently predominantly Black. Moving

have complained 
to create one 
reserved for 
the allegedly

offensive attendance line would still leave two Black schools.
Similarly, Plaintiffs have consented to further construction 

at schools at which they complained construction was discriminatory 
and additional exceptions to the general construction injunction 
not consented to by Plaintiffs have been granted by the District 
Judge at several all Black schools. This further shows the lack 
of any causal or purposeful relationship between acts of the 
Detroit Board and the current condition of segregation. How can 
the action of the Detroit Board in setting attendance lines 
allegedly designed to maintain a White school be said to cause theit 
school now to be Black? How can it be argued that the Court believes 
the existence of Northwestern, Murray, Kettering and Northern, all 
of which are virtually all Black high schools to be causative of 
the current condition of segregation, when it has approved substan­
tial additions at all of them? •

6a



segregatory acts and the current condition of segregation in

order to sustain a de jure finding. They further understand 
that this District Court did not meet these requirements. Absent 
those elements, the finding of the Court is a de jure finding in 
name only. Thus, the District Court has clearly established 
that what it finds offensive to the Constitution is, not the 
conduct of the Detroit Board of Education, but the presence in 
racially identifiable schools of the Black students it has tried 
to serve. If this Court finds this condition Constitutionally 
offensive it should say so forthrightly, rather than stretching 
the concept of de jure segregation beyond- any rational defini 
tion, so as to provide the -desired substantive result. As has 
already been argued, the mere presence of only some remote 
purposeful acts and the condition of segregation currently existing 
creates no different effect on the Constitutional rights of 
Black school children, than does a racially identifiable school 
produced by "benign" de facto influences. It is the lav/ of this 
circuit that de facto segregation does not give rise to a remedy.

Therefore, since there is no basis 
influences, there can be no remedy 
for what the District Court found,

for a remedy for de facto 
under the law of this Circuit 
which was not the classical

de jure violation.

7



II

RECOGNIZING THAT THE STATE HAS SOLE RESPONSIBILITY FOR PUBLIC 
EDUCATION IN MICHIGAN, IF THERE IS A BASIS FOR A CONSTITUTIONAL 
REMEDY, THE DISTRICT COURT DID NOT ERR IN ORDERING A METROPOLITAN 
REMEDY WITHOUT REGARD TO ARTIFICIAL CITY OR MUNICIPAL BOUNDARY 
LINES, TO ELIMINATE UNCONSTITUTIONAL, RACIALLY IDENTIFIABLE SCHOOLS 
IN THE DETROIT METROPOLITAN COMMUNITY, AS DEFINED BY NUMEROUS 
GOVERNMENTAL AGENCIES AND AS PERCEIVED BY ITS CITIZENS

The Detroit Board of Education reiterates its position 
that there is no basis in the law of this circuit for a remedy 
here. However, if this Court should find a Constitutional basis 
for a remedy, either by changing the law, finding de_ jure segrega­
tion in the actions of the State Defendants or by disagreeing with 
the arguments of the Detroit Board, then it is self-evident that 
the District Court was correct in ordering a metropolitan remedy.
The following outline sets forth the reasons compelling a 
metropolitan remedy in the Metropolitan Detroit community.

1. This is not a racial balance case. Instead, the 
District Court used a racial proportion as a 
starting point for desegregation as specifically 
endorsed by Swann.

2. The community involved is the metropolitan 
Detroit community; not just a part of the metropo­
litan Detroit community.

3. A finding of de jure acts or the des jure establishment 
of school boundaries on the part of the suburban school

8



districts is unnecessary even if this Court were 
to proceed on standard de jure grounds because 
of their legal relationship to the State.

4. A Detroit-only remedy is Constitutionally 
impermissible.

!* THIS IS NOT A RACIAL BALANCE CASE.

This is not a racial balance case. The District Court 
found that the schools in Detroit averaging 67% Black are racially 
identifiable in a community that is three-quarters White. Swann v . 
Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971). There 
is nothing Constitutionally repugnant to having Black majority 
schools per se in majority Black communities. However what is 
Constitutionally repugnant is a so-called remedy which would main­
tain a set of majority Black schools, clearly identifiable as dif­
ferent in a community in which the vast majority of the rest of 
the schools are all white. Swann v. Charlotte-Mecklenburg Board 

of Education, supra.

