Milliken v. Bradley Brief for Respondents

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Brief Collection, LDF Court Filings. Milliken v. Bradley Brief for Respondents, 1973. 3e7c05ca-bd9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/ca6505cc-d2ec-4723-b786-b88ee349e362/milliken-v-bradley-brief-for-respondents. Accessed November 23, 2025.

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In t h e

^npxmt dmtrt nf % Ituteii States
October Term, 1973

No. 73-434
W illiam G. Milliken, et al.,

vs.
Bonald G. Bradley, et al.

Petitioners,

Respondents.

No. 73-435
A llen Park Public Schools, et al.,

vs.
Petitioners,

Bonald G. Bradley, et al.
Respondents.

No. 73-436
The Grosse Points Public School System, et al.,

Petitioners,
vs.

Bonald G. Bradley, et al.
Respondents.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OP APPEALS
FOR THE SIXTH CIRCUIT

BRIEF FOR RESPONDENTS

Nathaniel B. Jones
1790 Broadway
New York, New York 10019

Louis B. Lucas
W illiam E. Caldwell

525 Commerce Title Bldg.
Memphis, Tennessee 38103

Paul B. D imond
210 East Huron Street
Ann Arbor, Michigan 48108

J. Harold Flannery
Eobert Pressman

Larsen Hall, Appian Way
Cambridge, Mass. 02138

Jack Greenberg
Norman J. Chachkin

10 Columbus Circle
New York, New York 10019

Elliott Hall
950 Guardian Building
Detroit, Michigan 48226

Attorneys for Respondents
Ronald Bradley, et al.,
Plaintiffs Below

TABLE OF CONTENTS

Table of Authorities ........................... ..........................-.... iii

Questions Presented .................................. .............. ........ 1

Constitutional and Statutory Provisions Involved....... 2

Counter-Statement of the Case ...................................... 2

A. Nature of Review ...... ........ ............ ........ ...... .... 2

B. The Proceedings Below .................................. . 11

1. Preliminary Proceedings ......... ........... ......... 11

2. Hearings on Constitutional Violation ... ..... 16

3. Remedial Proceedings .............. ...................... 19

a. The Practicalities of the Local Situation 19

b. The District Court’s Guidance by Settled
Equitable Principles and Its Order to
Submit Plans .............................. ................ 23

c. The Procedural Status of Suburban
Intervenors ........ ....................... ...... ......... 26

d. Hearings and Decision on Plans Limited
to the DSD ................................ .............. . 27

e. The Hearings and Decision on “Metro
politan” Plans ........... ...............................- 28

4. Appellate Proceedings ............................ 32

5. Proceedings on Remand ................. ............... 37

Summary of Argum ent............ ...... ................................... 38

PAGE

A rgument—

I. Introduction ...... .......... ............ ........ ..... ............... . 40

II. The Nature and Scope of the School Segrega
tion of Black Children by the Detroit and State
Authorities Provided the Correct Framework
for the Lower Court’s Consideration of Relief
Extending Beyond the Geographic Limits of the
Detroit School District ..................... ...... .............. 43

III. Based Upon Their Power and Duty to Achieve
a Complete and Effective Remedy for the Viola
tion Found, Taking Into Account the Practical
ities of the Situation, the Courts Below Were

Correct in Requiring Interdistrict Desegrega

PAGE

tion ...................................... .......... ............................ 53

IV. The Actions by the Lower Courts to Date Have-
Not Violated Any Federally Guaranteed Pro
cedural Right of Suburban School Districts ....... 61

A. In the Circumstances of this Case, Rule 19
and Traditional Principles of Equity Juris
prudence Do Not Require the Joinder of
Several Hundred Local Officials Where the
Parties Already Before the Court Can Grant
Effective Relief and There Remains a Sub
stantial Uncertainty Whether and How Their
Interests Will Be Affected, I f At A l l .......... . 67

B. Petitioner and Amici -School Districts Have
Not Been Denied Any Procedural Rights
Guaranteed to Them By the Fifth and Four
teenth Amendments ...... ............ ........... ............ 74

Conclusion ............ ......... ....... .......... .................................. ...... 78

Note on F orm oe R ecord Citations ............ ............ ......... 80

I l l

T able of A uthorities

Cases: page

Aaron v. Cooper, 156 F. Supp. 220 (E.D. Ark. 1957),
aff’d sub nom. Faubus v. United States, 254 F.2d 797
(8th Cir. 1958) ________ ______ _____________ ______ 71n

Alexander v. Holmes County Bd. of Educ., 396 U.S. 19
(1969) .................. .......... ........ ...... ............. ................ 24n, 27

American Const. Co. v. Jacksonville T. & K. 14. Co.,
148 U.S. 372 (1893) ......... .... ...... .............................13n, 43n

Attorney General v. Lowery, 131 Mich. 639 (1902),
aff’d 199 U.S. 233 (1905) ......... ....... ............... _...8n, 71, 76n

Baker v. Carr, 369 U.S. 186 (1962) ................. .............. 51
Berry v. School Dist. of Benton Harbor, Civ. No. 9

(W.D. Mich. February 3, 1970) .................................. 22n
Bradley v. Milliken, 468 F.2d 902 (6th Cir.), cert, de

nied, 409 U.S. 844 (1972) ........ .............. ....................... 25n
Bradley v. Milliken, 438 F.2d 945 (6th Cir. 1971) ..... . 15
Bradley v. Milliken, 433 F.2d 897 (6th Cir. 1970) ....... 15
Bradley v. School Bd. of Richmond, 462 F.2d 1058 (4th

Cir. 1972), aff’d by equally divided Court, 412 U.S.
92 (1973) ........................................................... 19n, 60n, 61n

Bradley v. School Bd. of Richmond, 51 F.R.D. 139
(E.D. Ya. 1970) .............. ........ .................................... 75

Brewer v. School Bd. of Norfolk, 397 F.2d 37 (4th Cir.
1968) --------------------- ------- ------ -------------- ----------------- 8n

Broughton v. Pensacola, 93 U.S. 266 (1876) .............. 8n
Brown v. Board of Educ., 347 U.S. 483 (1954) ____Passim
Brown v. Board of Educ., 349 U.S. 294 (1955) ....... 3,5,

13n, 40, 59
Brunson v. Board of Trustees, 429 F.2d 820 (4th Cir.

1970) ................................................................................. 30n

Carrington v. Rash, 380 U.S. 89 (1965) 58

Carter v. West Feliciana Parish School Bd., 396 U.S.
290 (1970) ................................................ ....................... 24n

Cisneros v. Corpus Christi Independent School Dist.,
467 F.2d 142 (5th Cir. 1972), cert, denied, 37 L.Ed.2d
1041, 1044 (1973) ............................................................ 7n

City of Kenosha v. Bruno, 412 U.S. 507 (1973) ....... . 76n
City of New Orleans v. New Orleans Water Works Co.,

142 U.S. 79 (1891) .......................................................... 77n
Civil Rights Cases, 109 U.S. 3 (1883) ......... ....... ......... 3
Commanche County v. Lewis, 133 U.S. 198 (1890) .... 8n
Comstock v. Croup of Inst’l Investors, 335 U.S. 211

(1948) .......... .............. ........... ....... ..................... ............. 43n
Connecticut Gen’l Life Ins. Co. v. Johnson, 303 U.S.

77 (1938) .......................................................................... 76n
Cooper v. Aaron, 358 U.S. 1 (1958) .......8n, 42n, 49, 50n, 64n

Davis v. Board of School Comm’rs, 402 U.S. 33 (1971) 5,
10, 23, 41

Davis v. School Dist. of Pontiac, 443 F.2d 573 (6th
Cir.), cert, denied, 402 U.S. 913 (1971) __________ 8n

Davis v. School Dist. of Pontiac, 309 F. Supp. 734
(E.D. Mich. 1970), aff’d 443 F.2d 573 (6th Cir.), cert.
denied, 402 U.S. 913 (1971) _________ _____________ 22n

Deal v. Cincinnati Bd. of Educ., 369 F.2d 55 (6th Cir.
1966), cert, denied, 389 U.S. 847 (1967) ..................... 45

Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856) 3

Edgar v. United States, 404 U.S. 1206 (1971) ............. 49n
Essex Public Road Bd. v. Skinkle, 140 U.S. 334 (1891).. 77n
Evans v. Buchanan, 281 F.2d 385 (3d Cir. 1960) ____ 66
Evans v. Buchanan, 256 F.2d 688 (3d Cir. 1958) ....56, 66, 71
Ex parte Virginia, 100 U.S. 339 (1880) ...........3, 8n, 41n, 55
Ex parte Young, 209 U.S. 123 (1908) ........ .............. ..... 49n

PAGE

Gomillion v. Lightfoot, 364 U.S. 339 (1960) ................. 8n
Graham v. Folsom, 200 U.S. 248 (1906) .................. . 8n
Graver Mfg. Co. v. Linde Co., 336 TJ.S. 271 (1948)....13n, 43n
Green v. County School Bd., 391 TJ.S. 430 (1968) .......5, 7n,

10, 41, 47, 55
Griffin v. County School Bd. of Prince Edward County,

377 U.S. 218" (1964) ....................... ............. 50, 70, 71n, 74n
Griffin v. State Bd. of Educ., 239 F. Snpp. 560 (E.D.

Yn. 1965) ................................ ........................ .............. 32, 71

Hague v. C.I.O., 307 U.S. 496 (1939) .......... .................... 77
Haycraft v. Bd. of Educ. of Louisville, No. 73-1408

(6th Cir., Dec. 28, 1973) ...... ........................................ 48n
Higgins v. Grand Rapids Bd. of Educ., Civ. No. 6386

(W.D. Mich. 1973) ........ .......... ...... ......... ..... .......... . 22n
Hoots v. Commonwealth of Pennsylvania, 359 F. Supp.

807 (W.D. Pa. 1973) ............. .......... .......... ..... 56, 66, 70, 71
Hunter v. Erickson, 393 U.S. 385 (1969) ....................... 14n
Hunter v. Pittsburgh, 207 U.S. 161 (1907) .... ....... ...71, 76
Husbands v. Commonwealth o f Pennsylvania, 359 F.

Supp. 925 (E.D. Pa. 1973) ........... .............................70, 71

James v. Valtierra, 402 U.S. 137 (1971) ......... ............... 59

Kelly v. Guinn, 456 F.2d 100 (9th Cir. 1972), cert, de
nied, 37 L.Ed.2d 1041 (1973) .... ...... ........... ........ . 7n

Kelley v. Metropolitan County Bd. of Educ., 463 F.2d
732 (6th Cir.), cert, denied, 409 U.S. 1001 (1972)....42, 62n

Kelley v. Metropolitan County Bd. of Educ,, Civ. No.
2094 (M.D. Tenn., June 28, 1971), aff’d 463 F.2d 732
6th Cir.), cert, denied, 409 U.S.1001 (1972) ___ __ 31n

Kentucky v. Indiana, 281 U.S. 163 (1930) ....... ......... . 72
Keyes v. School Dist. No. 1, 413 U.S. 189, 37 L.Ed.2d

548 (1973) ....— .... ................ ...... ........ .................... Passim

V I

Lane v. Wilson, 307 TT.S. 268 (1939) .... ....................... 14n
Lau v. Nichols, 42 U.S.L.W. 4165 (Jan. 12, 1974) .... . 65n
Lee v. Macon County Bd, of Educ., 267 F. Supp. 458

(M.D. Ala.), aff’d per curiam 389 U.8. 215 (1967) .... 66
Lee v. Nyquist, 318 F. Supp. 710 (W.D.N.Y.), aff’d. per

curiam, 402 U.S. 935 (1971) .................................... . 14n
Lemon v. Bossier Parish School Bd., 240 F. Supp. 709

(W.D. La. 1965), aff’d 370 F.2d 847 (5th Cir. 1967).... 65n

Marbury v. Madison, 5 TT.S. (1 Cr.) 137 (1803) ........... 78
Mobile v. Watson, 116 U.S. 289 (1886) ....... ...... ......... . 8n
Monroe v. Board of Comm’rs, 391 TT.S. 450 (1968) ..... 10
Mount Pleasant v. Beckwith, 100 TT.S. 514 (1879) ....... 8n
NAACP and Taylor v. Lansing Bd. of Educ.,------ F.

Supp.------ (W.D. Mich. 1973) ...................................... . 22n
Neal v. Delaware, 103 TT.S. 386 (1881) .................... ...... 3
Newburg Area Council, Inc. v. Bd. of Educ. of Jeffer

son County, No. 73-1403 (6th Cir., December 28,1973) 48n
New Jersey v. New York, 345 TT.S. 369 (1953) ......... 72, 77n
Northwestern Nat’l Life Ins. Co. v. Biggs, 203 TT.S. 243

(1906) ....... ......... ...... ..................... .................................. 78

Oliver v. School Dist. of Kalamazoo, 346 F. Supp. 766
(W.D. Mich.), aff’d 418 F.2d 635 (6th Cir. 1971),
on remand, Civ. No. K-98-71 (Oct. 4, 1973) ........ ...... 22n

Plessy v. Ferguson, 163 TT.S. 537 (1896) .......3, lOn, lln , 78
Provident Bank v. Patterson, 390 TT.S. 102 (1968)..68n, 69n

Raney v. Board of Educ., 391 U.S. 443 (1968) ....... ..... 10
Reynolds v. Sims, 377 U.S. 533 (1964) ...................... 8n, 55
Robinson v. Shelby County Bd. of Educ., 330 F. Supp.

837 (W.D. Tenn. 1971), aff’d 467 F.2d 1187 (6th
Cir. 1972) ........................................ ...............................70n

PAGE

vii

San Antonio Independent School Dist. v. Rodriguez,
411 II.S. 1 (1973) .......... ......................... .............. _.__58n, 59

Santa Clara County v. Southern R Co., 118 II.S. 394
(1886) ......... ...................... ............ ...................... ............ 76n

School Dist. of Ferndale v. HEW, No. 72-1512 (6th
Cir., March 1,1973) ........... ....... ........ ....... ....... ....... 20n, 22n

Schrader v. Selective Service System Local Bd. No. 76,
329 F. Supp. 966 (W.D. Wis. 1971) ......... ................ 64n

Shapiro v. Thompson, 394 U.S. 618 (1969) __________ 59
Shapleigh v. San Angelo, 167 U.S. 646 (1897) ..... ......... 8n
Slaughter House Cases, 83 U.S. (16 Wall.) 36 (1873) .. 3
Sloan v. Tenth School Dist., 433 F.2d 587 (6th Cir.

1970) .................. ........... ....... ................. ......................... 8n
South Carolina v. Katzenbach, 383 U.S. 301 (1966) .... 76
Spangler v. Pasadena City Bd. of Educ., 311 F. Supp.

501 (C.D. Cal. 1970) ................ .......... .....................1... 8n
Spencer v. Kugler, 326 F. Supp. 1235 (D.N.J. 1971),

aff’d per curiam 404 U.S. 1027 (1972) ............. ..... 42n, 59
Stamps and United States v. Detroit Edison Co., 365

F. Supp. 87 (E.D. Mich. 1973) .................................. 7n
Strauder v. West Virginia, 100 U.S. 303 (1880) ...... . 3
Sullivan v. Little Hunting Park, 396 U.S. 229 (1969) .. 33n
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S.

1 (1971) ..... ...................................................... ........... passim

Trenton v. New Jersey, 262 U.S. 182 (1923) ............ ..... 77
Turner v. Warren County Bd. of Educ,, 313 F. Supp.
380 (E.D.N.C. 1970) _____________________ ____ _______ 49n

United States v. Board of School Comm’rs of Indian
apolis, 474 F.2d 82 (7th Cir. 1973), cert, denied, 37
L.Ed.2d 1041 (1973) ................ ........ ............... ............. 8n

United States v. Georgia, 466 F.2d 197 (5th Cir.
1972) ___________________ ______ ___________ 66, 70n, 74n

PAGE

V l l l

United States v. Georgia, 445 F.2d 303 (5th. Cir.
1971) ................................................................................. 66

United States v. Georgia, 428 F.2d 377 (5th Cir.
1970) ........... ........ ...................... ....................................... 66

United States v. Johnston, 268 U.S. 220 (1925) ....... 13n, 43n
United States v. School Dist. 151, 404 F.2d 1125 (7th

Cir. 1968) .............................. ............................ .............. 8n
United States v. Scotland Neck City Bd. of Educ., 407

U.S. 484 (1972) ................ ...................... ...........49, 54n, 58n
United States v. State of Missouri, 363 F. Supp. 739

(E.D. Mo. 1973) ............... ..... ..................... ................... 55
United States v. Texas Educ. Agency, 321 F. Supp.

1043 (E.D. Tex. 1970), 330 F. Supp. 235 (E.D. Tex.
1971) , aff’d sub nom. United States v. State of Texas,
447 F.2d 441 (5th Cir. 1971), stay denied, 404 U.S.
1206 (Black, J.), cert, denied, 404 U.S. 1016 (1971)..66,70

PAGE

Welling v. Livonia Bd. of Educ., 382 Mich. 620 (1969).... 65
Western Turf Ass’n v. Greenberg, 204 U.S. 359 (1907).. 77
Wheeling Steel Corp. v. Glander, 377 U.S. 562 (1949).... 76n
Whitcomb v. Chavis, 403 U.S. 124 (1971)...................... 59
White v. Regester, 37 L.Ed.2d 314 (1973).................... 59
Wright v. Council of the City of Emporia, 407 U.S. 451

(1972) ....... ......... .......................... .....10,13n, 48, 54n, 58n, 59

Constitution and Statutes:

U.S. Const., Amend. 5 .......... ............................................ 75

U.S. Const., Amend. 14 .................................................... . 75

28 U.S.C. §1292 .............................. ............... ..................... 33

28 U.S.C. §1331 (a) .......... .............. ....... .............. ............. . 11

28 U.S.C. §1343 .................................................... ............... 11

PAGE

28 U.S.C. §§2201, 2202 ........... ............................................. 11

42 U.S.C. §1981....... ....................... ............................. ....... 2,11

42 U.S.C. §1983 ............................................. .............. 2,11, 76n

42 U.S.C. §1988 .... .............................................. ......... 2,11, 33n

42 U.S.C. §2000d........... ...............................................2,11, 65n

Mich. Const. Art. I, § 2 ........................ „ ........................... . 65

Mich. Const. Art. VIII, §3 65
M.C.L.A.

M.C.L.A.

§340.69 ...............

§340.121 (d) ......

§340.183 et seq. .

§252-53 .............

§340.302a et seq.

§340.355 ...........

§340.582 ............

§340.583 ............

§340.589 ........ .

§340.1359 ..........

57n

58n

57n

52n

58n
§340.1582 ......................... 58n

§388.171a et seq. (Public Act 48 of 1970) ..... 51

§388.681 ..................... 58n

§388.851 ................................................... 65

§388.1010 ............ .................... .......................20n, 65

§388.1117 .............................................. 65

§388.1234 ........ 65

F.R. Civ. P. 19 ............................................ ........... ..... 32, 37, 67

F.R. Civ. P. 2 1 ................................... ...... ........... ....... 32, 37, 68

F.R. Civ. P. 54(b) ......................................... ...................... 33

F.R. Civ. P. 65(d) .......... ........................... .'........... ............. 64n

Supreme Court Rule 23(c)(1) ...... ................................... 42n

Supreme Court Rule 40(1) (d )(2 ) ............................ ...... 42n

Other Authorities:

Bureau of the Census, General Social and Economic
Characteristics (1970), Tables 119-120, 125 ............ 54

Michigan House Journal (1970) ................. ...... ........... . 14n

3A Moore’s Federal Practice 1719.107[3] (2d ed. 1972).. 68n

Notes of the Advisory Committee, 1966 Amendments,
Rule 19 ............................... ....... ......... ..... ................. 67, 68n

Opinions of the Attorney General of Michigan ........... 77n

Wright & Miller, Federal Practice and Procedure
(1970) 73n

I n t h e

(Ecurt nf % Inttpfc Plaits
October T erm, 1973

No. 73-434

W illiam G. M illiken , et al.,
Petitioners,

vs.

R onald G. B radley, et al.
Respondents.

No. 73-435
A llen P ark P ublic S chools, et al.,

Petitioners,
vs.

R onald G. B radley, et al.
Respondents.

No. 73-436
T he Geosse P ointe P ublic S chool System , et al.,

Petitioners,
vs.

R onald G. B radley, et al.
Respondents.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF FOR RESPONDENTS

Questions Presented

1. May the State of Michigan continue the intentional
confinement of black children to an expanding core of

state-imposed black schools within a line, in a way no less
effective than intentionally drawing a line around them,
merely because petitioners seek to interpose an existing
school district boundary as the latest line of containment?

