Attorney Notes on State Defendants' Petition for Rehearing En Banc

    STATE DEFENDANTS * PETITION FOR REHEARING EN BANC

1. At pages 2-3, State Defendants’ Argument:
Plaintiffs should be bound by their original pleading which 
concerns only [violation and remedy] the Detroit school 
district and which has never been amended or supplemented.

Plaintiffs responses:
A. The original pleadings are amended by the proof introduced 

at trial; and there is no claim of harm and there cannot 
be because the state defendants were on notice of the 
pleadings and the evidence introduced at all stages
of the trial on violation and hearings on remedy.

B. The original complaint alleged various state actions—  
by state defendants, local defendants, state lav; and 
otherwise— which foster segregation within and of the 
Detroit public school system [however, a fair reading 
of the complaint does show that the thrust of the 
allegations is within Detroit segregation]'the ultimate 
relief prayed for in the complaint is what plaintiffs 
still seek:

"Entry of decree directing defendants [including 
state defendants] to present a complete plan for 
the elimination of the racial identity of every 
school in the [Detroit school district] and 
to maintain now and hereafter unitary, non-racial 
school system.,. .Such a plan should include the 
utilization of;the integration of schools 
including re-zoning, pairing, grouping, school 
consolidation, use of satellite zones, and 
transportat ion."

C. Moreover, proof cd1 trial concerned various acts of 
local defendants, state defendants and other public 
action (e.g., Act 48, bonding authority, transportation, 
reimbursement discrimination), but not violation by 
suburban districts?which showed how black children are 
contained in identifiable black schools by force of 
public action.

D. At all pertinent points in the proceedings, state 
defendants were on notice of the scope of proof as to
violation and remedy.



The trial Court and panel considered the matter as a suit 
against the state [under a theory of vicarious liability]; 
and the state rnay not be sued without its consent in 
Federal Court under such a theory of vicarious liability 
of the state or state officials.

Plaintiffs' responses: .
A. This is a suit against named state and local defendants; 

and the judgment of the trial court runs against and 
binds, pursuant to Rule 65, F.R.Civ.P., only those 
named parties, their agents, successors, etc.

B. Therefore, the suit is not against the state, but 
follows the 14th Amendment pleading practice approved 
since ex parte Young. (See e.g., Sterling v. Constantin, 
Griffin v. Prince Edward County).

C. Proof of wrong-doing, however, may go against state 
actions which were not instituted by named defendants.
For example, (1) the acts of their predecessors in 
office, (2) the public acts of the State of Michigan 
which discriminated along school district lines and, 
racially identified schools, and contributed to 
segregation of schools within the city and throughout 
Metropolitan area. State defendants surely would
not argue that local school board’s cannot be required 
to desegregate schools which were segregated by 
reason of state laws. Similarly, state defendants have 
no basis for arguing that they are not similarly 
"vicariously liable." This is merely a result of 
the ex_ parte Young fiction to enforce the lAth Amendment; 
that is, the named defendants can be required to 
take all actions within their power, including their 
residual constitutional duties, to provide relief for 

. plaintiffs whose rights have been violated by any
state action. In this cause, there can be no 
question but that the state actions complained of} 
concerning actions by state and local school authorities,

2. At p. 3, State Defendants' Argument:



0 I ' A ,aneractions directly affecting, and setting the framework 
for, the system of public education in the state.

^ frorD. There is no ambiguity and no fte±r\ in the District 
Court or the Sirr?l\ ruling that the state .actitf̂ jr 
through its officers or agents, acted unconstitutionally 
to create, maintain, validate6s. augment school segre­
gation in the Detroit area.

E. Proof of segregative acts in a school case may go
what .

beyond/ the particular named defendants did, (1) to 
show causation and relative responsibility, (2) to 
rebut the claimed defenses (i.e., -wheoe /patterns over 
which school authorities had no control), and (3) to 
show public acts of the State of Michigan which 
contributed causally to the segregation and/or 
racial identification of schools. As noted, however, 
the judgment ..pursuant to Rule 65. runs only against 
those who are parties, etc.