The Intervenor School Districts suggest that the Supreme 
Court in Wright v. Council of City of Emporia, 40 USLW .4 806 
(June 20, 1972), and Raney v. Board of Education, 391 U.S. 443 (1968) 
has approved desegregation plans with ratios of 66% Black to 34% 
White. Both cases involved Supreme Court decisions ordering 
effective integration; the issue of ratios was neither briefed, 
argued, nor decided. Moreover, both cases Involved decisions

9



affecting county-wide areas, and rural, majority Black communities. 
Such a situation does not obtain in the present case. The Metro­
politan Detroit community is urban and majority White.

But where the community is majority White, then a "remedy 

which retains racially-identifiable Black schools is repugnant to 
the Constitution of the United States of America just as a system 
of racially identifiable schools would be repugnant in a majority 
Black community. The supreme Court in Swann, supra, specifically 
held, as we said at page 76 of our initial brief, every school, 
or almost every school, should contain a mixture of the races that
roughly approximates the make-up of the student community as a whole.

» :

If there is any question as to the meaning of Swann 
in the Sixth Circuit, this has been settled, as we pointed out 
at pages 76 and 77 of our initial brief, in Kelley v. Metropolitan 
County Board of Education of Nashville and Davidson County, 
Tennessee, in which this Court approved of the District Court's 
use of racial mix, because it approximated the "proportion of 
the White and Black students in the area." (Emphasis added).

(Slip. Opinion, p, 22) .

What the District Court here did was look at the Detroit 
Metropolitan community of 780,000 students and, in the words of 
Swann, use racial ratios as "a starting point in the process of

10



shaping a remedy, rather than [as] an inflexible require­

ment ," 402 U . S. at 25.

2. THE COMMUNITY INVOLVED IS METROPOLITAN DETROIT.

The Intervenor School Districts, after denying that 
there is a metropolitan community and suggesting that their opposi­
tion to "busing” is not racially motivated, contradict themselves 
when they state at page 53 of their brief:

"The remedial order of the District Court extends 
far beyond the dimensions of the Constitutional 
violation found and seeks to achieve a salt and 
pepper dispersidn of students between the Detroit 
school district and fifty-two (52) other school 
districts...",

and they admit, on page 54 of their brief, that the community 
is the metropolitan community:

"The effectuation of a more desirable racial 
balance in the schools in the Detroit Metropolitan 
area...is a purpose beyond the scope of this 
TTETgation. " (Emphasis added.)

We again refer to Findings of Fact on June 14, 1972, Findings 75,
7G and 77 (App. I-a517-518) which we set forth in full in our 
initial brief at page 71. We list, with references to the Appendix, 
the essentials establishing the metropolitan nature of the Detroit 

community.

11



A. Cross-District busing for some educational .
purposes, particularly in the area of special 
education currently is in effect. (App. Xa2.24).

B. The Detroit Metropolitan community is classified 
as a single Standard Metropolitan Statistical 
Area by the United Staites Census Bureau. (App.
Va89).

C. The Detroit Metropolitan community has joined 
together for a metropolitan sewage system.

(App. Va94) . .
D. The Detroit Metropolitan community has joined 

together for *a metropolitan water system.
(App. Va94).

E. The Detroit Metropolitan community has joined 
together for a metropolitan transportation system. 

(App. Va94) .
F. There is a metropolitan park authority. (App. Va94)
G. A number of suburban school districts are not 

coterminous with city limits, including for example 
Bloomfield Hills. (App. Va94).

H. The economic and social life of the Detroit Metro­
politan community is in fact metropolitan in scope. 
(App. Va87,Va38,VIIa84).

12



THE QUESTION OF DE 
THE SUBURBS IS UNNE 
LEGAL RELATIONSHIP

JURE ACTS O: 
CESSARY DEC. 
TO THE STAY

\f Til 
\USE

E PART OF 
OF THEIR

The suggestion that a de jure finding must be made 
against the suburbs is totally irrelevant. Assuming for argu­
mentative purposes that this Court proceeded on a de jure basis 
and that there cannot be any showing of de jure acts on the 
part of the suburban school districts or with regard to the 
drawing of their boundary lines, the results here would be the 
same. Contreiry to the statement by the Intervenor School Districts 
in their brief (p. 53) that the metropolitan school districts are 
as independent from one another as is one State from another, the 
Detroit Board has demonstrated with clarity the pervasive power 
over individual school districts of the State and has shown that 
the districts are mere instrumentalities or agents of the State.
We direct the Court's attention to pages 41 to 55 of our brief, 
together with Appendices A-G, and further note a Detroit Free 
Press article this week reporting that Willow Run has asked per­
mission of the State Board of Education to reduce the length of 
school days. (See Appendix H attached hereto). The absence of 
any rebuttal in the State Defendants' Reply Brief concedes the 
argument that the State has 'sole responsibility for education 
in Michigan.