2. Where further proceedings among all conceivably af
fected petitioner and amici school districts are poised be
low, at which all parties have a meaningful opportunity to
be heard prior to the entry of any injunctive order, should
this Court vacate the prior rulings of the lower courts, dis
miss this case, and hold that the three and one-half years of
prior adversary proceedings between plaintiffs and State
and Detroit defendants are for naught because suburban
school districts were not joined as parties at the outset
of this litigation?

Constitutional and Statutory Provisions Involved

This case involves primarily the application of the
Equal Protection Clause of Section 1 of the Fourteenth
Amendment to the Constitution of the United States. In
addition- to the other constitutional and statutory provi
sions cited by petitioners, this case also involves the Thir
teenth Amendment to the United States Constitution and
42 U.S.C. §■§ 1981, 1983, 1988 and 2000d, as well as certain
other provisions of Michigan law set forth by Respondents
Board of Education of the City of Detroit, et al.

Counter-Statement of the Case
A. Nature of Review

The Reconstruction Amendments, particularly the Four
teenth, were made part of the United States Constitution
primarily in order to abolish the institution of slavery and
all its trappings so that freedmen and their descendants, as

individuals and as a class, could be made not only persons
and citizens in the eyes of the law and this Court (see Dred
Scott v. Sandford, 60 U.S. (19 How.) 393 (1856)), but also
equal to the dominant white class, at least in all the public
affairs and public institutions of and within each of the
States of the Union. Slaughter House Cases, 83 U.S. (16
Wall) 36 (1873); Strauder v. West Virginia, 100 U.S. 303
(1880); Ex Parte Virginia, 100 U.S. 339 (1880); Neal v.
Delaware, 103 U.S. 386 (1881); Civil Bights Cases, 109 U.S.
3 (1883).1 Nevertheless, with the express sanction of this
Court in Plessy v. Ferguson, 163 U.S. 537 (1896), enforced
segregation replaced slavery to perpetuate the second-class
public (as well as private) status and state-imposed badge
of inferiority of black people.2 In Brown v. Board of Edu
cation, 347 U.S. 483 (1954), 349 U.S. 294 (1955), the first
of many frontal assaults on public segregation in many
areas, this Court finally repudiated any type of official seg
regation in public schooling precisely because such segre
gation violates the fundamental purpose of the Fourteenth
Amendment as initially construed by this Court. See
Brown I, 347 U.S. at 490-491 and n.5.

1 “ [The Fourteenth Amendment] nullifies and makes void all
state legislation, and state action of every kind, . . . which denies
to any [citizen of the United States] the equal protection of the
laws.” 109 U.S. at 11. The Reconstruction Amendments had as
their “ common purpose” to secure “ to a race recently emancipated,
a race that through many generations have been held in slavery,
all the civil rights that the [white] race enjoy . . . ; and in regard
to the colored race, for whose protection the [Fourteenth] Amend
ment was primarily designed, that no discrimination shall be made
against them by law because of their color.” 100 U.S. at 308.
“ [Flying at the foundation of the [Reconstruction Amendments
was] the protection of the newly-made freeman and citizen from
the oppression of those who had formerly exercised unlimited
dominion over him.” 83 U.S. (16 Wall.) at 71.

2 Dissenting in Plessy, Mr. Justice Harlan prophetically noted
“ [i]n my opinion, the judgment this day rendered will, in time,
prove to be quite as pernicious as the decision made by this tribunal
in the Dred Scott Case.” 163 U.S. at 559.

Yet from Brown to this day black children in Detroit
have suffered from just such constitutionally offensive,
state-imposed school segregation. After extensive hearings
the record evidence showed, and the District Court found,
that from at least 1954 through the trial respondent black
children have been intentionally assigned by a variety of
de jure devices to virtually all-black (90% or more black)
schools. (J. 17a, et seq.)* Throughout this period the
pattern was and is unmistakable: State and Detroit school
authorities, operating in lockstep both with pervasive resi
dential segregation throughout the metropolitan area (it
self primarily the product of public and private discrimi
nation, including the widespread effects of de jure school
practices) and with discriminatory state policies, inten
tionally assigned the rapidly growing numbers of Detroit
black children to an expanding core of virtually all-black
schools separate from and immediately surrounded by a
reciprocal ring of virtually all-white schools nearby. The
ring of white schools in some places began within Detroit
proper and in other places at the school district line but
extended throughout the metropolitan area.

At the time of trial over 132,700 black children, 75% of
the total within Detroit, were thus de jure segregated in
this core of 133 virtually all-black schools covering almost
the entire Detroit School District and reaching in many
instances right up to the boundaries of the suburban school
districts; the surrounding suburban school districts served
pupil populations over 98% white (excluding the few his
torically black suburban enclaves, the percentage is well
over 99). (J. 23a-28a; J. 54a-55a; J. 77a-78a; J. 87a).
Thus, as concluded by the Court of Appeals in affirming

# A note explaining record citations follows the body of this
Brief.

the District Court’s finding of a massive and pervasive
constitutional violation (J. 118a-159a), “ even if the segre
gation practices were a bit more subtle than the compulsory
segregation statutes . . they were nonetheless effective.”
(J. 158a).

Insofar as practicable and feasible, therefore, the lower
courts concluded that such longstanding and massive viola
tion required the complete and effective disestablishment
of the present and expanding, state-imposed core of “black
schools,” now and hereafter, considering the alternatives
available and the practicalities of the local situation, pur
suant to the commands of Brown I and II; Green v. County
School Board, 391 U.S. 430 (1968); Swann v. Charlotte-
MecTclenburg Bd. of Ed., 402 TJ.S. 1 (1971); and Davis v.
Bd. of School Commr’s, 402 U.S. 33 (1971). (J. 42a, J.50a-
51a; J. 56a, J. 60a; J. 84a; J. 158a-159a, 162a, 176a-189a).
Based on the record evidence the District Court found that
a plan of actual desegregation limited to the Detroit School
District would only perpetuate the violation: the core of
schools racially identified by de jure acts as “black,”
immediately surrounded by a ring of virtually all-white
schools, would remain essentially intact. Any remedy
confined within the borders of the Detroit School Dis
trict would merely expand the state-imposed black core
the little remaining way right up to the borders of the
suburban districts. Such narrow relief would “lead directly
to a single segregated Detroit School District overwhelm
ingly black in all of its schools surrounded by a ring of
[suburban schools] overwhelmingly white. . . .” (J. 172a-
173a) due to the environment for segregation already
fostered in the area and the flight of many of the remaining
whites from the Detroit School District to the nearby all-
white suburban sanctuaries. (J. 192-28a; J. 54-55a, J. 87a-
88a; J. 157a-165a; J. 172a-173a).

The courts below, therefore, carefully assayed the practi
calities of the local situation, state law and practice, and
the proof to determine whether existing school district
boundaries are absolute barriers to more effective and
complete disestablishment of the state-imposed black core
surrounded by a reciprocal white ring. They were forced
to ask what justification existed for permitting school dis
trict lines to serve as merely the most recent state-created
and maintained racial barrier.

The lower courts ascertained that existing school dis
tricts are subordinate instrumentalities of the state
created to facilitate administration of the State’s sys
tem of public schooling; that the State has the ulti
mate responsibility for insuring that public education
is provided to all its children on constitutional terms
and that no school is kept for (or from) any person
on account of race; that the defendant State Superinten
dent and State Board have considerable affirmative power
over, and the power to withhold necessary aid from, local
school districts to insure their compliance with the com
mands of law; that the existing school district boundaries
are unrelated in many instances even to intermediate and
regional school district lines, and generally bear no rela
tionship to other municipal, county or special district gov
ernments ; that the existing school district boundaries have
been regularly crossed, modified or abrogated for educa
tional purposes and convenience, as well as for segregation;
that the State has acted directly to control local school
districts, including to maintain, validate and augment
school segregation; that existing state law provides de
tailed and time-tested methods for handling the adminis
trative problems associated with pupil transfers across
districts and modifying school district boundaries by an
nexation or consolidation; that any legitimate state interest

in delegating administration of public schooling to any
degree in any fashion to local units conld be promoted by
a variety of arrangements not requiring that existing school
district lines serve as an impenetrable barrier to desegre
gation across those lines; that for most social and economic
and governmental purposes, the metropolitan area repre
sents one inter-related community of interest for both
blacks and whites, except with respect to schools and hous
ing;3 and that the Detroit Public Schools are not a separate

3 We do not mean to suggest that blacks as a class have not been
subjected to all variety of other forms of public and private racial
discrimination and intentional segregation in the Detroit area. See,
e.g., Stamps and United States v. Detroit Edison, 365 P. Supp. 87
(E.D. Mich. 1973) (employment discrimination). Rather, we mean
to suggest that enforced separation of blaek citizens as a group
from whites is primarily evidenced by the racially dual system of
schools and housing. Thus, in this classic school segregation case,
even if public authorities could shift the burden of school desegrega
tion to black parents contrary to Green and Swann, the record
evidence proves that black parents have long been, still are, and for
the foreseeable future will remain effectively excluded from white
schools as long as the only means of gaining admission is purchas
ing or renting a home in the exclusively white residential areas.
(E.g., Ia 156 et seq.; Ila 19— Ha 81 P.X. 184; P.X. 2; P.X. 16A-D;
P.X. 48; P.X. 183A-G; P.X. 122; 1 Tr. 163; P.X. 25; P.X. 37;
P.X. 38; P.X. 56; P.X. 18A; P.X. 136A-C.) As found by the Dis
trict Court with respect to the entire metropolitan area, black
citizens are generally confined to separate and distinct areas within
Detroit and excluded from the suburbs, “ in the main [as] the result
of past and present practices and customs of racial discrimination,
both public and private, which have and do restrict the housing
opportunities of black people.” (J. 23a). Needless to say, the black
schools are not any more likely to witness an influx of white stu
dents as long as white parents (fleeing Detroit proper, immigrating
for the first time to the Detroit area, or already residing in the
suburbs) remain sentient and the dual pattern persists protected
by school district lines: the black core is the school system main
tained for blacks while favored suburban systems will remain se
curely white behind residential segregation, school district boundary
lines, and whatever new school facilities are needed to accommodate
these “whites only.” (Cf. J. 79a-80a, 87a-88a) Courts of Appeals
currently agree that such effectively exclusionary schooling is an
independent constitutional violation. See, e.g., Cisneros v. Corpus
Christi Ind. Sch. Dist., 467 F.2d 142, 149 (5th Cir. 1972), cert,
denied, 37 L.Ed2d 1041, 1044 (1973) ; Kelley v. Guinn, 456 F.2d

and isolated island of segregation bnt rather are inextri
cably part of the State System of public schooling.4 (J.
36a-38a; J. 50a; J. 79a-80a; J. 96a; 137a-140a; 151a; J.
165a-171a).

100 (9th Cir. 1972), cert, denied, 37 L.Ed.2d 1041 (1973) ; Davis V.
School Dist. of City of Pontiac, 443 F.2d 573, 576 (6th Cir. 1971),
cert, denied, 402 U.S. 913 (1971) ; U.S. v. Bd. of Sch. Commis
sioners of Indianapolis, 474 F.2d 82 (7th Cir. 1973), cert, denied,
37 L.Ed.2d 1041 (1973); U.S. v. School District 151, 404 F.2d
1125 (7th Cir. 1968); Spangler v. Pasadena City Bd. of Educ.,
311 F. Supp. 501 (C.D. Cal. 1970); cf. Swann, 402 U.S. at 20-21;
Brewer v. Norfolk. 397 F.2d 37, 41-42 (4th Cir. 1968) ; Sloan v.
Tenth School District, 433 F.2d 587, 588 (6th Cir. 1970). As the
“remedy” apparently proposed by petitioners for the massive viola
tion here, such a racially exclusive system of schooling is a mockery.

4 The courts below thus analyzed this case in accordance with
Fourteenth Amendment principles early established and, since
Brown, re-established by this Court:

The constitutional provision, therefore, must mean that no
agency of the State, or of the officers or agents by whom its
powers are exerted, shall deny to any person within its juris
diction the equal protection of the laws. Whoever, by virtue
of public position under a state government . . . , denies or
takes away the equal protection of the laws, violates the con
stitutional inhibition; and as he acts in the name and for the
State, and is clothed with the State’s power, his act is that of
the State. This must be so, or the constitutional prohibition
has no meaning. Then the State has clothed one of its agents
with power to annul or evade it.

Ex Parte Virginia, 100 U.S. 339, 346-47 (1880) ; Cooper v. Aaron,
358 U.S. 1, 17-20 (1958). School districts in Michigan are not
separate and distinct sovereign entities, but rather are “auxiliaries
of the state,” subject to its “ absolute power.” Attorney General
v. Lowrey, 199 U.S. 233, 239-240 (1905), aff’g 131 Mich. 639
(1902). And the State of Michigan’s “absolute power” over its
school districts must be exercised in accord with the supreme com
mands of the Federal Constitution: “ [The Thirteenth and Four
teenth Amendments] were intended to be, what they really are,
limitations of the power of the States. . . .” Ex Parte Virginia,
100 U.S. at 345. Accord, Broughton v. Pensacola, 93 U.S. 266
(1876) ; Mount Pleasant v. Beckwith, 100 U.S. 514 (1879) ; Mobile
v. Watson, 116 U.S. 289 (1886) ; Comanche County v. Lewis, 133
U.S. 198 (1890) ; Shapleigh v. San Angelo, 167 U.S. 646 (1897) ;
Graham v. Folsom, 200 U.S. 248 (1906); Gomillion v. Lightfoot,
364 U.S. 339 (1960) ; Reynolds v. Sims, 377 U.S. 533 (1964).

Viewing these practicalities of the local situation in the
context of the nature and extent of the violation and the
inadequacy of relief confined within the borders of the
Detroit School District, the lower courts determined that
the equitable power of federal courts to disestablish now
and hereafter the present and expanding state-imposed
core of black schools was not limited to the boundaries of
the Detroit School District—precisely because such freez
ing of existing boundaries would merely serve to perpetu
ate in full force the intentional assignment of black chil
dren to a separate core of “black schools,” identified as
such by de jure state action, immediately surrounded by a
ring of all-white schools nearby. With equity power to do
more, however, the lower courts (pursuant to the joint sug
gestions by State defendants and plaintiffs) exercised their
discretion to defer decision on any substantial modification
of existing school districts or school district lines to the
State. Pending such state determination, any desegregation
across school district lines was to be accomplished by the
method least intrusive on existing arrangements, by con
tracts and pupil transfers between the existing school dis
tricts pursuant to the provisions of state law. (J. 80a; J.
177a, J. 188a-189a).

The narrow issue of substance on review by this Court,
then, is whether petitioners’ argument that the school dis
trict lines may be interposed in such circumstances to per
petuate the walling-off of blacks in a state-imposed core of
overwhelmingly black schools separated from a ring of
overwhelmingly white schools only by that line is constitu
tionally acceptable: are existing school district boundary
lines, whose justification on this record is that they are and
have been there, really constitutionally immune? May
school district lines thereby serve to segregate black from
white children in a way that a school zone line (Swann), or

super highway (Davis), or newly created school district
line (Wright v. Council of City of Emporia, 407 U.S. 451
(1972)), or other artifact of school administration (Green;
Raney v. J3d. of Ed., 391 U.S. 443 (1968); Monroe v. Bd.
of Commrs., 391 U.S. 450, (1968)), however untainted their
genesis, may not?5 In historic perspective then, if the peti
tioners are correct, all will understand that Brown’s reach
has exceeded our grasp: along the existing school district
line may Plessy be reconstructed sub silentio.6

5 Due to the State defendants’ default in failing to comply with
the District Court’s orders, no actual plan of desegregation extend
ing beyond the borders of the Detroit School District has ever been
submitted to or considered by the District Court. (J. 62a-64a). The
appeal to the court below was on an interlocutory basis. (J. 108a;
J. 112a: la 265-266). On remand, proceedings are already under
way among all conceivably interested parties in the District Court
in order to develop and consider such plans and to cure the poten
tial procedural error, ascribed to the District Court by the Court
of Appeals, in failing to give districts potentially affected by any
plan ordered the prior opportunity to be heard. (J. 176a-179a; la
287-302). Review by this Court at this basically interlocutory stage
of the proceedings, therefore, is premature for the reasons previ
ously stated in our Memorandum in Opposition to Petitions for
Writs of Certiorari. Review at this posture, however, does permit
consideration of the pure legal issue wholly free from jockeying
about walk-in schools and reasonable time and distance limitations
for transporting pupils to schools; for here the school district line
separates the black schools on the edge of the black core from many
adjacent, conveniently walk-in, all white schools. Compare Swann,
402 U.S. at 29-31, with Keyes v. School District No. 1, 37 L.Ed.2d
at 572-3, 581 (separate opinion of Powell, J.).

6 Petitioners, public servants serving predominantly white con
stituencies, argue to the contrary, that black plaintiffs premise
their case for relief beyond the Detroit School District on an as
sumption of inferiority of blacks and the per se unconstitutionality
of majority black schools rather than the enforced segregation of
black children as a class from whites. Such a suggestion from
public officials in 1974 is old wine in new bottles; it is no more
and no less than the racial sophistry adopted almost 80 years ago
by this Court in Plessy in rejecting black plaintiffs’ consistent
argument, from Reconstruction to this very day, that “the enforced
segregation of the races stamps the colored race with a badge of
inferiority” :

If this be so, it is not by reason of anything found in the act,

B. The Proceedings Below

1. Preliminary Proceedings

Plaintiffs commenced this action over three years ago,
August 18, 1970, invoking the jurisdiction of the District
Court under 28 TJ.S.C. §§ 1331(a), 1343(3) and (4), and
asserting causes of action arising under 42 U.S.C. §§ 1981,
1983, 1988, 2000d and the Thirteenth and Fourteenth
Amendments to the Constitution. Plaintiffs sought declara
tory (28 TJ.S.C. $§ 2201, 2202) and injunctive relief against
Michigan’s Governor, Attorney General, Superintendent of
Public Instruction and State Board of Fjducation, and the
Detroit Board of Education, its members and Superinten
dent of Schools,7 alleging de jure segregation of the Detroit
Public Schools resulting from historic public policies, prac
tices and action. Plaintiffs sought complete and lasting
relief from that segregation, which keeps well over 132,000
black children in a core of over 130 virtually all-black
schools segregated from white children in a ring of virtu
ally all-white schools.

but solely because the colored race chooses to put that con
struction on it. 163 U.S. 537, 551 (1896).

With respect to such ad hominem attacks by petitioners on black
plaintiffs’ goal of eradicating state-imposed segregation completely
and forever, nothing further need be said. However, as petitioners
make this same racial attack on the personal motives of the lower
court judges in ruling on this, case (see, e.g., Grosse Pointe Brief
43-45; Allen Park Brief 51; Allen Park Petition 13-14; State Peti
tion 13-14, 35), we feel compelled to set the record straight, point
by point. See infra, pp. 15, 23-25, 30-31. It is sufficient for our
purpose here that petitioners’ suggestion that the lower court
judges are racists at heart in seeking desegregation beyond the
geographic limits of the Detroit School District recalls precisely
the harsh realities of the Plessy rationale in blunting the Four
teenth .Amendment until discredited, finally, by the promise of
Brown.

7 The Detroit Federation of Teachers and a group representing
white homeowners within Detroit intervened as parties defendant
prior to trial on the merits.

The filing of the complaint was precipitated by the State
of Michigan’s then most recent, direct imposition of school
segregation on these black children. The State, “ exercising
what Michigan courts have held to be is ‘plenary power’
which includes power ‘to use a statutory scheme, to create,
alter, reorganize or even dissolve a school district, despite
any desire of the school district, its board, or the inhabits
thereof,’ ” (J. 27a) had acted with unusual dispatch follow
ing a Detroit Board adoption, its first ever, of even a small
scale, two-way high school desegregation attempt along
with a state-mandated decentralization program. In eon-
junction with a local recall of the Detroit Board members
who supported even this initial effort to breach the dual
structure by assigning white children to black schools, the
legislature passed Public Act 48 of 1970 (la 10-14) as a
direct response to obstruct such action forever.

