Brown v. Board of Education Brief for Appellants in Nos. 1, 2 and 3 and for Respondents in No. 5 on Further Reargument

    No. 72-8002

IN  T H E  U N IT E D  S T A T E S  C O U R T  O F  A P P E A L S
F O R  T H E  S IX T H  C IR C U IT

R O N A L D  B R A D L E Y , et al,v. Plaintiffs-Appellees,

W IL L IA M  G. M IL L IK E N , et al, 
and

Defendants-Appellants,

D E T R O IT  F E D E R A T IO N  O F T E A C H E R S ,
L O C A L  231, A M E R IC A N  F E D E R A T IO N  
O F  T E A C H E R S , A F L -C IO ,

Defendant-Intervenor,
and

D E N IS E  M A G D O W S K I, et al,

et al.
Defendants-Intervenors,

On Appeal' from the United States District 
Court for the Eastern District of Michigan 

Southern Division

B R IE F  O N  B E H A L F  O F  D E F E N D A N T S -A P P E L L A N T S  
G O V E R N O R , A T T O R N E Y  G E N E R A L , S T A T E  B O A R D  
O F  E D U C A T IO N , S U P E R IN T E N D E N T  O F  P U B L IC  

IN S T R U C T IO N  A N D  S T A T E  T R E A S U R E R  O F T H E  
S T A T E  O F  M IC H IG A NF R A N K  J .  K E L L E Y  Attorney General Robert A . Derengoski Solicitor General Eugene Krasieky Gerald F . Young720 Law Building George L . MeCargar525 West Ottawa Street Patrick KowaleskiLansing, Michigan 48913 Assistant Attorneys General

P R I N T E D  B T  S P E A K E R - H I N E S  A N D  T H O M A S ,  I N C . ,  L A N S I N G ,  M I C H I G A N ----  1 9 7 2



T A B L E  O F C O N T E N T S PageTable of Cases -------------------- ----------------------------  ivStatement of Questions Involved--------------------------  xiiiStatement of Case --- --- ------------------------------------- 2ArgumentI. Under Michigan law, local school districtsare created by the legislature as local state agencies and bodies corporate governed by locally elected boards of education having such powers as are conferred by statute .... 6II . Based on the record in this case, the Dis­trict Court’s findings of fact and conclusions of law de jure segregation in the public schools of the Detroit School District is erroneous ________________________________________ 26II I . The lower court erred in admitting intoevidence and relying upon evidence of al­leged racial discrimination in housing by persons not parties to this cause, in finding de jure segregation in the Detroit Public Schools __________________________________   31IV . The lower court’s legal conclusion of de jure segregation by these defendants in the mat­ter of site selection for school constructionis erroneous as a matter of la w _____________ 38V . The lower court erred in denying these de­fendants’ 41(b) motions to dismiss made atthe close of plaintiffs’ case in c h ie f-------  40V I. The lower court erred in making findings against these defendants based on evidence



11

introduced after these defendants had made their 41(b) motions and elected to stand on such motions at the close of plaintiffs’ case in chief __________________________________________V II . The lower court’s legal conclusion of sys­tematic educational inequality between De­troit and the surrounding mostly white suburban school districts, based upon trans­portation funds, bonding limitations, and the state school aid formula, is erroneous as a matter of la w _____________________ _______V III . Based on the record in this cause, the De­troit public schools are not de jure segre­gated schools as a result of the conduct of any of the state defendants herein _________IX . A  finding of de jure segregation as to someschools within the Detroit school district does not warrant a. desegregation remedy for all schools in the school district. Only those schools within the school district found to be de jure segregated schools must be desegregated _____ ______________________________X . Based on the record in this case, a consti­tutionally adequate unitary school system can be established within the geographical limits of the Detroit school district _______X I . Where only the Detroit school district has been found to have committed acts of de jure segregation, and in the absence of any claims, proofs or findings concerning either the establishment of the boundaries of the 86 public school districts in Wayne, Oakland and Macomb counties or whether any of

Page
52

54
70

76

80



iii Pagethese 86 school districts, except Detroit, have committed any acts of de jure segrega­tion, the District Court may not adopt, a metropolitan remedy including at least 53 school districts and 780,000 pupils ________ 88X I I . State officials may not be compelled by a District Court in a school desegregation remedial order to perform acts beyond their lawful authority to perform, under statelaw -----------------------------------    102X II I . The expenditures of state funds from thestate treasury required by the District Court in this case are not authorized by the appro­priation acts of the Michigan legislature as required by the Michigan Constitution ....... 105X IV . Section 803 of the education amendments of 1972, Pub. L . No. 92-318, applies to metro­politan transportation orders which have been or may be entered by the District Courtin this case ___________________ _ _ _ ____________  117X V . Section 803 is constitutional  ____   132Addendum____________________________________________________ 135Conclusion __________________________________________________  146



1Y

IN D E X  O F A U T H O R IT IE S PageA  & N Club v Great American Insurance Co,404 F2d 100, 103-104 (CA 6, 1968) __________ .41,52,53,75Airport Community Schools v State Board ofEducation, 17 Mich 574 (1969) _____________ _____ 24Alexander v Holmes County Board of Education,396 U S  19, 20 _______________________________________  83Attorney General, ex rel. Zacharias v Board ofEducation of City of Detroit, 154 Mich 584 (1908) 15Bacon v Kent-Ottawa Metropolitan WaterAuthority, 354 Mich 159 (1958) __________________  9Baker v Carr, 369 U S 186, pp 194-195 Footnote 15,(1962) _________________________________________________  48Beech Grove Investment Company v Civil EightsCommission, 380 Mich 405 (1968) ________________ 35Board of Education v City of Detroit,30 Mich 505 (1875) __________________________________  11,25Board of Education of Presque Isle Township School District No. 8, Presque Isle CountyBoard of Education, 357 Mich 148 (1959) _______  10,15Board of Education of the City of Detroit v Superintendent of Public Instruction, 319 Mich436 (1947)____________________________________    7Bradley, et al v Milliken, et al, 433 F2d897 (1970)_____________________________________________  16Bradley, et al v School Board of the City of Richmond, Virginia., et al, 51 F E D  139, 142(ED Va, 1970) ________________________________________ 103,104Bradley v School Board of City of Richmond Virginia (CA 4, No 72-1058, February 8, 1972) 135Bradley, et al v School Board of the City ofRichmond, _____F2d_____(CA 4, decidedJune 5, 1972) 81, 82, 88, 94, 95,101



V PageBrown v Board of Education, 347 U S  483(1954) ________________________________________________27,28,119Brown v Board of Education, 349 U S  294 (1955) 134Burruss v Wilkerson, 310 F  Supp 572, 574(WD V a 1969), affirmed 397 US' 44 (1970) _-64, 67, 68, 75 Child Welfare Society of Flint v KennedySchool District, 220 Mich 290 (1922) ------—-   15Claus v State Board of Education, et al(US D C, ED  Mich SD) decided Ju ly  12, 1972 22Common Council of the City of Detroit vEngel, 202 Mich 536 (1918) ______________________ 15Corpus Christi Independent School District vCisneros, 404 U S  1211 (1971) ____________— -   135Cotton v Scotland Neck City Board of Education,92 S Ct 2214 (1972) _________________________________  86Dandrige v Williams, 397 U S  471, 485 (1970) -----  60Davis v School District of City of Pontiac, Inc,443 F2d 573, 575 (CA 6, 1971), cert den404 U S  913 (1971) _______________________ 32, 37, 40,101,135Deal v Cincinnati Board of Education, 369 F2d 55, 60-61 (CA  6, 1966) cert den 389 U S 847(1967) _________________________________________________  32,101Deal v Cincinnati Board of Education, 419 F2d 1387, 1392 (CA  6, 1969), cert den 402 U S  962(1971) _________________________________     32,101Duplex Printing Press Co v Derring,254 U S  443 (1921) __________________________________  128,130Edgar v United States, 404 US. 1206 (1971) _____ 97Fox v Employment Security Commission, 379 Mich579, 588 (1967) _______________________________    47Gentry v Howard, 288 F  Supp 495, 498(ED Tenn, 1969) ______________________    48Gordon v Lance, 403 U S  1 (1971) --------------------  61Green v School Board of New Kent County,391 U S  430 (1968) __________________________86,119,134,135



PageGriffin v County School Board of PrinceEdward County, 377 U S  218, 228 (1964) _______  42,105Hiers v Detroit Superintendent of Schools,376 Mich 225 (1965) _________________ _______  13. 24, 38, 72Hobson v Hansen, 269 F  Supp 401, 495(D.D.C. 1967) modified sub.nom. _______________  72,73Imlay Township Primary School District No. 5 vState Board of Education, 359 Mich 478 (1960) 15In re School District No. 6, Paris and WyomingTownships, Kent County, 284 Mich 132 (1938) 15In re State of New York, 256 U S  490, 497 (1921) _ 42Ira School District No. 1 Fractional v Chesterfield School District No. 2 Fractional, 340 Mich 678(1954) ________________________________    15Jipping v Lansing Board of Education, 15 Mich App 441 (1968), Leave to Appeal denied 382Mich 760 (1969) ___________________________    14,28Jones v Grand Ledge Public Schools, 349 Mich 1,(1957) -------------------------------------------------- 15,25,71,96Kent County Board of Education v Kent CountyTax Allocation Board, 350 Mich 327 (1957) _.....9Keyes v School District No. 1, Denver, Colorado,313 F  Supp 61, 74-75 (D Colo, 1970), modified 445 F2d 990, 1006, (CA 10, 1971), cert granted804 U S  1036 (1972) _________ .....___________ 72, 73, 77, 78,79,135King v Smith, 392 U S  309 (1968) ......... .......... ........  128Lockerty v Phillips, 319 U S 182, 187 (1942) _____ 133MacQueen v City Commission of City ofPort Huron, 194 Mich 328 (1916) _____________  15Marathon School District No. 4 v Gage, 39 Mich484 (1878) _________    9Margeta v Ambassador Steel Co, 380 Mich 513(1968)    107



Vll PageMason v Board of Education of the School Districtof the City of Flint, 6 Mich App 364 (1967) _____ 14, 28Mclnnis v Ogilvie, 394 U S 322 (1969) ______________ 64Mclnnis v Shapiro, 293 F  Supp 327, 335-336(ND 111 1968) ----------------------------------------64, 67, 68, 75McKibbin v Corporation and Securities Commis­sion, 369 Mich 69 (1963) ___________________________  34Michigan Education Association, et. al v State Board of Education, Michigan Court of Appeals,No. 11,900 _______________________________________ ______ . 26Milliken v Kelley, et al v Allison Green, et al,Supreme Court, No. 53,809   _____________________ 69Munro v Elk Rapids Schools, 383 Mich 661 (1970) 21, 24Northcross v Board of Education of Memphis,Tenn, 420 F2d 546, 548 (1969) ___________________________  83,88Northcross v Board of Education of the City of Memphis (misc. 1576, June 2, 1972, en banc,Ju ly  10, 1972 --------------------------------------------  135Penn School District No. 7 v Lewis Cass Inter­mediate School District Board of Education,14 Mich App 109, 120 (1968) _______________ ______ 24People, ex rel. Tibbals v Board of Education ofPort Huron, 39 Mich 635 __________________________  11Plessy v Ferguson, 163 U S  537 (1896) ___ :_______  27Ranjel v City of Lansing, 417 F2d 321, 324 (CA 6,1969), cert den 397 U S 980 (1970), reh den397 U S  1059 (1970) ___________________________ _ 67Rehberg v Board of Education of Melvindale,Ecorse Township School District No. 11, WayneCounty, 330 Mich 541, 548 (1951) _______________  -21School District for the City of Holland v HollandEducation Association, 380 Mich 314 (1968)_____ 21, 25School District Number Three of the Township of Everett v School District Number One of the Township of Wilcox, et al, 63 Mich 51 (1886) ____ 10



vm PageSchool District of the City of Lansing v StateBoard of Education, 367 Mich 591 (1962) ______  9,16Schwan v Lansing Board of Education, 27 MichApp 391 (1970) ___________________________ __........____ 20,25Senghas v L ’Anse Creuse Public Schools, 368 Mich557 (1962)________________________________ __________12,22Smith v North Carolina State Board of Education,444 F2d 6 (CA 4, 1971) ______________________  103,104Smith, et al v State Board of Education, InghamCounty Circuit Court, No. 12167C _______________  63Smuck v Hobson, 408 F2d 175 (DC Circuit, 1969) 72, 73Sparrow v Gill, 304 F  Supp 86, (MD NC 1969) 59Spencer v Kugler, 326 F  Supp 1235, 1242-1243 (DC N J, 1971), affirmed on appeal 404 U S1027 (1972) __________________________________ 28,32,37,40,81,82, 94,101Sturgis v County of Allegan, 343 Mich 209 (1955) 15State Board of Agriculture v Auditor General226 Mich 417, 425 (1924) __________________________  112Swann v Charlotte-Mecklenburg Board of Educa­tion, 402 U S  1, 15-18 (1971) _____________28,30,32,40,78,83, 92, 94,101,119,127,128 Taylor v Board of Education of City School District of City of New Rochelle, 191 F  Supp 181 (SD, N Y, 1961), appeal dismissed 288 F2d 600 (CA 2, 1961), 195 F  Supp 231 (SD, N Y, 1961) affirmed 294 F2d 36 (CA 2, 1961), cert den 368U S  940 (1961) ________________________________________ 77The People, ex rel Workman v Board of Educationof Detroit, 18 Mich 399, 408-409 (1869) _______  27Township of Saginaw v School District No. 1 of theCity of Saginaw, 9 Mich 540 (1862) ___________  11United States v Board of Education (CA 10, 1922),459 F2d 720____________________________________________ 135



IX PageUnited States v School District 151 of Cook County,Illinois, 301 F  Supp 201 (ND 111, 1969), affirmed as modified 432 F2d 1147 (CA 7, 1970) cert den402 U S  943 (1971) ________________________________ 104United States v State of Texas, 321 F  Supp 1043 (ED Tex, 1970), 330 F  Supp 235 (ED Tex, 1971), affirmed and modified 447 F2d 441 (CA 5, 1971) 97United States of America v Texas EducationAgency, ----- F2d-----  (CA 5, August 2, 1972) 79Van Fleet v Oilman. 244 Mich 241 (1928) _________  15Weinberg v Regents of University, 97 Mich 246,254 (1893)--------------------------------------------------  H IWelling v Livonia Board of Education, 382 Mich620, 623 (1969) -----------------------------7,18,19,20,21,22,25, 39, 63Williams v Primary School District No. 3, GreenTownship, 3 Mich App 468 (1966) _______________  9Wright v Council of City of Emporia _____U S _____92 S Gt 2196 (1972), 40 U S  LW  4806 U S June 20,1972 -------------------------------------------- 26, 30. 44, 45, 85, 96Wright v Rockefeller, 376 U S 52 (1964) ._________  43United States ConstitutionArticle I I I , Section 1 ________________  _____________ 435Eleventh Amendment ______________________________  42Fourteenth Amendment __________________________ 37? 48 128United States Statutes42 U SC  2000c (b) — 2000C-6Pub L  No. 92-318, § 802a ___Pub L  No. 92-318, § 803 _____Michigan Constitution1835, art 10, § 3 _______________1850, art 13, § 4 _______________1908, art 5, § 13_______________1908, art 10, -§ 21_____________1908, art 10, § 23_____________

------------119,126,127----------------  119, 132117,126,128,134,1357710797



X Page1908, art 11, § 2 _____1908, art 11, § 6 _____1908, art 11, § 9 ____ 16,17 16 7,151963, art 1, § 2 ___________________________ __ ______ 46, 47, 481963, art 4, § 30__________________________ __________ 1021963, art 5, § 2 __________________ ___________________ 19, 201963 art 5, § 19 ______________________ ______________  54,1131963, art 5, § 29 351963, art 8, § 2 ______________________________ 7,17,18, 24, 25,27,47, 48, 561963, art 8, § 3 _____________________________ 17,18,19,39, 43,46,48, 74, 1111963, art 9, § 6 _____________________________________ 14, 57, 951963, art 9, § 11_____________________________1963, art 9, § 17_______ _____________________________1961 Constitutional Convention, Official Record,.24,113,117 102Vol I, pp 762-763 Michigan Public Acts1927 P A  319 ______1937 P A  120 ______1937 P A  306 ______1943 P A  88 ________1947 P A  336 ______1949 P A  231 ______1954 P A  116 ______1955 P A  269 _______1957 P A  312 ______1962 P A  175 ______1965 P A  380 ______1968 P A  112 ______1969 P A  306 ______1969 F A  307 ______

57
11106,107,108,109_____  23,39_____  19_____  91_____  39_____  44...7,18, 20, 27, 61, 71, 91,105_____ 58, 62, 69_____  40

____ 20_____  35_____ 18, 23, 39
___  1121970 P A  48 § 2 a _____________________________________  441970 P A  48, § 1 2 ____________________________________ 43, 74



XI Page1970 P A  84 _________________________________________  1121970 P A  100 --------------------------------------------- 58, 62, 691970 P A  120 ________________________________________  1121972 P A  225 ---------------------------------------- 108,109,1101972 P A  246 ------------------ ---------110,112,113,115,1171972 P A  258 ------------------------ 29,113,114,115,116,117M C LA  16.400-402; M SA  3.29(300)-29(302) _____ 20M CLA  24.201 et seq; M SA 3.560(101) et seq 18M C LA  340.1 et seq; M SA  15.3001 et seq 7.10,11,12,1314, 23, 24M CLA  388.681 et seq; M SA  15.2299(1) et seq 23M C LA  388.717 et seq; M SA 15.2299 (57) et seq .. 2450 Am Ju r , Statutes, § 482 __________________________  130F R  Civ P  41(b)---------------------------------------------  41,53117 Congressional Record, H10407-H10408 _______  118118 Congressional Record, H5416_______________ 130,132,134118 Congressional Record, H8378 __________________  133Journal of tlie House No. 98, p 2705 ___________ 108Journal of the House No. 103, p 2797    __________  43Journal of the Senate No. 96, p 1814_____   108Journal of the Senate No. 97, p 1684 ________________ 43Joint Rules of House and Senate, 1971-72, Rule 14 108Michigan Manual, 1971-72, pp 366-408 _____________ 59Opinions of the Attorney General1928-30, pp 498-502 __________________    111947-48, p 461_________________________________________  1071959-60, Yol 2, pp 138-139 __________________________  711959-60, Vol 2, pp 140-142 _________________________  711963-64, p 142_________________________________________  351969-70, p 156_________________________________________  221971, May 5, No. 4707 _____________________________  22





XIII

S T A T E M E N T  O F Q U E S T IO N S  IN V O L V E DI. W H A T  IS  T H E  P R E C IS E  L E G A L  ST A T U S U N D E R  ST A T E  LA W  OF L O C A L  SCH O O L D IS T R IC T S  AN D  B O A R D S OF E D U CA T IO N  V IS -A -V IS  T H E  ST A T E  OF M ICH IG A N ?The lower court did not answer this question.These defendants say that under Michigan law, local school districts are created by the legislature as indepen­dent local state agencies and bodies corporate governed by locally elected boards of education having such powers as are conferred by statute.II . W H E T H E R , B A S E D  ON T H E  R ECO R D  IN  T H IS  C A S E , T H E  D IS T R IC T  C O U R T ’S F IN D IN G S O F F A C T  AN D  C O N CLU SIO N S OF LA W  OF D E JU R E  SE G R E G A T IO N  IN  T H E  P U B L IC  SC H O O LS OF T H E  D E T R O IT  SCH O O L D IS ­T R IC T  IS  E R R O N E O U S?The lower court answered “ no.”These defendants say the answer is “ yes.”II I . W H E T H E R  T H E  LO W E R  COU RT E R R E D  IN  A D M IT T IN G  IN TO  E V ID E N C E  AN D  R E L Y IN G  U PO N  E V ID E N C E  OF A L L E G E D  R A C IA L  D IS ­C R IM IN A T IO N  IN  H O U SIN G  B Y  P E R SO N S NOT P A R T IE S  TO T H IS  C A U S E , IN  F IN D IN G  D E  JU R E  SE G R E G A T IO N  IN  T H E  D E T R O IT  P U B L IC  SCH O O LS?The lower court answered “ no.”These defendants say the answer is “ yes.”