If the District Court's findings that the Detroit Board, 
as well as the State of Michigan, practiced de jure segregation

13



are sustained, the State is responsible for a remedy. If the 
Detroit Board committed such acts, as an agent or instrumentality 
of the State, its actions constitute State action, and the State 
is responsible for a remedy. If the State alone committed acts, 
again, the State is responsible for a remedy. The Intervenor 
Suburban School Districts have deliberately ignored their rela­
tionship vis-a-vis the State of Michigan.—^ It makes no difference 
what the suburbs did or did not do. It makes no difference what 
the basis was for drawing their boundary lines. These suburban 
school districts are an integral part of the State's system of 
education and when there is an unconstitutional violation in that 
system they must form part of the remedy. If the State is respon­
sible for a remedy either because of the State's own actions or 
because of the actions of its agent, the Detroit Board of 
Education, or both, the State can properly be ordered to implement 
a remedy that involves the suburban school districts contained within 
the Detroit Metropolitan community which, as administrative con­
veniences of the State, are nothing more than the State itself.—^

1. The word "deliberately" is used advisedly. Although suggesting 
that they are not mere instrumentalities of the State (page 53 of 
Suburb's brief) the suburban school districts at page 76 of their 
brief boldly write, "these school boards are State officers" when 
asking for a three judge panel pursuant to 28 USC 2281. Furthermore, 
their arguments concerning a three judge panel are specious in that 
the District Court's June 14, 1972 order in no way declares a State 
statute unconstitutional. Restraining orders directed to actions pur­
suant to Constitutional statutes do not require three judge panels.
See, e•9• Benoit v. Gardner, 351 F.2d 846 (1st Cir. 1966); Moss v.
Hornig, 314 F.2d 89 (2d Cir. 1963).
2. The arguments of the suburban school districts that they were 
denied due process, because of the conditions of intervention imposed 
by the District Court are without merit. A finding of de jure segrega­
tion on the part of the Intervenor Suburban School Districts is not
a pre-requisite to the extension of the remedy as to them, for this 
remedy is based upon their legal relationship to the State.

14



4. A DETROIT-ONLY PLAN IS CONSTITUTIONALLY 
IMPERMISSIBLE.

It is the contention of both the Intervenor School 
Districts and the State Defendants that the District Court's 
finding that "relief of segregation in the Detroit public schools 
cannot be accomplished within the corporate geographical limits 
of the city", is in error. (App. Ia536). This contention com­
pletely ignores the Constitutional rights of 289,000 Detroit 
school children. The State Defendants and the Intervenor School 
Districts are themselves in error when they suggest that the Distri
Court failed to explain why a remedy limited to Detroit cannot be 
accomplished.

We call the Court's attention to what the District Court 
stated in its Findings of Fact and Conclusions of Law as to Detroit 
only plans in its Opinion of March 28, 1972. (App. Ia452-461).

With regard to Defendants' Plan A, the District Court
found:

"4. As conceded by its author, Plan A is neither 
a desegregation nor an integration plan."

As to Defendants' Plan C, the District Court held:

15



2. We find that this plan covers only a portion 
of the grades and would leave the base schools no 
less racially identifiable."

Insofar as Plaintiffs' Plan was concerned, the District 

Court said:

"7. The [Plaintiffs'] Plan would make the 
Detroit school system more .identifiably Black, 
and leave many of its schools 75 to 90 per cent 
Black.
"8. It would change a school system which is 
now Black and White to one that would be per­
ceived as Black, thereby increasing the flight 
of Whites from the City and the system, thereby 
increasing the Black student population."

Thus, the District Court's conclusions of law on this 

point, were most explicit.

"2. On the basis of the court's findings of 
illegal school segregation, the obligation of 
the school defendants is to adopt and implement 
an educationally sound, practicable plan of 
desegregation that promises realistically to 
achieve now and hereafter the greatest possible 
degree of actual school desegregation. Green v. 
County School Board, 391 U.S. 430; Alexander v. 
Holmes County Board of Education, 396 U.S. 19; 
Carter v. West Feliciana Parish School Board,
39 6 UTsT 290; SwanrTv. Charlocte-Mecklenburg 
Board of Education, 402 U.S. 1. (Emphasis added).