Act 48 (1) reorganized the Detroit School District (here
after DSD), created racially discrete regional sub-districts
wholly within the DSD, and revalidated the external bound
aries of the DSD, all in the face of alternative proposals to
decentralize school administration in the metropolitan area
across the borders of the DSD to accomplish desegregation
(Compare la 10-14 and la 35 with Va 91-101 and la 26); (2)
unconstitutionally nullified the previous high school deseg
regation effort of the Detroit Board; and (3) interposed for
the DSD, and no other school district, unconstitutional pupil
assignment criteria of “ free choice” and “neighborhood”
which (as later found by the District Court) “had as their
purpose and effect the maintenance of segregation.”
(J. 27a-28a; see also 433 F.2d 897). On a racial basis the
State maintained inviolate the core of black schools and
singled out the DSD (and its mass of black citizens) for
separate treatment from all other (and overwhelmingly
white) school districts.8

8 In all these respects, the District Court found Act 48 to be one
of the examples where the “state and its agencies, in addition to

Plaintiffs prayed for a preliminary injunction to rein
state the partial plan of high school desegregation adopted

their general responsibility for and supervision of public education,
have acted directly to control and maintain the pattern of segrega
tion in the Detroit schools.” (J. 27a,). Petitioners’ arguments that
Act 48 either had no racial purpose (Grosse Pointe Brief 22) or
effect (State Brief 40-41) ignore the entire record evidence of
violation and the context in which this Act was so precipitously
adopted. In this respect, as so many others, petitioners seek to
have this Court review each finding of. fact separately and in com
plete isolation from each other fact, historical context, and the
careful deliberations of the District Judge over the whole record
evidence. Such “ fact” ploy is understandable but only clouds the
significant legal and constitutional issue which this Court must
decide. It also is contrary to this Court’s traditional reliance on
district court factual determinations, affirmed by courts of appeals,
in the context of the myriad local conditions presented by different
cases, particularly school segregation eases. See, e.g., Wright v.
Emporia, 407 U.S. at 466; Swann, 402 TT.S. at 28; Brown II, 349
U.S. at 299; United States v. Johnston, 268 IJ.S. 220, 227 (1925) ;
Amer. Const. Co. v. Jacksonville T. eft K. R. Co., 148 U.S. 372, 384
(1893) - Graver Mfg. Co. v. Linde Co., 336 U.S. 271, 275 (1948). It
is sufficient for our purposes here with respect to the motive
of Act 48 to note the following: Then Detroit Superintendent
Drachler’s uncontroverted testimony was that Act 48 was “an at
tempt then to turn the door back or the pages back.” (8/29/70
preliminary hearings Tr. 202; see also I lia 244-245). Then Board
President Darneau Stewart, subsequently recalled for his support
of the partial desegregation plan, stated with respect to Act 48,
“ I do regret that the legislature has found it necessary to intervene
in our carefully outlined plans and hopes . . .” (8/29/70 prelim
inary hearings Tr. 327-28).

Petitioners’ citation to the ultimate votes of black legislators
in favor of Act 48 (Grosse Pointe Brief 21-22) is only the most
recent example of the kind of misleading irrelevancy that peti
tioners have interjected from time to time to divert rather than
advance the inquiry in this case, akin to their implication that
plaintiffs must be ill with self-hate because we prefer constitu
tional schools to separate-but-equal schools. Here, petitioners seek
to obscure the fact that such approval was merely a final vote on
a general bill reflecting political acceptance of the legislative re
ality. Black legislators acceded to the already legislatively man
dated segregation in return for the hope of a modicum of the
same control over the “black schools” as whites maintained over
their white suburban school district enclaves. At earlier stages in
votes on particular parts of the bill, black legislators vociferously
opposed the Act whose purpose and effect were to roll back initial
efforts at desegregation, reimpose segregated pupil assignments,

by the Detroit Board but thwarted by Act 48, pending a
full hearing on the merits. After a preliminary hearing,

and ever after insure that white children would not again he as
signed to black schools. For example:

Rep. Vaughn: “First, the House today, and I think this is
perhaps the saddest day—April 9 will go down in history—
in Michigan history. It is the day the House of Representa
tives, at the State Capitol, Michigan, voted officially to nul
lify the Bill of Rights and the Constitution and violate the
basic laws of the United States Supreme Court. . . . And what
did the State House today say: We must segregate. Nullifica
tion. This is what southern senators do—plot on how to cir
cumvent a basic rule, a basic rule that would bring the schools
together.” House Journal No. 49, p. 1120 (April 9, 1970).
Rep. Mrs. Elliott: “ The passage of this bill is a step back
wards because of the crippling amendments that will continue
to perpetuate segregation.” House Journal No. 49, p. 1122
(April 9, 1970).
Rep. Mrs. Saunders, June 5, 1970, House Journal No. 88, p.
2160: “ I voted no on the Senate substitute for House bill
no. 3913 because I believe it can only have the result of fur
thering and intensifying segregation in education, a segrega
tion which has been contrary to the law of the land since
1954. Many of you sat smugly in Michigan while the southern
states protested the Brown v. Topeka Board of Education
landmark decision. You thought you were so much more vir
tuous in this basic humanitarian tenet of considering all men
as equal and realizing that separate is not, never was, and
never can be equal. . . . I am disappointed—I ’m deeply dis
appointed— I ’m ashamed of your action and response to racist
fears. You have helped to both divide and move our society
in a backward direction.” (Emphasis supplied).

Thus, the racial purpose underlying Act 48 is as obvious as any
of the Jim Crow laws. And its pervasive stigmatizing effects ex
tend beyond the borders of the DSD. For with respect to the
segregative pupil assignment criteria, the State intentionally created
what amounts to a racial classification between the DSD and
all other school districts (Cf. Lane v. Wilson, 307 U.S. 268 (1939) ;
Hunter v. Erickson, 393 U.S. 385 (1969); Lee v. Nyquist, 318
F. Supp. 710 (W.D.N.Y.), aff’d per curiam, 402 U.S. 935 (1971)),
and thereby affixed the State’s badge of approval on the mainte
nance in the Detroit area of a separate core of black schools
surrounded by a ring of all-white schools. It should be no consola
tion to petitioners that Michigan’s first Jim Crow school law fol
lowed Reconstruction by 100 years. (See also discussion infra,
p. 52).

beginning August 27, 1970, the District Court denied all
preliminary relief and dismissed the Governor and Attor
ney General by ruling and order of September 3, 1970.
(Ia 59-63.) On Plaintiffs’ appeal the Court of Appeals for
the Sixth Circuit affirmed the denial of preliminary relief
but held Act 48 unconstitutional insofar as it nullified the
initial steps taken by the Detroit Board to desegregate
high schools and interposed segregative pupil assignment
criteria for the DSD. In remanding for a hearing on the
merits the Court also directed that the Governor and Attor
ney General remain parties defendant. Bradley v. Milliken,
433 F.2d 897 (6th Cir. 1970).

On remand, the plaintiffs sought again to require the
immediate implementation of the Board’s high school plan
as a matter of interim relief to remedy some of the mischief
created by the enactment of the unconstitutional statute,
without determination of the more general issues raised
in the complaint. Instead, the District Court permitted the
Detroit Board of Education to propose alternative plans
and on December 3, 1970 approved one of them (Ia 88-97)
(a “ free-choice” approach which later proved upon imple
mentation to be not only wholly ineffective but also an
independent violation (J. 54a)); plaintiffs again appealed,
but the Court of Appeals remanded the matter “with in
structions that the case be set forthwith and heard on its
merits,” stating:

The issue in this case is not what might be a desirable
Detroit school plan, but whether or not there are con
stitutional violations in the school system as presently
operated, and if so, what relief is necessary to avoid
further impairment of constitutional rights. 438 F.2d
945, 946 (6th Cir. 1971) (emphasis supplied).

2. Hearings on Constitutional Violation

On April 6, 1971, as directed, the District Court began
the reception of proof on the subject of constitutional viola
tion. For 41 trial days, aided by hundreds of demonstrative
exhibits and thousands of pages of factual and expert testi
mony, the Court supervised a full and painstaking inquiry
into the forces and agencies which contributed to establish
ment of the by-now obvious pattern of racial segregation
in the Detroit public schools.9 This inquiry was more com
prehensive and probed more deeply into the causes of
existing school segregation than any of which plaintiffs’
counsel are aware.

The evidence revealed a long history, both before and
after Brown,10 of purposeful official action systematically
facilitating Detroit’s extensive pupil segregation. Virtually
all of the classic segregating techniques which have been
judicially identified, by this Court in Keyes11 and else
where, were employed or sanctioned by Detroit and State
school officials during the two decades from 1950 to 1970:
purposeful rescission of recent desegregation efforts; racial
gerrymandering of attendance zones, feeder patterns and
grade structures to maximize school segregation and pur
posefully incorporate precise residential patterns of segre
gation in schools; intact busing; in-school segregation;
racially selective placement of optional attendance areas

9 In 1960-61, of 251 Detroit regular (K-12) public schools, 171
had student enrollments 90% or more one race (71 black, 100
white) ; 61% of the system’s 126,278 black students were assigned
to the virtually all-black schools. In 1970-71 (the school year in
progress when the trial on the merits began), of 282 Detroit regular
public schools, 202 had student enrollments 90% or more one race
(69 white, 133 Hack) ; 74.9% of the 177,079 Hack students were
assigned to the virtually all-black schools. (Va 31-33).

10 Brown v. Board of Education, 347 U.S. 483 (1954).
11 Keyes v. School Dist. No. 1, Denver, 413 U.S. 129, 37 L.Ed.2d

543 (1973).

or dual overlapping zones; discriminatory allocation of
faculty to mirror pupil racial composition of schools;12
and persistent and intentional segregative construction
(both of new schools and of enlargements to old ones)
and site location practices. (See, e.g., la 133-171; Ila 1-8;
IXa 82-111; Ila 111-159; Ila 160-312; I lia 1-18; I lia 18-53;
I lia 53-59; I lia 60-72; I lia 72-73; I lia 75-81; I lia 97-153;
I lia 158-206; Ilia 216-230; I lia 237-244; I lia 244-246;
Va 24-31; Va 31-34; Va 35-41; Ya 42; Va 43; Va 44-47;
Ya 48-68; Va 102-104; Ya 181-197; P.X. 63; P.X. 109 A -Q ;

12 The District Court found, however, that by 1970— and in large
measure at the behest of the defendant Detroit Federation of
Teachers and then Detroit Board’s Assistant Superintendent Mc-
Cutcheon in charge of personnel—the Detroit public schools were
engaged in a significant program designed to overcome past racial
faculty assignment patterns, and that because this program showed
promise of achieving its goals within Detroit, injunctive relief was
not required as to faculty allocation in the city schools. (J. 28a-
J. 32a). Such findings, however, with respect to faculty only dem
onstrate more clearly the high burden of proof imposed by the
District Court on plaintiffs at trial; for it was uncontroverted that
white Detroit areas were openly hostile to black faculty members
prior to 1960 and the Detroit Board accommodated this racial
hostility by refusing to assign black teachers into those predom
inantly white schools until the whites were willing (Tr. 45-49, Ilia
59; R. 2548-2549). As a result few black teachers and administra
tors were assigned to serve white student bodies and black teachers
and administrators were assigned generally to black schools. Staff
racial composition mirrored pupil racial composition, thereby fur
ther identifying schools as “black” or “white” during critical pe
riods of the record (e.g., P.X. 100 A -J ; P.X. 165 A-C, P.X. 154
A-C J.X. F F F F ; P.X. 166, P.X. 3 at pp. 73-79, Va 48-68). More
over, the availability of positions to whites in virtually all white
suburban schools coupled with an acute shortage in the supply of
teachers made recruitment and assignment of white teachers to
black schools difficult (e.g., R. 4471-4475; J. 31a); this further
exacerbated the racial pattern in the allocation of faculty. Although
this racial pattern in the allocation of faculty ameliorated some
what after 1965, the pattern still persisted at the time of trial so
that pupil racial composition of schools still could be determined
solely by reference to the faculty racial composition. As admitted
by then Deputy Superintendent Johnson, “ the pattern . . . is the
result of discrimination.” (Ilia, 223). (E.g., Ia 135-140; Va 44-45;
P.X. 100; P.X. 165, P.X. 154; Ila 276-278; D.X. FFF).

P.X. 16 A -D ; P.X. 136 A -C ; P.X. 137 A-G ; P.X. 147-149;
P.X. 153-153B; P.X. 154 A-C; J.X. F F F F ; P.X. 173.)
All of these de jure devices operated in lockstep with the
extensive residential segregation, itself the product of
public and private racial discrimination, to further ex
acerbate the school segregation and result in the inten
tional confinement of the growing numbers of Detroit black
children to an expanding core of virtually all-black schools
immediately surrounded by virtually all-white schools.
(See, e.g., la 156-164; XIa 9-19; XIa 19-22; Ila. 22, Ila 45-51;
Ila 23-28; XIa 28-45; Ila 51-60; Ila 60-64; Ila 64-69; Ila
69-72; Ila 176-273, 296-307; I lia 60-72; XXIa 73-74; I lia 64,
66-70; I lia 206; Ya 22; Va 24-30; Va 69-86, P.X. 183 A-G;
Ya 21-23; Ya 5-11; P.X. 38; P.X. 48A; P.X. 57; P.X. 60;
P.X. 16 A-D; P.X. 109 A -Q ; P.X. 184; Ya 89-90; P.X. 181;
P.X. 182; P.X. 189; Ex. P.M. 13-15; Ex. M. 5 (Exhibit B ) ;
Ex. M. 14).

Confronted by the evidence, the District Court concluded,
in its September 27, 1971 opinion, 338 F. Supp. 582 (17a-
39a), that although certain public and private non-school
forces of discrimination had also contributed to the cre
ation of Detroit’s highly segregated school system, per
vasive and purposeful discriminatory action at the state
level and by Detroit defendants, relating directly to the
public schools, was a significant causal factor.13 Therefore,

13 The District Court, like this Court in Swann and Keyes, did
consider the interaction between residential and school segregation.
The residential segregation throughout the metropolitan area was
shown by the evidence, and found by the District Court, to be,
“ in the main, the result of past and present practices and customs
of racial discrimination, both public and private . . and not the
result of the racially unrestricted choice of black citizens and eco
nomic factors (23a). The segregative actions of state and Detroit
school authorities (especially with respect to school construction)
and the environment for segregation fostered by the dual system
of schooling, i.e., the expanding black core immediately surrounded
by the white ring, was also found to interact with and to contribute

tile District Court held, the Fourteenth Amendment re
quired “ root and branch” elimination of the unlawful school
segregation and its effects.

3. Remedial Proceedings

a. The Practicalities of the Local Situation

The evidence at the violation hearing focused primarily
on the Detroit public schools, where over 132,000 black
children were assigned to a core of virtually all-black
schools, identified as black by official state action. How
ever, in exploring how these black schools were created
and maintained, and how their resulting state-imposed
racial identity could be effectively removed, the proof
of the pattern of state action affecting school segregation— 14

substantially to this residential segregation throughout the Detroit
area. This, in turn, further exacerbated school segregation. (J. 23a-
24a, 26a-28a, 35a; J. 77a-78a, 87a-88a, 93a-94a. See also J. 144a-
157a, 159a, 172a). Compare the similar relationship previously
noted by this Court in Swann, 402 U.S. at 20-22, and Keyes,
37 L.Ed.2d at 559-560, 565. As stated by the District Court “ on
the record there can be no other finding.” (J. 23a). Thus unlike
Bradley v. School Bd. of the City of Richmond, 462 F.2d 1058,
1066 (4th Cir. 1972), and contrary to petitioners’ assertions (e.g.,
Grosse Pointe Brief 38), the District Court did take evidence and
make findings, supported by overwhelming proof, as to the
racially discriminatory causes of residential segregation in the
metropolitan area and the important contribution to that condi
tion of the de jure actions of school authorities. (In Argument,
infra, pp. 43-49, we will analyze the factual and. legal implications
of these findings.)

14 As a dramatic example, consider the Higginbothom community
in Detroit and the adjacent Carver School District. The Higgin
bothom community had been built up as a black “pocket” by tem
porary World War II housing, designated for black occupancy, on
the outskirts of Detroit and extended beyond the city limits into
Oakland County and the old, almost all-black Carver School Dis
trict. The boundaries for the newly constructed black Higginbothom
school in Detroit were created and maintained to coincide with the
precise perimeters of the black “pocket” in Detroit, which perim
eters were also marked both by an actual cement wall built by the
white neighbors and the boundaries of the adjacent all white schools

just as did the acts themselves14—extended beyond the
geographical limits of Detroit.15 The evidence compelled
viewing the Detroit Public Schools as part of a State sys
tem of public education, not a detached island of un-
remediable segregation. * 16

imposed by school authorities to cordon off the area. To the im
mediate North of the Higginbothom school, the black “ pocket” ex
tending outside Detroit was contained within the small, all-black
Carver School District. That black district lacked high school
facilities. The state and Detroit school defendants accommodated
these black suburban high school pupils for years, from at least
1948 through 1960, by busing them past or away from several closer
white schools, across school district lines, to a virtually all-
black high school in the inner core of the city. These black stu
dents were not housed in suburban high schools but were bused
across school district lines, for the purpose of segregation, thereby
further marking the neighboring suburban schools as “white” and
the inner schools as “black.” (The Carver School District was
finally split in two and merged into the Ferndale and Oak Park
School Districts. Yet, at the elementary level, all the suburban stu
dents in this black “pocket” continued to attend two virtually
all-black suburban schools. The Court of Appeals in another action
upheld the HEW finding and withholding of federal funds with
respect to such vestige of state-imposed segregation, see School
Dist. of Ferndale v. HEW, No. 72-1512 (6th Cir., March 1,
1973). (J. 26a; J. 80a, 96a; J. 137a-139a, 152a.) (See also, e.g,
la 157, 162; I.R. 163; P.X. 78a; P.X. 19 p. 71; 11a 109-110; 11a
131; I lia 206; Ya 181-182; Ya 186; P.X. 184; Va 89-90.) That the
state defendants are ultimately responsible for this patent act of
segregation from their general supervisory powers is clear (e.g., J.
36a-38a). Their particular responsibility for this violation and ac
quiescence in it is equally clear: they have supervisory responsi
bility for regulation of all aspects of school busing, including
the routing buses. (J. 36a; M.C.L.A. 388.1010(c)).

16 This evidence of effective discrimination along or beyond the
DSD borders ran only against the State defendants— the chief
state school officer, the State Board of Education which is charged
with general supervision of public education, the chief state legal
officer and the State’s chief executive—and Detroit defendants and
not against any suburban school district, its conduct, or the estab
lishment of its boundaries, as specifically noted by the District
Court. (J. 60a). The evidence presented related primarily to (1)
the State’s policies and practices effecting segregation within and
of the Detroit public schools vis-a-vis its suburban neighbors with
respect to Act 48, school construction, merger of districts, pupil

The proof showed that in practical terms there are now,
and for years have been, two sets of schools in the Detroit
area: one virtually all-black, expanding core in the DSD,
surrounded by another virtually all-white ring beginning
in some areas at the border of the DSD but everywhere
extending throughout the suburban area beyond the geo
graphical limits of the DSD. By 1970 the black core in the
DSD contained some 132,700 black pupils in 133 schools
more than 90% black, made racially identifiable by per
vasive discriminatory actions and practices of state and
Detroit defendants. In stark contrast in the school dis
tricts in the metropolitan area surrounding16 16 the Detroit
public schools, between 1950 and 1969 over 400,000 new
pupil spaces were constructed in school districts now serv
ing less than 2% black student bodies (Exs. P. M. 14; P. M.
15). By 1970 these suburban areas17 assigned a student

assignment across school district boundaries for the purpose of
segregation, faculty allocation, and disparity of bonding authority
and transportation funding and (2) to actions by Detroit and
state defendants which not only contained black youngsters in
designated Detroit schools but which had the reciprocal effect of
further earmarking the surrounding ring of schools—in Detroit
and the suburbs—-as white. (J. 26a, 28a, 38a; -J. 77a-78a, 87a-88a,
93a-94a; J. 144a~157a). Contrary to the Petitioners’ assertions,
the evidence of state law and practice showed that school districts
in the Detroit area were not separate, identifiable, and distinct,
except with respect to race. (See, e.g., J. 23a-24a;J. 36a-38a; J.
50a; J. 77a-81a; J. 87a-88a; J. 151a-157a; 165a-173a).