XIVIV . W H E T H E R  T H E  LOW ER. C O U R T ’S L E G A L  CO N C LU SIO N  OF HE JU R E  S E G R E G A T IO N  B Y  T H E S E  D E F E N D A N T S  IN  T H E  M A T T E R  O F S IT E  S E L E C T IO N  F O R  SCH O O L CON­ST R U CT IO N  IS  E R R O N E O U S A S  A  M A T T E R  O F LA W ?The lower court answered “ no.”These defendants say the answer is “ yes.”V . W H E T H E R  T H E  LO W E R  COU RT E R R E D  IN  D E N Y IN G  T H E S E  D E F E N D A N T S ’ 41(b) MO­TIO N S TO D IS M IS S  M AD E A T  T H E  C LO SE  O F P L A IN T IF F S ’ C A S E  IN  C H IE F ?The lower court answered “ no.”These defendants say the answer is “ yes.”V I. W H E T H E R  T H E  L O W E R  COU RT E R R E D  IN  M A K IN G  F IN D IN G S  A G A IN S T  T H E S E  D E ­F E N D A N T S B A S E D  ON E V ID E N C E  IN T R O ­D U C E D  A F T E R  T H E S E  D E F E N D A N T S  H A D  M AD E T H E IR  41(b) M OTIO NS AN D  E L E C T E D  TO R E S T  AN D  STAN D  ON SU C H  M OTIONS A T  T H E  C L O SE  OF P L A IN T IF F S ’ C A S E  IN  C H IE F ?The lower court answered “ no.”These defendants say the answer is “ yes.”V II . W H E T H E R  T H E  LO W E R  C O U R T ’S L E G A L  C O N CLU SIO N  OF S Y S T E M A T IC  E D U C A T IO N ­A L  IN E Q U A L IT Y  B E T W E E N  D E T R O IT  AND



T H E  SU R R O U N D IN G  M O ST LY  W H IT E  S U B ­U R B A N  SCH O O L D IS T R IC T S , B A S E D  U PON T R A N SP O R T A T IO N  F U N D S, BO N D IN G L IM I­T A T IO N S, AN D  T H E  S T A T E  SCH O O L A ID  FO R M U L A , IS  E R R O N E O U S A S  A  M A T T E R  O F LA W ?The lower court answered “ no.”These defendants say the answer is “ yes.”V III . W H E T H E R , B A S E D  ON T H E  R ECO R D  IN  T H IS C A U S E , T H E  LO W E R  COU RT E R R E D  IN  R U L ­IN G  T H A T  T H E  D E T R O IT  P U B L IC  SCH O O LS A R E  D E  JU R E  S E G R E G A T E D  SC H O O LS A S  A  R E S U L T  O F T H E  CON D UCT OF A N Y  OF T H E S E  D E F E N D A N T S  H E R E IN ?The lower court answered “ no.”These defendants say the answer is “ yes.”IX . W H E T H E R  T H E  LO W E R  CO U R T E R R E D  IN  R U L IN G , B Y  IM P L IC A T IO N , T H A T  A  F IN D ­IN G  O F D E JU R E  SE G R E G A T IO N  A S  TO SOME SC H O O LS W IT H IN  T H E  D E T R O IT  SCH O O L D IS T R IC T  W A R R A N T S A  D E S E G R E G A T IO N  R E M E D Y  FO R  A L L  SC H O O LS IN  T H E  SCH O O L D IS T R IC T ?The lower court, by implication, answered “ no.”These defendants say the answer is “ yes.”



XVIX . W H E T H E R , B A S E D  ON T H E  R ECO R D  IN  T H ISC A S E , A  C O N S T IT U T IO N A L L Y  A D E Q U A T E  U N IT A R Y  S Y S T E M  OF SC H O O LS CAN  B E  E S T A B L IS H E D  W IT H IN  T H E  G E O G R A P H I­C A L  L IM IT S  O F T H E  D E T R O IT  SCH O O L D IS ­T R IC T ?The lower court answered “ no.”These defendants say the answer is “ yes.”X I . W H E T H E R  T H E  D IS T R IC T  COU RT E R R E D  IN R U L IN G  T H A T , W H E R E  O N LY T H E  D E T R O IT  SC H O O L D IS T R IC T  H A S B E E N  FO U N D  TO H A V E  CO M M ITTED  A C T S  OF D E JU R E  S E G ­R E G A T IO N , AN D  IN  T H E  A B S E N C E  OF A N Y  C L A IM S, P R O O FS OR F IN D IN G S  CO N CE R N ­IN G  E IT H E R  T H E  E S T A B L IS H M E N T  OF T H E  B O U N D A R IE S O F T H E  86 P U B L IC  SCH O O L D IS T R IC T S  IN  W A Y N E , O A K L A N D  AN D  M A­COM B C O U N T IE S , OR W H E T H E R  A N Y  OF T H E S E  86 SCH O O L D IS T R IC T S , E X C E P T  D E T R O IT , H A V E  CO M M ITTED  A N Y  A C T S  OF D E JU R E  SE G R E G A T IO N , IT  M A Y  A D O PT A  M E T R O P O LIT A N  R E M E D Y  IN C L U D IN G  A T L E A S T  53 SC H O O L D IS T R IC T S  AN D  780,000 P U P IL S ?The lower court answered “ no.”These defendants say the answer is “ yes.”X I I . W H E T H E R  T H E  D IS T R IC T  COU RT E R R E D  IN  R U L IN G  T H A T  T H E S E  D E F E N D A N T  S T A T E  O F F IC IA L S  M A Y  B E  C O M P E LLE D  B Y  A  D IS T R IC T  COURT IN  A  SCH O O L DE-



XVIISE G R E G A T IO N  R E M E D IA L  O R D E R  TO P E R ­FO RM  A C T S  B E Y O N D  T H E IR  L A W F U L  A U ­T H O R IT Y  TO P E R F O R M  U N D E R  ST A T E  LA W ?The lower court answered “ no.”These defendants say the answer is “ yes.”X I I I . W H E T H E R  T H E  LO W E R  COU RT E R R E D  IN R E Q U IR IN G  T H E S E  D E F E N D A N T S  TO M A K E  E X P E N D IT U R E S  FR O M  T H E  ST A T E  T R E A ­S U R Y  T H A T  A R E  NOT A U T H O R IZ E D  BY T H E  A P P R O P R IA T IO N  A C T S  OF T H E  M ICH IG A N  L E G IS L A T U R E  A S  R E Q U IR E D  B Y  T H E  M ICH ­IG A N  CO N ST IT U T IO N ?The lower court answered “ no.”These defendants say the answer is “ yes.”X IY . W H E T H E R  SE C T IO N  803 OF T H E  E D U C A ­TIO N  A M E N D M E N T S OF 1972, PU B . L . NO. 92-318, A P P L IE S  TO M E T R O P O LIT A N  T R A N S­P O R T A T IO N  O R D ER S W H IC H  H A V E  B E E N  OR M A Y  B E  E N T E R E D  B Y  T H E  D IST R IC T  COU RT IN  T H IS  C A SE ?The lower court did not answer this question. These defendants say the answer is “ yes.”X V . W H E T H E R  SE C T IO N  803 OF T H E  E D U C A ­TION  A M E N D M EN T S OF 1972, PU B . L . NO. 92-318, A S  A P P L IE D  TO M E T R O PO LIT A N  T R A N SP O R T A T IO N  O R D ER S IN  T H IS  C A U S E , IS  C O N ST IT U T IO N A L?



XV111The lower court did not answer this question. These defendants say the answer is “ yes.”



No. 72-8002
IN  T H E  U N IT E D  S T A T E S  C O U R T  O F A P P E A L S  

F O R  T H E  S IX T H  C IR C U IT

R O N A L D  B R A D L E Y , et al,

v.
Plaintiffs-Appellees,

W IL L IA M  G. M IL L IK E N , et al,

and
Defendants-Appellants,

D E T R O IT  F E D E R A T IO N  OF T E A C H E R S ,
L O C A L  231, A M E R IC A N  F E D E R A T IO N  
O F T E A C H E R S , A F L -C IO ,

Defendant-Intervenor,
and

D E N IS E  M A G D O W S K I, et al,

et al.
Defendants-Intervenors,

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

Southern Division

B R IE F  ON B E H A L F  O F D E F E N D A N T S -A P P E L L A N T S  
G O V E R N O R , A T T O R N E Y  G E N E R A L , S T A T E  B O A R D  
O F E D U C A T IO N , S U P E R IN T E N D E N T  O F P U B L IC  

IN S T R U C T IO N  A N D  S T A T E  T R E A S U R E R  OF T H E  
S T A T E  O F M IC H IG A N



STATEM EN T OF CA SE(References to the record herein are references to the pages of the Appendix unless otherwise indicated by TR for transcript and E X  for exhibits.)Plaintiffs filed their class action complaint on August 18, 1970, alleging (a) the constitutional invalidity of Sec. 12 of 1970 P A  48 (XAa 10) and (b) that the policies and practices of the defendants have the purpose and effect of perpetuating a racially segregated system of public schools in which both pupils and school personnel are as­signed to particular schools on the basis of race. (IAa 17) Plaintiffs’ complaint sought declaratory relief and tempo­rary and permanent injunctive relief limited to remedying alleged racial segregation in the Detroit public schools by the establishment of a system of unitary public schools therein. (IAa 19-21)The plaintiffs in this cause are parents and their children attending schools in the Detroit School District which has a 63.8% black student body. The defendants included the Detroit Board of Education, three of its members and its Superintendent, the Governor, Attorney General, State Board of Education and Superintendent of Public Instruc­tion of the State of Michigan. The Detroit Board of Edu­cation, a body corporate, has been represented throughout this cause by private counsel of its own choosing.On October 13, 1970, this Court held Section 12 of 1970 P A  48 unconstitutional, affirmed the lower court’s denial of a preliminary injunction to, inter alia, implement the Detroit Board of Education’s April 7 plan, which would have altered the attendance zones of twelve high schools to effect a more balanced ratio of Negro and -white stu­dents at those 12 schools over a 3 year period, and reversed



the lower court’s order dismissing the Governor and A t­torney General as parties “at least at the present stage of the proceedings.” 433 F2d 897, 905.On December 3,1970, in response to plaintiff’s motion for immediate implementation of the April 7 plan and the Detroit Board of Education’s alternate McDonald and Campbell plans, the lower court entered an order directing the implementation of the McDonald Plan in September, 1971. The McDonald Plan involved providing specialized curriculums at certain high schools that would serve two of the eight regions within the school system with the expectation of attracting students from a wider area, on a voluntary basis, thereby achieving a, greater degree of integration. This plan, which was implemented in Septem­ber, 1971, also provided for establishing certain middle or junior high schools having racially balanced enrollments. (IAa 104-112) This Court, on appeal, denied plaintiffs’ mo­tion for summary reversal of such order and directed the District Court to set the case for hearing forthwith. 438 F2d 945.Prior to the trial on the merits, the District Court per­mitted the intervention, as defendants, of the Detroit Fed­eration of Teachers, the collective bargaining organization representing all teachers within the Detroit school system, and Magdowski, et al, a group of parents with children attending the Detroit public schools.The trial on the merits concerning the allegations of de jure segregation in the Detroit public schools commenced on April 6, 1971. On September 27, 1971, the lower court issued its “Ruling on Issue of Segregation” holding:“ . . . [T]ha,t both the State of Michigan and the Detroit Board of Education have committed acts which



4-have been causal factors in the segregated condition of the public schools of the City of Detroit. . (IAa 210)These defendants respectfully submit that such holding is erroneous. The Detroit Board of Education, found in­nocent by the trial court of any racial discrimination as to faculty and staff, has not, on the basis of the trial record, conducted the operation of the school district with the purpose and effect of segregating children by race in the public schools under its jurisdiction. As to these defendants, it will be demonstrated that the lower court’s adverse ruling is not supported by either the facts or the applicable law in this matter. These defendants, in the course of their conduct as elected or appointed public officials, have not, based on the record in the cause, committed any acts with the purpose and effect of segregating children by race in the Detroit public schools.On November 5, 1971, the District Court entered its order directing the defendants to prepare and submit both intra-district and metropolitan plans of desegregation. (IAa 220-221)The school districts of Allen Park, et al, Grosse Pointe, Royal Oak and Southfield, each a body corporate under Michigan law and represented by private counsel of its own choice, were allowed to intervene, as defendants. In addition, Green, et al, Tri-County Citizens for Intervention in Federal School Action No. 35257, was permitted to in­tervene as a defendant. These interventions were pursuant to the lower court’s order of March 15, 1972. (IBa 407-410)The lower court entered various rulings and orders in the process of shaping a metropolitan remedy involving Detroit and 52 other school districts having approximately



-5-780,000 students or 1/3 of the public school pupils in the state of Michigan. (IBa 539) Eighteen of the affected school districts, each a body corporate, with the power to sue and be sued under Michigan law and the authority to retain private counsel of its own choosing, have never been parties to this litigation. Further, the lower court directed these defendants to pay for the acquisition of at least 295 buses, at an approximate cost of 3 million dollars, to implement an interim or partial metropolitan remedy in September, 1972, and added the State Treasurer as a party defendant for purposes of affording such relief. (IBa 576-579)A  metropolitan remedy was decreed by the lower court in the absence of any proofs or findings concerning either the establishment of the boundaries of the 53 affected school districts or whether, with the exception of Detroit, any of the other 52 school districts has committed any acts of de jure segregation. (IBa 497-498) Further, although the lower court had expressly found no de jure segregation as to faculty and staff in the Detroit public schools (IAa 205-209), each school within the judicially created metro­politan desegregation area must have at least 10% black faculty. (IBa 540-541)On Ju ly  20, 1972, the lower court entered an order direct­ing that each of the following enumerated orders:“ 1. Ruling on Issue of Segregation, September 27, 1971;
“ 2. Ruling on Propriety of Considering a Metropolitan Remedy to Accomplish Desegregation of the Pub­lic Schools of the City of Detroit, March 24, 1972;“ 3. Findings of Fact and Conclusions of Law on De­troit-Only Plans of Desegregation, March 28, 1972;



—6—“4. Ruling on Desegregation Area and Development of Plan, and Findings of Fact and Conclusions of Law in Support thereof, June 14, 1972; and“ 5. Order for Acquisition of Transportation, Ju ly  11, 1972“ shall be deemed final orders under Rule 54(b) of the Federal Rules of Civil Procedure and the court certi­fies the issues presented therein under the provisions of 28 IT.S.C. 1292(b).” (IBa 590-591)On the same date, this Court entered its order granting both the motion of these defendants under 28 DSC 1292(b) for leave to appeal from the five orders set forth above and the motion of these defendants for a stay of proceed­ings, other than planning proceedings, pending appeal. (IBa 592-593) On August 1,1972, these defendants also filed a Notice of Appeal from these same five orders.In the interests of facilitating a clear presentation and conserving space by avoiding repetition, the remaining facts relevant to each question presented for review will be set forth in connection with the argument on each question. ARGU M ENTI.U ND ER M ICH IG A N  LAW , LO CA L SCHOOL D ISTR ICT S A R E  CR E A TE D  B Y  THE L E G ISL A T U R E  A S LO CAL ST A T E  A G E N C IE S  AND BO D IES CORPORATE GO V­ERN ED  B Y  L O C A L L Y  E L E C T E D  BOARDS OF E D U ­CATION H A V IN G  SU CH  POW ERS A S A R E  CON­FE R R E D  B Y  STATU TEA. The legal nature of Michigan School DistrictsIn Michigan, as authorized by the Michigan Constitution



■7-of 1963, art 8, § 2, the legislature has provided for the organization of school districts, pursuant to the provisions of 1955 P A  269, M CLA  340.1 et seq; M SA 15.3001 et seq, hereinafter sometimes referred to as the school code of 1955. Welling v Livonia Board of Education, 382 Mich 620, 623 (1969). Previous constitutional authority is found in Const 1908, art 11, § 9; Const 1850, art 13, § 4 and Const 1835, art 10, § 3.The meaning of the term “ school district”  came before the Michigan Supreme Court for decision in Board of Edu­
cation of the City of Detroit v Superintendent of Public 
Instruction, 319 Mich 436 (1947). The people had adopted the term “ school district”  in Const 1908, art 10, § 23, set­ting up a constitutional fund for the support of school dis­tricts and other governmental units. Thereafter the legis­lature passed an act designating the state as one school district and making appropriation from such fund to such single, state-wide school district. The court rejected the formation of a single, state-wide school district empowered only to receive appropriation.“ . . . In Board of Metropolitan Police of the City of 

Detroit v. Board of Auditors of Wayne County, 68 Mich 576, 579, it was said:“  ‘ Our State Constitution has provided for local municipalities, embracing counties, cities, villages, townships, and school districts, which it has been held mean such bodies of those names as were of a nature familiar and understood.’‘ ‘ The school district is commonly regarded as a State agency. Attorney General, ex rel. K ies, v. Loivrey, 131 Mich. 639; Attorney General, ex rel. McRae, v. Thomp­
son, 168 Mich. 511. Such concept is scarcely consistent



•8with the idea of the State making itself a school district and treating such district as an agency of the State for the purpose involved in the instant case, Webster’s New International Dictionary (2d Ed.), defines the term ‘district’ as:“  ‘A  division of territory; a defined portion of a state, county, country, town, or city, etc., made for administrative, electoral, or other purposes; as, a Con­gressional, federal, judicial, land, militia, magisterial, or school district.’