Neither the Trial Court nor the panel made any specific 
findings of misconduct against the Governor and the 
Attorney General as indeed on the record they could not; 
also, no findings were made that they were necessary 
parties for relief. [At p. 6, state defendants also point 
out that there is no support for the panel's statement 
that the Governor and state superintendent helped to 
merge the Carver School district; and moreover, the 
consolidation of the Carver School district led to a "unitary 
school system" for the Carver children.]

Plaintiffs' responses:

A. With respect to the Carver School district the panel, 
at page 62 copied from the Detroit Board's Brief on 
Appeal which stated that the Governor and Attorney 
General helped to merge the Carver School district.
I have found no proof in the record or in anything 
else other than the Detroit Board's assertion to 
support this statement. However, at page 71 of 
the state defendants-appellee's original brief, 
state defendants asserted that the Michigan Attorney 
General "issued two opinions which helped facilitate 
the attachment of the Carver School district...to the 
Oak Park School district." Op. Att'y Gen. Nos. 357,
356-8. Whatever the truth as to the role of the Governor 
and superintendent of public instruction, we do know 
that the Governor is an ex officio member of the 
State Board of Education and that the State Superintendent 
and the Board oversee these types of re-organizations, 
property transfers, annexations, etc. The facts of 
Carver school incident which are supported in the 
record are as follows:
1. At least through 1959, high school students in 

. the Carver school district were assigned and
transported to the -clu"black Northern High 
School in the City of Detroit past or away from 
white schools both in the City of Detroit and

At p. 5, State Defendants' Argument:



in the immediate suburbs. The state defendants 
have responsibility for all aspects of overseeing 
transportation including routing, and are, therefor 
fully implicated in this violation which identified 
the schools in the Carver school district as 
black schools, schools in the immediate contiguous 
suburbs as white schools, schools and Northern 
High School and perhaps, by implication, the 
entire Detroit school district, as black. (IIA 193 
Boundary Guide, IXA 556, 557, P.X. 185, P.M. 14, 
and XA 8-9, 33-39, Drachler Deposition). After 
the merger of the Carver school district with Oak 
Park, (and I believe Ferndale although I am not 
sure), the two historically all-black elementary 
schools in this district, the U.S. Grant Elementary 
and Carver Elementary, remained virtually 
all-black while the rest of the elementary schools 
in the two suburban school districts, Ferndale 
and Oak Park, remained virtually all-x^hite.

The Governor is an ex officio member of the State 
Board of Education and therefore is implicated in any 
violation attributable to the state Board of Education. 
Moreover, the Governor signed Act 48 with all its 
constitutional infirmities and appointed the Boundary 
Commission which carved out the regional districts 
which the proof showed at trial and were found by the 
District Court, to validate and magnify school 
segregation. The Attorney General reviews "property 
transfers" by his own admission, gave opinions on 
the Carver district, has given opinions on the State 
Board of Education's power to withhold funds for 
illegal actions by the school board and generally 
is responsible for enforcing the laws of the state, 
including the state and federal constitutional 
guarantees against racial discrimination with respect 
to all state action. The Governor and Attorney General



are chief legal officers of the state with full 
complement of powers associated with these ancient 
offices; these powers extend generally and specifically 
to statutes and control!? of acts whose actual 
effects are the subject of this litigation. The 
Attorney General, the State Treasurer and the State 
Superintendent of Instruction, make up the municipal 
finance commission xvhich has responsibility for 
overseeing the bonding and debts incurred by local 
school districts, and are, therefore, implicated in 
the "state violations."
Thus, it is clear that the Governor and Attorney 
General are proper parties for relief (although they 
may not be indispensable). The judgment of the 
District Court can bind them to assist in the planning 
and implementation functions over which they have 
considerable knowledge, expertise, and power. Indeed,
I don't see any reason why specific findings of their 
wrong-doing must be made for the judgment to be binding 
against them and for the Court to have jurisdiction 
over them to require them to take all action necessary 
to implement plaintiffs' constitutional rights.