16 Hamtramck (28.7% black) and Highland Park (85.1% black)
are surrounded by the Detroit School District.

17 There are also small, long-established concentrations of black
population outside Detroit which are located in Beorse, River
Rouge, Inkster, Westland, the old Carver School District (Perndale
and Oak Park), and Pontiac. As within the DSD, the black and
white pupils within these districts also remained substantially seg
regated in 1970-71. (E.g., P.X. 181, 182, 184; Ex. P. M. 12; Ya. 111-
115). Such a systematically segregated result is entirely consistent
with the history of de jure segregation throughout the State. Con
trary to Petitioners’ assertions that the State has enjoyed a long
“unitary” history, this case is not an isolated exception; at least the

population of 625,746 pupils, 620,272 (99.13%) of whom
were white, to virtually all-white schools. Within the con
text of the segregatory housing market and environment
for segregation fostered by the dual system of schooling,
this massive suburban school construction contributed to
the migration of whites from the city to, and the location
of whites immigrating to the Detroit area in, the suburbs.
In turn, this had a reciprocal effect on the racial composi
tion of the Detroit Public Schools which “has been sub
stantial” . (J. 78a). Throughout the metropolitan area,
faculties mirrored the racial composition of the student
bodies of schools, thereby further earmarking them as
“white” or “black” schools. For example, within Detroit,
41.8% of the teachers were black; in the suburban areas
above with less than 1% black pupils, only 0.4% of the
faculty were black. (Exs. P.M. 13; P.M. 18).

Finally, the evidence indicated that absent appropriate
judicial intervention, this unmistakable pattern of school
segregation would continue: In the environment for
segregation created by the long history of de jure school
segregation and the interrelated, pervasive and enforced
residential segregation, the state-imposed core of black
school population within the DSD would continue to expand

six other school districts in the State subjected to judicial scru
tiny have been found guilty of pervasive racial discrimination
with respect to the assignment of pupils or staff or both. Davis v.
Sch. Dist. of City of Pontiac, 309 F.Supp. 734 (E.D. Mich), ajf’d,
443 F.2d 573 ( 6th Cir. 1971) ; Oliver v. Kalamazoo, 346 F.Supp.
766 (W.D. Mich) aff’d, 418 F.2d 635 (6th Cir. 1971), on remand
------ F.Supp. ------ (K-98-71, Oct. 4, 1973), NAACP and Taylor
v. Lansing, -------F.Supp. ------- (W.D. Mich. 1973) ; School Dist. of
Ferndale v. HEW, No. 72-1512 (6th Cir., March 1, 1973) ;
Berry v. School Dist. of the City of Benton Harbor, (C.A.
No. 9, W.D. Mich. Feb. 3, 1970) (oral opinion) ; Higgins v. Grand
Bapids Bd. of Eel, ------ F.Supp. ------- (C.A. 6386)' (W.D. Mich.
1973). Thus the State’s express promises of a racially non-dis-
criminatory system of public schooling have long been denied to
the vast majority of blaek children throughout the State.

right up to the borders of the DSD and within a relatively
short time all of Detroit’s schools were likely to have nearly
all-black student bodies, all still surrounded by a ring of
virtually all-white schools.18 (J. 20a; J. 23a-24a; 54-55a).

b. The District Court’s Guidance by Settled Equitable
Principles and Its Order to Submit Plans.

It was in the light of this factual background, then, that
the District Court set about the difficult task of devising an
effective remedy for the extensive constitutional violation
and resulting massive school segregation which it had
found. Prom the beginning of its search for an appropriate
remedy to its final opinion on remedy, the District Court
was guided by the prior rulings of this Court and by set
tled equitable principles in “grappling with the flinty, in
tractable realities” of eliminating all vestiges of state-
imposed segregation. (J. 61a quoting Swann v. Charlotte-
Mecklenburg Bd. of Educ., 402 ITS 1, 6). In its first col
loquy with counsel concerning remedy, on October 5, 1971,
the district judge made clear that Davis19 and Broivn II20
established the contours of the future proceedings in the
case:

I want to make it plain I have no preconceived notions
about the solutions or remedies which will be required

18 Among the other practicalities of the situation confronted by
the District Court at this point, then, were the boundaries of the
DSD and the existence of other school districts, both local and
intermediate. The District Court’s determinations with respect
thereto are so much the primary subject of this Court’s review
that they will be set forth and analyzed in Argument, infra. (See
also Nature of Review, supra at 5-8).

19 Davis v. Board of School Comm’rs of Mobile, 402 US at 37
(1971).

20 Brown v. Board of Education, 349 US at 299 (1955).

here. Of course, the primary and basic and funda
mental responsibility is that of the school authorities.
As Chief Justice Burger said in the recent case of
Davis v. Board of School Commissioners:

— school authorities should make every effort to
achieve the greatest possible degree of actual de
segregation, taking into account the practicalities
of the situation.

Because these cases arise under different local condi
tions and involve a variety of local problems their
remedies likewise will require attention to the specific
case. It is for that reason that the Court has repeatedly
said, the Supreme Court, that each case must be judged
by itself in its own peculiar facts. (J. 42a).21

21 Petitioners’ use of the District Court’s remark at this same
colloquy with respect to “ social goals” and “ law as a lever” are
taken wholly out of context. (E.g., State Brief 77-78.) Where peti
tioners thereby imply that the District Court was motivated by
a “social goal” to accomplish “ racial balance” and “majority white
schools,” the District Court’s remarks were only a cautious state
ment of constitutional principles, defendants’ responsibility initially
to come forward with a plan promptly, and the practical prob
lems which have been experienced in implementing constitution
ally mandated desegregation in the face of white community
hostility. As this Court well knows, the historic course of righting
the constitutional -wrong of state-imposed school segregation has
not been easy and has been made more difficult by the recalcitrance
of school authorities and white communities over time. See
Swann, 402 U.S. at 13. Read in context then, the District
Court’s remarks about the “social” difficulties inherent in such
judicial intervention were an admonition to plaintiffs that the
Alexander command of “now” be understood in light of the prac
tical difficulties of devising and implementing a plan to provide
complete relief. The only conceivable error in such statement is
its suggestion that delay beyond the limits mandated by Alexander
and Carter might be required in view of the practicalities of the
local situation. Alexander v. Holmes County Bd. of Educ., 396
U.S. 19 (1969) ; Carter v. West Feliciana Parish, School Bd., 396
U.S. 290 (1970).

In its last opinion on remedy, the District Court reiterated
the constitutional basis for its action.

The task before this court, therefore, is now, and, since
September 27, 1971, has always been, how to desegre
gate the Detroit Public Schools.

^ *

[T]he primary objective before us was [and is] to
develop and implement a plan which attempts to
‘achieve the greatest possible degree of actual desegre
gation, taking into account the practicalities of the
situation.22 (J. 60a).

Put simply, the District Court was required to consider
what was necessary to disestablish the state-imposed black
core, now and hereafter, in the context of the nature of the
violation and the practicalities of the local situation.

Based on these equitable principles and in order to
evaluate all feasible alternative desegregation techniques,
at a pre-trial conference on October 5, 1971, and by written
order on November 5, 1971, the District Court directed that
Detroit school officials submit a plan limited to the DSD
within sixty days and also that state defendants recommend
a plan not limited to the existing boundaries of the DSD—
a “metropolitan” plan—within 120 days (J. 43a, J. 46a-
47a).23

22 In its two intervening rulings on remedy, the District Court
steadfastly applied these legal standards. (See J. 48a; -J. 53a.)
Thus, throughout the remedial proceedings the District Court
sought “ to assess the effectiveness of proposed plans of desegre
gation in the light of circumstances present and the available
alternatives; and to choose the alternative or alternatives which
promise realistically to work now and hereafter to produce the
maximum actual desegregation.” (J. 50a).

23 The State and Detroit defendants sought to overturn the Dis
trict Court’s ruling on violation by appealing from its orders
requiring submission of plans; the Court of Appeals held this
procedure to be premature. 468 F.2d 902, cert, denied, 409 XJ.S.
844 (1972).

c. The Procedural Status of Suburban Interveners.

At the same time the District Court considered again the
motion of the original intervening defendant white home-
owners group to join all 86 school districts in the Detroit
metropolitan area. (In its September 25, 1971 Ruling on
Segregation the District Court held decision on the motion
in abeyance pending submission of actual plans, of de
segregation by the parties, which might establish more
particularly the perimeters of relief and the school dis
tricts involved (J. 38a-39a).) In the pre-trial conference
on October 5, 1971 on remedial proceedings, the District
Court again indicated its desire to allow affected school dis
tricts an opportunity to be heard prior to implementation
of any final plan but was uncertain how the practical me
chanics should be handled in view of the posture of the
proceedings, the uncertainty as to which school districts
might be affected and to what degree, the number of the
potential additional litigants, and the need to remedy
the constitutional violation “with some dispatch” (J. 44a).
(As no actual plan of “metropolitan” desegregation has
ever been before the District Court, this Court simply can
not know how the District Court would have resolved the
issue. The original motion of the intervening defendants
was subsequently withdrawn, but state defendants and then
the suburban intervenors continued to press the issue).

Despite the public notoriety of this case, only 43 of the
suburban school districts chose to file motions to intervene
and then only between February 9 and 18, 1972, many
months after the words “cross-district- busing” first canon-
aded around the State and several months after the District
Court had set a schedule for the filing of remedial plans
and objections thereto. (J. 43a; J. 47a; la 4-5; la 185, 189,
192, 196). On March 15, 1972, the District Court granted
these motions to intervene, as well as the motion to inter

vene earlier filed by a group of white suburbanites also
seeking to contain any possible desegregation within the
geographic limits of the DSD. (At the same time the
District Court continued to defer ruling on the motion
to join all 86 school districts). In granting these motions,
the District Court did place certain restrictions on the inter
veners’ conduct in future proceedings in the interests both
of making judicial administration of further hearings
among the numerous parties possible and of insuring that
plaintiffs’ right to immediate relief under Alexander would
not be further forfeited. (Ia 204.) At the first day of the
hearings on metropolitan relief the District Court made
clear, however, that these limitations would give way to
the interests of justice upon showing.24

d. Hearings and Decision on Plans Limited to the DSD.

In response to the District Court’s order, the Detroit
Defendants submitted two DSD “ free choice plans” neither
of which even purported to be plans of actual desegrega
tion; the Detroit Board announced that actual desegrega
tion would require approaches extending beyond the
geographical limits of the DSD. The plaintiffs, therefore,
submitted a plan of pupil reassignment limited to the DSD
borders to permit full evaluation of the available alterna

24 The District Court stated at the opening of the hearings on
metropolitan relief:

Some of the newly intervening parties have filed objections
to the conditions of intervention which I have not given full
consideration to. Presently, I believe all the Court need say
is that the conditions are subject to modification and change
as justice may require as the proceedings progress. (IYa 142).

Throughout the hearing the District Court modified the restrictions
to permit cross-examination by all counsel and even keep the
record open for submission of evidence on tangential issues.
(E.g., IVa 143). In Argument, infra, we will show how the Dis
trict Court did not deny to any person any procedural right se
cured by the United States Constitution.

tives. After hearings, from March 14 through March 21,
1972, at which suburban school district intervenors did not
appear, the District Court concluded that, in view of the
violation and its far-reaching results and the practicalities
of the local situation, a plan of desegregation limited to the
DSD would be ineffective: it would maintain the state-
imposed containment of black children to a core of pre
dominantly black schools extending right up to the borders
of the DSD, still walled off from a ring of virtually all-white
schools and would lead directly to the creation of a virtually
all-black school district immediately surrounded by virtu
ally all-white schools.25 (J. 48a et seq., J. 53a et seq., 87 a-
88a). Such a “remedy” held no promise for disestablishing
the present and expanding, state-imposed core of black
schools now, even less promise hereafter.

e. The Hearings and Decision on “Metropolitan” Plans.

The hearings on “metropolitan” plans commenced on
March 28, 1972, and continued through April 14, 1972. The
state defendants, however, failed to submit any plan of
actual desegregation extending beyond the borders of the
DSD. They chose instead to submit six “plans” “without
recommendation or preference” (J. 62a) and without record
support (J. 64a). Pour proposed concepts alternative to
maximum actual desegregation; a fifth described a statis
tical method of determining the number of transfers in
volved in achieving any particular racial mix; and a sixth
discussed, primarily, new governance and administrative
structures for any larger area of actual pupil desegregation
and also proposed a particular area for initial pupil de

25 The District Court rejected the Detroit Board “ free choice”
proposals as not only wholly ineffective, hut also independently un
constitutional ; in contrast the District Court found that plaintiffs’
plan, despite its constitutional ineffectiveness, would accomplish
more desegregation than the Detroit Board proposals and than
currently existed in the DSD. (J. 54a-57a).

segregation. The state defendants filed objections to the
non-plans they themselves submitted, based upon self-serv
ing assertions of impotence. At the hearings on these
“plans” the state defendants steadfastly refused to meet
their burden to explore and develop the relative promise of
alternative “metropolitan” proposals for desegregation.
All this constituted a direct refusal by state defendants to
assist the District Court in defining even the area and
further planning necessary to develop an effective plan.
(J. 62a-64a.)36

The Detroit Board and intervening Detroit home-owners
group proposed alternative perimeters for the area nec
essary and practicable effectively to eliminate the official
segregation of the Detroit public schools. Plaintiffs there
after submitted a modification of the three perimeters
already proposed. (J. 65a.)

As a result of the state defendants’ default in failing to
submit an actual and complete desegregation plan, the
initial hearings on “metropolitan” relief were necessarily
limited primarily to consideration of the general contours
of a plan, particularly the perimeter for actual pupil de-
segregation and how to proceed with further planning. (J.
61a-64a.) Six months after the finding of violation and
order to defendant school authorities to submit actual
plans, therefore, the District Court was limited to under-'
taking to determine a feasible method and tentative guide
lines to permit preparation of such an actual plan of de
segregation at last to begin in earnest. Of. Swann, 402
U.S. at 24-25. After hearing, and the parties’ submission
of proposed findings of fact and conclusions of law, the 26 *

26 The newly intervening suburban defendants rather than as
sisting the District Court in considering the alternatives available
and suggesting how future planning should proceed chose instead
to press their views that separate schools were preferable. (J. 64a).

District Court issued an order, July 14, 1972, (1) setting
the contours for actual desegregation planning pending
hearing on a completed model,27 (2) establishing a panel

27 The District Court specifically rejected the perimeter pro
posed by state defendants because on the record evidence its only
justification was “a desire to achieve an arbitrary racial ratio.”
(J. 66a). Such finding is just one of the many examples which
refute petitioners’ charge that the District Judge was motivated
by a non-judicial social desire to achieve “racial balance” and
“majority white schools.” Other examples include the District
Court’s (1) findings that Detroit defendants’ persistent refusal to
assign white children to predominantly black schools and pur
ported attempts at “ one-way” desegregation (transfers of only
blacks to white schools) were among the constitutional violations
(J. 26a) ; (2) findings that the plan of actual desegregation
limited to the DSD “ would accomplish more desegregation than
now obtains in the system” . (J. 54a) ; and (3) rejection— on the
basis of the precise commands of Brown, Brunson and Swann—
of petitioners’ assertion of just such “social policy” considerations
in the district court as a justification for limiting desegregation
(J. 61a, 89a). The wonder, then, is that petitioners cite Judge
Sobeloff’s compelling concurring opinion in Brunson v. Bd. of
Trustees, 429 F.2d 820 (4th Cir. 1970), in support of their argu
ment that the District Judge was a racist motivated by a belief
in black inferiority to order desegregation beyond the DSD to
achieve all “majority white” schools. No individual could have
more strongly agreed with Judge Sobeloff’s interpretation of
Brown’s requirement to disestablish completely the state-imposed
black core, and only that, than Judge Roth:

Insofar as pupil assignments are concerned, the system of
public schooling in every state must be operated in a racially
non-diseriminatory, unified fashion; until that objective is
met, the very system of public schooling constitutes an invidi
ous racial classification. (J. 86a).
From the initial ruling on September 27, 1971, to this day,
the basis of the proceedings has been and remains the viola
tion: de jure school segregation. Since Brown, v. Board of
Education the Supreme Court has consistently held that the
remedy for such illegal segregation is desegregation. The
racial history of this country is writ large by constitutional
adjudication from Bred Scott v. Sandford to Plessy V. Fer
guson to Brown. The message in Brown was simple: The
Fourteenth Amendment was to be applied full force in pub
lic schooling. The Court held that “state-imposed” school seg
regation immeasurably taints the education received by all
children in the public schools; perpetuates racial discrimina-

of experts to develop a plan for pupil desegregation, (2)
directing state defendants to consider administrative prac
ticalities associated with, any eventual desegregation order,
and (4) setting a schedule for further proceedings to con
sider any plans and recommendations made by the court-
appointed panel and the state defendants and to permit
the parties an opportunity to present objections and alter
natives.* 28 (J. 97a-105a.)

tion and a history of public action attaching a badge of
inferiority to the black race in a public forum which impor
tantly shapes the minds and hearts of succeeding generations
of our young people; and amounts to an invidious racial clas
sification, Since Brown the Supreme Court has consistently,
and with increasing force, held that the remedy upon finding
de jure segregation is prompt and maximum actual desegrega
tion of the public schools by all reasonable, feasible, and prac
ticable means available. This court finds that there is nothing
in the law, wisdom, or facts, and the particular circumstances
and arguments, presented in this ease which suggest anything
except the affirmance of these principles in both fact and law.
The task before this court, therefore, is now, and, since Sep
tember 27, 1971, has always been, how to desegregate the
Detroit public schools. . . . (J. 60-61a)

Having been told by the lower courts that naked “social policy”
concerns yield to constitutional commands and may not limit
desegregation, petitioners dare to argue in this Court that the
lower courts were motivated by racist “social goals” rather than
the commands of the Constitution.

28 The perimeter approved by the District Court for further
planning for actual desegregation was premised on several criteria
including reasonable time and distance limitations, eliminating the
racial identifiability of the state-imposed black core, the actual
community of interest in the Detroit area, existing school district
boundaries, and long range stability (J. 62a-70a). The District
Court was able to reduce the perimeter from some of the more
expansive proposals of defendants by requiring state defendants
to examine and limit new classroom construction outside the de
segregation area which might affect the stability of the ultimate
plan. (J. 72a). Gf. Kelley v. Metropolitan County Bd. of Ed.,
Civ. No. 2094 (M.D. Tenn., June 28, 1971), aff’d, 463 F.2d 732
(6th Cir.), cert, denied, 409 U.S. 1001 (1972). Finally, the Dis
trict Court ordered that further planning proceed on a division
of the desegregation area into general clusters of schools, each

Thereafter, upon recommendation of the court-appointed
panel and after hearing, the District Court on July 11, 1972
ordered the purchase of 295 buses, necessary to implement
any of the “metropolitan” or “Detroit only” proposals then
before the Court for the actual desegregation of the Detroit
Public Schools (J. 106-107a). Upon the representation by
the State defendants that they would not disburse funds
for these buses, the District Court at the same time joined
the State Treasurer as a defendant pursuant to Rules 19
and 21, Fed. R. Civ. P. (la 263-264). Compare Griffin v.
County School Board of Prince Edward County, 377 U.S.
218 (1964).

4. Appellate Proceedings

Following emergency appeals from these rulings, the
Court of Appeals stayed the order directing purchase of

roughly approximating the racial composition of the desegregation
area (J. 70a-81a). Within each cluster, then, planning for the
actual disestablishment of the state-imposed core of black schools
could continue almost independently. This would make planning
for each smaller cluster considerably easier than in many plans
previously drawn throughout the country. The Court also in
structed that further planning proceed on the basis of attempting
within clusters to avoid a pattern of schools of substantially dis
proportionate racial composition, subject to reasonable time and
distance limitations as they actually developed (J. 101a-102a).
Such planning order is precisely the type of “starting point” au
thorized by Swann, 402 U.S. at 25, to permit actual development
of a pupil assignment plan. And the District Court invited peti
tioners to submit alternatives and objections, or to argue that
particular assignments were not necessary to the elimination of
the state-imposed black core now and hereafter, upon submission
of an actual plan. (J. 105a). At that point petitioners will have
the opportunity to show that particular pupil assignments pro
posed were unnecessary and unrelated to the disestablishment of
the state-imposed core of black schools. See Swann, 402 U.S.
at 26. Thus state petitioners’ argument (State Brief, 74-77)
that such unnecessary pupil assignments were ordered by the
District Court is, to say the least, premature and wholly unfair
to the District Court which has not yet even had an opportunity
to rule on the issue.

transportation equipment pending entry by the District
Court of a final desegregation order or until certification
by the District Court of an appealable question as pro
vided by 28 U.S.C. §1292(b). (See J. 113a). On July 19,
1972 the District Court certified Ms prior rulings under
28 U.S.C. 1292(b) and made a determination of finality
under Rule 54(b), Fed. R. Civ. P. (la 265-266). The Court
of Appeals immediately granted the interlocutory appeal
on an emergency basis and stayed all further proceedings
in the District Court, except planning, pending- appeal.
(113a).39

Subsequently, pending the appeals, the panel and state
defendants filed reports on their planning. (Ia 268, la 271,
la 288). Of particular note, the State defendants’ report
on administration of any eventual desegregation plan
recommended that, at least on an interim, basis, existing
school districts be maintained with pupil desegregation to
be accomplished by contract between school districts, as
already authorized under state law.80 (Ia 268-270). State
defendants also recommended that any eventual alteration 29 30 * *

29 Immediately after the District Court’s Ruling on Desegrega
tion Area and Development of Plan, three other suburban school
districts chose to apply to the Court of Appeals for writs of man
damus or prohibition against Judge Roth. The Court of Appeals
denied the applications without prejudice to the school districts’
right to intervene on July 17, 1972 and August 7, 1972. On
February 27, 1973, this Court denied review of that decision
without prejudice to the right of the School Districts to file
application to intervene in the present action. (I lia ). These three
suburban school districts chose not to avail themselves of the
opportunity to intervene in the District Court or in the Court
of Appeals. The remaining suburban school districts chose just
to sit tight. (See Argument, infra pp. 61-78, for a discussion of
how none of these districts were denied any procedural rights
guaranteed to them by the United States Constitution.)