“ Other dictionaries contain similar definitions, thereby indicating the common understanding of the word. It is, generally speaking, something less than the whole. We think it may fairly be said that the term ‘ school district’ is commonly regarded as a legal divi­sion of territory, created by the State for educational purposes, to which the State has granted such powers as are deemed necessary to permit the district to function as a State agency. Stuart v. School District 
No. 1 of the Village of Kalamazoo, 30 Mich. 69; Dan­
iels v. Board of Education of the City of Grand Rapids, 191 Mich. 339 (L .E .A . 1916 F , 468); MacQueen v. City  
Commission of Port Huron, 194 Mich. 328; Public 
Schools of the City of Battle Creek v. Kennedy, 245 Mich. 585.“ It  should be noted also that under Act No. 331 the State school district is not vested with powers and duties of the character commonly delegated to school districts. It is declared a school district for one pur­pose only, namely, as indicated in the title of the act, ‘ to receive, administer and disburse’ certain appro­priations. Under chapter 3, § 61, specific authority with reference thereto is vested in existing boards and com-



-9missions. In other words, the State school district as such exercises no prerogatives. . . . ”  pp 449-450 [Emphasis supplied]School districts have also been held to be municipal corporations. Marathon School District No. 4 v Gage, 39 Mich 484 (1878). In Kent County Board of Education v 
Kent County Tax Allocation Board, 350 Mich 327 (1957), the Michigan Supreme Court expressly held that school districts are “ municipal corporations”  for the purpose of the tax limitation contained in Const 1908, art 10, § 21. For the purpose of property tax imposition, school dis­tricts possess the authority of “ municipal corporations.”  
Bacon v Kent-Ottaiva Metropolitan Water Authority, 354 Mich 159 (1958).More recently the Michigan Supreme Court in School 
District of the City of Lansing v State Board of Education, 367 Mich 591 (1962), held that school districts are local state agencies organized with plenary powers to carry out the delegated functions given by the legislature.The Michigan Court of Appeals has sought to harmonize this apparent inconsistency by recognizing that for pur­poses of tort liability school districts are considered state agencies but they remain “ municipal corporations”  for “ purposes of property tax imposition. ’ ’ Williams v Primary 
School District #3, Green Township, 3 Mich App 468 (1966).Thus, it is clear that for some purposes school districts are agencies of the state and for other purposes they are municipal corporations. Under either designation, it is abundantly clear that school districts are organized by the legislature with plenary powers to carry out the delegated functions given them by the legislature. School District 
of the City of Lansing v State Board of Education, supra.



10-More importantly, the legislature has defined the legal status of a school district in § 352 of the school code, supra:“ Every school district shall be a body corporate under the name provided in this act, and may sue and be sued in its name. . . . ”In the case of first and second class school districts, § 192 and § 154 of the school code of 1955, supra, the legis­lature has designated the respective board of education to be a body corporate with authority to “ sue and be sued.”  Thus, Michigan school districts, by legislative mandate, have been bodies corporate with power to sue and be sued since at least 1881.As a body corporate, a school district had the right to invoke the aid of a court of equity to prevent an illegal levy of taxes upon taxable property within the school dis­trict. School District Number Three of the Township of 
Everett v School District Number One of the Township 
of Wilcox, et al, 63 Mich 51 (1886). It is noted that the litigant school districts were neither represented by the Attorney General of Michigan, Moses Taggart, nor by the Newaygo Prosecuting Attorney but by private practi­tioners.In fact the legal status of a school district continues, even after the forced annexation of a closed school district, to seek judicial aid or review so long as its pleadings fairly present a justiciable controversy in some meritorious respect. Board of Education of Presque Isle Township 
School District No. 8 v Presque Isle County Board of Edu­
cation, 357 Mich 148 (1959).The legislature has also provided in § 609 of the school code of 1955, supra:



— 11“ The board shall have authority to employ an at­torney to represent the school district or board in all suits brought for or against the district, and to render such other legal service as may be for the welfare of the school district.”This express grant of power to hire its own attorneys to sue or represent a school district or board of education when sued was conferred by 1927 P A  319, Part II, Chap. 5, § 24, the school code of 1927 supplanted by 1955 P A  269, the school code of 1955, supra.In O AG 1928-30, pp 498, 502, the Attorney General ruled that the Prosecuting Attorney was not required to represent school districts when sued because they were empowered by lawr to employ their own attorneys.The reported cases decided by the Michigan Supreme Court since the time that Michigan became one of the states of the United States list inumerable cases in which school districts have been parties. A  review of a broad sampling of these cases reveals that the Attorney General of Mich­igan has not represented school districts in such litigation. Rather, they have been consistently represented by private attorneys selected by them. See, for example: Township 
of Saginaw v School District No. 1 of the City of Saginaw, 9 Mich 540 (1862); Board of Education v City of Detroit, 30 Mich 505 (1875); People, ex rel. Tihbals v Board of Edu­
cation of Port Duron, 39 Mich 635 (1878).Generally, school districts are established by the legis­lature pursuant to the appropriate provisions of the school code of 1955, supra, as fourth class, third class, second class and first class school districts, depending upon school population census. Fourth class school districts are provided for in §§ 51-77; third class school districts in



■12-§§ 101-122; second class school districts in §§ 141-166; and first class school districts in §■§ 181-230 of the school code of 1955, supra. Michigan also has primary school districts (operating grades K -8 only) and special act school dis­tricts established by the legislature, but since none of these classes of school districts are within the metropolitan desegregation area designated by the District Court, no further discussion of such classes of school districts ap­pears warranted.Fourth class, third class, second class and first class school districts are each governed by a board of education elected by school electors of the respective districts. The number of members of the board of education varies with the class of the district.Board of education have such powers, express or by reasonably necessary implication, as have been conferred by the legislature. Senghas v L ’Anse Creuse Public Schools, 368 Mich 557 (1962).The powers of the various school districts are set forth specifically in enumerated sections of the school code of 1955, supra, listed above as pertaining to the specific class school district as well as generally in the appropriate pro­visions of the school code of 1955, supra.It must be stressed that each board of education is ex­pressly empowered by the legislature to locate and acquire sites for schoolhouse or school buildings. Fourth Class, § 77; Third Class, § 113; Second Class, § 165; and First Class, § 192 of the school code of 1955, supra.The legislature has expressly empowered boards of edu­cation to hire teachers and staff (§569, §574), determine curriculum (§583), control attendance of nonresident pu-



13pils (§582), acquire transportation on title retaining con­tracts (§ 594), consent to annexation of other school dis­tricts (§431), to consolidate with other school districts (§402), and to determine attendance areas (§589). These powers are conferred by the cited sections of the school code of 1955, supra.The Michigan Supreme Court has passed upon the power of a board of education to determine attendance areas in 
Biers  v Detroit Superintendent of Schools, 376 Mich 225 (1965), a suit brought and decided after the effective date of the 1963 Constitution. The Court upheld the authority of the Detroit Board of Education to establish attendance areas in the school district, passed upon the nature of the power legislatively conferred and ruled:“ In this case, the authority was ample for what the school board intended. School boards are authorized by statute to establish attendance areas within the school district (C LS 1961, §340.589 [Stat Ann 1959 Rev §15.3589].) A  school board is empowered to ‘ es­tablish and carry on such grades, schools and depart­ments as it shall deem necessary or desirable for the maintenance and improvement of the schools.’ (CLS 1961, §340.583 [Stat Ann 1959 Rev §15.3583].) In addition, defendant board as a school district of the first class is specifically empowered ‘ to adopt bylaws, rules and regulations for its own government and for the control and government of all schools, school prop­erty and pupils.’ (CLS 1961, §340.192 [Stat Ann 1959 Rev §15.3192].) We conclude, therefore, that defend­ants not only are given broad powers by the legislature but specific powers embracing the establishing of schools and attendance areas within the district. . . . ”  p 235



—14—Moreover, in Mason v Board of Education of the School 
District of the City of Flint, 6 Mich App 364 (1967), and 
dipping v Lansing Board' of Education, 15 Mich App 441 (1968), Leave to Appeal Denied 382 Mich 760 (1969), Mich­igan’s appellate courts have sustained the discretionary power of local boards of education, as provided by statute, to change attendance areas within the school districts under their jurisdiction. Further, in these two Michigan cases Michigan’s appellate courts have held that, in the exercise of such discretionary statutory authority, local boards of education may establish or alter attendance areas to pro­vide increased racial balance within the schools.Most importantly, the power to certify and levy taxes within the appropriate tax limitations provided by the people in Const 1963, art 9, § 6, is conferred by §§ 564, 615 and 643a of the school code of 1955, supra.Thus, it must be concluded that the legislature has or­ganized school districts or boards of education of first and second class school districts as bodies corporate with the power to sue and be sued. Even a forcibly annexed school district has legal authority to sue to question the validity of the annexation proceedings. As bodies corporate, school districts or boards of education have express statutory authority to retain their own attorneys to advise them and to represent them in all courts. In this regard, it must be stressed that the complaint filed by appellees herein listed the Board of Education of the City of Detroit, or­ganized under the laws of this state, as one of the defend­ants herein. From the very first the Detroit Board of Edu­cation has been ably represented by attorneys of their own choosing. Certainly there should not be one rule for the Detroit Board of Education in this regard and another rule for the remaining 52 school districts within the desegrega­tion area. Further, whether designated as agencies of the



■15-state or municipal corporations, school districts possess plenary powers as are conferred by the legislature to carry out the delegated functions entrusted to them by the legis­lature.B. The power of control over school districtsThere is a vast body of case law issued by the Michigan Supreme Court that subject only to the provisions of the Michigan Constitution, the legislature has the entire con­trol over public schools in the state of Michigan. Attorney 
General, ex rel. Zacharias v Board of Education of City 
of Detroit, 154 Mich 584 (1908); Mac-Queen v City Com­
mission of City of Port Huron, 194 Mich 328 (1916); Com­
mon Council of the City of Detroit v Engel, 202 Mich 536 (1918); Child Welfare Society of Flint v Kennedy School 
District, 220 Mich 290 (1922); Van Fleet v Oltman, 244 Mich 241 (1928); In  re School District No. 6, Paris and 
Wyoming Townships, Kent County, 284 Mich 132 (1938); 
Ira School District No. 1 Fractional v Chesterfield School 
District No. 2 Fractional, 340 Mich 678 (1954); Sturgis v 
County of Allegan, 343 Mich 209 (1955); Jones v Grand 
Ledge Public Schools, 349 Mich 1 (1957); Board of Educa­
tion of Presque Isle Township School District No. 8 v 
Presque Isle County Board of Education, 357 Mich 148 (1959); Imlay Township Primary School District No. 5 v 
State Board of Education, 359 Mich 478 (1960).It must be noted that the Michigan constitutional pro­visions in effect during this time were:Const 1908, art 11, § 9:“ The legislature shall continue a system of primary schools, whereby every school district in the state shall provide for the education of its pupils without charge for tuition; . . . ”



- 1 6 -Const 1908, art 11, § 2:“ A  superintendent of public instruction shall be elected . . . He shall have general supervision of public instruction in the state . . . His duties and compensation shall be prescribed by law.”Const 1908, art 11, § 6:“ The state board of education shall consist of four members. . . . The state board of education shall have general supervision of the state normal college and the state normal schools, and the duties of said board shall be prescribed by law.”Thus, the controlling law can be summarized by quoting from School District of the City of Lansing v State Board 
of Education, 367 Mich 591 (1962);“ Unlike the delegation of other powers by the legis­lature to local governments, education is not inher­ently a part of the local self-government of a muni­cipality except insofar as the legislature may choose to make it such. Control of our public school system is a State matter delegated and lodged in the State legislature by the Constitution. The policy of the State has been to retain control of its school system, to be administered throughout the State under State laws by local State agencies organized with plenary powers to carry out the delegated functions given it by the legislature.”  p 595Indeed, this Court, in Bradley v Milliken, 433 F2d 897 (1970), has recognized the plenary power of the legislature over school districts as arms and instrumentalities of the state, including local boards of education, subject to federal constitutional provisions.



■17-In 1963 the people revised the Michigan Constitution, effective January 1, 1964. Provisions pertinent to this case are:
Const 1963, art 8, § 2:“ The legislature shall maintain and support a sys­tem of free public elementary and secondary schools as defined by law. Every school district shall provide for the education of its pupils without discrimination as to religion, creed, race, color or national origin.”Const 1963, art 8, § 3:“ Leadership and general supervision over all public education, . . .  is vested in a state board of education. It  shall serve as the general planning and coordinating body of all public education, including higher edu­cation, and shall advise the legislature as to the financial requirements in connection therewith.“ The state board of education shall appoint a super­intendent of public instruction whose term of office shall be determined by the board. He shall be the chairman of the board without the right to vote, and shall be responsible for the execution of its policies. He shall be the principal executive officer of a state department of education which shall have powers and duties provided by law. . . . ”Comparing the controlling provisions of the 1908 and 1963 Michigan constitutions, cited in pertinent part above, it is clear that both constitutions conferred the power of “ general supervision”  of public instruction (Const 1908, art 11, § 2) vested in the superintendent of public instruc­tion, and of “public education” (Const 1963, art 8, § 3) now reposed in the state board of education. In ad-



—18-dition, a new power of “ leadership”  is vested in the State Board of Education. The role of the legislature in main­taining and supporting a system, of free public schools “ as defined by law”  is virtually unchanged under both constitutions.The meaning and inter-relationship of Const 1963, art 8, §§ 2 and 3 came before the Michigan Supreme Court in 
Welling v Livonia Board of Education, supra. A t issue in Welling was the power of the board of education to pro­vide half-day instruction for its pupils because of lack of funds. Belying upon Const 1963, art 8, § 2 and quoting the first sentence thereof, the court unanimously held:“ The legislature has set up a system of free public elementary and secondary schools by enacting the provisions of the school code.”  (1955 P A  269, supra.) p 623The Court then considered the grant of power to the State Board of Education as conferred by the people in the first sentence of Const 1963, art 8, § 3, and held that as a part of the responsibility of the state board of educa­tion it was empowered to promulgate regulations to specify the number of hours to constitute the school day. The unani­mous per curiam opinion of the Court in Welling empha­sized the exercise by the State Board of Education of its constitutional authority to specify the number of hours of the school day through the promulgation of rules or regu­
lations. Promulgation of rules or regulations by the State Board of Education must be in compliance with the pro­visions of 1969 P A  306, MCLA. 24.201, et seq; M SA  3.560(101) et seq, which require public inspection of pro­posed rules, notice of hearing to the public, public hearing, filing with the secretary of state and publication in the state administrative code as a minimum to valid promulga-



■19—tion. The pi*edeeessor act, 1943 P A  88, also contained com­parable requirement for promulgation of rules. In the absence of the promulgation of such a regulation, a board of education did not abuse its discretion in providing half­day instruction to its pupils because of lack of funds to operate a full day. Such a holding was responsive to the issue in the case and, it is emphasized, represents a unani­mous decision of the Michigan high court.We stress the unanimous holding in Welling because of the concurring opinion of Mr. Justice Black in Welling, supra, joined by only two other justices and thus a minority view of the Court, in which Mr. Justice Black held that the overall power of the legislature over public education had been transferred by the people to the state board of edu­cation in Const 1963, art 8, § 3, supra. He reasoned that the powers of the state board of education were unfettered by the limitation of “ prescribed by law”  or “ provided by law.”  It must be noted that the decision in Welling was rendered only two days after oral argument, possibly ex­plaining the brevity of the two opinions.
However, it is not difficult to understand why the con­curring opinion of Mr. Justice Black failed to receive a majority of signatures of the Court. It is abundantly clear that the concurring opinion of Mr. Justice Black failed to consider the second paragraph of Const 1963, art 8, § 3, particularly the plain intent of the people expressed therein to create a “ state department of education which shall have powers and duties provided by law” as well as art 5, § 2, which requires all executive and administrative offices, agencies and instrumentalities and their respective func­tions, powers and duties to be allocated by law within 20 principal departments.



— 20-llnder the mandate of Const 1963, art 5, § 2, the legisla­ture has created a department of education, designated the state board of education as the head of the department and transferred all of its powers, duties and functions to such department. See 1965 P A  380, §§ 300, 301 and 302, M CLA 16.400-402; M SA 3.29(300)-3.29(302).Thus, the decision in Welling stands for the following propositions:
1. The power of the legislature to set up and organize school districts, as provided in the school code of 1955, supra, is undiminished.2. The state board of education has the constitutional authority to promulgate rules and regulations in accord­ance with law to prescribe the number of hours of the school day. In the absence of the promulgation of such a rule or regulation, and the imposition of a clear duty upon the local board of education by the state board of educa­tion, the local board of education did not abuse its dis­cretion when it provided half-day instruction to its pupils because of lack of funds.The decision in Welling does not stand for the proposi­tion that the people have transferred all the authority over public education from the legislature to the state board of education.Such a reading of Welling is supported by the decision of the Michigan Court of Appeals in Schwa,n v Lansing 

Board of Education, 27 Mich App 391 (1970), leave to appeal denied in 384 Mich 797 (1971), where the Court found broad authority in a board of education to establish and operate nongraded school programs in elementary schools as conferred by § 583 of the school code of 1955,



— 21—supra, the Court not being apprised of any action by the state board of education prohibiting establishment of non- graded programs.Subsequent to the decision in Welling, the Michigan Su­preme Court in Munro v Elk Rapids Schools, 383 Mich 661 (1970) construed the Tenure of Teachers Act as it affects school districts and their relationship with their teachers and administrators and quoted with approval the follow­ing language from Rehherg v Board of Education of Mel- 
vindale, Ecorse Township School District No. 11, Wayne 
County, 330 Mich 541, 548 (1951):

“ School districts, through state agencies, are gov­erned locally and their controlling boards are chosen by the electorate. (See P A  1927, No. 319 [CL 1948, § 341.1 et seq. (Stat Ann § 15.1 et seq.)].) I f  the legislature intended to deprive local governing bodies of administrative control of teachers, that intent should have been definitely stated in the tenure act.”  p 674.On rehearing, the majority reversed and ruled that the legislature had indeed placed such limitation upon school districts. 385 Mich 618 (1971). Thus Munro holds that the legislature has the power to place limitations upon school districts in their relationships with teachers and other educational personnel. Further, the authority of the legis lature to proscribe the strike of or withholding of services of public school teachers from Michigan school districts was upheld in School District for the City of Holland v 
Holland Education Association, 380 Mich 314 (1968), even though the Court disagreed under what circumstances in­junctive relief would be granted to prevent teachers not under contract with the school district to withhold theirservices.