At pp. 6-8, State Defendants argue that only three specific 
acts were alleged against the state superintendent and state 
board. [The 1966 policy joint policy statement, the 1970 School 
Planning Handbook and the failure of the state superintendent 
to use the power of site selection that he had prior to 1962 
(and in particular, that the incident of site selection 
relied upon by the panel refer to incidents after 1962)].

Plaintiffs' responses: .
A. Generally, see Plaintiffs' Responses IB, 1-6 to the Grosse 

Pointe Petition, supra.
B. Any confusion in either opinion as to whether it is the 

state board or state superintendent as to who has respon­
sibility for any acts is both understanable and excusable. 
For by M.S.A. 1023 (1*0, MCLA 388.10S4, the State of 
Michigan by public act stated that after June 30, 1965
a reference in any law to the powers and duties of the 
Superintendent of Public Instruction is deemed to be 
made to the State Board of Education unless the law 
names the superintendent as a member of another Governmental 
agency or provides for an appeal to the State Board of 
Education from a decision of the State Superintendent.

C. Act 48 gave the State Board authority over drawing 
regional districts in the future. The State Board of
Education and its chief executive officer of State Public

!Instruction have general responsibility and supervision 
over all aspects of education in the State of Michigan, 
including power of accreditation of schools (apparently 
never exercised)} regulation of school bus transportation, 
review of the .x ..-attachment of non-operating
school districts, the hearing of appeals from decision 
of alteration of boundary of school districts, distribution 
of state aid, prior to 1962^ approval of all sites for
new construction or additions (power vested in the

-f-'V q -v '?■? v-*State Superintendent),/approval of all school construction 
and re-modeling plans (albeit related to health, safety, 
and fire hazards), etc.



D. The 1966 and 1970 statements with respect to the impor­
tance of school construction to school segregation clearly 
show the state defendants' knowledge of factors which 
lead to segregation; and their failure, in the face of 
such knowledge, to control these factors so as to avoid 
segregation is a de jure act of pervasive
on the facts of this case throughout Detroit and the 
Metropolitan area. Some of the obvious methods by 
which the State defendants could have controlled this 
school construction violation is by the withholding 
of state monies (see panel's opinion at 64); instead, the 
state defendants prior to 1962 directly approved every 
site, and thereafter supported such school construction 
and the operation of the newly constructed schools by 
the distribution of substantial state aid, approval of 
construction plans, approval of the cirriculum, etc., used 
in the racially identifiable schools.

E. Much of the construction violation did occur prior to 
1962. See IVA 109-112; from 1946-1959, most new school 
construction followed the master plans for schools and
as noted by the 1958 Citizens Advisory Committee on School 
Needs, there were 175 new buildings or additions sufficient 
to accommodate 69,000 pupils built principally in the 
outlying city to accommodate the white out migration.
This new school construction corresponds closely to the 
increased enrollment in the city during this period, 
especially the white suburban flight within the city of 
Detroit to the northeast and northwest. IVA 114, DXNN, 
and PX 79 show that many schools were sited and authorized 
and/or actually built prior to 1962; school construction 
from i960 on(including massive construction even through 
the hearing of the cause,was primarily on a virtually 
all-white and all-black bases „(P.X. 79 and P.X. 152 show how 
these new schools were also racially identified by the 
initial assignment of faculty on a racial basis as well). 
Thus, it is clear; as the District Court held and the



panel properly noted, although the state defendants may 
have had some racially non-discriminative policijc, their
actions were both racially discriminatory and contributed

<s<2AreAfrH.? hsubstantially to the pattern of throughout
the metropolitan area.



Factually, the bonding discrimination existed only from 
1969 through 1972; and,in any event, the bonding limitations 
were not imposed for the purposes of segregation nor did 
they have the effect of creating or aggravating segregation. 