30 The District Court had already approved use of such an ap
proach in its Findings of Fact and Conclusions of Law in Support
of Ruling on Desegregation Area and Development of a Plan

of the school districts’ boundaries and reorganization of
state, intermediate and local school authority agencies and
functions should be left to the legislature and the people.81
(Ia 278, et. seq.).

On June 12, 1973, after briefs, hearing and decision by
a panel of judges, and grant of petitioners’ motions for
rehearing en banc, the Court of Appeals sitting en banc
affirmed the District Court’s findings of a pervasive vio
lation* 31 32 and the inadequacy of relief limited to the DSD,

(J. 80a~81a). Such utilization of state law to provide or assist in
providing a remedy for violation of civil rights is authorized by
42 U.S.C. §1988, which makes “ State law responsive to the need
whenever a federal right is impaired.” Sullivan v. Little Hunting
Park. 398 U.S. 229, 240 (1969).

31 On appeal, plaintiffs supported these recommendations as a
workable method of proceeding to accomplish complete relief from
the constitutional violation with as little intrusion as possible into
the State’s existing internal structures for administering public
education.

32 p erhapS the most glaring non-sequitur in all of petitioners’
briefs is the extensive quotation of the Detroit Board’s brief, as
appellant in the Court of Appeals, as some kind of authority for
the proposition that the violations found and of record in this ease
were trifling. (Grosse Pointe Brief 16-18). The Detroit Board vig
orously defended this position with argument and evidence in the
District Court and then played out this approach in its appeal and
presentation to the Court of Appeals. Based on the entire and
extensive record evidence, however, this proposition was first
squarely rejected by the District Court, which found that the
violations were pervasive, purposeful and substantially contributed
to the existing conditions of segregation. (J. 23a-33a). (Indeed at
trial the Detroit Board required plaintiffs to cross every “t” and
dot every “ i” ; but when all the evidence was in, plaintiffs had
spelled-out, beyond peradventure, “state-imposed segregation.” )
On appeal, after carefully reviewing the evidence, the Court of
Appeals, en banc, affirmed the District Court’s findings that the
de jure actions of the State of Michigan and Detroit defendants
were pervasive, purposeful and causally related to the imposition
of massive school segregation on plaintiff black children from the
beginning of the record evidence to date. (J. 157a). Compared to
the careful judicial considerations of the extensive record evidence
and express rulings of the District Court and Court of Appeals

affirmed the propriety of considering relief extending be
yond the geographic borders of the DSD, but vacated for
procedural reasons the Ruling on Desegregation Area
and Development of a Plan (except for authorizing the
court-appointed panel to proceed with its studies). (J.a
110a et. seq.). The Court of Appeals remanded with guide
lines for accomplishing* relief but expressed no view on
the vacated remedial rulings with respect to the tentative
perimeter for a desegregation area and all other partic
ulars. (J. 178a). Thus any semblance of even the tenta
tive outlines of a remedial plan were thereby wholly
eliminated. In remanding, however, the Court of Appeals
did (1) adopt the parties’ suggestion to give the legisla
ture the opportunity to act prior to any restructuring
or alteration of existing school districts and school dis
trict lines; (2) approve the principle that desegregation
extending beyond the geographic limits of the Detroit
School District was required to remedy, now and here
after, the unconstitutional school segregation and its
effects disclosed by the record, taking into account all
the practicalities of the local situation; and (3) hold that
any suburban school district to be affected by any plan must
be given an opportunity to be heard prior to implementa
tion.

On review, therefore, there is simply no plan of desegre
gation before this Court.83 The only substantive issue is
whether the boundaries of the DSD can be crossed at all

in this case, we respectfully suggest that the petitioners’ citation
of a contrary argument in a brief of the appellant Detroit Board
is entitled to little weight.

38 About all that is clear is that if the decision of the Court of
Appeals is affirmed any eventual desegregation plan will utilize,
at least on an interim basis, existing school district entities and
transfers accomplished by contract unless the legislature chooses

in any fashion to remedy the violation, taking into account
the entire local situation found, in the sound exercise of the
District Court’s equitable discretion.* 34

State and suburban school district defendants petitioned
this Court for Writs of Certiorari to review the en banc
decision of the Court of Appeals with respect to (1) the

to establish a new and different administrative framework for
relief. The difficulty with this Court’s review of the historic, sub
stantive constitutional issue presented in this interlocutory stage
of proceedings is apparent. See Memorandum in Opposition to
Petitions for Writs of Certiorari of Respondents Ronald Bradley
et al., passim. We continue to adhere to the views set forth in that
Memorandum and respectfully suggest that certiorari to review
this ease was improvidently granted at this juncture.

34 Thus this ease presents no issues of “massive busing” , for
“walk-in” desegregation is possible across the borders of the DSD
between all-black Detroit schools and contiguous, all-white suburban
schools. The issue is whether even that “walk-in” desegregation is
foreclosed by the happenstance of a state-created border between
subordinate school districts which petitioners now urge should
stand both as a barrier to disestablishment of the state-created
black core and as the ultimate protection for the reciprocal all-
white ring. On the proof of record in this case, there is not the
slightest shadow of a doubt that at least these “walk-in schools”
would be ordered to desegregate if they were not separated by a
school district line. See Keyes v. School District No. 1, 37 L.Ed.
2d 548, 572-573, 581 (separate opinion of Powell, J.)

We also note, however, that petitioners’ statements about busing
to accomplish desegregation misrepresent the facts of record. Even
assuming arguendo that the District Court’s vacated Ruling on
Desegregation Area were to be fully implemented, with respect to
transportation it would be supported by the following factors:
(1) this case does not involve turning a non-transportation sys
tem into a transportation system; (2) 42% to 52% of the pupils in
suburban districts which receive state reimbursement are now
bused to school (Ex. M4, pp. 3134) and 35% to 40% of all students
are bused to school in the state (Va 206) ; (3) these figures com
pare with the desegregation panel’s estimate that ultimatly 37%
of the pupils in the “desegregation area” will require transporta
tion; (4) school bus transportation is a much safer and more con
venient means of getting children to school, and on time, than
either car or walking, and this is especially true for young chil
dren (Va 213-214; IVa 15; Hearings re Detroit-Only Plans Tr.

so-called “ state” violation; (2) any desegregation in this
case not limited to the borders of the Detroit School Dis
trict, and (3) the failure to join all suburban school dis
tricts which might be affected by any remedial plan at
the outset of the litigation. This Court granted certiorari
so to review the case on November 19, 1973.

5. Proceedings on Remand

Pursuant to the instructions of the Court of Appeals,
plaintiffs filed an amended complaint to conform to the
evidence and moved to add all school districts, their boards
and executive officers, who might conceivably be affected
by any plan in any fashion. (la 291). The District Court
ordered these parties added pursuant to Rules 19 and 21,
F. R. Civ. P. (Ia 300-302). Many of the defendants joined,
as well as those already parties to this action, have filed
answers. In addition the defendant Attorney General
formally transmitted the en banc opinion of the Court of

333-334) ; (5) over 300,000 children in the tri-county area are
now bused to school (Ya 116-122), about the same number who
will require transportation to accomplish the desegregation under
the proposal (Metro Hearings Tr. 452, 454, 694, 697, 744-45) ; (6)
the maximum one-way transportation time for any student would
be limited to approximately 40 minutes for full-time students
(J.92a n .l l ; J.67a-70a) and (7) any increases in the total num
bers of students transported and in total costs of transportation
will be minimal. (J.72a-73a; e.g., Ya 207 et seq. and Exhibits to
deposition; Hearings re Detroit-Only Plans Tr. 346, 417) These
factors are all well within the limits of common practice in the
State and used by other District Courts, and approved by this
Court, to accomplish desegregation. There was no showing that
such court-ordered student transportation was in any way a dis
ruptive element in education, especially at the elementary level.
Based on this uneontroverted evidence, the District Court found
that such transportation will not impose “any undue transporta
tion burden on the children or on the state’s system of public
schooling. The time or distance children need be transported to
desegregate schools in the area will impose no risk to the chil
dren’s health and will not significantly impinge on the educational
process.” (J.69a-70a; See also J.66a-70a, 72a-75a).

Appeals to the Legislature for its consideration and
called particular attention to its admonition that the Leg
islature be given an opportunity to act to remedy the
constitutional violation and all its effects found. Pro
ceedings are therefore under way below to address the
many important issues left unresolved at this juncture
in the case. See Memorandum in Opposition to Petitions
for Writs of Certiorari.

Thus this Court’s review comes in the middle of the trial
proceedings and is limited to the narrow issue finally
decided below. More than two years after the declaration
of a massive, pervasive and generation-long violation of
plaintiffs’ constitutional rights to attend schools entirely
free from state-imposed segregation and its effects they
yet attend upon schools with that indelible taint. For
plaintiffs the complete and effective disestablishment of
the state-imposed core of black schools for all time remains
only a constitutional promise.

Summary of Argument

In the Detroit, Michigan area almost all black children
and some white children attend schools in Detroit; most
white children and almost no black children attend schools
in the adjacent suburban area.

The District Court, in findings affirmed without qualifi
cation by the Court of Appeals in a panel and thereafter
en banc, concluded that Michigan and Detroit, acting
through their respective school authorities and other pub
lic bodies, had for about two decades deliberately segre
gated white from black children in Detroit’s schools and,
moreover, had successfully undertaken to confine black
children to a nucleus of black schools surrounded by a
reciprocal ring of white schools in Detroit and the suburbs.

The courts below held, and we urge here, that the con
stitutionally required disestablishment of this substantially
dual structure would not be afforded by relief limited to
the Detroit system, and that its suburban neighbors, as
related components of a state school system subject in
practice and theory to Michigan’s absolute control, may be
required to participate in remedying the violation— absent
a showing of impracticality or strong contrary interest,
which was not forthcoming. The courts also held, and
we also urge here, that the state and local authorities’
area-wide violation—the deliberate confinement of black
children to a core of schools within a line separating them
from reciprocally white schools—is not constitutionally dif
ferent from gerrymandering school attendance zone lines
around black neighborhoods, and that State, both as a
violator and as the ultimate guarantor of Fourteenth
Amendment rights, may be required through the state
school authorities practicably to involve its non-Detroit
units in vindicating those rights.

Finally, review is sought here of the holdings below with
respect to the adequacy of the hearings afforded poten
tially affected suburban districts. Their opportunities were
ample, especially as state authorities were defendants from,
the outset. In any event, grounds for reversal are not
involved because the matter is poised below for further
bearings on remedy and any irregularity is readily curable
before anyone is affected.

A R G U M E N T
I.

Introduction

According- to the petitioners, plaintiffs and the lower
courts have leaped without precedent from trivial segre
gation violations, whose effects were minimal or limited,
to an assertedly cherished nonconstitutional objective of
schools variously described by petitioners as racially bal
anced, majority white, or racially unidentifiable in the
context of southeastern Michigan. And this leap was made,
their argument runs, irrespective of the innocence of sub
urban districts vis-a-vis the violations and without re
gard to other valid interests that would be infringed by
the relief sought.

This Court has not held that the right of minority
children to attend practicably desegregated schools— after
a finding of illegal segregation—is secondary to the ac
knowledged general authority of the States to choose their
educational arrangements. On the contrary, we believe
that an examination of the relationship of the Fourteenth
Amendment to public education, an inquiry into the na
ture of most school segregation, and a weighing of the
interests typically served by present arrangements would
lead this Court, and others, to the conclusion that the
constitutional right of minority children must be given
precedence.36 Cf. Brown v. Bd. of Education, 349 U.S. 35

35 The States involved in Brown argued that there need not be
actual pupil desegregation—white and black children in the same
schools and classrooms together—to cure state-imposed segrega
tion, because any constitutional inequality imposed on the black
children could be cured wholly within their schools if upgraded.
In other respects, they argued, the States had the inherent right
to subdivide their systems of public schooling as they saw fit.
This_ Court squarely rejected those arguments in Brown and suc
ceeding cases.

294, 299-301 (1955); Green v. County School Board, 391
U.S. 430, 437-442 (1968); Swann v. Charlotte- Mecklenburg
Bd. of Education, 402 U.S. 1, 15, 27-29 (1971); Davis v.

In this ease petitioners make the same argument for similarly
limiting the relief to which plaintiffs are entitled, i.e., basically
to the schools they already attend. They argue that the Fourteenth
Amendment rights of a “person” and obligations of a “ State” are
limited to the geographic jurisdiction of the particular state
agency which is the violator of constitutional rights. Thus, argu
ing that any violation of plaintiff black children’s constitutional
rights, results solely from actions by the DSD, petitioners urge
that any such violation should be cured only by the DSD and
wholly within its geographical boundaries and that the State
otherwise has the inherent right to subdivide its system of public
schooling as it sees fit.

Assuming arguendo that petitioners are correct in placing the
blame entirely upon Michigan’s DSD agents, such contention, like
the States’ arguments in Brown, ignores the personal nature of
the rights of black children to attend State public schools which
are devoid of state-imposed racial segregation, regardless of its
form. Moreover, petitioners’ view vitiates the obligation of the
State, as a State, to provide within its jurisdiction a racially
unified, non-discriminatory system of public schooling. Under the
United States Constitution, the State is free to choose any de
centralized framework it wishes, so long as it fulfills its Four
teenth Amendment obligations to its children. Notwithstanding
the Tenth and Eleventh Amendments, behind which petitioners
would hide, the State may not, by delegation and compartmental-
ization of authority to sub-units, avoid its Fourteenth Amendment
duties and limit the rights of persons. As held by this Court in
Ex Parte Virginia, 100 U. S. 339, 345-347 (1880), with respect
to the Reconstruction Amendments:

They were intended to be, what they really are, limitations
of the power of the States. . . .

The prohibitions of the 14th Amendment are directed to
the States, and they are to a degree restrictions of state power.
. . . It is said the selection of jurors for her courts and the
administration of her laws belong to each State; that they are
her rights. This is true in the general. But in exercising her
rights, a State cannot disregard the limitations which the
Federal Constitution has applied to her power. . . . [E]very
addition of power to the General Government involves a cor
responding diminution of the governmental powers of the
States. . . .

Whoever, by virtue of public position under a state govern
ment . . ., denies or takes away the equal protection of the

Bd. of School Commissioners, 402 U.8. 33, 36-38 (1971) ;
Kelley v. Metropolitan County Bd. of Education, 463 F.2d
732, 744 (6th Cir.), cert, denied, 409 U.S. 1001 (1972).

We also believe, however, that this question need not
necessarily be reached here by the Court because it was
not the gist of plaintiffs’ claim nor, more importantly, the
basis of the remedial holding of the courts below7. That
holding, we submit, was based upon the record made with
respect to the nature and effects of the discriminatory
conduct of the state and Detroit authorities.36 Therefore,
although Detroit’s segregative practices and their local
effects are no longer seriously at issue,87 the state au- * 36 37

laws, violates the constitutional inhibition; and . . . Ms act
is that of the State.
(Emphasis added.) See also Cooper v. Aaron, 358 U. S. 1,
16-19 (1958).

Petitioners’ argument is as pernicious to these fundamental con
stitutional principles as that of the States rejected in Brown. For
decades plaintiff black children have been intentionally contained
within a line to black schools. In 1974, it can be no more a remedy
to continue to confine them (as petitioners would have it) within
the same schools merely because the borders of the DSD extend
no further, than it would have been in 1954 to continue to confine
black children in the same schools merely because the black schools
would be upgraded. This is so, not because of a doctrine of
respondeat superior, at least not in the common-law sense, but
because “State support of segregated schools through any arrange
ment . . . cannot be squared with the [Fourteenth] Amendment.
. . . ” Cooper v. Aaron, 358 U. S, at 19.

36 The record, therefore, distinguishes this ease from Spencer v.
Kugler, an action involving the asserted federal right of minority
children to require integration of schools regardless how they came
to be segregated. 326 F. Supp. 1235, 1238 (D.N.J. 1971), a fd
per curiam, 404 U.S. 1027 (1972).

37 Although the issues presented for review in petitioners’ briefs
and petitions for writs of certiorari do not include the violations
on the part of Detroit defendants, two of petitioners argue in
brief that such Detroit violation findings constitute error. Supreme
Court Rules 23(1) (c) and 40(1) (d) (2), at a minimum, limit this
Court’s review of such Detroit violation findings to “plain error.”

tliorities’ role in them and their effects upon schools in
the metropolitan area are contested; and we shall argue
from that perspective.

II.

The Nature and Scope of the School Segregation of
Black Children by the Detroit and State Authorities
Provided the Correct Framework for the Lower
Courts’ Consideration of Relief Extending Beyond the
Geographic Limits of the Detroit School District.

In 1970-71, the first school year after this action was
brought and during which it was tried, Detroit’s schools
enrolled almost 290,000 pupils, of wdiom about 64 percent
were black and 35 percent were white. Of 282 regular
schools, 202 were attended 90 percent or more by pupils of
one race (133 black and 69 white), and three-quarters of all
black students attended schools that were all-black or vir
tually so; about 44% of the teachers in Detroit were black.
The remaining schools in the metropolitan area, which con
sists of the balance of Wayne County and Macomb and Oak
land Counties, enrolled approximately 710,000 students, of
whom more than 98 percent were white. Indeed, omitting
such traditionally black suburban enclaves as Highland
Park, Inkster, Eeorse, and River Rouge, the white per
centage in the area’s non-Detroit schools was above ninety-
nine; and these virtually all-white suburban schools had
essentially all-white staffs.

With respect to all factual findings, this Court’s “two-court” rule
limits review to plain error and the application of improper legal
standards to the evidence. Keyes v. School Dist. No. 1, 37 L.Ed.2d
at 557 n.9; Graver Mfg. Go. v. Linde, 336 U.S. 271, 275 (1949) ;
Comstock v Group of Inst’l Investors, 335 U.S. 211, 214 (1948) ;
United States v. Johnston, 268 U.S. 220, 222 (1925); Amer. Const.
Co. v. Jacksonville T. & B.R. Co., 148 U.S. 372, 384 (1893).

After some months of preliminary proceedings, described
above, the parties and the District Court, at the direction
of the Court of Appeals, undertook an inquiry into the cir
cumstances of the extreme separation of black from white
children in the schools of Detroit. The inquiry disclosed
a litany of segregative practices, increasingly familiar to
this Court, which (apparently many) Northern school au
thorities38 employ to confine Negro children to a core of
black schools separated—sometimes by a transitional buffer
but often sharply by attendance area perimeters or asserted
natural barriers—from outer-area white schools.

The devices included a longstanding pattern of segre
gative school construction throughout the metropolitan
area which operated to segregate school facilities at their
opening and thereafter to contain the black population
(J. 26a-28a, 35a); the manifest segregative intent of this
pervasive practice was augmented by the assignment of
faculties at the opening of these new school facilities to
mirror the uni-racial composition of the student bodies.
(E.g., Va 24-30) At the edges of the expanding core of
black schools, further de jure devices were invoked. Op
tional or dual overlapping zones were placed in areas
undergoing racial change “ to allow white youngsters to
escape identifiably ‘black schools’.” (J. 35a). An entire
administrative district, with concomitant school attendance
boundary changes, was created to divide almost completely
the black population from the white. (J. 120a-127a). In
other instances boundaries were drawn to separate com
pletely black children from white along the perimeter of
the black core or purposefully to confine an isolated pocket
of blacks to an all-black school surrounded by all-white
schools. (J. 25a-26a, 35a). The core of black schools was

38 Cf. Brown I, 347 U.S. at 491 n.6: “ It is apparent that such
segregation has long been a nationwide problem, not merely one
of sectional concern,”

further delineated by the practice, generally followed, of
drawing north-south attendance zone boundary lines to
incorporate and maximize the east from west separation of
black and white residential areas. (J. 26a, 35a). And this
was supplemented by discriminatory transportation prac
tices and periodic manipulations of feeder patterns, grade
structures and attendance zones “ in a manner which has
had the natural, probable and actual effect of continuing
black and white pupils in racially segregated schools.”
(J. 26a). These and allied techniques have been repeatedly
held by this Court, and the Circuits that have addressed the
issue, to be on the same constitutional footing with South
ern segregation statutes. Keyes v. School District No. 1,
Denver, Colo., 37 L.Ed.2d 548 (1973).