— 22—The Attorney General lias ruled that the State Board of Education has constitutional and statutory rule-making power for procedural safeguards in the suspension or ex­pulsion of pupils. O AG 1969-70, p 156.“ . . . The State Legislature has not required the S T A T E  B O A R D  OF E D U C A T IO N  to act in this area, either by a grant of power to suspend or expel, or by a mandatory requirement to offer an appeal procedure. An opinion of the Attorney General of the State of Michigan that the S T A T E  B O A R D  has discretionary powers adds nothing to the statute.”Slip Opinion of Judge Cornelia Kennedy in Claus v 
State Board of Education, et al, U .S . District Court, E D  Mich SD, decided on Ju ly  12, 1972.The Attorney General has also ruled that the State Board of Education has constitutional authority to establish a program for the accrediting of Michigan public schools but is under no constitutional duty to do so. OAG No. 4707, dated May 5, 1971.Under these decisions of the Michigan Supreme Court and the Court of Appeals, it must be concluded that the power of the legislature to set up and organize school districts, and to prescribe their powers and duties is un­diminished. Welling v Livonia Board of Education, supra, 

Senghas v L ’Anse Creuse School District, supra.There is a suggestion by the District Court in the latter portion of paragraph 13 of the Conclusions of Law in the Ruling on Segregation (IAa 213-214) that the State Board of Education possesses plenary power over school dis­tricts because it may ratify, reject, amend or modify actions of school districts under certain cited statutes. Even a



—23:—cursory examination of such statutes reveals that the Dis­trict Court’s inferences are unwarranted.M C LA  340.442; M SA  15.3442, authorizes the State Board of Education to review the annexation or attachment of a closed school district not operating any schools for any two year period but only if one or all of the affected districts specifically request such review.M C LA  340.467; M SA  15.3467, confers authority upon the State Board of Education to review requests for the transfer of territory between school districts and to con­firm, modify or set aside orders of intermediate boards of education, but only if requested by appeal of one or more resident owners of land considered for transfer or by the board of any district that is affected by the proposed transfer. Reference was also made to M SA  15.1919(61), which imposes a statutory duty only upon the superin­tendent of public instruction to review bus routes.M C LA  388.628(a); M SA  15.1919(68b) provides for addi­tional state aid allotments to school districts that had been reorganized and imposes only ministerial duties upon the superintendent of public instruction. These provisions have been repealed by 1972 P A  258, § 179. (IX B a 640)M C LA  388.681 et seq; M SA  15.2299(1) et seep provides for the reorganization of school districts by an intermediate district committee for the reorganization of school districts. Neither the state board of education nor the superintendent of public instruction has any authority under this act. It is noted that the act expired on the filing of a final report of the state commission on or before September 1, 1968. The authority of the superintendent of public instruction over the construction of school buildings, as set forth in 1937 P A  306, Sec. 1, M C LA  388.851; M SA  15.1961, is dis-



"24---cussed infra. There is no authority in this act to ratify, reject, amend or modify the action of inferior state agencies.The District Court also cites M C LA  340.402; M SA 15.3402. This section authorizes the superintendent of pub­lic instruction to approve or deny a proposal to initiate proceedings to effect a proposed consolidation, but no con­solidation can take effect without the approval of the electors as set forth in M C L A  340.409; M SA  15.3409.Finally, the District Court relied upon M C LA  388.717 et seq; M SA  15.2299(57). The limited authority of the state board of education to reorganize a district, if an emergency warrants such reorganization, exists solely by the authority conferred by the legislature. Airport Com­
munity Schools v State Board of Education, 17 Mich App 574 (1969).Thus, it must follow that the suggestion of plenary au­thority is totally unwarranted since the legislature, in specified grants of authority, has imposed certain duties upon the state board of education and superintendent of public instruction to be exercised within the limits specified by the legislature.Clearly, the legislature has the authority to: (1) alter school district boundaries, Penn School District No. 7 v 
Leivis Cass Intermediate School District Board of Educa­
tion, 14 Mich App 109, 120 (1968); (2) appropriate money for the support of public school districts, Const 1963, art 8, § 2 and art 9, § 11; (3) establish schools and attend­ance areas, Pliers v Detroit Superintendent of Schools, supra; (4) govern the relationships of school districts and their teachers and other educational personnel, Munro v 
Elk Rapids Schools, supra, and (5) control the labor re­lationships of the school district and its teachers as well



■25-as to prohibit strikes by teachers, School District for City  
of Holland v Holland Education Association, supra.The decided Michigan cases hold that in accordance with rules and regulations promulgated under the provi­sions of 1969 P A  306, supra, the state hoard of education has constitutional authority to prescribe the length of the school day, Welling v Livonia Board of Education, supra, and arguably to prohibit the establishment of ungraded programs in elementary schools. Schwan v Lansing Board 
of Education, supra. Until the State Board of Education promulgates such rules and regulations, boards of educa­tions do not abuse their discretion when they, under broad authority conferred by the legislature, offer half-day pro­grams to their pupils for lack of funds or when they estab­lish nongraded programs in elementary schools. There is no appellate decision of a Michigan court extending the constitutional authority of the State Board of Education beyond these limits.Moreover, the Michigan Supreme Court in Jones  v 
Grand Ledge Public Schools, 349 Mich 1 (1957),HI has clearly recognized school districts as independent govern­mental agencies, separate and distinct from other municipal corporations and separate and distinct from other school districts so that the Grand Ledge Board of Education was not required to educate pupils residing in other school districts. School districts are d is tin c t governmental agencies independent of townships, cities and counties in which they may be located. Board of Education v City of 
Detroit, 30 Mich 505 (1875). Thus, in Michigan, school districts are governmental entities independent of other[1]

This case is  consistent w ith  Const 1963, art 8, § 2 w hich requires 
every school d istrict to “provide for the education of i t s  p u p i l s  w ithout 
discrim ination.” [Em phasis supplied]



-26-governmental entities, including other school districts. See dissenting opinion of Mr. Chief Justice Burger, Wright v
Council of C ity of Emporia, _____ U S  _____; 92 S Ct 2196,2211 (1972), also cited herein as 40 U S  LW  4806, (US, June 20, 1972).In all candor these appellants must inform this Court that the State Board of Education does not possess con­stitutional authority to organize school districts, to designate the legal status of school districts or their boards of education as bodies corporate with power to sue or to be sued, to determine what attorneys shall represent them, to alter school district boundaries, to appropriate money for the support of school districts, Michigan Education Associa­
tion, et al v State Board of Education, Michigan Court of Appeals No. 11,900, decided and order issued Ju ly  8, 1971, to establish schools and determine attendance areas, to govern the relationships of school districts and their teachers and other educational personnel, and to control labor relations of school districts and its teachers, as well as to prohibit strikes by teachers, under the decisions of the Michigan Supreme Court and Court of Appeals cited herein. The people have reposed these powers in the Mich­igan legislature under the Constitution of 1963.

II.

B A S E D  ON T H E  R E C O R D  IN  T H IS  C A S E , T H E  D IS ­
T R IC T  C O U R T ’S F IN D IN G S  O F F A C T  A N D  C O N ­
C L U S IO N S  O F L A W  O F D E  J U R E  S E G R E G A T IO N  IN  
T H E  P U B L IC  S C H O O L S  O F T H E  D E T R O IT  S C H O O L  
D IS T R IC T  IS  E R R O N E O U SMichigan, unlike some other states, has a strong legal tradition of prohibiting, by positive law, de jure dual school



—27-systems. In The People, ex rel Workman v Board of Educa­
tion of Detroit, 18 Mich 399, 408-409 (1869), the Michigan Supreme Court held, based on statutory enactments of the legislature, that the Detroit Board of Education could not lawfully maintain separate schools for black and white children. In doing so, the Court recognized, at p. 412, that the Detroit Board of Education could lawfully establish geographical attendance areas for its schools, provided all children within each attendance area have an equal right to attend school irrespective of race. It must be observed that this decision, which is still the law in Michigan, was handed down 27 years before the United States Supreme Court enunciated the pernicious doctrine of separate but equal in Plessy  v Ferguson, 163 U S  537 (1896), and 85 years before Brown v Board of Education, 347 U S  483 (1954).Section 355 of 1955 P A  269, as amended, supra, provides:“ No separate school or department shall be kept for any person or persons on account of race or color

5 J

In Const 1963, art 8, § 2, the people of the State of Mich­igan have provided:“ The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law. Every school district shall provide for the education of its pupils without discrimination as to religion, creed, race, color or national origin. ’ ’The Address to the People accompanying this constitu­tional provision provides, in pertinent part, as follows:“ The anti-discrimination clause is placed in this section as a declaration which leaves no doubt as to where Michigan stands on this question. ’ ’



■28-Thus, it is beyond dispute that Michigan is not a de jure state with a dual school system mandated by state law.Moreover, it must be emphasized that some Michigan school boards in large city school districts have altered school attendance areas to achieve racial balance although there is no constitutional duty to achieve racial balance. See Mason v Board of Education of the School District of 
the City of Flint, 6 Mich App 364 (1967); .dipping v Lansing 
Board of Education, 15 Mich App 441 (1968), leave to appeal denied 382 Mich 760 (1969); and Swann v Charlotte- 
Mecklenburg Board of Education, 402 U S  1, 15-18, (1971). These two Michigan cases negative any suggestion that Michigan is, in the operation of its school districts, a de jure state with a dual school system.

Thus, the question of whether the Detroit public schools are de jure segregated must be answered by reference to the conduct of the original defendants relating to the operation of such schools. These defendants would strong­ly emphasize that the district court erred in finding de jure segregation in the Detroit public schools. The lower court obliterated the firm legal distinction between de jure segregation by school authorities (Brown v Board of 
Education, supra) and racial imbalance in the public schools as a result of housing patterns which school authorities have no affirmative duty to overcome. Spencer v Kugler, 326 F  Supp 1235, 1242-1243 (DC N J, 1971) affirmed on appeal 404 U S  1027 (1972).

This contention is vividly illustrated by the following- language from the “ Ruling- on Issue of Segregation”  as follows:“ • • • As we assay the principles essential to a



-29findings of de jure segregation, as outlined in rulings of the United States Supreme Court, they are:1. The State, through its offices and agencies, and usually, the school administration, must have taken some action or actions with a purpose of segregation.2. This action or these actions must have created or aggravated segregation in the schools in question.3. A  current condition of segregation exists.“ We find these tests to have been met in this case. We recognize that causation in the case before us is both several and comparative. The principal causes 
undeniably have been population movement and, hous­
ing patterns, but state and local governmental actions, including school board actions, have played a substan­tial role in promoting segregation. It is, the Court believes, unfortunate that we cannot deal with public school segregation on a no-fault basis, for if racial segregation in our public schools is an evil, then it, 
should make no difference whether ive classify it de 
jure or de facto. Our objective, logically, it seems to us, should be to remedy a condition which we believe needs correction. In the most realistic sense, if fault or blame must be found it is that of the community as a whole, including, of course, the black components. 
We need not minimize the effect of the actions of loan­
ing institutions and real estate firm s, in federal, state 
and local governmental officers and agencies, and the 
actions of the establishment and maintenance of seg­
regated residential patterns—which lead to school seg­
regation . . . ”  (Emphasis supplied) (IAa. 194, 210-211)



•30—These defendants agree with the three principles enunci­ated by the lower court as essental to a finding of de jure segrgation, with the caveat that the first principle must be limited to the actions of school authorities. Swann v Char- 
lotte-Mecklenburg Board of Education, 22-23, supra. How­ever, these defendants especially submit that the lower court’s opinion is not consistent with the principles enunciated therein. Rather, the District Court opinion relies heavily upon findings of racial discrimination in housing, by persons and agencies not parties to this cause, and the failure to act on the part of the defendants to overcome racial residential separation within the City of Detroit in the operation of the Detroit public schools. (IAa 200, 201)Further, an analysis of the “ Ruling on Issue of Seg­regation”  compels the conclusion that such ruling is mani­festly inconsistent. The begining pages contain a procedural history of the case and demographic data. The next portion of the opinion recites the findings of de jure segregation by the defendants as to pupil assignments. Yet, in the sub­sequent pages of its opinion the lower court expressly finds no de jure segregation as to faculty assignments and praises defendant, Detroit Board of Education, for advanc­ing the cause of racial integration in the areas of faculty integration, vocational education and instructional mate­rials. (IAa 205-210) It must be stressed that it is the same Detroit Board of Education that is, at once, found to be pursuing twin purposes of segregaion and integration. This dual finding is simply contrary to human experience. These defendants submit that, over the years, the Detroit Board of Education has operated the schools under its jurisdict­ion without any segregatory purpose in providing* educa­tional services for all its students.It must be emphasized that the majority opinion in 
Wright v Council of the City of Emporia, 40 U .S .L .W . 4806,



—31—4810, (US, June 20, 1972), in rejecting the dominant purpose test and looking only at the effect of “ . . . carving out a new school district from an existing district that has not yet completed the process of dismantling a system of enforced racial segregation . . . ”  (4807), did so only in the context of the remedy phase of the case and only within the school district area previously found to be de jure segregated. Thus, the requirement of purposeful action with the intent and effect of segregating children by race, as a necessary prerequisite to finding a constitutional violation of de jure segregation, remains settled law.These defendants respectfully submit that the lower court erred in concluding that de jure segregation exists in the Detroit public schools. The Detroit school district defendants will brief this question as it pertains to their conduct. This brief will address primarily, the question of whether the Detroit public schools are de jure segregated schools as a result of the conduct of any of these defendants.
III.

T H E  L O W E R  C O U R T  E R R E D  IN  A D M IT T IN G  IN TO  
E V ID E N C E  A N D  R E L Y IN G  U P O N  E V ID E N C E  OF 
A L L E G E D  R A C IA L  D IS C R IM IN A T IO N  IN  H O U S IN G  
B Y  P E R S O N S  N O T P A R T IE S  TO T H IS  C A U S E , IN  
F IN D IN G  D E  J U R E  S E G R E G A T IO N  IN  T H E  D E ­
T R O IT  P U B L IC  SC H O O L S .The lower court’s ruling of September 27, 1971, relies, in substantial measure, upon findings of racial discrimina­tion in housing in finding de jure segregation in the Detroit public schools. (IAa 200, 210) The findings of racial dis­crimination in housing are based upon evidence of alleged discrimination by persons or agencies not parties to this



—32-cause that was introduced over the repatecl and continuing objections of the defendants. (Ha 18-19) This course of conduct by the trial judge constitutes a patent disregard for the controllng precedents of this Court that, in a school desegregation case, evidence of alleged racial discrimina­tion in housing by persons or agencies not parties to the cause is inadmissible. Deal v Cincinnati Board of Educa­
tion, 369 F2d 55, 60-61 (CA  6, 1966), cert den 389 U S  847 (1967), hereinafter referred to as Deal I ;  Deal v Cincinnati 
Board of Education, 419 F2d 1387, 1392 (CA 6, 1969), cert den 402 U S 962 (1971); hereinafter referred to as Deal I I ;  
Davis v School District of C ity of Pontiac, Inc, 443 F2d 573, 575, (CA 6, 1971), cert den 404 U S  913 (1971).Moreover, this Court’s ruling in these three cases is con­sistent with the opinion of the United States Supreme Court on this question in Swann v Charlotte-Macklenburg Board 
of Education, 22-23, supra. More recently, in Spencer v 
Kugler, supra, the United States Supreme Court affirmed the holding of a three judge panel that:“ A  continuing trend toward racial imbalance caused by housing patterns within the various school districts is not susceptible to federal judicial intervention . . . ”  p 1243.In Deal II , supra, this Court reiterated its holding that:“ We dealt with this same issue in the first appeal, and pointed out:“  ‘ The District Court correctly excluded evidence of alleged discrimination in the public and private housing markets. Such discrimination is caused, if in fact it does exist, by persons who are not parties to this case and the Board has no power to rectify that



■33-situation. I f  appellants have any valid claim for in­fringement of their rights by public housing or urban renewal officials, they may obtain appropriate relief against them under the Fourteenth Amendment. With respect to private actions amounting to discriminatory practice, while there is no federal constitutional right available to appellants, they may seek relief from the state Civil Rights Commission or in the state courts, if  relief is denied, under the provisions of the Ohio Fair Housing Law. Ohio Rev. Code 5 4112.-01-.07.’
“ Boards of Education can hardly be blamed or held responsible for neighborhood residential patterns.“ In our opnion, the burden of righting wrongs alleged to have been committed by public or private agencies ought not to be foisted upon Boards of Education, which have enough problems of their own to solve in providing proper education for the young. Nor should such burden be saddled upon the owners of real property who are taxed in Ohio to provide funds for the operation of public schools. Appellants should invoke whatever remedy they have against the agencies which committed the alleged wrongs of which they complain. These agencies were not made parties to this case.”  p 1392This holding must be compared with the “ Ruling on Issue of Segregation” (IAa 194, et seq), where the lower court found racial discrimination in housing by private and public persons and agencies, including federal, state and local governments, through both actions and inactions. However, the lower court made no express findings of racial discrimination in housing by any of the defendants or their predecessors in office. In fact, the lower court stated that “ . . . it would be unfair to charge the present defend-



—34-ants with what other governmental officers or agencies have done . . . ” (IAa 201)
The evidence concerning alleged racial discrimination in housing related primarily to the conduct of private indi­viduals and agencies and the federal government through F H A  and V A  housing programs. (IAa 200-201, H a 52-57) The only evidence in the housing area relating to the con­duct of any governmental agency at the state level, was a 

1946 publication by the Michigan Corporation and Securities Commission which, after reciting the applicable binding statutory and administrative rules provisions applicable to realtors, also contained the Code of Ethics of the National Association of Real Estate Boards. This publication stated that realtors must follow the statutes and administrative rules and ought to follow the Code of Ethics. One provision of such Code made reference to race and property values. It is undisputed, and we ask this Court to take judicial notice that such Code of Ethics was never part of the legally enforceable administrative rules of the State of Michigan which must, under 1943 P A  88 and its successor act, 1969 P A  306, supra, be published in the State Administrative Code. Further, the record is clear that subsequent similar publications by that agency and its statutory successor did not contain such provision. (II a 62-64, I I  a 74-76, IX A a  273-278)
Moreover, in 1960, the Michigan Corporation and Securities Commission adopted an administrative rule pro­hibiting racial discrimination by Michigan realtors. In 1963, a unanimous Michigan Supreme Court declared such ad­ministrative rule invalid as beyond the scope of the statutorily conferred rule-making power of the agency. 

McKibbin v Corporation and Securities Commission, 369 Mich 69 (1963).



•35-In Const 1963, art 5, § 29, the people of the State of Michigan created a Civil Bights Commission charged with the duty of securing the equal protection of civil rights guaranteed by law without racial discrimination. The Mich­igan Supreme Court has held that, even in the absence of enabling legislation, the Civil Bights Commission has jurisdiction over complaints of racial discrimination by any seller in the business of selling housing to the public since, under Michigan law, there is a civil right to private housing where such housing has been publicly offered for sale by one in the business of selling housing to the public. Beech 
Grove Investment Company v Civil Rights Commission, 380 Mich 405 (1968). This decision confirmed, in part, the broader ruling of the Michigan Attorney General, that the Civil Bights Commission may, absent enabling legislation, enforce the civil right to purchase, mortgage, lease or rent private housing. OAG No. 4161, 1963-1964, pp 142-152. It should also be observed that such opinion was issued by the Attorney General, a defendant herein, at the request of a state senator who is now Governor of Michigan and a defendant herein.