Plaintiffs' responses:
A. See Plaintiffs' Responses IB-5 to the Grosse Pointe

At page 9, State Defendants’ Argument:

Petition.



6. At page 10, State Defendants’ Argument:
t /••>«-VU  > • ; f > v .  i- - i x '  f ' '  rv ’>..  ■* " ■  ' 1 . •!factually,/the record is barren that any suburban 

district in the metropolitan area is a
grandfather beneficiary; and there is no evidence in 
the record to show that the statutory distinction was 
for the purpose of segregation or that it created or 
aggravated segregation.

Plaintiffs' responses: •
A. See Plaintiffs’ Response 1B2 to the Grosse Pointe 

Petition. In particular, both of state defendants' 
arguments with respect to the transportation funds 
discrimination are factually incorrect according 
to the record made in this case.



Assuming arguendo what the panel is saying is true
relative to bonding, financing, construction and transportation,
the Carver School district, and even P.A. 48, none of

7. At page 10, State Defendants’ Argument:

these actions had the effect of creating and 
segregation along school district lines.

maintaining

Plaintiffs’ responses:

A. See Plaintiffs’ Res-ponse, 1B2-6 to Grosse Pointe Petition.



In any event, with the exception of Porter' s
testimony as to transportation, all the other proofs were 
admitted into evidence after state defendants made motion 
to dismiss and rested.

Plaintiff's responses:
A. State defendants' view of Rule 4l (B) is ludicrous.

Their argument is that any proof introduced after 
they have chosen to absent themselves from the 
proceedings is not binding. As a factual matter, 
defendants have returned to these proceedings ever 
since September 27; so'their very factual premise 
which triggers their asserted shield from evidence has 
been waived by the state defendants themselves. As 
another factual matter, the proof of transportation 
discrimination, all the implications of Act 48, 
the general aspects of the bonding and other financial 
limitations, the state implications in the segregative 
school construction, and the state's involvement in the 
Carver school district were all of record before they 
absented themselves. Surely, therefore, the District 
Court was authorized to deny the defendants' motions 
to dismiss, as he did, on June 25, 1971 by specific order 
and as he had done prior thereto 'by notification to 
defendants to be ready to assist in preparing all 
possible remedies. (See AIA 152 and IV A 259-261 
June 24, 1971). Therefore, state defendants were on 
actual notice, prior to the completion of the 
Detroit Board's own defense, of the probable outcome 
of the case and their need to put in rebuttal proof. 
Defendants, by intentionally absenting themselves 
from the hearings, therefore, are in no position to 

. argue that the District Court should thereby be disabled
from fact finding on/basis of the entire record.

8. At pages 10 and 11, State Defendants' Argument:



Plaintiffs tried their case on the theory that the Detroit 
Public Schools was a segregated school district and without 
reference to any other school district. Yet, based upon one 
factual finding— that the Detroit School district is 
predominantly black— and without giving any of the

-Turnip •allegedly discriminating school districts the «ip&$gar\to be 
heard, the Court ordered metro under a theory of vicarious 
liability.

Plaintiffs' responses:
A. See the theories on which the case was tried. Plaintiffs 

responses 1^ 2B^ 1-5 to the Grosse Pointe Petition.
B. Plaintiffs below made no allegations of de jure acts 

by the suburban districts. The District Court and
the panel of this Court concluded that such allegations 
and proof against suburban school districts themselves 
were not a prerequisite for implementation for relief 
extending beyond the school districts of Detroit. There 
may be proof of such discriminatory acts, but 
that is not the theory on which the case was tried. As 
no allegations of discrimination were made against 
the suburban school district, they have no right to 
be heard on such non-existent claims.

C. Plaintiffs Responses IB, 1-6 and 2B, 1-5 show that 
remedy extending beyond the school district boundary 
of the city of Detroit is not premised upon a single 
factual finding that the Detroit school district is 
predominantly black.