"4. Plaintiffs' Plan, while it would provide 
a racial mix more in keeping with the Black-White 
proportions of the student population than under 
either of the Board's plans or as the system now 
stands , would accentuate the racial identiflability 
of tha district'as a Black school system, and would 
not accomplish desegregation - (Emphasis added).

16 -



!l5. The conclusion, under the evidence in this 
case, is inescapable that relief of segregation in 
the public schools of the City of Detroit cannot 
be accomplished within the corporate geographical 
limits of the city ■l; (Emphasis added) .

In other words, complete relief within Detroit in the 
Constitutional sense is impossible. Detroit, as previously shown, 
is the hub of a highly interrelated metropolitan area which con­
tains a public school population that is approximately 80% White 
and 20% Black. Yet the student population within the Detroit school 
systen is 65% Black-35% White. There are no steps the Detroit Board 
can take within its boundaries which will desegregate the Detroit 

Public Schools.

Implementing a Detroit-only plan would "desegregate" less 
than one-third of the real community, leaving more than two-thirds 
unaffected. Not only would a Detroit-only plan leave nearly 
every child in Detroit in a racially idenrifiable school, the 
City children in Black schools-and the suburban children in White 
schools, but such a result as a remedy would also be highly suspect 
in light of the statement in Swann that schools of one race "will 
recuire close scrutiny" and that there is a presumption against . 
schools that are substantially disproportionate in their racial 
composition." Swann v. Charlotte-Mecklenburg Board of Education, 

402 U.S. 1, 26 (1971).

Although the State Defendants in their Reply Brief place

17



great reliance on Dr. Gordon Foster's testimony, Di.. I Oo ter elsewher 
stated that the only remedy to end racial isolation, to prevent 
racially identifiable schools, and to obtain the greatest possiole 
degree of actual school desegregation is a metropolitan one. (App. 
Val9 3) . Even Plaintiffs' Detroit-only plan, according to Dr.
Foster, would leave Detroit children with a feeling of racial 
isolation "in relation to the metropolitan area." (App. Val87).
Dr. Foster also recognized that, with the mobile racial movements 
in Detroit, a desegregation plan within the City of Detroit would 
postpone any benefits of desegregation. (App. Val90). Others who 
testified including Dr. James Guthrie, recognized that a Metropoli­
tan Detroit remedy was apprppriate to achieve desegregation. (App. 

Va221-229).

As the United States Supreme Court stated in Davis v . 
Board of School Commissioners of Mobile County, 402 U.S. 33, 3/ 
(1971)/ "The measure of any desegregation plan is its effectiveness 
Testimony presented a_t trial on rhe issue anct the findings of the 
District Court clearly indicate that a Detroit-only plan would 
be Constitutionally ineffective. The elimination of racially 
identifiable schools throughout the Detroit Public School system 
Constitutionally necessitates, if the finding of a deprivation oi 
Constitutional rights is sustained, a desegregation order directed 

to the appropriate metropolitan community.

18



For the reasons set forth above and as set forth in 
our initial brief, Defendants-Appellants, Detroit Board of 
Education, et &1_, pray that this Court dismiss the Complaint 
filed, herein on the ground that there has been no violation of 
Plaintiffs' Constitutional rights. If this Court should find 
a violation of Plaintiffs' Constitutional rights necessitating 
a remedy, then Defendants-Appellants, Detroit Board of Education, 
et 9-11 pray that the District Court's Metropolitan Remedial Order 
be affirmed.

RELIEF REQUESTED

Respectfully submitted, 
RILEY AND ROUMELL

Jane Keller Souris 
Russ E. Boltz
C. Nicholas Revelos, of Counsel 
Attorneys for. Appellants and

certain other named Defendants 
720 Ford Building .
Detroit, Michigan 48226 
Telephone: 962-8255

Dated: August 21, 1972

19



APPENDIX II

Half-Day School 
OKd This Year 
At Willow Run

By United Press international

Schoolchildren in the Willow j 
Run School District may find j 
themselves spending half as • 
much time in school this year, j 
The State Board of Education \ 
g a v e  permission to Willow i 
Run Wednesday to go on half- j 
day schedules, or four hours a 
day.

W i 11 o w Run has been 
. plagued by financial difficul- 
: ties compounded by a millage 

defeat June 12, Officials said 
the community would be given 

' another chance Sept. 12 to ap- 
■ p r o v e  a eight-mill opera- ,
'■ tional tax. \
1 If the millage fails again, ] 
! officials said the half-day ! 
j plan would go into effect. j

Detroit Free Press, August 9, 1972