In 1968, shortly after the decision in Beech Grove Invest­
ment Company v Civil Rights Commission, supra, the Michigan legislature enacted the “Fair Housing Act of 1968” (1968 P A  112, M CLA  564.101 et seq; M SA 26.1300(101) et seq) which prohibits private racial dis­crimination in real property transactions, prescribes the functions of the Civil Bights Commission with respect to enforcement of the statute, and provides remedies for violations of the act. Thus, in Michigan, like Ohio, persons allegedly discriminated against in private housing may seek relief from the State Civil Bights Commission or the state courts. Further, in Michigan, like Ohio, the school authorities may not be held responsible for neighborhood residential patterns.



36In summary, it is clear that, to the considerable extent the lower court relied upon evidence of alleged racial discrimination in housing by private and public persons and agencies not parties to this cause, in finding de jure segregation in the Detroit public schools, the lower court committed reversible error. This Court must so hold in light of its own prior precedents on this question which are clearly in conformity with the decisions of the United States Supreme Court.A t this point, it must be observed that the lower court, in its “Ruling on Issue of Segregation” , attempted to con­nect racial discrimination in housing with the actions of some of the defendants in the following language:“ . . . While it would be unfair to charge the present defendants with what other governmental 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 these other governmental units. When we speak of governmental action we should not view the different agencies as a collection, of unrelated units. Perhaps the most that can be said is that all of them, including the school authorities, are, in part, responsible 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 residential pattern by the racial composition of the schools.” (Emphasis supplied) (IAa 201)This board, sweeping finding, stated in the most general of terms, purports to link housing discrimination to the conduct of the responsible school authorities, both city and state, in terms of action or failure to act.



-37-Here, it must be stressed that this Court has squarely ruled in Davis, supra, that:“ Appellants correctly contend that under Deal v Cincinnati Bd. of Educ., 369 F2d 55 (6th Cir. 1966), cert, denied, 389 U .S . 847, 88 S.Ct. 39, 19 L. Ed. 2d 114 (1967), a school district has no affirmative obliga­
tion to achieve a balance of the races in the schools when the existing imbalance is not attributable to school policies or practices and is the result of housing patterns and other forces over which the school ad­ministration had no control. . . .” p 575 (Emphasis supplied)Subsequently, this rule has been enunciated by a three judge panel and affirmed by the United States Supreme Court in Spencer v Kugler, supra. Thus, the law is firmly settled that there is no affirmative duty on the part of school authorities to achieve racial balance in the schools when any existing imbalance is the result of housing pat­terns and other forces over which they have no control. Such a duty arises only when the racial imbalance1 is at­tributable to school policies and practices, i.e., to acts of de jure segregation. Thus, the lower court was manifestly in error, as a matter of law, in finding de jure segregation on the basis of a failure to act, by the city and state school authorities, in overcoming the pattern of racial residential separation in Detroit in the conduct of the public schools therein. I f  there is any constitutional violation of these defendants, it must be based, not on inaction, but on affirmative conduct constituting acts of de jure segregation. These defendants respectfully submit that the following analysis will demonstrate no such affirmative misconduct by them or their predecessors in office.



—38—
IV .

T H E  L O W E R  C O U R T ’S L E G A L  C O N C L U S IO N  O F D E  
J U R E  S E G R E G A T IO N  B Y  T H E S E  D E F E N D A N T S  
IN  T H E  M A T T E R  OF  S I T E  S E L E C T IO N  FO R  
S C H O O L  C O N S T R U C T IO N  IS  E R R O N E O U S  A S  A  
M A T T E R  O F L A W .

The lower court’s conclusions of law in its “ Ruling on Issue of Segregation” (IAa 194, 213-214) contain extensive conclusions of law concerning the powers of these defen­dants, particularly the State Board of Education and the Superintendent of Public Instruction, under Michigan law concerning the operation of the approximately 600 school districts in Michigan. Yet, the lower court did not conclude, as it could not, that any of these defendants has the power, under Michigan law, to establish or modify attendance areas within school districts. Further, the case of Hiers v 
Detroit Superintendent of Schools, supra, recognizes the broad discretionary statutory authority of defendant, Detroit Board of Education, to establish and alter the at- endance areas within its school district.In the matter of site selection for school construction, the conclusions of the trial court are both patently inconsistent and erroneous as a matter of law. In the “Ruling on Issue of Segregation” , the lower court correctly concluded that “ . . . [t]he duties of the State Board and Superintendent include, . . . approval until 1962. of school sites; approval of school construction plans; . . . ”  (Emphasis supplied) (IAa 213) Thus, after 1962, defendants State Board of Education and Superintendent of Public Instruction ceased to have any authority under state law to ap­prove or disapprove school construction sites selected by local hoards of education. Yet, relying upon a 1966 Joint Policy statement and a 1970 School Plant Planning Hand-



■39-book, in which these two defendants admonished local school boards to consider racial balance as one factor among many in school site selections, the lower court found that the state defendants failed to take affirmative action to implement such admonition in connection with certain Detroit schools that opened for use in 1970-1971. (IAa 203-204)The Joint Policy Statement and the School Plant Plan­ning Handbook represent an admonition to local school boards by the State Board of Education, in the exercise of its leadership function under Const 1963, art 8, § 3, to consider racial balance as one of the factors in selecting new school sites. The Joint Policy Statement and School Plant Planning Handbook admonitions on site selection were never reduced to legally enforceable rules in the State Administrative Code for the reason, as correctly concluded by the trial court, that, after 1962, neither the State Board of Education nor the Superintendent of Public Instruction possessed any power of approval over school site slections made by local boards of education. Moreover, as testified by the Superintendent of Public Instruction, these two documents were viewed by him as containing recommendations. ( I l l  a 101) We ask this Court to take judicial notice that neither the Joint Policy Statement nor the School Plant Planning Handbook were ever pub­lished in the State Administrative Code, as requird by 1943 P A  88 and its successor act, 1969 P A  306, supra, and 
Welling v Livonia Board of Education, supra, for legally binding administrative rules.The basic Michigan statute dealing with the construction of school buildings is 1937 P A  306, as amended, M CLA 388.851 et seq; M SA  15.1961 et seq. In 1949, by 1949 P A  231, the legsilature amended section 1 of this act to provide that in the approval of construction plans by the



40-Superintendent of Public Instruction, he was to consider, as one factor, the adequacy and location of the site. Thus, clearly, site approval was given only within the context of approving school construction plans at a time when the school district had already acquired the land on which the building would be erected. In 1962, by virtue of 1962 P A  175, the legislature amended section 1 of this statute again, thereby removing any power to approve or disap­prove school construction sites on the part of either the State Board of Education or the Superintendent of Public Instruction. The statute, as presently constituted, deals only with approval of construction plans in terms of fire, health, and safety.It is manifestly unjust and illogical to base a finding of de jure segregation on the failure to exercise a non-existent power under state law. Further, the finding that the state defendants failed to affirmatively effectuate this admoni­tion on considering racial balance is contrary to the decided cases of both this Court and the United States Supreme Court that there is no affirmative constitutional duty to achieve racial balance in the public schools. Davis v School 
District of City of Pontiac, Inc, supra, p> 575; Sivann v 
Charlotte-Mecklenburg Board of Education, supra, pp 15- 18; Spencer v Kugler, supra, pp 1242-1243. Thus, as a matter of law, the conclusion of de jure segregation by these defendants as to site selection for school construction is in error and must be reversed on appeal.

V .

T H E  L O W E R  C O U R T  E R R E D  IN  D E N Y IN G  T H E S E  
D E F E N D A N T S ’ 41(b) M O T IO N S TO D IS M IS S  M A D E  
A T  T H E  C L O S E  O F P L A IN T IF F S ’ C A S E  IN  C H IE F .A t the close of plaintiffs’ case in chief, two motions to



4 1 -dismiss were filed, pursuant to F R  Civ P, 41(b), one on behalf of the Governor and the Attorney General and the other on behalf of the State Board of Education and the Superintendent of Public Instruction. (IAa 134-135) A t the conclusion of oral argument on both motions, the District Court took them under advisement. A t that point, these defendants elected to stand on their 41(b) motions, rather than to present evidence during the remainder of the trial on the question of de jure segregation in the Detroit public schools. ( I l l  a 191) Thereafter, counsel for these defendants did not participate in any evidentiary hearings before the trial court until the hearings were commenced on the question of relief or remedy. On June 25, 1971, the lower court entered its order denying both 41(b) motions although no reasons were given for such denial until the “Ruling on Issue of Segregation” was issued on September 27, 1971. (IAa 153, IA a 194 et seq)Thus, under the rule enunciated by this Court in A . & N. 
Club v Great American Insurance Co, 404 F2d 100, 103-104 (CA 6, 1968), these defendants, by standing on their 41(b) motions to dismiss and not putting in evidence during the remainder of the trial on de jure segregation in the Detroit public schools, have preserved their right to assign as error the denial of their 41(b) motions based upon evidence 
introduced prior to the point of the motion. Under the teaching of this court in A . & N. Club v Great American In­
surance Co, 103, supra, if a defendant proceeds to put in its case, this “ . . . will constitute a waiver of defendants right to allege error on the motion’s disposition only in light of the evidence introduced up to the point of the motion. . .” No such waiver occurred in the instant cause.These defendants respectfully submit that, based on the record in this cause at the time plaintiffs had presented their case in chief, the lower court was manifestly in error



4 2 -in denying these defendants’ 41(b) motions to dismiss. An analysis of the evidence in the record to that point will clearly demonstrate the error committed by the lower court. It must be observed that, in its “ Ruling on Issue of Segrega­tion”, the lower court’s ultimate holding was as. follows:‘ ‘ In conclusion, however, we find that both the State 
of Michigan and the Detroit Board of Education have committed acts which have been causal factors in the segregated condition of the public schools of the City of Detroit. . . . ”  (Emphasis supplied) (lA a 210)It must be stressed that this suit is not one brought against the State of Michigan. (IAa 7-8) The State of Michigan has never given its consent to being sued in this cause. Such a suit, to which the State of Michigan has never con­sented, would clearly violate the Eleventh Amendment to the United States Constitution and the decided cases of the United States Supreme Court. In re State of New York, 256 U S  490, 497 (1921). Obviously, this firmly established principle does not prevent suits against named state offi­cials as defendants who have allegedly invaded plaintiffs’ constitutional rights. G riffin  v County School Board, of 

Prince Edward County, 377 U S  218, 228 (1964). However, it is equally clear that a suit against specific state officials must focus on their conduct. These defendants are not aware of any recognized principle in our jurisprudence under which a suit against certain named state officer defendants may be used as a launching pad for findings against the state itself. Thus, the lower court’s ultimate holding de jure segregation in Detroit, as a result of the conduct of the State of Michigan, is demonstrably suspect as representing an erroneous application of established con­stitutional law principles.The “Ruling on Issue of Segregation” refers repeatedly to the conduct of “ The State and its agencies” and “ The



- 43-State” with very few express references to specific conduct by the named officer defendants (IAa 204-205) This aspect of the Court’s opinion constitutes an implicit finding or conclusion of vicarious liability contrary to law as to these named defendants. Once plaintiffs have named these state officers or agencies as defendants, they are entitled, like any other party defendant, to have their conduct adjudicated on its own merits. As in the case of every other citizen, they are entitled to their good names.Turning to the evidentiary record made during plaintiffs’ case in chief concerning the conduct of the Governor with respect to the Detroit public schools, such conduct may be summarized as follows:1. The Governor is an ex-officio member of the State Board of Education without the right to vote. Const 1963, art 8, § 3.2. The Governor signed 1970 P A  48, section 12 of which was later declared unconstitutional by this Court. However, it must be stressed that 1970 P A  48, passed with only one dissenting vote in the Michigan Legis­lature, contained many sections dealing with the de­centralization of first class school districts. Journal 
of the House No. 103, p 2797. Journal of the Senate 
No. 97, p 1684. Further, under Michigan Law, the Governor does not possess an item veto except for items appropriating money in appropriation bills. Const 1963, art 8, § 33 and art 5, § 19. These defendants are aware of no judicial authority holding that a chief executive officer, whether it be the President of the United States, governor of a state or the mayor of a city, violates the constitution by signing into law a legislative enactment, a portion of which is later held to be unconstitutional. See Wright v Rockefeller, 376



44,U S, 52, 55-57 (1964) where the majority opinion discussed, not the intent of the Governor, but the purpose or motiva­tion of the legislature in ascertaining whether the chal­lenged part of the statute was invalid.3. Pursuant to section 2a of 1970 P A  48, the Gover­nor appointed the boundary commission that estab­lished the regional boundaries within the Detroit school district for administrative decentralization and greater community control of the schools. The United States Supreme Court has recently recognized the importance of local community control in public educa­tion. Wright v Council of the City of Emporia, 40 U S LW  4806, 4812, 4815 (US, June 20, 1972).4. Pursuant to Section 970 of 1954 PA  116, M CLA  168.970; M SA 6.1970, the Governor appointed four interim members of the Detroit Board of Education, following the recall by election of four members of such board, who served until the offices of the four recalled school board members could be filled through the election process.The record concerning the conduct of the Attorney Gen­eral with respect to the affairs of the Detroit Public Schools may be summarized as follows:1. The Attorney General, upon request, issues opinions, some of which relate to school matters in­cluding the Detroit school system. Otherwise, the record in this cause is barren of any evidence concern­ing activities of the defendant, Attorney General, that relate in any way to the affairs of the Detroit public schools.The record contains no extrinsic evidence justifying any inference that either the Governor or the Attorney General



45-committed any of the acts set forth above with a purpose or motivation to segregate pupils on the basis of race in the Detroit public schools. Thus, it must be concluded that neither of these two defendants has violated plaintiffs’ asserted constitutional rights. Wright v Rockefeller, 55-57, supra. It  must also be observed that the same holds true as to the State Board of Education and the Superintendent of Public Instruction.
Moreover, the uncontradicted testimony of defendant, Superintendent of Public Instruction, concerning the con­duct of defendants, Governor and Attorney General, with respect to the operation of the Detroit public schools is as follows:

Q. Now, in the area that we have gone through at some length of pupil attendance, of school construc­tion, of allocation of funds between buildings, of the hiring and placement of teachers, in these particular areas does the Governor of this state exercise any supervision over the decisions made by the Detroit Board or any other school district?A . To my knowledge the Governor has not exer­cised any control over the internal decisions of local school districts.“ Q. And in the same area has the Attorney General exercised any supervision over decisions of the De­troit Board or any other Board of Education?“A . To my knowledge that has not been the case ”(III  a 106)Thus, it is beyond dispute, based on the record in this cause, that neither the Governor nor the Attorney General participated in the decisions concerning pupil and faculty



4 6 -assignment within the Detroit public schools. There is simply no evidence, extrinsic or otherwise, that either of these defendants took any action with respect to the Detroit public schools with the purpose and effect of segregating pupils or faculty by race. Consequently, it is patent that the lower court erred in denying the 41(b) motion to dis­miss as to these two defendants.A t this point, it should be observed that in the “Ruling on Issue of Segregation” the lower court’s conclusions of law included the following:“ 14. State officials, including all of the defendants, are charged under the Michigan constitution with the duty of providing pupils an education without discrim­ination with respect to race. Art. V III , § 2, Mich. Con­stitution of 1963. Art I, § 2, of the constitution provides:“ ‘No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin. The legislature shall implement this section by appropriate legislation.’ ” (IAa 214)It must be emphasized that, to the extent the lower court relied upon this conclusion of law for ruling against the Governor and the Attorney General herein, such reliance is manifestly misplaced.
To state the obvious, the Equal Protection Clause of the Fourteenth Amendment prohibits racially discriminatory conduct by both the Governor and the Attorney General in the field of public education. However, these defendants are unaware of any authority holding, assuming arguendo unconstitutional conduct by a given school district in a



4 7 -state, that such conduct may serve as a valid basis for find­ing de jure segregation against either the Governor or Attorney General of such state. In Michigan, there are over 600 school districts, each with its own locally elected board of education. To say that either the Governor or the Attorney General is vicariously liable for the conduct of each such board of education is patently untenable. There is simply no way that either the Governor or the Attorney General can perform the many functions of their respective offices and also monitor the affairs of over 600 school districts.Moreover, neither such authority nor duty is imposed upon either the Governor or the Attorney General by the 1963 Michigan Constitution or any state law. In apparently finding such a duty, the lower court relied upon the Equal Protection Clause contained in Const 1963, art I , § 2. The Michigan Supreme Court has squarely held that Mich­igan’s Equal Protection Clause secures the same rights guaranteed by the Equal Protection Clause of the Four­teenth Amendment. Fox  v Employment Security Commis­
sion, 379 Mich 579, 588 (1967). In addition, the Address to the People accompanying this constitutional provision con­templates legislative implemention of this section and makes reference to education as one principal area of con­cern for the Civil Rights Commission. Further, Const 1963, art 8, § 2, also relied upon by the District Court, is a posi­tive prohibition against racial discrimination by Michigan’s School Districts. Neither of these constitutional provisions imposes any authority or duty upon either the Governor or the Attorney General to police the affairs and decisions of Michigan’s 600 or more school districts and their locally elected boards of education.Furthermore, the rule is settled that any rights existing solely under state law are neither protected by the Federal



48-Constitution or federal statutes nor enforceable in the federal courts. Baker v Carr, 369 U S  186, pp 194-195 foot­note 15, (1962); Gentry v Howard, 288 F  Supp 495, (ED Tenn, 1969). Thus, assuming arguendo that Const 1963, art I, § 2 and art 8, § 2, any state statute or the admonitions on racial balance in the Joint Policy Statement and School Plant Planning Handbook impose some higher duty upon the Governor and the Attorney General than is imposed by the Fourteenth Amendment, the enforcement of such duty is a function for Michigan courts rather than the federal courts.
To summarize this portion of the argument, it must be stressed that the lower court erred in denying the 41(b) motion to dismiss made by defendants Governor and A t­torney General at the close of plaintiffs’ case in chief. The Detroit public schools are not de jure segregated schools. Further, based on the record made during plaintiffs’ case in chief, it is crystal clear that neither the Governor nor the Attorney General committed any de jure acts with respect to the Detroit public schools. The state of the proceedings at which this court ruled that it was error to dismiss these two defendants has long since passed. 433 F2d 897, 905. Thus it was error for the lower court to deny the 41(b) motion made on behalf of these two defendants.
Turning to defendants State Board of Education and Superintendent of Public Instruction, the proofs relating to their conduct in the area of site selection have already been discussed above. Moreover, in the exercise of its “ leader­ship” authority conferred by the people in Const 1963, art 8, § 3 relative to sites, as reflected in the Joint Policy State­ment and School Construction Handbook, (IAa 203-204) the state board of education was striving to enhance the racial balance of pupils, although it should be stressed that achieving racial balance was only one factor to be



---4:9---considered by school districts in selecting sites for school construction. The other proofs concerning these two de­fendants made during palin tiff s’ case in chief relating to pupil and staff assignments include the following uncon­tradicted testimony by Dr. Porter, Superintendent of Public Instruction, as follows:“ Q. Doctor Porter, I  believe you testified you are chief executive officer of the Department of Educa­tion, is that right?“A . That is correct.“ Q. And the Department of Education is one of nineteen executive departments!“A . That is correct.“ Q. Now, the head of the department is the State Board of Education, is that right?“A . That is correct.“ Q. And you are their chief executive officer?“A . That is correct.“ Q. Gan you tell the Court how many school dis­tricts there are in the State of Michigan at the present time ?“A , As of April 1, 1971 there were 530, K-12 dis­tricts, that would be kindergarten through 12th grade and 87 non-K-12 grades, that would be a total of 617.“Q. Do you know how many children are being educated in these school districts in Michigan during the current school year?“A . Approximately 2.2 million



■50-“ Q. Does the State Board of Education—let me put it another way—has the State Board of Education supervised the hiring of teachers in the Detroit School District?“A . The State Board of Education does not super­vise the hiring of the teachers in Detroit or any other school district except we must certify that they employ and must approve any employees that are fully cer­tificated.“ Q- Does either the State Board of Education or your office supervise the assignment of teachers in the Detroit School District to particular schools?“A . We make no supervision as to assignments ex­cept according to the State Certification Code, teachers must be assigned according to their majors and minors hut we do not make the assignments.“ Q. Does the State Board of Education or your office supervise the establishment of attendance areas in the Detroit School District or in any other school district ?“A . The State Board of Education does not super­vise attendance area assignments. The State Board has received during my tenure I  think the first one of its kind, an appeal from a school district, not Detroit, requesting that the State Board overturn attendance areas and the Attorney General’s office advised the Board in writing that it had no jurisdiction in regard to attendance area lines.“ Q. Does the State Board of Education or your office supervise the establishment of feeder patterns for junior high school and high schools in the Detroit School District or any other school district?“A . No.