D. Defendants' apparent obsession with the phrase 
"vicarious liability" simply should not obvfyscate
the traditional l4£h Amendment constitutional analysis 
which requires that those who are parties to a lawsuit 
who have remedial powers, as imposed by state law 
and residual constitutional duty, provide relief 
upon a showing of unconstitutional "state action."
This is not "vicarious liability" in a tortes- sense; 
but rather is the fiction which has been utilized

At p. 11, State Defendants' Argument:



ever since ex parte Young to insure that the 14th 
Amendment is not ham-strung by the 11th Amendment, 
to give a meaning to the 11th Amendment which does 
not require that it be repealed but only re-interpreted 
to permit enjoyment of the later enacted 14th Amendment.



10. At p. 13, state Defendants’ Argument:
School district boundaries which were not created and 
maintained for the purpose of segregation are not a 
violation of the United States Constitution and therefore 
are not subject to judicial intervention.

Plaintiffs’ responses:
A. Unconstitutional purpose and effect are shown where 

the maintenance of a school district boundary would , 
abridge otherwise constitutionally required rights
and remedies.

B. This is not a school district boundary gerrymander 
case, except to the extent that it is obvious that 
state action has maintained, and by Act 48 validated,

, and reimposed, the Detroit school district boundary as
. Cipa barrier /otherwise' unconstitutionally required ̂ siegre-

gation.
C. Absent a showing that the present arrangements are 

necessary to the promotion of a compelling state 
interest, school district boundaries are not any 
limit to remedial relief or/limiting of plaintiffs 
constitutional rights by some "balancing of interests."
On this record, the only reason for the existence of
the present arrangements is merely their present existence.' i •

n if a c] 7 tUsh-K-r ^x-r-o'A^&w^ts u/ero.
J , u.V Di CodA- n tff'-h Av.r\t» sraTdft>V/*V.:'- ' )

E. See also 5generally.)the other theori&sof the case authorizing 
metropolitan relief on the record made in this case. 
Plaintiffs’ response 2B-1-5 to the Grosse Pointe Petition.
In essence, the proof in this cause and the law with 
respect to these other constitutional bases [extending 
beyond the Detroit school district is a dramatic 
example of the irrelevance of the ancient reasons for 
the creation of ancient boundaries to present constitutional 
rights. The discriminatory actions rampant
within the state system of education have both (1) dis­
criminated against black children along school district 
lines and served to identify Detroit as a black 
school district, and (2) hss=e accomplished the pattern 
of containment of blacks and whites in separate schools



without regard to school district boundary lines.
The panel has suggested an Austin "results" theory 
as well. See Plaintiffs Response 2 B 4 to the Grosse 
Pointe Petition. This results theory is merely an 
extent ion of our arguments against the school by 
school approach; in essence, it is an argument that 
the school district boundary lines are irrelevant 
to the state imposition of segregation. Where 175 
schools are identified as black schools, the pattern of 
"resulting" white schools is not limited to the 
geographic boundaries of/Detroit school districts.



At p. 13, State Defendants' Argument:
At p. 66 ofc" its opinion, the panel states that there is 
a vested tTtTTSS constitutional remedy to^thxs case^and 
this is the same as saying that there is a vested constitu­
tional right to a particular ratio of black to white 
in a school district.

Plaintiffs' Responses:

The panel's opinion does not'state that there is a vested 
right to a metro remedy, per se. Rather, the panel is 
saying that the plaintiffs, once having shown a massive 
violation's here, are entitled to complete relief: the 
substitution of a system of "just schools" now and hereafter.
The District Court, having properly found that complete 
relief cannot be accorded within the geographic limits 
of the city of Detroit, therefore^was required to go beyond 
the Detroit school district limits to accord complete
relief. This bears no relationship to the state defendants'

-j-ke. ôsRul̂rJ~*a<'i
argument that S;\sn* a vested constitutional right to a particular 
ratio of black to white in a school district. See Plaintiffs' 
Response 9A-D to Allen Park Petition and suggested 
conclusion to argument.