In addition to their scrutiny of the purposes and effects
of particular policies and practices of the school authorities,
the courts below made a searching inquiry into the rela
tionship between segregated schools and housing patterns.
This inquiry was prompted by the signs of a growing judi
cial awareness that the relationship between schools and
housing segregation is less fortuitous or one-way than the
prior “ de facto segregation” rhetoric had posited (see note
3, supra), and by the repetitious insistence of defendants’
counsel that in the Sixth Circuit housing segregation justi
fies or excuses school segregation—citing Deal v. Cincinnati
Board of Education, 369 F.2d 55 (6th Cir. 1966), cert, de
nied, 389 U.S. 847 (1967).39 After that inquiry the district
court concluded:

The City of Detroit is a community generally divided
by racial lines. Residential segregation within the city

39 The fact that the district, judge who tried Deal (Judge Peek)
and a member of the Sixth Circuit panel which affirmed Deal
( Chief Judge Phillips) were members of the en banc majority
below has failed to deter at least one of the petitioners (Grosse
Pointe Brief at 41 n.77) from urging in this Court that Deal is
dispositive.

and throughout the larger metropolitan area is sub
stantial, pervasive and of long-standing. Black citizens
are located in separate and distinct areas within the
city and are not generally to be found in the suburbs.
. . . [T]his pattern of residential segregation . . . is,
in the main, the result of past and present practices
and customs of racial discrimination, both public and
private. . . .

Governmental actions and inaction at all levels, fed
eral, state and local, have combined, with those of pri
vate organizations . . ., to establish and to maintain
the pattern of residential segregation throughout the
Detroit metropolitan area. . . . While it would be unfair
to charge the present defendants with what other gov
ernmental officers or agencies have done, it can be said
that the actions or the failure to act by the responsible
school authorities, both city and state, were linked to
that of other governmental units. . . . [A] 11 of them,
including the school authorities, are, in part, respon
sible for the segregated condition which exists. And
we note that just as there is an interaction between
residential patterns and the racial composition of the
schools, so there is a corresponding effect on the resi
dential pattern by the racial composition of the schools.
(J. 23a-24a).

̂ ^

Pupil racial segregation in the Detroit Public School
System and the residential racial segregation resulting
primarily from public and private racial discrimination
are interdependent phenomena. (J. 35a).

Cf. Keyes, 37 L.Ed.2d at 559-60; Swann, 402 U.S. at 20-21.

These findings, that massive and longstanding govern
mental and quasi-governmental residential racial discrim

ination, coupled with intentionally segregative school action,
confined black families, to an expanding and identifiable
neighborhood and school core, while reciprocally creating*
and shielding a white outer area, have not been challenged
much less controverted. In sum, it was and is clear in the
Detroit area, and perhaps elsewhere in the North, that gov-
ernmentally induced and supported housing segregation is
integral to school segregation in and among ostensibly
unitary systems. In the South, on the other hand, at least
until the advent of some actual desegregation following this
Court’s rulings in Green v. County School Bd., 391 U.S.
430 (1968), and companion cases, residential segregation
and devices for incorporating its effects into school systems
were generally unnecessary in the presence of unqualified
segregation statutes and such post -Brown practices as pupil
placement tests and freedom of choice.

It is in this context, we urge, that a central contention of
the petitioners—that the Detroit school authorities’ segre
gative practices were not more than minor tinkering affect
ing only a few thousands of children and a limited number
of schools—-must be evaluated. This contention, w*e submit,
asks that this Court disregard the findings of the courts
below that the school authorities did all that needed to be
done to confine black children to schools designated for
them by augmenting and reinforcing residential segrega
tion. Moreover, the courts below tested whether this con
tainment effect was merely the by-product of neutral
educational policies. Upon inquiry the courts found, at the
racially defined perimeter, gerrymandering of school atten
dance boundaries and feeder patterns to separate white
children from black, and optional zones to serve as emer
gency exits for white stragglers. Of course, the principal
reciprocal effects of this policy were the creation and shield
ing of white schools outside the area of quarantine and

the movement of immigrating whites and blacks to their
designated areas of schooling and housing—all of which
were accommodated by a massive, two-decade long program
of new construction of, and additions to, one-race schools
(e.g., J. 77a-78a, 87a), thereby further cementing the basic
dual structure and fueling the segregation environment
already fostered. Keyes, 37 L.Ed.2d at 559-61, 565. These
then were the factors constituting the “ loaded gameboard”
which the lower courts properly considered, pursuant to
this Court’s direction in Swann, in probing for the contours
of appropriate relief. 402 U.S. at 23; see also 402 U.S. at
20- 21.

It is also in this context, we believe, that petitioners’
characterization of the district judge40 (and to a lesser
extent of six of nine41 court of appeals judges) as advo
cates of racial balance, majority white schools and white
stability, reflects a fundamental misunderstanding of the
actual holding of the lower courts and the record. A care
ful reading of the record and of the lower court opinions
discloses that the citation of demographic data (J. 19a-
22a; 49a, 52a; 54a-55a; 164a, 172a-173a), rather than re
vealing sinister sociological predilections, relates to the
constitutional implications of the black core’s growing
proximity to the borders of the DSD—the school district
boundary was (and is) fast replacing attendance zone
manipulation as the vehicle of apartheid. Cf. Wright v.

40 A district, judge, we note, who twice held against plaintiffs in
1970 and 1971— precipitating two appeals.—and who, despite a
strong record, initially denied relief as to faculty and staff.

41 Judge Miller, who dissented below on procedural grounds
only (J. 239a~40a), has recently embraced the substantive holding
of the opinion below, writing for a panel of the court in Newburg
Area Council, Inc< v. Bd. of Education of Jefferson County and
Haycraft v. Bd. of Educ. of Louisville, - -----F.2d •—— (Nos 73-
1403-1408) (6th Cir. Dec. 28, 1973).

Council of City of Emporia, supra, 407 U.S. at 464-65;
United States v. Scotland Neck City Bd. of Educ., 407
U.S. 484, 491-92 (concurring opinion). The lower courts’
confrontation with the boundaries of the Detroit School
District thus became inescapable: do those school district
boundaries now serve as the fail-safe mechanism for
black containment? may those boundaries be interposed
as the latest (and, as petitioners would have it, jurisdic
tional) barrier to disestablishment of the state-imposed
core of black schools?

A second contention, advanced here and below pri
marily by the State petitioners, is that the practices of
the Detroit school authorities, while constituting state
action for jurisdictional purposes, were not state conduct
in the sense, perhaps, of histrionic interposition (com
pare, for example, Cooper v. Aaron, 358 U.S. 1 (1958))
or per se unconstitutional state legislation; and that
nothing else done or omitted by state-level authorities
could be a basis for holding them accountable in any
direct sense for the existing segregation.

The notion that state-level officials are insulated from,
accountability for local constitutional misconduct by their
honest ignorance of it, especially where the issue is par
ticipation in relief as distinguished from, say, personal
liability in damages, is simply at this late date insup
portable.42 To accommodate self-imposed irresponsibility

42 Indeed, today’s question among desegregation plaintiffs’ coun
sel is less, why have so many cases had to he brought after Brown
then, why have so few been brought against state officials. Turner
v. Warren County Board of Education, 313 F.Supp. 380, 386
(E.D.N.C. 1970). The answer does not relate to the suability of
States by the United States but not by citizens, at least since
Ex Parte Young, 209 U.S. 123 (1908), or to whether state offi
cials are empowered to effect compliance. Edgar v. United States,
404 U.S. 1206 (1971) (Black, J., in Chambers).

on the part of public officials would defeat the affirmative
purposes of the Fourteenth Amendment; and it is familiar
law that officials who can effect relief may be added as
parties regardless of their personal innocence vis-a-vis
the original wrong. Griffin v. County School Board of
Prince Edward County, 377 U.S. 218, 234 (1964),

But petitioners’ question—whether a vicarious liability
theory will sustain involving the State and its other edu
cation components so directly in relief—need not be
reached, or even correctly reframed.43 To argue in terms
of whether the State must participate so affirmatively to
provide effective relief—where its involvement is remote
and only conceptual—misstates, we submit, the record and
findings of the courts below. That record and those find
ings, which we shall review briefly here, are that the
state-level authorities were involved in fact as well as
vicariously in the relevant segregative policies and prac
tices. To be sure, all of the interlocking, mutually sup
portive segregation devices did not originate with the
state authorities, but the State did its part and for as
long as local practices effected segregation, no more was
required at the state level.

During all of the period of segregative school site selec
tion and construction the State had constitutional respon
sibility to forbid such practices and invalidate their effects,
and during much of that period state-level authorities had
explicit state statutory school site responsibilities. Yet
segregative building continued apace (J. 26a-27a; J. 77a-
78a). A range of other state education policies disfavored
Detroit in comparison to adjacent districts. These in

48 “ State support of segregated schools through any arrange
ment, management, funds, or property cannot he squared with
the [Fourteenth] Amendment’s command that no State shall deny
to any person within its jurisdiction the equal protection of the
laws.” Cooper v. Aaron, 358 U.S. 1, 19 (1958). See Note 35 supra.

eluded pupil transportation reimbursement to the suburbs
but not to Detroit, which, was a factor in the building
in Detroit of small, walk-in schools to serve segregated
neighborhoods, while the ready availability of bus trans
portation made new schools convenient and attractive to
the growing white population in the suburbs. (J. 27a;
78a). Detroit’s lesser school bonding authority and the
working of the state school finance system, which left
Detroit Public Schools virtually bankrupt, were found to
be other contributing factors. (J. 27a).

The petitioners stoutly dispute here whether such pol
icies were remotely racially motivated and whether they
were in fact discriminatory in any sense. The implica
tion is that the discrimination, if any, involved urban
—non-urban controversies related more to Baker v. Carr
than to Brown v. Board of Education. That explanation,
we urge respectfully, is interesting but irrelevant.44 The
gravamen of the lower courts’ holding is that when state
policies were causing Detroit to be perceived as the state
education system’s stepchild, modern schools were going
up in the suburbs with state aid and approval, while
owing- to area-wide housing segregation and discrimina
tion—largely governmental itself — only white families
could respond to the message that there was a nearby
haven of strong all-white schools.

The capstone of state involvement, which the courts
below examined for itself and as probative of what under
lay other state policies whose purposes and effects were
disputed, was the adoption of Public Act 48 of 1970,
M.C.L.A. §§388.171a et seq. (State’s Brief App. 54aa-
58aa). Compare Keyes, 37 L.Ed.2d at 562-63. In April

44 Moreover, in the metropolitan Detroit area, there is no such
urban-rural distinction; except with respect to race and schools,
the interests are more common than competing. (J. 79a-80a).

of 1970, after more than a decade of segregative prac
tices presided over approvingly by the State, the Detroit
Board, after proposing reorganization across school dis
trict lines to accomplish desegregation, adopted certain
modest desegregative steps at the high school level and
proposed to subdivide the district into a number of bi-
racial decentralized units. The state legislative response
was swift and decisive: Act 48 nullified the desegregation
steps; reorganized the district into different, more racially
identifiable decentralized districts wholly within D SD ; re
validated the outer boundaries of the D SD ; and mandated
intentionally segregative pupil assignment criteria for the
DSD, and no other district, of “neighborhood” schools
(but supplemented by “ open enrollment” ).

To the argument so labored by petitioners, that the
segregative role of Act 48 was limited, the courts below
reached a contrary conclusion. To the courts below, Act
48 confirmed not only the plenary nature of state au
thority, in practice as well as theory, but also state com
plicity in the long-standing constitutional violation, the
purposeful containment of black children.45 46 (433 F.2d
897; J. 27a-28a; J. 49a-50a; J. 151a-153a; J. 171a).

45 Act 48, more than any other single action, enlightens judicial
inquiry into the nature and intent of the state-level contribution
to the basically dual structure of public schooling in the Detroit
area. As long as Detroit school authorities exercised their state-
delegated pupil assignment discretion (M.C.L.A. §§ 340.583, 340.-
589, State Brief App. 49aa) actively to maintain segregation, state
officials were content. To sustain this racially dual system of
schooling, state authorities needed to exercise their general and
specific supervisory authority over the local officials only to the
extent of tacit approval and the provision of financial support
and other wherewithal. But when DSD authorities exercised
their discretion to breach the dual structure by assigning white
pupils to the state-imposed black core, the State acted dramatically
to bring them back into line (and to prevent future straying) by
making mandatory and explicit the State’s segregation policy.
Michigan’s delegation of local pupil assignment discretion, which

It was against that background with respect to the
nature and scope of the violation that the District Court
approached the question of commensurate relief.

HI,

Based Upon Their Power and Duty to Achieve a Com
plete and Effective Remedy for the Violation Found,
Taking Into Account the Practicalities of the Situation,
the Courts Below Were Correct in Requiring Interdis
trict Desegregation.

Having found that the state and local defendants’ prac
tices had confined black children to a nucleus of black
schools, while reciprocally maintaining schools for white
children on the fringe of Detroit and beyond, the District
Court turned to the question of relief. From the outset
it has been undisputed that courts need not exercise their

petitioners parrot in their Briefs, is thus no discretion at all: it
is less than the local option for segregation which Kansas accorded
to Topeka, and more akin to the Southern compulsory segregation
laws with which Brown also dealt. It is in this context that the
other state-level contributions to racial dualism in Detroit area
schools (see pp. 50-51, supra) must be judged. Having mandated
segregation by statute, State petitioners may not rest on indulgent
presumptions of racial neutrality in defense of other of the State’s
actions which were found to have contributed to Detroit area
school segregation. The Act 48 violation at the very least shifts
to the State the heavy burden of establishing that racial separa
tion of children in the Detroit area is in no part attributable to
other state-level discriminations against the DSD, and that state
financial support and tacit approval of local de jure practices
were not intended. Viewing the entire record, the lower courts
held in effect that no such showing was made. Cf. Keyes v. School
Dist. No. 1, supra. (The propriety of requiring state defendants
to justify their actions is all the more clear where the overwhelm
ing majority of Michigan’s black children are attending school
systems found by federal courts to be suffering from systematic
racial discrimination in pupil and/or faculty assignments. See
note 17, supra.)

broad equity powers to the fullest if complete desegrega
tion can be accomplished simply; that is, within a lesser
area than encompassed by the violation and by means con
venient and economical rather than awkward and expen
sive. Cf. Swann, 402 U.S. at 15, 23. Moreover, all have
understood that desegregation planning is subject to prac
ticability limitations, Swann, 402 U.S. at 15, 30-31; if there
are not majority (or minority) children within an area
of feasible desegregation, then some schools will remain
as vestiges of violations because school authorities lack
the practical wherewithal to provide relief.46

Attention was given first to various Detroit-only deseg
regation plans. It was evident that the objective of “ just
schools” in the relevant segregation area, itself about 80
percent white, could not be met by establishing almost 300
two-thirds black schools surrounded by a greater number
of virtually all-white schools. The District Court viewed
such proposals as tantamount to judicial validation and
compounding of the essence of the violation (J. 55a-56a).
The District Judge, guided by the principles established
by this Court, called upon the defendants to justify their
preference for an ineffective plan, in light of their obliga
tion to come forward with a plan that promises to ac
complish all-out desegregation now and hereafter. Green

46 Moreover, in many such largely one-race areas, either white
or black, “just schools” may mean a pattern of virtually one-race
schools. For example, in a State like Montana'—with almost a
W o white population, we would expect normal administrative
practice to result in a consistent pattern of nearly all-white schools.
Similarly, in the “black belts” of the South normal administrative
practice may result in a consistent pattern of schools all pre
dominantly black. See, e.g., Wright v. Council of Emporia, supra;
United States v. Scotland Neck., supra. Bureau of the Census,
General Social and Economic Characteristics (1970), Tables 119-
120, 125. (Thus, petitioners’ citation of this Court’s approval'—
indeed requirement—of “majority black” schools in such “black
belts” as authority for reversal of the lower courts in this case is a
non sequitur.)

v. County School Bd., 391 U.S. at 439; Keyes, 37 L.Ed. 2d
at 566.

The response of the state and suburban district peti
tioners has been that a Detroit-only plan must be held
constitutionally sufficient because school district boundary
lines are themselves an absolute legal impracticality of the
local situation ( J. 49a-50a). Such lines, it is maintained,
delineate self-governing units and are also school atten
dance boundaries or zones which federal courts are power
less to traverse or otherwise affect— absent a showing that
the lines have been created or gerrymandered for segre
gative purposes, as, for example, in United States v. State
of Missouri, 363 F. Supp. 739 (E.D. Mo. 1973).

In the course of the proceeding's that, ensued, the District
Court examined in detail local practicalities from stand
points of educational administration, traditional practices,
and other factors long relied upon by the courts in evaluat
ing the feasibility of desegregation proposals. (J. 61a-84a).
Apart from some very recent intimations of inconvenience
and interests involved, the petitioners have steadfastly de
clined to participate in that inquiry, or to set out competing
interests at stake, because of their view that the violations
and their effects had not extended beyond Detroit and
that, in any event, boundary lines are impermeable and
not subject to judicial tampering. (J. 62a-65a).

Plaintiffs’ view below was that, regardless of their status
under Michigan law, local districts are constitutionally not
more than administrative units of a state school system
which may be required—if practicable and necessary to ac
complish desegregation—to participate in remedying’ even
a violation limited to Detroit and its authorities. Reynolds
v. Sims, 377 U.S. 533, 575 (1964); Ex Parte Virginia,
100 U.S. 339, 347 (1880). Surely that is the case, in our
view, where the state was a principal in a violation whose

effects permeated its other units in the Detroit area. Cf.
Hoots v. Comm, of Pennsylvania, 359 F. Supp. 807 (W.D.
Pa. 1973).

Of course, where the State in fact treats its districts as
malleable units whose powers are delegated and subject
to contraction, then it becomes clear that a happenstance
present form of organization actually does not serve an
interest which outweighs constitutional requirements whose
achievement is otherwise feasible. Moreover, where a State
regulates its districts as would a local board its decentral
ized regions or multi-school attendance zones, then the
asserted confrontation between federal judicial power and
inalienable local prerogatives is not presented. (J. 27 a-
28a; J. 36a-38a; 165a-173a). Powers exercised by a State
in practice, as well as committed to it in constitutional
theory, are not less available merely because the State
chooses selectively to renounce or not to use them. Con
sequently, the inquiry below turned to actual Michigan
law and practice. Cf. Evans v. Buchanan, 256 F.2d 688,
690-693 (3d Cir. 1958).

The courts below concluded at length that Michigan op
erates and maintains a state school system, not only in
the sense that the United States Constitution speaks to
the States and precludes sovereign, constitutionally unac
countable subdivisions, but also in the sense of actual
state control. The categories of state regulation are vir
tually endless, but especially pertinent here are the find
ings that pupils attend schools across district lines, that
district lines have not impeded the creation or operation
of intermediate districts and other special purpose units,
and that the State possesses the power, which it has
periodically exercised, to create, dissolve, and modify school
districts. (J. 23a-24a, 27a-28a, 36a-38a, 49a-50a, 57a, 79a-
80a, 96a, 151a-57a, 165a-75a) {See also pp. 64-65, infra).

The District Court concluded, in substance, that boun
dary lines may indeed serve administrative convenience,
but that they do not embody other compelling interests,
and that they may not be transformed belatedly into im
permeable school attendance zone lines.47 (J. 27a-28a;
J. 79a-80a; J. 165a-175a).