■51—“ Q. Does the State Board of Education or your office supervise the bussing of children in the Detroit School District or any other school district to relieve overcrowding ?“A . No, except as I  testified earlier that our recom­mendations in regard to both that issue and the previ­ous one be consistent with the policies of the State Board in terms of recommendations for equal educa­tional opportunity in desegregation, but we do not supervise in this area.“ Q. Now, the policies of the State Board of Educa­tion which were alluded to on direct examination, these are recommendations, are are they not!“A . That is correct. ( I l l  a 99-101)# # *

“ Q. Does either the State Board or your office exercise any supervision over the selection of admin­istrators by the Detroit School District or by any other school district?“ A . No. ( I l i a  106)In addition, it must be observed that the lower court’s conclusions of law in its “Ruling on Issue of Segregation” (IAa 213-214) recite at length the statutory duties of de­fendants State Board of Education and Superintendent of Public Instruction. This extended recitation of statutory duties does not include any duties with respect to either the hiring and assigning of teachers and administrators or the establishment of attendance areas and the assigning of pupils to schools within such attendance areas by school districts. Thus, on both the facts and the law, it is beyond dispute that defendants State Board of Education and



—52—Superintendent of Public Instruction have not taken any affirmative actions with the purpose and effect of causing either pupil or faculty segregation in the Detroit public schools. Consequently, the lower court was clearly in error in denying the 41(b) motion to dismiss filed by these de­fendants at the close of plaintiffs’ case in chief.In summary, the Detroit public schools are not de jure segregated schools. Further, based on the record in this cause made during plaintiffs’ case in chief, none of these four defendants has committed any acts with the purpose and effect of causing pupil or faculty racial segregation in the Detroit public schools. Therefore, the lower court clearly erred in denying the 41(b) motions to dismiss filed by those defendants at the close of plaintiffs’ case in chief.
V I.

T H E  L O W E R  C O U R T  E R R E D  IN  M A K IN G  F IN D IN G S  
A G A IN S T  T H E S E  D E F E N D A N T S  B A S E D  ON E V I ­
D E N C E  IN T R O D U C E D  A F T E R  T H E S E  D E F E N D ­
A N T S  HAD M A D E  T H E IR  41(b) M O T IO N S A N D  
E L E C T E D  TO ST A N D  ON S U C H  M O T IO N S A T  T H E  
C L O S E  O F P L A IN T IF F S ’ C A S E  IN  C H IE FThese defendants respectfully submit that, based on the teaching of this Court in A . & N. Chib v Great American 

Insurance Co, supra, and the fact that pursuant thereto these defendants stood on their 41(b) motions made at the close of plaintiffs’ case in chief rather than participate in the remainder of the trial on de jure segregation in Detroit, it was clearly error for the lower court to rely on evidence introduced thereafter in making certain findings against these defendants. Such a course of conduct by the trial court constitutes a blatant disregard for the minimum



— 53-requirements of due process of law. To rule that the lower court properly relied on evidence introduced after these defendants elected to stand on their 41(b) motions and thereby did not participate in the remainder of the trial on de jure segregation in Detroit, so as not to waive their right to assign error as to the disposition of such motions, would be to vitiate in large measure the future efficiency of F R C i v P ,  41(b).The specific portion of the “ Ruling on Issue of Segre­gation” as to which error in this regard is claimed by these defendants is as follows:“The State and its agencies, in addition to their general responsibility for and supervision of public education, have acted directly to control and maintain the pattern of segregation in the Detroit schools . . . .  This and other financial limitations, such as those on bonding and the working of the state aid formula whereby suburban districts were able to make far larger per pupil expenditures despite less tax effort, have created and perpetuated systematic educational inequalities.” (IAa 204)This language in the lower court’s opinion, is taken verbatim from plaintiffs’ proposed findings of fact. (IAa 190-191) The pages of the trial transcript cited in support of such findings by plaintiffs, which the lower court ob­viously relied upon, are all pages of the record that were made after these defendants stood on their 41(b) motions to dismiss and refrained from further participation in the trial on de jure segregation in Detroit so as to preserve their right to assign error on the disposition of such motions by the lower court. ( I l l  a 191)The controlling principle here, as plainly and unanimously set forth by this Court in A . & N. Club v Great American



—54—

Insurance Co, 103-104, supra, is that, if a defendant pro­ceeds with its case then it waives the right to assign error as to the disposition of its 41(b) motion, based on the 
evidence introduced to the time the motion was first made, and the Court on appeal will consider all of the evidence presented. However, if  a defendant stands on its 41(b) motion, rather than proceeding with its case, then it pre­serves the right to assign error as to the disposition of such motion on appeal, based only on the evidence intro­
duced up to the time the motion was first presented.Tndei this controlling principle, the lower court erred, as a matter of law, in relying upon evidence introduced after these defendents stood on their 41(b) motions, in making the findings or conclusions quoted above in its “Ruling on Issue of Segregation.” Thus, such findings and conclusions must be reversed by this Court on appeal.

V II.

T H E  LO W ER CO U R T’S L E G A L  CON CLU SIO N  OF S Y S ­TEM A T IC E D U CA T IO N A L IN E Q U A L IT Y  B E T W E E N  D ETRO IT AND THE SU RR O UN D IN G M O S T L Y  W H ITE SU BU RB A N  SCHOOL D ISTR ICT S, B A S E D  UPON TR AN SPO RTATIO N  FU ND S, BONDING L IM I­TATIONS, AND TH E ST A TE S C H O O L  A ID  F O R M ­U LA , IS  ERR O N EO U S A S A  M ATTER O F L A W .The argument in this portion of the brief is directed to the following paragraph of the lower court’s “Ruling on Issue of Segregation” :“ The State and its agencies, in addition to their general responsibility for and supervision of public education, have acted directly to control and maintain



■55the pattern of segregation in the Detroit schools. The State refused, until this session of the legislature, to provide authorization or funds for the transportation of pupils within Detroit regardless of their poverty or distance from the school to which they were as­signed, while providing in many neighboring, mostly white, suburban districts the full range of state sup­ported transportation. This and other financial limita­tions, such as those on bonding and the working of the state aid formula whereby suburban districts were able to make far larger per pupil expenditures despite less tax effort, have created and perpetuated systematic educational inequalities . . . ” (IAa 204)With the exception of the second sentence of this paragraph, dealing with transportation funds, the lower court relied upon evidence introduced after these defendants had rested on their 41(b) motions, as is set forth more fully in the preceding section of this brief. However, since these de­fendants have no way of knowing whether this Court will agree with their position concerning reliance on such evi­dence by the lower coui't, these defendants are compelled to also set forth their argument on the substantive, as opposed to procedural, merits of this portion of the lower court’s opinion.It must be noted that neither plaintiffs’ complaint, nor plaintiffs’ statement of issues in the Joint Pre-Trial State­ment contains any reference to claims or issues concerning the financing of public education in the areas of transporta­tion, bonding, or the state aid formula in terms of any alleged educational inequality between Detroit and the sur­rounding suburban school districts. (IAa 7-22, IA a 120-133) This case was presented by plaintiffs as a school desegre­gation case limited to the Detroit public schools, not as a school finance case covering both Detroit and neighboring



—56—school districts. Thus, this portion of the lower court’s opin­ion, dealing with school finance beyond the Detroit public schools, is patently inappropriate in a school desegregation case involving one school district.These defendants would emphasize their contention that in this portion of its opinion, the district court has erected an edifice of unconstitutionality on a foundation of sand. The ensuing analysis will demonstrate, both as a matter of fact and law, that this portion of the trial court’s opinion is clearly in error.The first sentence of the challenged paragraph concludes that the state and its agencies, in addition to their general responsibility for public education, have acted directly to control and maintain a pattern of segregation in the Detroit schools. Plaintiffs’ proposed findings of fact, from which this paragraph was lifted verbatim by the lower court, cite two pages of the trial transcript in support of the first sentence of this paragraph. (IAa 190, IV a 293-294)A  reading of these two pages reveals no testimony what­soever as to any pattern of segregation in the Detroit public schools. Rather, we find testimony by Dr. Guthrie, an edu­cational expert and admitted non-lawyer, to the effect that, under a provision of the Michigan Constitution, it is his view that the state is responsible for financing education in Michigan’s school districts.The constitutional provision to which he makes reference must be Const 1963, art 8, § 2, which directs the legislature to maintain and support a system of free public elementary and secondary schools. Here, it is instructive to note, that in the constitutional debates on Committee Proposal No. 30, which eventually became Const 1963, art 8, § 2, the follow­ing dialogue occurred between Mr. Bentley, Chairman of



■67-the Committee on Education, and a fellow convention dele­gate as follows:“MR. W A N G ER : Mr. Bentley, I  noticed the word ‘continue’ is deleted, and the words ‘maintain and sup­port’ are inserted. Does this raise a question as to whether or not the state is obligated to pay for all of these schools, rather than the financing by the local units?“MR. B E N T L E Y : I  think not, Mr. Chairman. The committee took this language from the provision in the model state constitution, which is in chapter 11, on page 10 of your citizens research council book, and which reads: ‘The legislature shall provide for the maintenance and support of a system of free public schools open to all children in the state.’ I  believe that no such interpretation, Mr. Chairman, can reasonably be placed upon this language.”Constitutional Convention, 1961, Official Record, Vol I, pp 762-763Thus, with all due deference to Dr. Guthrie, as an educator, it is beyond dispute that the financing of public education in Michigan is a responsibility shared by the Michigan Legislature, not a party to this cause, and local school districts. Further, in Const 1963, art 9, § 6, we find pro­visions relating to the imposition of general ad valorem property taxes by school districts as a major source of revenue.
The next two sentences of the paragraph challenged in this section of the brief contain purported “findings” that refer, without citation, or declaration of unconstitution­ality, to state statutes relating to transportation funds,



■58-bonding, and the state aid formula for disbursing legis­latively appropriated funds to school districts. It is not clear whether these “ findings” are intended to be findings of fact or conclusions of law that the statutes involved are unconstitutional. This brief will demonstrate that, whether these two sentences constitute findings of fact or conclusions of law, they are clearly in error.A  careful scrutiny of the three trial transcript pages cited by plaintiffs in support of the “finding” on trans­portation funds reveals absolutely no testimony to support such a finding. (lA a 190-191, I l ia  95-97) The lower court’s reference to transportation funds is directed at section 11 of 1957 P A  312, as amended by 1970 P A  100, M CLA  338.621; M SA  15.1919(61), which was the statutory section in effect at the time of trial concerning state aid reimbursement to school districts of a portion of the cost of transporting certain children.It must be stressed that all Michigan school districts have the authority to transport children and to expend their locally derived general ad valorem property tax reve­nues for such purpose. ( I l l  a 95) The lower court’s “Ruling on Issue of Segregation” contains several references to the transportation of students within the Detroit school district. (IA a 202)The provisions of section 11 of 1957 P A  312, as amended by 1970 P A  100, supra, relate to the extent to which school districts transporting children will receive state aid reim­bursement for a portion of the cost of such transportation. Under this section, generally speaking, state aid allotments for transportation are limited to school districts trans­porting children “ . . . living outside the village or city limits and more than 1% miles from the school they at­tend . . . ” Further, this statutory section provides reim-



•59—bursement to school districts for the transportation of handicapped children irrespective of whether they live outside village or city limits. Thus, the basic statutory distinction is between urban and rural transportation with­out regard to race.It  must, also be noted that, in the counties of Wayne, Oakland and Macomb, there are, in addition to the City of Detroit, 65 other incorporated cities and 17 incorporated villages. Michigan Manual, 1971-1972, pp 366-408. There is simply no evidence in this record to support a finding that state aid transportation reimbursement for school children living in these 65 other cities and 17 villages is provided, while it is not provided for pupils living in the City of Detroit, except to the extent that such school children may be transported outside city or village limits in traveling to their school of attendance within the school district bound­aries by the nearest traveled public highway.This very type of urban-rural statutory distinction for purposes of state school aid reimbursement for transporta­tion was held “ plainly constitutional”  by a three judge federal court in Sparrow v Gill, 304 F  Supp 86 (MD NC, 1969), as follows:“Applying this test, we find N.C.G-.S. § 115-186(e) wholly reasonable. The degree of urbanization of the entire state, alluded to by plaintiff, has not yet become so pronounced that the legislature might not reasonably conclude that city students have easier access than do county students to public transportation; that they are more apt to have sidewalks and other pedestrian protections on their way to school; that they are more apt to participate in an ‘ automobile ’ culture simplifying family transportation and the formation of carpools, than their county-dwelling counterparts. We think N.C. G.S. § 115-186(e) is plainly constitutional.” (pp 90-91)



6 0 -In summary, section 11 of 1957 P A  312, as amended by 1970 P A  100, supra, is clearly constitutional in allocating limited state funds to transportation reimbursement for children living in rural areas rather than to children living in incorporated cities and villages. This statute clearly meets the applicable reasonable basis test enunciated by the United States Supreme Court in Dcmdridge v Williams, 397 U S  471, 485 (1970).Further, the record is barren of proof that children living in other Michigan cities and villages within the three county area that are transported within such cities or villages to their school of attendance are treated any dif­ferently, for purposes of state aid reimbursement, than children residing in the City of Detroit. Finally, it is d iffi­cult, if not impossible, to see how state aid transportation provisions could create or perpetuate any systematic educa­
tional inequalities in view of the fact that the record in this cause is totally devoid of any proof that any child was unable to attend school in Detroit because of lack of trans­portation. Consequently, the lower court’s ruling concerning transportation funds, whether treated as a finding of fact or a conclusion of law, is clearly in error.Turning to the third sentence of the paragraph chal­lenged in this section of the brief, it must first be observed that none of the pages of the record cited by plaintiffs’ proposed findings of fact in support of the lower court’s “ finding” concerning bonding limitations makes any refer­ence to bonding or limitations on bonding for school con­struction. (IA  a 190-1; IV  a 71-2, 291-5, 304-5, 322-3, 452-3) This part of the trial transcript simply lacks any references to bonding limitations. Moreover, the trial court’s “Ruling on Issue of Segregation,” refers to much new construction (1970-1971) and unused space in the Detroit public schools. (IA  a 202, 204)



■61-The so-called limitation on bonding turns out, upon a careful examination of Michigan statutes, to be non-exist­ent. Pursuant to sections 77a, 115, 158 and 220a of 1955 P A  269, as amended by 1968 P A  316, supra, Michigan school districts of the fourth, third and second class, respec­tively, were permitted to issue bonds for school construc­tion up to 5%> of the assessed valuation of the taxable property within the district without a majority vote of the 
people, while a first class district, which includes only Detroit, was permitted to issue bonds for school construc­tion up to 3% without a majority vote of the people. Here, it must be stressed that the Detroit school district has the largest total assessed valuation of taxable property of any Michigan school district. Further, with a majority vote of the people, all classes of school districts had equal bond­ing power for school construction. See section 681 of 1955 P A  269, as last amended by 1965 P A  258, supra.Moreover, and more importantly, since May 13, 1971, some four months prior to the lower court’s “ Ruling on Issue of Segregation”  of September 27, 1971, a first class school district has been permitted by the legislature to issue bonds for school construction up to 5% of the assessed valuation of the taxable property within the district without 
a majority vote of the people. See Section 220a of 1955 PA 269, as last amended by 1971 P A  23, supra.In addition, this portion of the lower court’s opinion is not consistent with the recent decision of the United States Supreme Court sustaining a West Virginia limitation on bonded indebtedness for all purposes, including school construction, that could only be exceeded by a 60% affirm­ative vote of the people. Gordon v Lance, 403 U S  1 (1971)There is simply no evidence in the record to support a finding of “ systematic educational inequality” between De-



— 62-troit and neighboring suburban school districts in the matter of bonding for school construction. Further, treated as a conclusion of law, such conclusion is patently, erro­neous. Thus, this portion of the lower court’s opinion on the merits is clearly erroneous and must be reversed on appeal by this court.The lower court’s reference to the working of the state aid formula is, in effect, a reference to section 8a of 1957 P A  312, as last amended by 1970 P A  100, M CLA  338.618a; M SA  15.1919 (58a); which was in effect during the 1970-71 school year and the course of the trial on the merits in this cause. The pages of the transcript cited by plaintiffs’ proposed findings of fact in support of this portion of the lower court’s opinion deserve careful scrutiny by this Court. (IA  a 190-191; IV  a 71-2, 291-5, 304-5, 322-3, 452-3) These de­fendants respectfully submit that such scrutiny will reveal the lack of foundation for this part of the “ Ruling on Issue of Segregation. ”The testimony of Dr. Della-Dora on this matter relied upon by plaintiffs is as follows:Q. “Is the situation in Detroit somewhat different from some of the surrounding school districts in Wayne County which you may be more familiar with because of your Intermediate School District role but in general the suburban community school? Is Detroit in a more difficult position in terms of money?A. “ I  suspect it is, it has a more difficult problem than most of the school districts, but not all of them in the surrounding area because some of the school districts have had relatively adequate industrial tax basis over a period of years and have not experienced a great deal of growth, for example. Dearborn, River 
Rouge and Ecorse would be examples of school districts



-63-which have had a long-time industrial tax base and have not experienced great increases in school popula­tion so they are relatively well off by way of contrast.Q. “ In terms of a city such as Detroit and the needs of the Detroit School System, is this also a part of function of the state allocation formula! Are there disparities fostered by this between Detroit and some of the other suburban districts!A . “That would be my opinion. We do not have, in my opinion, equitable distribution money for schools throughout the state.” (emphasis supplied) (IV  a 72)It must be stressed that, of the three suburban school districts enumerated above as wealthy districts, two of them, River Rouge and Ecorse, have respectively, 43.2% and 50.8% black student bodies. (IX  Ba 584) Further, as demonstrated in Welling v Livonia Board of Education, supra, the elementary grades in the suburban Livonia school district were on half day sessions, because of lack of funds to operate a full day schedule of instruction, during the 1969-1970 school year. The suburban Livonia school district has 10 black students among its student body of 38,239 pupils. ( IX  Ba 583)Also, this court may take judicial notice of Smith et al v 
State Board of Education, Ingham County Circuit Court #  12167C, a case in which the same Dr. Della-Dora filed an affidavit on behalf of the plaintiff parents that were challenging the operation of the Lincoln Park School Dis­trict on a substantially reduced schedule of student instruc­tion for lack of operating funds during the 1970-71 school year. The suburban school district of Lincoln Park has one black student among its 11,559 pupils. ( IX  Ba 584)



-64-The Detroit public schools were not on a reduced schedule of student instruction during either the 1969-70 or 1970-71 school years. Thus, any contention that the Michigan’s state aid formula has created and perpetuated systematic educational inequalities between the Detroit public schools, with a 65% black student body, and many neighboring mostly white suburban school districts is sheer fiction.It must also be emphasized that the question and presum­ably the answer quoted above, with respect to the state allo­cation formula, are based on the concept on the “ needs”  of the Detroit school system. The United States Supreme Court has affirmed, on two separate occasions, holdings of three judge federal courts that there is no constitutional duty to allocate funds for public education on the basis of educational needs. Mclnnis v Shapiro, 293 F  Supp 327, 335-336 (ND 111 1968), affirmed sub nom Mclnnis v 
Ogilvie, 394 U S  322 (1969); Burruss v Wilkerson, 310 F  Supp 572, 574 (WD Va. 1969), affirmed 397 U S  44 (1970).The notion that funds for public education must be allocated on the basis of the diverse educational needs of students has been considered and expressly rejected by the federal courts for lack of any judicially manageable stand­ards to determine whether the constitution has been vio­lated or satisfied. However, this was no impediment to the trial judge in this cause, who, without citing a single specific fact, proceeded to condemn Michigan’s state aid formula for school districts on the basis of opinion testi­mony concerning educational needs.Other parts of the record that allegedly support the lower court’s “ finding”  concerning the state aid formula turn out, on examination, to deal with alleged intra-district disparities in resource allocation among schools within the same school district. (IA  a 190-1; IV  a 322-3) At this point,



65-it should be observed that neither the State Board of Edu­cation, nor the Superintendent of Public Instruction, none of these defendants for that matter, supervise the alloca­tion of general state aid funds among school buildings within school districts by boards of education, with the exception of compensatory education funds appropriated by the legislature and disbursed to Detroit and other school districts qualifying for such funds. (II a 104-5-6) The lower court’s “Ruling on Issue of Segregation” contains no findings concerning any disparate allocation of funds among school buildings within the Detroit school system by any of the defendants. ( I A a  194 et seq)Still other parts of the record that allegedly support the lower court’s ruling concerning the state aid formula, consist largely of testimony by Dr. Guthrie concerning the suburban school district of Inkster and the Detroit school system as follows:Q. “ . . .  We may not know necessarily that another district gets five or $600.00 more per child to use in its school, but it knows that it gets more and it’s different?A . “Better, and that is where people want to go to school and teach and so forth.Q. “ I ’m sorry, don’t let me interrupt you.A . “ I  believe at one time in my analysis of schools and school districts in Michigan I  was moderately familiar with the district of Inkster.Q. “ That’s a black district?A . “ Predominantly black. I  understood it was characterized by also poor black families and at that time receiving, I  believe, as a consequence of state



— 66—action, very little, relatively very little by way of financ­ing. And I  talked with people who worked at Inkster. The superintendent there at that time, Doctor Edward Fort, I  don’t know if he is still there or not, was a graduate of the institution that I  teach at. And lie was able to describe to me this expectation constellation you have been discussing of how it was difficult for him to obtain teachers and how the students in his district realized that their school was—their district was somewhat stigmatized, and so forth. My point being as I  don’t think I  made it clear, that a district as large as Detroit can also become so stigmatized and in the eyes of all of its employees—I  don’t know 
that it has, don’t get me wrong. But it ’s possible that it can get that way.Q. “ I t ’s pretty well known that Detroit has finan­cial problems and its needs and their relationship to many of the surrounding districts. That’s a fairly commonly known fact in education in general?A . “ It is known to people outside of the State of Michigan even, if that’s what we are getting at.Q. “Let’s turn to the district. Certainly because of the close proximity, the differences between schools, would be better known, would they not?A . “ Well, if you had—here my ignorance of Detroit 
handicaps me.Q. “ Speaking in general, not necessarily Detroit.A . “ Bight. I f  you have in this city schools of widely varying reputations, then it would seem to me that it could be harmful to students in those schools which are stigmatized by low reputations. I do not know in fact 
if, indeed, you have schools of widely varying reputa-



—67-
tions. It seems to me that at one time Detroit might have had such, but my reason for moving to the district level is that increasingly big cities are becoming stig­matized and not the schools within them. The whole city itself.”  (emphasis supplied) (IV  a 304-305)This expert testimony should be carefully scrutinized and evaluated by this Court. The question of whether the Detroit school system is somehow stigmatized in the eyes of its employees should be evaluated in light of the fact that, for the 1970-71 school year, teachers in Detroit with a bachelor’s degree received a salary that was the average of the top 7 salaries among the school districts in Wayne, Oakland and Macomb counties, while Detroit teachers with a master’s degree received a salary that was the average of the top 9 salaries among the school districts in the same three counties. ( IX  A a 180)Further, the question and answer concerning the needs of the Detroit school system, in relationship to surrounding school districts, is based on a false premise, squarely re­jected by the federal courts, that the constitution requires the allocation of funds to school districts on the basis of educational needs. Mclnnis v Shapiro, supra; Burruss v 

Wither son, supra.In addition, the general expert testimony concerning big- city school districts, with an admitted lack of knowledge as to Detroit specifically, is precisely the kind of expert testi­mony rejected by this Court in Ramjet v City of Lansing , 417 F2d 321, 324 (CA 6, 1969), cert den 397 U S 980 (1970), reh den 397 U S  1059 (1970).Another portion of the record relied upon for this “ find­ing”  concerning the state aid formula includes the testi­mony of Dr. Guthrie concerning the allocation of financial



— 68resources among Michigan’s school districts in relation­ship to whether they have a high or low socio-economic status, S E S , level. (IA a 190; IV a 291-3) Again, it must be emphasized that under the decided cases there is no con­stitutional obligation to allocate funds for public education on the basis of educational needs. Mclnnis v Shapiro, supra; 
Burruss v Wilkerson, supra.Turning to specific factual analysis of the Detroit school district, in comparison with other school districts in the state, we find the following:1. In 1969-70, Detroit ranked in the 77th percentile among Michigan’s school districts in terms of wealth or revenue producing ability, as measured by the state equalized valuation of taxable property within its boundaries. (Exhibit C-14, pp 26, 27)2. However, in 1969-70 in terms of tax effort, or operating millage, 30 of the 35 school districts in Wayne County had higher operating millage rates. 

Bulletin 1012, Michigan Department of Education, December, 1970, pp 32-35.3. Yet, in 1969-70 Detroit ranked in the 85th per­centile among Michigan’s school districts in terms of total current operating expenditures per pupil (Exhibit C-14, pp 26, 27)4. In 1969-70, Detroit ranked in the 97th percentile in terms of average salary of teachers and in the 76th percentile in terms of average years of teaching ex­perience among Michigan’s school districts. (Exhibit C-14, pp 26, 27)In addition, an examination of the basic state aid formula found discriminatory by the lower court, section 8a of 1957



69P A  312, as last amended by 1970 P A  100, supra, reveals! that school districts with a lower state equalized valuation of taxable property per pupil received larger amounts per pupil in state aid to more nearly equalize revenues among Michigan’s school districts. Further, neither the Governor nor the Attorney General are involved in the disbursement of funds under this section of the statute.In fact, the Governor and the Attorney General of Mich­igan have filed a suit attacking the constitutionality of Michigan’s system of financing the operation of its public schools, under both the Michigan and United States Con­stitutions, on the ground that the present system constitutes an invidious wealth discrimination against children residing in school districts with a low state equalized valuation of taxable property per pupil. This Court is requested to take Judicial notice of this cause, Milliken and K elley et al v 
Allison Green et al, Supreme Court #53,809, which has been briefed and argued in the Michigan Supreme Court but no decision has been rendered to date.However, the Michigan system of wealth classification of school districts by their state equalized valuations of taxable property per pupil is not racially discriminatory. Rather, as demonstrated above, it is color blind and benefits or burdens both white and black children alike according to the school district in which they happen to reside, whether such district happens to be urban, suburban or rural in character.

To summarize, the lower court’s “ finding” of systematic educational inequality between Detroit and neighboring mostly white suburban school districts, based on transpor­tation funds, bonding limitations and the state aid formula, is, as a finding of fact, clearly erroneous. The lack of specific facts set forth in this portion of the trial court’s ruling is



■70-matched only by the lack of specific facts in the record to support such a finding. Whether treated as findings of fact or conclusions of law, this aspect of the “Ruling on Issue of Segregation” is clearly in error and must be re­versed by this Court.
VIII.

B A S E D  ON T H E  R E C O R D  IN  T H IS  C A U S E , T H E  
D E T R O IT  P U B L IC  S C H O O L S  A R E  N O T D E  J U R E  SE G R E G A T E D  S C H O O L S  A S  A  R E S U L T  O F T H E  CONDUCT OF A N Y  OF T H E  S T A T E  D E F E N D A N T S  
H E R E IN .Although this brief is addressed primarly to the conduct of the state defendants, these defendants would reiterate their conviction that the Detroit school district defendants have not operated the public schools under their juris­diction with the purpose and effect of segregating children by race in such schools. The slender reeds upon which plaintiffs have asked, first, the district court and now this court to erect a declaration of unconstitutionality against the defendants is vividly illustrated by the following example.During the oral argument before this court on Ju ly  20, 1972, plaintiffs’ chief counsel laid a great emphasis on the transportation of certain black students from the Carver School District past white schools to a black high school within the Detroit School District. However, this court was not fully informed during oral argument of the many facets, both past and present, concerning this example of alleged racial discrimination as a basis for the sweeping metropolitan relief decreed herein by the lower court.



—71—The students involved in this transportation incident, during the years 1949-1952, were high school students residing in the Carver School District that did not operate a high school. Although the Detroit school district had no legal duty, under Michigan law, to educate these non-resi­dent high school students, they voluntarily chose to do so. 
Jones v Grand Ledge Public Schools, 349 Mich 1, (1957). This transportation practice was subsequently discontinued by the Detroit school system.Thereafter, the Carver School District, located in Royal Oak Township, became a part of the Oak Park School District under the provisions of 1955 P A  269, as amended, supra, dealing with the attachment of a disorganized school district to an operating school district. (Tr 993-997) The Michigan Attorney General issued two opinions*, upon request, which helped facilitate the attachment of the Carver School District, as a disorganized school district to the Oak Park School District.OAG NOS 3571 and 3568, 1960, Yol II , pp 138-139 and 140-142 respectively.Thus, the black children residing in the former Carver School District now attend the public schools of the Oak Park School District as resident students thereof. This school district which is included in the judicially established metropolitan desegregation area, has a 10.1% black student body. ( IX  Ba 582) Further, Oak Park’s per pupil expendi­tures for 1969-70 were at the 99th percentile in comparison to Michigan’s other school districts. (E X  C-14 p 58) Finally, as testified to by one of plaintiffs’ expert witnesses, the black students in Oak Park are thriving academically. (Tr 939-40)In light of these facts, it is difficult, if not impossible, to perceive any rational connection between the 1952 trans-



—72—portation incident and either a finding of de jure segrega­te011 in Detroit in 1971 or the decreeing of a metropolitan remedy affecting 52 other school districts, including Oak Park, in 1972. Further, these facts vividly illustrate the wisdom of the settled rule that, to establish a consitutional violation, there must be a causal relationship between the act complained of and a present condition of segregation. 
Hobson v Hansen, 269 F  Supp 401, 495 (D.D.C. 1967), modified sub.nom., Smuck v Hobson, 408 F2d 175 (D.C. Circuit, 1969), Keyes  v School District Number One, Denver 
Colorado, 313 F  Supp 61, 74-75 (D. Colo. 1970), modified 445 F2d 990, 1006, (CA 10, 1971), cert, granted 404 U S 1036 (1972). Clearly, the transportation incident concerning the Carver students in 1952 fails to meet this sound test for establishing a constitutional violation of the rights of the present plaintiffs in 1972.

In the matter of attendance areas, it is clear that, pur­suant to its broad statuory grant of discretionary authority, the Detroit Board of Education has established and modi­fied the attendance areas within the school district. Hiers v Detroit Superintendent of Schools, supra. The uncon­tradicted testimony in this matter is that, as a result of actions of the Detroit Board of Education, the public schools under its jurisdiction are more integrated than the residential patterns within the City of Detroit. ( I l l  a 375- 376) The major finding by the lower court in this area, and about the only finding set forth with even a modicum of specificity, has to do with the prior existence of optional attendance areas affecting certain high schools and two junior highs. (IA  201-202)



—73-These defendants would urg*e that the record does not support a finding that these optional attendance areas were created and maintained with the purpose and effect of segregating pupils by race, since the option was equally available to all students living in the area. In any event, assuming arguendo such purposes and effect, it is undis­puted that by the 1970-71 school year all such optional attendance areas had been eliminated. Further, during the decade of the 1960’s the elimination of such areas, in a number of instances, was done in a manner that contributed to greater school integration as testified to by one of plain­tiffs ’ witnesses. (Tr 2373, 2399, 2407) In addition, the elimination of the last optional attendance area in 1970 con­tributed to integration at Southwestern High School. More­over, as found by the lower court, the present effect of these optional attendance areas is limited to 11th and 12th grade students at one high school and, thus, will disappear once the last of these students graduate at the end of the 1972-73 school year. (IAa 202)
The judicial remedy for optional attendance areas found to be unconstitutional, decreeing their elimination, has already been accomplished by the Detroit Board of Educa­tion. Hobson v Hansen, supra, modified sub.nom. Smuck v 

Hobson, supra. Further, the elimination of such optional areas was done in a manner contributing to integration. Their lack of present effect on plaintiffs and their class demonstrates the error of the lower court in finding a constitutional violation based on optional attendance areas previously eliminated by the time of trial. Keyes  v School 
District Number One, Denver, Colorado, supra, 74-75. Finally, it must be emphasized that, based on the record in this cause, it is beyond dispute that these defendants did not establish or modify attendance areas within the Detroit school system.



— '74-In the area of site selection for school construction, the lower court erroneously found de jure conduct by these defendants for failure to affirmatively exercise a non­existent power under state law. Further, the admonition in the Joint Policy Statement and School Plant Planning Handbook by the State Board of Education, in the exercise of its leadership role under Const 1963, art 8, § 3, to local school boards to consider racial balance as one factor among many in selecting school sites is hardly an act of de jure segregation.
The lower court’s findings concerning site selection by the Detroit Board of Education, relating to new school construction opened for use in 1970-71, consist primarily of reciting the racial composition of such schools. This information, without more, overlooks the fact that many factors are involved in site selection including, for example, neighborhood residential patterns in the area where new construction is needed, the availability and cost of suitable land, and the factors of time, distance and safety in terms of pupil attendance. These various factors are given no mention by the district court in erroneously arriving at its conclusion concerning site selection for school construction by the Detroit Board of Education.Section 12 of 1970 P A  48 has been declared unconstitu­tional by this Court. 433 F2d 847. The lower court, in re­sponse to plaintiffs’ motion for implementation of the April 7 plan affecting twelve high school attendance areas, chose the McDonald Plan, which included both high schools with specialized curriculums drawing students from two regions within the school system and racially balanced junior high schools, as superior in advancing integration and ordered its implementation in September, 1971. This Court sub­sequently denied plaintiffs’ motion for summary reversal of such order. 438 F2d 945. Subsequently, no appeal has



•75-been taken by any party from the lower court’s order of December 3, 1970 directing the implementation of the Mc­Donald Plan in September 1971. Thus, Section 12 of 1970 P A  48 is no longer a part of this cause.The uncontradicted testimony of the Superintendent of Public Instruction is that both pupil and faculty assign­ments within the Detroit school system are made at the local school district level rather than by any of these de­fendants. ( I lia  99-101, I l ia  106) Thus, the conclusion is compelled that none of these defendants has committed acts with the purpose and effect of segregating either pupils or faculty by race within the Detroit public schools.The lower court’s determination in the area of finance, relating to transportation funds, bonding for school con­struction and the state aid formula as they affect Detroit and neighboring suburban school districts, is manifestly in error on two counts. First, contrary to A  and N  Club v 
Great American Insurance Company, supra, the lower court relied upon evidence introduced after these defend­ants had stood on their 41(b) motions to dismiss made at the close of plaintiffs’ case in chief.Second, and alternatively, the record simply does not support the finding of systematic educational inequality between Detroit and neighboring mostly white suburban school districts. As demonstrated above, both the lower court’s “ Ruling on Issue of Segregation”  and the record are barren of specific facts to support this determination. Moreover, the law is settled that there is no constitutional duty to allocate funds for public education among school districts on the basis of educational needs. Mclnnis v 
Shapiro, supra, Burruss v Withers on, supra.To summarize, Michigan is not a de jure state with a dual school system mandated by state law. The trial court



— 76—erroneously permitted the introduction of and relied upon evidence of alleged racial discrimination in housing by persons and agencies not parties to this cause, contrary to the decided cases of this Court, in finding de jure segre­gation. These defendants would urge that, based on the record herein, Detroit is not a de jure segregated school district. Further, the lower court was clearly in error, as a matter of both fact and law, in its determination that Detroit is a de jure segregated school district as a result of any acts by any of these defendants. The “Ruling on Issue of Segregation” is manifestly in error, as to both the facts and the law, and must be reversed by this Court on appeal.
IX .