Looking toward relief, the District Court again sought
the aid of the petitioners in identifying local practical

47 The particular welter of eight-five school districts in the
Detroit area is not necessary to promote any legitimate purpose.
First, the school district boundaries are largely unrelated to other
local governmental entities. District lines coincide with municipal
boundaries in only ten instances. Seventeen districts lie in two
counties, two in three counties. Two districts are totally sur
rounded by the DSD; another is bordered on three sides by the
DSD. One district serves five municipalities; while other suburban
municipalities are fragmented into as many as six school districts.
(See, e.g., Bx. M2). There is a total lack of regularity in the
shapes of these districts and their size ranges from 2,000 to 285,000
pupils; and over the past decades, the State has regularly altered
school district boundaries to suit its own purposes. In the face
of such maze, petitioners failed to show how the present school
district boundaries serve any identifiable interest that cannot be
served equally well by another line drawn elsewhere. (J. 79a-80a;
J. 167a-171a).

Second, the school districts and their boundaries were shown to
be administrative conveniences. The State has not hesitated regu
larly to cross or alter these lines in countless instances for a variety
of educational purposes. The State has been careful to preserve
its ultimate authority vis-a-vis the local districts; and the State
has provided detailed statutory guidance to the local districts
and has used its ultimate power to reverse any decision of a local
school district with which it took exception. In Michigan local
school districts are creations of the State designed to assist in
administering the State’s system of public schooling. (J. 36a~38a;
J. 50a; J. 79a-80a; J. 151a-154a; J. 165a-174a).

Finally, petitioners failed to show that the State’s legitimate
interest in delegating administrative responsibility for public
schooling to local districts, responsive to more local interests,
would be frustrated by crossing or modifying existing boundaries
in order to disestablish the state-imposed core of black schools.
Indeed, state law already provides the mechanisms, in detail, for
accomplishing such disestablishment by pupil transfers between
existing districts, e.g., M.C.L.A. §§ 340.582, 340.69, 340.121(d),

5 8

ities (other than the reiterated preference for the status
quo) so as to accommodate in every way possible existing
arrangements in the formulation of an adequate plan.
Perhaps in order to avoid an implied waiver of their
legal position, or perhaps because there are no irnprac-
ticalities to inter-district desegregation, none were ad
vanced. In any event, in the present posture of this action
below, following remand by the Court of Appeals for
joinder of all possibly affected districts, adversary con
sideration of those issues is not yet foreclosed in order
to tailor any effective plan to promote legitimate state
and local interests.

This Court has held that state administrative or juris
dictional arrangements, however innocent in their incep
tion or unobjectionable in some contexts, must yield to
the achievement of constitutional remedies unless it can
be shown that there is no less discriminatory way of ful
filling important state interests. E.g., Carrington v. Rash,

340.1359, 340.1582, or annexation and consolidation, e.g., M.C.L.A.
§§ 340.302a et seq., 388.681 et seq., and 340.183 et seq. Addition
ally, the lower courts here deferred any reorganization to the
legislature, thereby leaving it wholly free to experiment and adapt
local school districts in the Detroit area to suit local needs and
state obligations. (J. 80a-82a; J. 177a; J. 188a-189a).

Thus, in Wright v. Emporia, and United States v. Scotland Neck,
supra, and San Antonio Independent School Bist. v. Rodriguez,
411 U.S. 1 (1973), this Court has recognized that local districts
may serve a legitimate state interest in decentralizing administra
tion to carry out state responsibilities and to respond to local
interests; but the Court made clear that the State’s choice of a
particular local arrangement may not serve to frustrate the fed
eral power to disestablish state-imposed segregation now and here
after. Here, as in Emporia and Scotland Neck, the lower courts
carefully considered local school districts as but one of the prac
ticalities of the local situation. They concluded that the State’s
legitimate interests can be met by a wide variety of available al
ternatives which do not require the maintenance of existing school
district boundaries as an absolute bar to disestablishing state-
imposed segregation. (Exercising judicial restraint, they then
deferred decision on which alternative to choose to the legislature).

380 U.S. 89 (1965); Shapiro v. Thompson, 394 U.S. 618
(1969); compare White v. Regester, 37 L.Ed. 2d 314, 324-
26 (1973) with Whitcomb v. Chavis, 403 U.S. 124 (1971).
Similarly, the suburban districts urge that they may not
be required to participate in affording a remedy because
it has not been shown that as entities they participated
in the violation. But this Court has not required such a
showing as a precondition to involving state agencies or
components where that involvement is needed for ade
quate relief and is feasible. For example, over-represented
electoral districts are required to participate in reappor
tionment, although their only participation in the violation
was to do nothing about it. In addition, electoral districts
which themselves meet representation standards are fre
quently redrawn as a part of the process of redrawing
over- and under-represented districts. No finding of fault
on the part of each electoral district is a prerequisite to
involvement in the constitutionally required remedy.

Petitioners, understandably, seek to distinguish this case
from Brown IT’s express recognition that in remedying
state-imposed segregation the myriad of incidental and
largely unforeseeable administrative practicalities might
include “ the revision of school districts,” as well as “ school
attendance areas” and other “local laws and regulations.”
349 U.S. 294, 301 (1955). Petitioners, understandably, also
seek to distinguish this case from Emporia’s express rec
ognition that local school districts may not be created
or used even to raise the potential for frustrating the
continued operation of a unitary system some time here
after. In their view, this case involves innocent lines which
have statistical effects but no stigmatization (cf. Spencer
v. Kugler, supra) or valid interests with secondary un
intentional effects (cf. James v. Valtierra, 402 U.S. 137
(1971); San Antonio Incl. School District v. Rodrigues,

6 0

supra) that are constitutionally unobjectionable. We are
willing to debate those issues, especially where the sub
ject matter involves both race and schools. But this Court
should bear in mind that to treat those contentions as
issues here unnecessarily disregards the lower court find
ings that the State intentionally confined blacks to schools
within a line in a way not constitutionally different from
intentionally drawing a line around them.48 (J. 87a).

In the final analysis then, this case does not entail the
involuntary involvement in remedy of strangers to the
violation. Unless the lower courts’ finding's are to be over
turned, the State, functioning as the common mentor of
all systems in the Detroit area, was deeply and pro-
longedly involved in segregative practices which affected
its suburban units in an opposite and equal way to their
effect upon Detroit.49

48 The point is that such confinement to a state-imposed core of
black schools separate from surrounding white schools can be
readily accomplished by several means other than, but equally
effective as, gerrymandering a new school district line around the
black core population.

49 Thus, whatever the merits of the Fourth Circuit decision in
Bradley v. School Board of the City of Richmond, 462 F.2d 1058
(4th Cir. 1972), aff’d by equally divided Court, 412 U.S. 92 (1973),
the decision of the lower courts here is not in conflict. For in the
Richmond area, unlike the Detroit area, there had existed three
distinct dual systems with substantial numbers of black and white
children assigned to separate schools within each, of the three
school divisions, pursuant to state law and practice. In the Fourth
Circuit’s view these three dual systems, each of which had already
been subject to federal scrutiny, had each been disestablished by
the time the district court ordered a consolidation of the districts.
462 F.2d at 1061. Here there is but one basic dual structure
throughout the metropolitan area; a state-imposed core of black
schools surrounded by overwhelmingly white schools. Thus, in the
Detroit area, initial disestablishment of the basic dual structure
has yet to be accomplished.

There are other distinguishing features between Richmond and
Detroit as well, First, Richmond did involve a court-ordered con-

IV.

The Actions by the Lower Courts to Date Have Not
Violated any Federally Guaranteed Procedural Right of
Suburban School Districts.

The presentations by suburban school district petitioners
and amici of argument on procedural issues is unhelpful
in analyzing the applicable legal principles or providing
guidelines on how parties and courts should proceed to
hear cases in the circumstances of this case. Without dis
tinction or analysis, petitioners yoke issues of equity juris
diction, who and what is protected by the Fifth and/or
Fourteenth Amendments, and what Eule 19 requires or
counsels. Before attempting to assay these issues in a * * * * * * * * * *

solidation of districts; here no consolidation has been ordered and
the framework of reorganization has been left to the political
processes. Second, the Fourth Circuit held that the “power to
operate, maintain and supervise public schools in Virginia is, and
always has been, within the exclusive jurisdiction of the local
school boards.” 462 F.2d at 1067. Here analysis of Michigan state
law and practice, and this case, “amply supports the finding that
the State of Michigan has not been subject to such limitations in
its dealings with local school boards.” (J. 175a). Rather, local
school districts in Michigan are subordinate governmental entities
fashioned by the State to assist in the state function of public
education and are absolutely subject to the State’s power. (J. 165a-
171a; J. 79a-81a; J. 30a; J. 36a-38a). Third, we hope by now
that it is manifest that the courts below were not motivated in
this case by the non-judicial goal of imposing a “fixed racial
quota.” Contrast 462 F.2d at 1064. Finally, the Fourth Circuit
determined that the causes of racial concentration in the Rich
mond area were unknown and did not include action by school
authorities. 462 F.2d at 1066. Based upon the record evidence
the courts below found that intentional and discriminatory action
by state and Detroit school authorities, operating in conjunction
with various state policies, had a pervasive impact on the con
finement of black children to, and official identification of, the
black core, which actions had an interdependent effect on the
pervasive residential segregation (itself largely the result of pub
lic and private discrimination), which in turn further contributed
to the dual structure. (J. 23a-24a; 77a-78a; 151a-157a; 177a).

coherent fashion, the Court should recognize at the outset
two facts which override review of procedural issues in
this case.

First, at this stage of the proceedings, suburban school
districts have been finally ordered to do absolutely nothing
substantial. Hence, their claims of procedural deprivation
are merely claims of potential error; and any such potential
error may be corrected on remand prior to the entry of any
final order, by the proceedings already under way in the
District Court.60 In our Memorandum in Opposition to
Petitions for Writs of Certiorari, p. 3, n. 2, we have already
noted that at these proceedings on remand suburban school
districts will have the opportunity to present relevant evi
dence on all issues, even as to the constitutional violations
found by the District Court, upon a proper showing.51

60 In remanding this case the Court of Appeals directed the
District Court to afford to “any party against whom relief is
sought, including school districts which, heretofore have intervened
and school districts which hereafter may become parties . . . an
opportunity to offer additional evidence, and to cross-examine
available witnesses who previously have testified, on any issue
raised by the pleadings, including amendments thereto, as may
be relevant and admissible to such issues.” (J. 177a-178a) This
direction is in accord with the traditional legal principles under
which federal courts in equity actions have always afforded par
ties litigant an opportunity to be heard upon a proper showing
of the relevance and admissibility of evidence. Cf. Kelley v. Met
ropolitan County Bd. of Educ., 463 F.2d 732, 745-46 (6th Cir.),
cert, denied, 409 U.S. 1001 (1972). ¥ e respectfully suggest that
the District Court will allow the added defendants to develop all
relevant evidence on the issues both of violation and of remedy
upon a proper showing. (Although the Court of Appeals added
that the District Court need not consider evidence with respect
to the constitutional violation and inadequacy of “Detroit-only”
plans (J. 178a), it did not direct the District Court to refuse to
consider such evidence if offered.)

51 The suburban school districts recognize, however, that their
own discriminatory and segregative conduct has not been ques
tioned by the plaintiffs nor considered by the District Court.
(E.g. Grosse Pointe Brief 6). Plaintiffs’ amended complaint to

On this review there is no just cause for believing, in
advance of the District Court’s ruling on specific evidence
presented by suburban school districts, that it will restrict
petitioners from the opportunity to be heard on all issues
relevant to a final order to disestablish state-imposed
segregation.* 52 * * * * * * * * *

conform to the evidence does not allege such de jure conduct by
suburban school districts but only violations by Detroit and State
defendants, operating in conjunction with the discriminatory
effects of state law already of record. (Ia.291 et seq.; Allen Park
Brief 20 n.14) Thus, exactly what suburban school districts may
add to consideration of the violation findings or evidence remains
unclear; after eighteen months of trial and appellate litigation
they have never said what evidence they would or could present
on this issue. But whatever it is they have to add on remand,
they will have an opportunity to present it in order to challenge
the previous findings of the District Court and create a record
for appellate review. Indeed, they have an opportunity any liti
gator would treasure: they may sift through the evidence of
record and the findings for the purpose of attempting either to
destroy them or to present evidence supportive of an alternative
view. In view of the evidence already introduced documenting
the use by Detroit and Michigan school officials of virtually all
of the classic segregating techniques which have been identified
by this and other courts, the District Court’s violation findings
seem likely to be reaffirmed; perhaps, that reality is what suburban
school districts seek most to avoid by their present claims of
procedural error.

52 The petitioner suburban school districts did attempt below to
relitigate the Brown decision by suggesting a return to the dis
credited “separate but equal” policy on the basis of “new” social
science studies purporting to show that desegregated schooling
does not raise the achievement test scores of black children as
much as some other social scientists may have originally sug
gested. The District Court excluded such evidence, in our view
properly, because its finding of state-imposed segregation and con
sideration of a remedy therefor were not based in any way on
such “achievement test” evidence; thus such evidence was and is
irrelevant. The District Court’s reasoning fully supports that
ruling:

In the main such proof entirely misses the point: the viola
tion here found has to do with school segregation caused in
substantial part by force of public authority and action; yet
the intervening defendants’ questions and offer of proof speak

Second, plaintiffs framed and tried this case against
State-level agencies and officials who were sued for the
purpose, inter alia, of assisting in the provision of all relief
that a trial on the merits might show to be necessary; and
they would clearly he bound by any injunction issued by
the District Court.* 63 The powers of these state officials to
assist in providing relief to plaintiffs, even across the
boundaries of school districts not parties, is clear as a
matter of both state and federal law. Under state law action
of the State defendants is required in order to permit
the operation of almost all the affairs of the local school
districts: for example, (1) absent statement, authorization
and warrant, state aid would not be distributed to local

mainly to educational theory and recent and sometimes con
tradictory research about narrowly measured educational ef
fects, mostly on achievement test scores, of quite limited be
ginnings of racial or socioeconomic integration of various
types and as compared with the effects of dollar or other
resource inputs and continued segregation. This court does
not understand, however, that such research, from the
Coleman report to its many reanalyses, formed the primary
bases for the Brown decision or any of its progeny. See, e.g.,
Brunson v. Bd. of Trustees, 429; 2d 820, 826 (4th Cir. 1970)
(J. Sobeloff, concurring). In the context similar to newly
intervening defendants’ objections to desegregation, the Su
preme Court in Swann specifically held that such factors
constitute an impermissible limit upon the duty to desegregate.
402 U.S. at 24, fn.8. Citation to such research, either in sup
port or rejection of school desegregation, misses the primary
point: insofar as pupil assignments are concerned, the system
of public schooling in every state must be operated in a
racially non-discriminatory, unified fashion; until that objec
tive is met, the very system of public schooling constitutes
an invidious racial classification. (J. 89a)

63 This is not to suggest that non-parties would not have a con
stitutional duty to refrain from taking action which would ob
struct the vindication of plaintiffs’ constitutional rights, only that
such non-parties might not be held in contempt for taking such
action until joined as parties and subjected to the jurisdiction
and commands of the court. Cf. Rule 65(d), F.E. Civ. P .;
Schrader v. Selective Service System Local Bd. No. 76, 329 F.
Supp. 966, 967 n.l (W.D. Wis. 1971). See also Cooper v. Aaron,
358 U.S. at 17-20.

6 5

districts, M.C.L.A. §388.1117; (2) absent inspection and
approval of new school plans (and, formerly, sites), schools
could not be built, M.C.L.A. §388.851; (3) absent qualifica
tion, school building bonds could not be sold; (4) absent
certification, teachers could not teach, M.C.L.A. §388.1010;
(5) and absent approval, no borrowing for school opera
tions can be made, M.C.L.A. §388.1234. The State defen
dants also have general supervision over, and power to
promulgate regulations governing, all public education in
the State. Mich. Const. Art. VIII, Sec. 3; Welling v. Li
vonia Bd. of Ed., 382 Mich. 620 (1969). They have the
power to require each local board of education and officer
to comply with the law, including by institution of appro
priate legal proceedings in courts of competent jurisdic
tion, and by removal of non-complying local officials from
office, M.C.L.A. §§340.252-53 ;54 thus, they must, for exam
ple, insure that no school or department is kept for any
person on account of race or color, M.C.L.A. §340.355,
and prevent denial of the equal protection of the laws and
racial discrimination, Mich. Const. Art. 1, Sec. 2. Mani
festly, State defendants had the authority to prevent the
violation here and now have the statutory authority prac
ticably, subject to the District Court’s injunction, to insure
the implementation of complete relief absent some legis
lative intervention or local resistance to such lawful ac
tions.55 That federal district courts have the power to * 66

54 Thus the State defendants in the past and now eould enforce
any law, constitutional requirement, or injunction by resort to
appropriate state courts.

66 Moreover, and in addition to their affirmative Fourteenth
Amendment obligations, State defendants, as the disbursers of
federal funds, have assumed a legally enforceable duty under
Title VI of the Civil Rights Act of 1964, 42 U.S.C. §2000d, to
prevent or eliminate racial discrimination in any program receiv
ing federal financial assistance. See Lemon v. Bossier Parish
School Board, 240 F.Supp. 709, 713 (W.D. La. 1965), aff’d, 370
F.2d 847 (5th Cir. 1967); Lau v. Nichols, — — U.S. -------, 42
U.S.L.W. 4165 (Jan. 12, 1974).

order state officials subject to their jurisdiction to exer
cise such powers to disestablish state-imposed school seg
regation, with or without local school districts as parties,
is by now obvious. See, e.g., United States v. Texas Educ.
Agency, 321 F. Supp. 1043 (E.D. Tex. 1970) and 330 F.
Supp. 235 (1971) aff’d ivith mod., 447 F.2d 441 (5th Cir.
1971), stay denied, 404 U.8. 1206 (Black, J. in Chambers),56
cert, denied, 404 U.S. 1016 (1971); Lee v. Macon County
Bd. of Educ., 267 F. Supp. 458 (M.D. Ala.), aff’d per
curiam, 389 U.S. 215 (1967) ; United States v. Georgia,
428 F.2d 377 (5th Cir. 1970), 445 F.2d 303 (5th Cir. 1971),
466 F.2d 197 (5th Cir. 1972) ; Evans v. Buchanan, 256 F.2d
688 (3d Cir. 1958), 281 F.2d 385 (3d Cir. 1960); Hoots v.
Commonwealth of Pennsylvania, 359 F. Supp. 807, 821-2
(W.D. Pa. 1973).

Given this context, the following discussion will attempt
to analyze the procedural issues, and the ramifications of
alternative approaches, should this Court wish to provide
guidelines to the parties and the District Court on remand.
We reiterate, however, our view that such consideration
is both premature and unnecessary. 66

66 On the stay application, Mr. Justice Black considered an
order directing state education officials to take “certain affirma
tive action” to eliminate all vestiges of discrimination from the
public schools in the State of Texas “by withholding funds and
accreditation” from local school districts which failed to meet
their constitutional obligations. The District Court order “dealt
with areas of student transfers, changes in school district boundar
ies, school transportation . . . ” Justice Black denied the stay
application because the District Court’s order “does no more in
my view than endeavor to realize the directive of the Fourteenth
Amendment that racial discrimination in the public schools must
be eliminated root and branch.” 404 U.S. at 1206-1207.

6 7

A. In the Circumstances of This Case, Rule 19 and Tradi
tional Principles of Equity Jurisdiction Do Not Require
the Joinder of Local School Districts W here the Parties
Already Before the District Court Can Grant Effective
Relief and There Remains a Substantial Uncertainty
Whether and Mow Their Interests Will Be Affected, If
At AIL

In 1966 Rule 19, F.R. Civ. P., was amended to overcome
the severe problems which had accompanied interpretation
of the technical definitions under the former rule and the
diverse practicalities which face federal district judges in
the course of proceedings. The notes of the Advisory Com
mittee state the principles for decision under the amended
rule in the circumstances of this case:

1. Whenever feasible, persons materially interested
in the subject of an action should be joined if in
their absence complete relief could not be accorded
among those already parties or the disposition of
the action would be as a practical matter impair
or impede the absent party’s ability to protect his
interest; however, when this comprehensive joinder
cannot be accomplished, for example because of
lack of jurisdiction over the party sought to be
joined, the case should be examined pragmatically
and a choice made between the alternatives of
proceeding with the action among the present par
ties or dismissing the action.

2. If it is not feasible to make such persons parties,
the court should determine whether in equity and
good conscience the action should proceed among
the parties or should be dismissed, based on several
factors: In the person’s absence will the judgment
be prejudicial to him? By the shaping of relief
or other measures can the prejudice be minimized?

Will the judgment in the person’s absence be ade
quate? Will plaintiff have an adequate remedy if
the action is dismissed for non-joinder?67

3. A person may be added as a party at any stage
of the action on motion (or on the court’s initiative
under Rules 19 or 21); joinder questions should be
made with reasonable promptness, but decision may
properly be deferred if adequate information is not
available at the time.

4. Even if the court is mistaken in its decision to pro
ceed in the absence of an interested person, it does
not by that token deprive itself of the power to
adjudicate as between the parties already before
it; but the court can make a legally binding adjudi
cation only between the parties actually joined in
the action. Although such adjudication may ad
versely affect the absent person as a practical
matter, such factor does not negate the power to
adjudicate as between the parties who have been
joined.

5. As Rule 19 is equitable not jurisdictional in char
acter, the court should not dismiss for nonjoinder
when circumstances make it inequitable to do so;
for the court always has the jurisdiction to bind
the parties already present. 57

57 The word “ indispensable” is used in Rule 19 (b) in a conclu-
sory sense: a person is regarded as indispensable when upon con
sideration of the various factors, it is determined that in his
absence it would be preferable to dismiss the action rather than
to retain it. See Notes of Advisory Committee to 1966 Amend
ment; Provident Bank v. Patterson, 390 U.S. 108, 118-119 (1968).
Thus, a court may “proceed to an adjudicaiton without the pres
ence of a necessary party but cannot do so if the absent party
is indispensable.” 3.A Moore’s Federal Practice TT19.107131, p. 2254
(2d Ed. 1972).

6 9

In Provident Bank v. Patterson, 390 U.S. 102 (1968)
this Court fully supported the Advisory Committee’ s analy
sis and statement of dispositive principles in the “context
of a particular litigation.” 390 U.S. at 118.

In applying these principles in the context of this par
ticular litigation, we respectfully submit that the District
Court’s deferral of ruling on the joinder issue while pro
ceeding with the action was entirely proper; that, in any
event, any final adjudication made by the District Court
would and should be binding on at least the original State
and Detroit defendants even in the absence of all other
parties; and finally, that if the District Court made a mis
take with respect to joinder of parties, such mistake should
be cured in the proceedings already under way on the
remand. These conclusions are supported by the following
factors:

1. This action commenced without knowledge of the
necessary extent and nature of relief. Throughout the
hearings on violation and then remedy, adequate informa
tion on the nature and extent of needed relief remained
unavailable; as no actual plan has ever been submitted,
there has been no basis for knowing what school districts
might be involved and to what extent protection of any
of their interests cognizable under Eule 19 might be
impeded. Intervening defendants Magdowski, et al., did
file a motion to join all 86 school districts in the tri-county
area. (Ia 19) On three separate occasions the District
Court expressly deferred ruling on this motion because of
the lack of adequate information on which to make a deter
mination: “ Considered as a plan for desegregation, the
motion is lacking in specificity and is stated in the broad
est general terms.” (J. 39a) (J. 44a; Ia 204). Under Eule
19 such deferral of decision on the joinder issue is proper
until adequate information is available for a decision. Due

to State defendants’ default in failing to submit an actual
plan of desegregation, such, deferral was entirely proper
at least until after the District Court’s findings and rulings
of June 14, 1972, on the tentative desegregation area and
action required in the development of a plan. Arguably,
at that point in time the District Court for the first time
should have made a decision under Rule 19 on the joinder
of absent parties. But the propriety of the District Judge’s
deferral of ruling through that time is especially clear in
light of his obvious desire to allow interested parties to be
heard despite the practical difficulties.58

2. Absent some affirmative obstruction by absent parties,
the State defendants had sufficient authority to implement
any injunction of the court even if it required action
beyond the geographic limits of the Detroit School District.
Hence, as noted above, the parties already before the Court
could accord complete relief. See, e.g., Hoots v. Common
wealth of Pennsylvania, 359 F. Supp. 807, 821-2 (W.D.
Penn. 1973); United States v. Texas Educ. Agency, supra;
Husbands v. Commonwealth of Pennsylvania, 359 F. Supp.
925, 937 (E. D. Pa. 1973). In the event any such, obstruc
tion or other necessity requires joinder of additional
parties either to accord or maintain complete relief, such
joinder could be accomplished pursuant to either Rule 19
or Rule 21. See, e.g., Griffin v. County School Board of
Prince Edward County, 377 TJ.S. 218, 234 (1964).* 69

58 The failure of the Court of Appeals to examine the propriety
of the District Court’s reasons for deferring decision on the
joinder issue is inexplicable.

69 In many school desegregation actions such absent parties are
joined long after the prior adjudication and orders among existing
parties. See, e.g., United States v. Georgia, 466 F.2d 197 (5th
Cir. 1972) ; Robinson v. Shelby County Bd. of Education, 330
F. Supp. 837, 844-45 (W.D. Tenn. 1971), aff’d, 467 F.2d 1187
(6th Cir. 1972). For example, many city councils or finance

3. Due to the nature of relief contemplated by the lower
courts, and particularly deferral of any reorganization to
the legislature with interim relief to be accomplished by
contracts and pupil transfers between existing districts
pursuant to state law, the suburban school districts have
no interest cognizable by Rule 19 to be protected in this
action. As local school districts are subject to the absolute
control of the legislature and action by the State defendants
to conform to the requirements of law, they have no legal
interest requiring protection under Rule 19. Hoots v. Com
monwealth of Pennsylvania, supra; Evans v. Buchanan,
256 F.2d 688 (3rd Cir. 1958); Husbands v. Commonwealth
of Pennsylvania, 359 F. Supp. 925, 937 (E.D. Pa. 1973);
also cf. Hunter v. Pittsburgh, 207 U.S. 161, 178-9 (1907) ;
Trenton v. New Jersey, 262 U.S. 182 (1923); Att’y General
v. Lowrey, 131 Mich. 639 (1902), aff’d, 199 U.S. 232, 239-
240 (1905). This is especially true in view of the fact that
the conduct of suburban school districts was never put in
issue by plaintiffs. See, e.g., Griffin v. State Board of Edu
cation, 239 F. Supp. 560, 566 (E.D. Va. 1965).

4. Assuming arguendo that school districts have had
some interest cognizable under Rule 19 in the litigation
to date, their ability to protect such interest has not as
a practical matter been impaired or impeded by the prior
proceedings in the District Court. At every stage in these
proceedings, some party has adequately protected the in

commissions have been added recently (to provide necessary de
segregation funding) to cases already hoary with age. If the
novel procedural suggestions of amici and petitioners in this case
are accepted, failure to join such necessary parties at the onset
of the action requires dismissal of the action in each of these
cases. But see, e.g., Griffin v. County School Board of Prince
Edward County, 377 U.S. 218 (1964); Aaron v. Cooper, 156 F.
Supp. 220 (E.D. Ark. 1957), aff’d sub nom., Faubus v. United
States, 254 F.2d 797 (8th Cir. 1958).

terests of all suburban districts possibly at issue. At the
violation hearing, Detroit and State defendants actively
contested the proof of violation as to its nature, extent, and
continuing effects. Thereafter, State defendants opposed
any desegregation beyond the limits of the DSD; so too,
did the suburban parent and school district intervenors.
Thus whatever relevant interests absent suburban school
districts could have asserted at each stage of the proceed
ings were asserted and adequately represented by at least
one party already defendant. Cf. New Jersey v. New York,
345 U.S. 369, 372-3 (1953); Kentucky v. Indiana, 281 U.S.
163 (1930).

5. The District Court evidenced its clear desire to permit
all interested parties to be heard:

. . . I do not propose to stop the voice of anybody who
is apt to be affected by the plan. So this is a matter
of mechanics. When the time comes that action has to
be taken in that regard we will give it further thought
and make a decision that we believe will be a fair one
and yet will permit us to proceed with some dispatch
in achieving some remedial effects. . . . (J. 44a).

Subsequently, the District Court permitted suburban school
districts, as well as a group of suburban parents, to par
ticipate as parties in the hearings.

6. Assuming arguendo that the District Court made a
mistake in not joining absent school districts, there can be
no question in equity and good conscience that this action
could properly proceed to a final adjudication among those
who were parties on September 27, 1971.60 Rule 19(b) sets

6° Professors Wright and Miller suggest that actions against
public officials often raise questions concerning the joinder of
other officials. They approvingly note the trend in recent cases

out four factors to be considered in determining whether
the action should be dismissed because of the absence of
a party or go forward without him. The first three factors
have already been analyzed: in this case the judgment as
shaped is not prejudicial to any interest of a suburban
district cognizable by Rule 19 and relief can be granted to
plaintiffs in the absence of suburban school districts. The
fourth factor, however, compels the conclusion that the
essence of equity would require that this action not be dis
missed but rather continued among those already parties.

For if the action is dismissed or the lower court rulings
and decisions vacated for non-joinder under Rule 19,
plaintiffs will most assuredly not have an adequate rem
edy for the long-standing violation already found; further
delay in the disestablishment of the state-imposed system
of segregation will mean, inevitably, further denial of
plaintiff children’s constitutional rights and will irrepara
bly harm them “in a way unlikely ever to be undone.”
Brown I, 347 U.S. at 494. Twenty years after Brown, the
constitutional command to end state-imposed segregation
requires continuation of this action at least among those
already parties. After several years of trial proceedings
among adversary parties with the power to grant all re
lief necessary and the showing of a pervasive constitu
tional violation, it would be unconscionable for plaintiffs
to be told that all that has gone before is naught. We
respectfully suggest that any other ruling will have dev
astating consequences upon the ability of litigants and
district courts everywhere fairly and promptly to hear

to determine the joinder issue based simply on whether effective
relief can be accorded on the basis of the parties already before
the court, even where joinder of the absent officials is 'feasible.
Federal Practice and Procedure, Sec. 1617 (1972).

constitutional claims and, upon showing, to provide prompt
and adequate relief among the parties present.61

B. Petitioners and Amici School Districts Have Not Been De
nied Any Procedural Rights Guaranteed to Them by the
Fifth and Fourteenth Amendments.

At the outset, we reiterate that any potential procedural
error can be cured by the proceedings on remand long

61 On remand from the Court of Appeals, plaintiffs acquiesced
in the thrust of that court’s direction, not out of agreement but
out of a desire to get on with the proceedings. Upon plaintiffs’
motion, the District Court joined as parties all 86 school districts,
their members and superintendents, in the tri-county area pursu
ant to Rules 19 and 21. (Ia 287-290; la 300-302). At the same
time plaintiffs filed an amended complaint to conform to the evi
dence (Ia 300 et seq.) ; no allegations were made about the con
duct of suburban school districts. As noted, in the proceedings
on that remand, the added parties will have an opportunity to
present all relevant evidence, including any as to violation, upon
a proper showing.

The joinder decision of the Court of Appeals apparently turned
on its belief that suburban school districts had such relevant
information and particular interest in any relief extending be
yond the DSD that they must be joined at hearings which ad
dress such multi-district relief. Whatever the merits of the joinder
ruling of the Court of Appeals, generally such a belief properly
distinguishes the comparative lack of information and interest of
the suburban districts with respect to Detroit-only considerations.
It also represents a proper recognition that suburban school dis
tricts were not and are not “ indispensable” to the prior proceed
ings. In plaintiffs’ view of Rule 19, however, the District Court
will have joined these suburban parties and allowed them to be
heard in the exercise of its discretion not because required to do
so by Rule 19 and traditional equity principles. In that regard,
if this Court directs, plaintiffs would be entirely amenable to pro
ceeding with the action below in the absence of suburban sehool
districts and their board members and superintendents; plaintiffs
submit that relief can be accorded by State and Detroit defendants,
with additional parties joined only (1) when and if they affirma
tively obstruct implementation of any plan eventually ordered by
the District Court, cf. Griffin v. County School Board, 377 U.S.
218 (1964) ; or (2) when and if the interests in efficient admin
istration of justice require, cf. United States v. Georgia, 466 F.2d
197, 200 (5th Cir. 1972).

before the District Court has ordered any suburban school
district to do anything: on remand they will have a mean
ingful opportunity at a meaningful time to challenge any
of the previous findings of the District Court by presenta
tion of relevant evidence, including by cross-examination
of witnesses who have previously testified. This was pre
cisely the procedure followed in Bradley v. Richmond, 51
F.R.D. 139 (E.D. Ya. 1970), which petitioners cited in the
Court of Appeals as the proper procedure to follow.
Moreover, the Richmond litigation started ten years be
fore any suburban school district was joined. Equally dis
positive, the District Court has treated these parties with
fundamental fairness in the context of the nature of the
proceedings below to this point (See Counterstatement,
supra). Finally, the equitable considerations underlying
Rule 19 apply with equal force to the fundamental fair
ness of procedures followed below. (See Argument, supra).

Petitioners and amici school districts, however, have
failed in the circumstances of this case even to show
how they fall within the guarantees of any constitutional
provision.

1. The Fourteenth Amendment is clearly inapposite
here; it speaks only to procedural deprivation resulting
from “ state action,” not the prior proceedings and potential
future orders of a federal district court. U.S. Const.
Amend. 14.

2. The Fifth Amendment, which does speak to the exer
cise of federal rather than state power, reads in pertinent
part:

No person shall . . . be deprived of life, liberty or
property without due process of law. U.S. Const.
Amend. 5.

School districts in the context of this litigation have no
interest protected by this provision for two distinct reasons.
First, school districts should not be considered “ persons”
under the Fifth Amendment. The entire Amendment liter
ally reads as if to protect natural persons62 or wholly pri
vate interests from the excesses of federal public power.
Thus in South Carolina v. Katzenbach, 383 U.S. 301, 323-
324 (1966), this Court held:

The word “person” in the context of the due process
clause of the Fifth Amendment cannot, by any reason
able mode of interpretation, be expanded to encompass
the States of the Union, and to our knowledge this has
never been done by any court. Nor does a State have
standing as the parent of its citizens to invoke this
constitutional provision against the Federal Govern
ment, the ultimate parens patriae of every American
citizen.

With respect to the Federal Government and federal dis
trict courts, precisely the same statements can be made
about the various political subdivisions of the States, which
after all are wholly creatures of the State and subject to
its will absolutely, without protection from the State’s
caprice under either the Fourteenth Amendment or the
Contracts Clause. Hunter v. Pittsburgh, 207 U.S. 161, 178-

62 Whether a municipal corporation is a “person” varies with
its use. Compare City of Kenosha v. Bruno, 412 U.S. 507 (1973)
(not a “person” for 42 U.S.C. §1983) with Santa Clara County v.
Southern B.B. Co., 118 U.S. 394 (1886) (a “person” under the
Fourteenth Amendment). (Justices Douglas and Black have ex
pressed their dissent from the view that “persons” in the Four
teenth Amendment includes other than natural persons. Conn.
Gen. Life Ins. v. Johnson, 303 U.S. 77, 83-90 (1938) ; Wheeling
Steel Corp. v. Glander, 337 U.S. 562, 576-581 (1949)). And under
Michigan law, school districts lack even the status of municipal
corporations, as mere “auxiliaries” of the State, see A tt’y General
v. Lowrey, 131 Mich. 639 (1902).

179 (1907); Trenton v. N.J., 262 U.S. 182, 186 (1923). This
is not to suggest that federal district courts may act arbi
trarily toward States or their political subdivisions,63 but
only that the Fifth Amendment provides no protection.
Eather, the sources of protection for a school district and
a State from arbitrary abuse at the hands of a district
court are the Federal Rules of Civil Procedure and con
siderations of equity.

Second, even assuming arguendo that the school districts
are “persons” under the Fifth Amendment and protected
thereby from any excesses of federal judicial power, the
school districts have no interest cognizable by the Fifth
Amendment which has been threatened by the proceedings
below. To draw the analogy from the Fourteenth Amend
ment procedural protection of corporations from arbitrary
state action, school districts could assert at most only their
“proprietary” interests in “property,” if any;64 for “life”
and “ liberty” remain attributes only of natural persons.
See, e.g., Hague v. C.I.O., 307 U.S. 496, 527 (1939); (sep
arate opinion, Stone, J . ) ; Western Turf Association v.

63 We note in this regard that this Court in several of its origi-
nal. jurisdiction cases has held that the interests of a political sub
division of a State are adequately represented by the State and
has refused to permit intervention by the political subdivision.
See, e.g., New Jersey v. New York, 345 U.S. 369 (1953). We fail
to see, therefore, absent a showing of inadequate representation,
why the interests of the petitioners and amici political subdivisions
here have not been served similarly by petitioner State defendants.

64 And as noted supra, note 62, under Michigan law school dis
tricts may not even possess the attributes, including proprietary
interests, of municipal corporations. Based on that state law, the
State Attorney General has ruled (1) that funds expended by
local districts are the funds of the State and (2) that the school
buildings and lands of local districts are the property of the
State. Attorney General Opinions No. 406 (May 28, 1947) and
No. 4371. Compare Essex Public Road Board v. Skinkle, 140 U.S,
334, 339-340 (1891) ; City of New Orleans v. New Orleans Water
Works Co., 142 U.S. 79, 92 (1891).

Greenberg, 204 U.S. 359, 363 (1907); Northwestern Nat’l
Life Ins. Co. v. Riggs, 203 U.S. 243 (1906). In this case the
relief contemplated has been shaped to avoid any depriva
tion of the property interests of any school district.

Thns the lower courts, in the exercise of their discretion
to date, have provided suburban school districts with more
procedure than is required by Rule 19 or the Constitution
of the United States. We urge that petitioners’ novel the
ories of procedure, both with respect to Rule 19 and the
Constitution, be rejected by this Court.

CONCLUSION

Since Brown, and in direct violation of their constitu
tional rights as therein declared, black children in Detroit
have been intentionally confined, by various de jure devices,
to an expanding core of black schools always separated by
a line from immediately surrounding white schools. Be
cause of the continuing nature of that constitutional viola
tion, reflected in the expansion of the state-imposed core
of black schools, petitioners seek to interpose as the new
dividing line the existing boundaries of the Detroit School
District. I f that dividing line is permitted to stand without
breach to perpetuate the basic dual structure, the inten
tional confinement of black children in schools separate
from whites will continue for the foreseeable future. The
violation of constitutional rights will continue without
remedy. Such a result is not only to repeal Brown and to
return these children to Plessy, but also to undermine the
system of constitutional government in the United States.
For as stated by Chief Justice Marshall, in Marburg v.
Madison, 5 U.S. (1 Crunch) 137, 163 (1803),

The government of the United States has been em
phatically termed a government of laws and not of

men. It will certainly cease to deserve this high appel
lation, if the laws furnish no remedy for the violation
of a vested legal right.

W herefore Respondents Ronald Bradley, et ah, respect
fully pray that this Court affirm the judgment below.

Respectfully submitted,

Nathaniel R. Jones
1790 Broadway
New York, New York 10019

Louis R. Lucas
W illiam E. Caldwell

525 Commerce Title Bldg.
Memphis, Tennessee 38103

Paul R. Dimond
210 East Huron Street
Ann Arbor, Michigan 48108

J. Harold Flannery
Robert Pressman

Larsen Hall, Appian Way
Cambridge, Mass. 02138

Jack Greenberg
Norman J. Chachkin

10 Columbus Circle
New York, New York 10019

Elliott Hall
950 Guardian Building
Detroit, Michigan 48226

Attorneys for Respondents
Ronald Bradley, et al.,
Plaintiffs Below

8 0

Note on Form o f Record Citations

Throughout this brief, the following forms of citation
have been employed:

“J. —” refers to petitioners’ Joint Appendix to their
certiorari petitions, containing the opinions below.

Citations preceded by a roman numeral, e.g., “Ia —,”
“IVa •—,” refer to volumes of the Single Appendix filed
in this Court on these consolidated cases.

Portions of the transcript which form part of the record
herein, but which were not included within the Single
Appendix, are cited as follows:

-—Citations to the transcript of the “violation hear
ings” which took place in the summer of 1971 as
“R. —

— Citations to the transcripts of other hearings are
preceded by appropriate identification of the hear
ing to which reference is made, e.g., “ 8/29/70 pre
liminary hearings Tr. — .” See generally, Counter
statement of the case, supra.

Exhibits introduced at the various hearings are identified
as follows:

—Exhibits at the 1971 “violation” hearings as “P.X.
—” [plaintiffs’ ], “D.X. —” [defendants’ ], etc.

—Exhibits at the hearings on proposed metropolitan
plans as “Ex. -—,” “P.M. —” [plaintiffs’ metropoli
tan], etc.

Other record citations are largely self-explanatory. We
also note that the text of Keyes v. School Dist. No. 1, 413
U.S. 189 (1973), is cited to Lawyers’ Edition, 2d Series
throughout the body of this Brief since it was reported
in United States Reports advance sheets only as this
Brief was being submitted to the printer.

ME11EN PRESS INC. — N. Y. C. «<g|§^> 219

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Milliken v. Bradley Brief for Respondents

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