A  F IN D IN G  O F D E  J U R E  S E G R E G A T IO N  A S  TO SO M E  
S C H O O L S  W IT H IN  T H E  D E T R O IT  S C H O O L  D IS ­
T R IC T  D O E S  N O T W A R R A N T  A  D E S E G R E G A T IO N  
R E M E D Y  FO R  A L L  S C H O O L S  IN  T H E  S C H O O L  
D IS T R IC T . O N L Y  T H O S E  S C H O O L S  W IT H IN  T H E  
S C H O O L  D IS T R IC T  F O U N D  TO B E  D E  J U R E  S E G ­
R E G A T E D  S C H O O L S  M U ST  B E  D E S E G R E G A T E D .It is the position of these defendants that in establishing a unitary system out of an unconstitutionally segregated system, the courts need only desegregate those schools which have been found to be de jure segregated and need not alter the entire system.This concept has received attention recently because of the increasing incidence of desegregation cases outside of the South. The typical case in the past dealt with a southern school system which by state law was specifically required to separate the races in the school system. These “ dual”



■11—systems were required to desegregate system-wide since the unconstitutional segregation had been system-wide.More recent court decisions have not limited the defini­tion of de jure segregation to segregation resulting from specific statutory requirements but have extended it to include other forms of state action. Since these other forms of state action, such as the shifting of attendance zones, affect only certain schools and not the entire system, it is logical that the remedy should be limited only to the certain schools found to be de jure segregated. The cases support this position, but unfortunately, no finding was made by the lower court concerning whether each of the 319 schools in the Detroit system was de jure segregated.In Taylor v Board of Education of City School District 
of City of New Rochelle, 191 F  Supp 181 (SD, N Y , 1961) appeal dismissed 288 F2d 600 (CA 2, 1961), 195 F  Supp 231 (SD, N Y, 1961), affirmed 294 F2d 36 (CA 2, 1961), cert den 368 U S  940 (1961), the District Court found that the local school district had “ intentionally created Lincoln School as a racially segregated school . . . ”  p 183. The remedy called for was a desegregation of Lincoln School, not the entire school district.The same result was reached in Keyes v School District 
No. 1, Denver, Colo., supra. The Court there recognized that in determining whether de jure segregation exists it is significant that the state involved has not had a specific statutory mandate of racial separation in the schools:“Where, as here, the system is not a dual one, and where no type of state imposed segregation has pre­viously been established, the burden is on plaintiff to prove by a preponderance of evidence that the racial imbalance exists and that it was caused by intentional state action . . . ” p 1006



—78—This distinction remains significant when the remedy stage is reached. In K eyes, the Court of Appeals found that only certain of the schools in the Denver school district were de jure segregated and rejected the claim that an unconstitutional denial of equal educational opportunity could be established absent a finding of de jure segregation. The desegregation was consequently directed only to those schools which had been found to be de jure segregated.The concept of exercising judicial authority only on the basis of a constitutional violation is important to the main­tenance of our tripartite form of government. As the Supreme Court said in Swann, supra,:“ School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities; absent a finding of a constitutional violation, however, that would not be within the authorit)^ of a federal court. As with any equity case, the nature of the vio­lation determines the scope of the remedy . . . ” p 16.It  should also be noted that Swann, supra, has also re­jected the proposition that any particular racial balance in the schools will be required of a desegregation plan:“ . . . The constitutional command to desegregate schools does not mean that every school in every com­munity must always reflect the racial composition of the school system as a whole.” p 24.



—79-The Court of Appeals for the Fifth Circuit has indicated recently that at least as to the scope of the remedy, it con­curs with the K eyes  decision. This affirmation comes in 
United States of America v Texas Education Agency,------ -- F2d --------- (CA  5, August 2, 1972). The Texascase involved Mexican-Americans who had never been the victims of a dual school system—that is, they had never been prevented by specific state law from attending certain schools. The court had found, though, that other state action had intervened to unconstitutionally segregate some Mexi­can-American children. In fashioning a remedy the majority of the court recognized that since no dual system had existed in the past as to Mexican-Americans, the remedy need encompass only those schools which were found to have been de jure segregated:“ (3) The power of the district court will depend first upon a finding of the proscribed discrimination in the school system. Swann, 402 U .S . at 16. In de­termining the fact of discrimination vel non, whether imposed by statute or as a result of official action, the district court must identify the school or schools which are segregated as a result of such discrimination. This identification must be supported by findings of fact. The importance of such a determination will be seen in some populous school districts embracing large geographical areas. There may be segregated schools which are the result of unconstitutional statutes or of official action. There may be other one race schools which are the product of neutral non-discriminatory forces.”  pp 75, 76.

The Court below, in its ‘ ‘ Ruling on Issue of Segregation, ’ ’ made no finding that a dual system was in operation in the schools of the City of Detroit. The cases are consistent in their position that where no dual system exists in a state,



- 80-by virtue of state statutes or constitution, a court, in rem­edying de jure segregation is limited in its remedy to those schools, within a given school district, which have been found to be de jure segregated.
X .

B A S E D  ON T H E  R E C O R D  IN  T H IS  C A S E , A  C O N S T I­
T U T IO N A L L Y  A D E Q U A T E  U N IT A R Y  S C H O O L  S Y S ­
T E M  C A N  B E  E S T A B L IS H E D  W IT H IN  T H E  G E O ­
G R A P H IC A L  L IM IT S  O F T H E  D E T R O IT  S C H O O L  
D IS T R IC T .After having found, on September 27, 1971, that the public schools of the City of Detroit were unconstitutionally segregated, the Court below considered means for remedy­ing the segregated condition. The Court, therefore, asked that the parties submit to it proposed plans to, inter alia, desegregate the Detroit school system, confining the rem­edy to the geographical limits of the Detroit public schools. Subsequently the Court, in its Findings of Fact and Con­clusions of Law on Detroit-Only Plans of Desegregation, found that one such plan, submitted by the plaintiffs, would accomplish more desegregation than the other plans sub­mitted (IBa457) It  found however, that none of the plans would properly alleviate the segregated situation. It  declared that “ the racial composition of the student body is such that the [plaintiffs’] plan’s implementation would clearly make the entire Detroit public school system racially identifiable as Black.”  (IBa 457) In its consequent conclu­sion of law, the Court found, inter alia, that.:“ Plaintiffs’ Plan, while it would provide a racial mix more in keeping with the Black-White propor­tions of the student population than under either of



—81—the Board’s plans or as the system now stands, would accentuate the racial identifiability of the district as a Black school system, and would not accomplish de­segregation.
“ The conclusion, under the evidence in this case, 

is inescapable that relief of segregation in the public 
schools of the City of Detroit cannot be accomplished 
within the corporate geographical limits of the city. . . . ”  (Emphasis supplied) (IBa 459)Apparently the District Court perceives the controlling law to prohibit the establishment of a unitary system within a school district possessing a pupil population of 63.8% black. In this the District Court is patently in error.The above cited finding of fact and conclusions of law clearly indicate the mistaken legal concept under which the lower court has proceeded in all its hearings and rulings on a metropolitan area remedy, namely, that a plan of desegregation must provide for schools in which whites, not blacks, predominate. This position is rejected in Spen­

cer v Kugler, supra, where the Court determined that racial imbalance in the New Jersey schools, unaccompanied by any discriminatory state action, is beyond the ambit of the Fourteenth Amendment.
The effect of Spencer was discussed by the Court of Appeals for the Fourth Circuit in deciding Bradley v School 

Board of the City of Richmond, _____F2d_____(CA  4, de­cided June 5, 1972). The Richmond school district was 70% black in 1970 and the lower court had determined that “ desegregation cannot now be achieved within the current school division bounds.”  Slip Opinion, p 40. The Fourth Circuit put the controlling question, and the Court’s con­clusion, very simply:



—82-“ May a United States District Judge compel one of the States of the Union to restructure its internal government for the purpose of achieving racial bal­ance in the assignment of pupils to the public schools ? We think not, absent invidious discrimination in the establishment or maintenance of local governmental units, and accordingly reverse.”  Slip Opinion, p 2.As Spencer, supra, and Bradley, supra, both demonstrate, absent a finding of invidious state discrimination in the establishment or maintenance of boundary lines, a cause of action does not lie. In  its Findings of Fact and Con­clusions of Law in Support of Ruling on Desegregation Area and Development of Plan the court below clearly stated that it “ has taken no proofs with respect to the establishment of the boundaries of the 86 public school districts in the counties of Wayne, Oakland and Macomb, nor on the issue of whether, with the exclusion of the city of Detroit school district, such school districts have com­mitted acts of de jure segregation.”  (IBa 498)The Court also declared that Richmond had a “ unitary system.”  Slip Opinion, p 3. The majority noted that 
Spencer had been affirmed without opinion by a nearly unanimous United States Supreme Court and found it in­distinguishable and controlling. It  is significant to note that the dissenting judge distinguished Spencer only by pointing out that Virginia, unlike New Jersey, had “ a history of a state-required dual system of schools.”  Slip Opinion, p 62. It  is noted that such dual system history is lacking in Michigan. The dissent noted further :“ . . . In  Spencer the essence of the complaint was that there should be racial balancing for its own sake — the very principle condemned in Swann, 402 U .S . at 22-25.”  Slip Opinion, p 62.



•83-The very concept of “ racial balancing for its own sake”  is what the lower court has undertaken here.The Detroit school system in 1970 was 63.8% black. Rul­ing on Issue of Segregation. (IA a 198) The proper goal of any desegregation plan is the establishment of a “ uni­tary school system within which no person is to be effec­tively excluded from any school because of race or color. ’ ’ 
Alexander v Holmes County Board of Education, 396 IIS  19, 20 (1969). As the cases which follow indicate, a unitary system may be predominantly black. Stvann, supra, recog­nizes that the creation of a unitary system will not neces­sarily lead to racially balanced schools:“ Our objective in dealing with the issues presented by these oases is to see that school authorities exclude no pupil of a racial minority from any school, directly or indirectly, on account of race; it does not and can­not embrace all the problems of racial prejudice, even when those problems contribute to disproportionate racial concentrations in some schools.”  p 23.Even the chief counsel for the plaintiffs has recognized that the most that can be sought from a desegregation decree is an order that each school in a dual school system shall have the same black-white ratio as the school system as a whole, subject to minor adjustment. Indeed, this is precisely what plaintiffs’ counsel here informed this Court of Appeals in Northcross v Board of Education of Memphis, 
Tenn, 420 F2d 546, 548 (1969), which involved a system containing a pupil population of 55% black, 45% white. As the Court of Appeals for this Circuit there said:“ . . . Upon the oral argument of this appeal, we asked counsel for plaintiffs [who is also chief counsel for plaintiffs herein] to advise what he considered



■84—would be the ‘unitary system’ that should be forth­with accomplished in Memphis. He replied that such a system would require that in every public school in Memphis there would have to be 55% Negroes and 45% whites. Departures of 5% to 10% from such rule would be tolerated. . . . ”Plaintiffs’ expert witness, Dr. Foster, who is very famil­iar with school desegregation cases and who was appointed to Judge Roth’s panel, also- indicated that he felt that plaintiffs4 intra-district plan met the requirements of the Fourteenth Amendment for a unitary system. (Hearings on Intra-District Remedy, 3-16-71, Y  a 201)A  further indication that plaintiffs do not, or at least did not, perceive of a desegregation remedy as requiring the inclusion of any but the Detroit school district is seen in the Prayer of their Complaint. There the plaintiffs, at paragraph e, asked the Court to require the defendants “ to eliminate the racial identity of schools by assigning such personnel to each school in accordance with the ratio of white and black personnel throughout the system.”  (IA a7 , 20) The concept there expressed that racial identi- fiability is corrected by establishing in each school the system-wide ratio of white and black personnel is incon­sistent with relief which attempts to destroy “ racial identi- fiability”  by going outside the desegregated system and establishing some court-determined racial proportion.The actions of the lower court indicate that it is not attempting to desegregate the Detroit schools by establish­ing in those schools a racial mix which roughly approxi­mates the racial mix of the Detroit school system. Rather, the Court is attempting to disestablish the black student majority in the Detroit public schools. This will he done by arbitrarily including in the desegregation plan a suf-



•85 -ficient number of majority-white schools which will allow it to meet a black-white ratio, again arbitrarily arrived at, which the Court believes will destroy racial identifiability. See, for example, Findings of Fact and Conclusions of Law in Support of Ruling on Desegregation Area and Development of Plan. (IBa497, 506-8) This concept of fashioning a remedy using students who are not attending the unit or units found to have been unconstitutionally segregated is without precedent.These defendants do not agree even with the position that the establishment of schools which are 63.8% black is necessary for the establishment of a unitary system in the City of Detroit. Rather, as was argued in the last sec­tion, a unitary system is established when a school district desegregates only those schools which have been found to 
be de jure segregated, not the entire system. These defend­ants do contend, however, that in seeking to join school districts without a finding of de jure segregation as to them, and merely for the purpose of establishing a socio­logically, and not legally mandated racial mix, the Court below is without the slightest legal precedent.Nothing in the cases has modified the rule that the maximum that can be accomplished within a school district segregated by law, and only then when there has been a dual system, is the establishing of racial compositions, within schools, which approximate the racial composition of the district as a whole. When this is done a unitary system, as concerns student assignments, has been estab­lished. This concept, even in districts which are pre­dominantly black, has been reinforced by recent decisions of the United States Supreme Court. In Wright v Council 
of the City of Emporia, supra, the Supreme Court, in view­ing a desegregation plan for a formerly dual system, said:



— 86-“  According to figures later supplied to the District Court, there were 3,759 children enrolled in the unitary system contemplated by the desegregation decree, of whom 66% were Negro and 34% were white.”  p 4808The decision of the Supreme Court upheld the desegrega­tion plan and is at obvious odds with the finding of the District Court here that a unitary system cannot be created in a school district which is 63.8% black. The dissent, by four members of the Court, went even further and suggested that the Emporia school district would be “ fully unitary and rum-racial”  even if  it were 72% black, 28% white, p 4814. Moreover, it must be remembered that the case involved the remedy stage of proceedings, was an intra- district remedy involving a dual system and was limited in its scope to the district which had been found to be segregated.The case of Cotton v Scotland Neck City Board of Edu­
cation, 92 S Ct 2214 (1972), decided the same day as 
Emporia, is an even more striking affirmation of the prop­osition that desegregation can be accomplished in a dis­trict which is predominantly black. In Cotton, the Court was dealing with a North Carolina system, formerly dual, which was 77% black, 22% white and 1% American Indian. The Supreme Court, in an unanimous decision, failed to allude to any constitutional infirmity in the intra-district remedy which had been imposed and in fact referred to the “ unitary school plan”  which took effect.Another pertinent Supreme Court case is Green v School 
Board of New Kent County, 391 U S  430 (1968). The Court in that case was dealing with a dual school system which was 57% black, 43% white. The local board propounded a “ freedom of choice”  plan to desegregate the district. The Supreme Court iterated the necessity of a unitary and



— 87-non-racial plan and found the board’s plan to be unaccept­able, The Supreme Court’s suggestions for the creation of a unitary system are significant:“ The Board must be required to formulate a new plan and, in light of other courses which appear open to the Board, such as zoning6, fashion steps which promise realistically to convert promptly to a system without a ‘white’ school and a ‘Negro’ school, but just schools, p 442Footnote 6 is as follows:“ ‘In view of the situation found in New Kent County, where there is no residential segregation, the elimina­tion of the dual school system and the establishment of a “unitary, non-racial system” could be readily a- chieved with a minimum of administrative difficulty by means of geographic zoning—simply by assigning students living in the eastern half of the county to the New Kent School and those living in the western half of the county to the Watkins School. Although a geo­graphical formula is not universally appropriate, it is evident that here the Board, by separately busing Negro children across the entire county to the “Negro” school, and the white children to the “ white” school, is deliberately maintaining a segregated system which would vanish with non-racial geographic zoning. The conditions in this county present a classical case for this expedient.’ Bowman v County School Board, supra, n 3, at 332 (concurring opinion).“Petitioners have also suggested that the Board could consolidate the two schools, one site (e. g., Watkins) serving grades 1-7 and the other (e. g., New Kent) serving grades 8-12, this being the grade division re-



— 88-spondent makes between elementary and secondary levels. Petitioners contend this would result in a more efficient system by eliminating costly duplication in this relatively small district while at the same time achieving immediate dismantling of the dual system.“These are two suggestions the District Court should take into account upon remand, along with any other proposed alternatives and in light of considerations respecting other aspects of the school system such as the matter of faculty and staff desegregation remanded to the court by the Court of Appeals.”Thus, it is clear that the Supreme Court harbored no doubts that a unitary system could be established in a district with a 55% black majority and even suggested means for its accomplishment.The clear conclusion to be drawn from the NortJicross, 
Bradley, and United States Supreme Court cases cited herein is that the District Court erred in its conclusion that because the Detroit school system was 63.8% black a constitutional plan of desegregation, which would set up a unitary system, could not be accomplished within the boundaries of the School District of the City of Detroit.

XI.

WHERE ONLY THE DETROIT SCHOOL DISTRICT 
HAS BEEN FOUND TO HAVE COMMITTED ACTS 
OF DE JURE SEGREGATION, AND IN THE AB­
SENCE OF ANY CLAIMS, PROOFS OR FINDINGS 
CONCERNING EITHER THE ESTABLISHMENT OF 
THE BOUNDARIES OF THE 86 PUBLIC SCHOOL 
DISTRICTS IN WAYNE, OAKLAND AND MACOMB



-89-
C O U N T IE S  O R  W H E T H E R  A N Y  O F T H E S E  86 
S C H O O L  D IS T R IC T S , E X C E P T  D E T R O IT , H A V E  
C O M M IT T E D  A N Y  A C T S  O F D E  J U R E  S E G R E G A ­
T IO N , T H E  D IS T R IC T  C O U R T  M A Y  N O T  A D O P T  A  
M E T R O P O L IT A N  R E M E D Y  IN C L U D IN G  A T  L E A S T  
53 S C H O O L  D IS T R IC T S  A N D  780,000 P U P IL S .This portion of the brief is directed to the following orders of the lower court, all of which these defendants maintain are manifestly erroneous:

“ 2. Ruling on Propriety of Considering a Metropol­itan Remedy to Accomplish Desegregation of the Public Schools of the City of Detroit, March 24, 1972;
4. Ruling on Desegregation Area and Development of Plan, and Findings of Fact and Conclusions of Law in Support thereof, June 14, 1972; and5. Order for Acquisition of Transportation, Ju ly  11, 1972 . . . ”  (IBa 591)In its “Ruling on Propriety of Considering a Metropol­itan Remedy” the lower court concluded that, although “ the Supreme Court has not yet ruled directly on this issue” it was proper for the trial court to consider a metropolitan remedy. Thus, fully aware of the lack of appellate precedent for such a course of action, the lower court commenced the process of fashioning a metropolitan remedy.Subsequently, in its “Findings of Fact and Conclusions of Law in Support of Ruling on Desegregation Area and Development of Plan” the lower court candidly stated the following:



■90—“ It should be noted that the court has taken no proofs with respect to the establishment of the boun­daries of the 86 public school districts in the counties of Wayne, Oakland and Macomb, nor on the issue of whether, with the exclusion of the city of Detroit school district, such school districts have committed acts of de jure segregation.”  (IB a 497-498)Thus, based only upon findings of de jure segregation within the Detroit public schools, in a state with a strong tradition of prohibiting, by state law, dual school systems, the lower court proceeded to enter its “Ruling on Desegregation Area and Order for Development of Plan of Desegregation” .This remedial order, the most sweeping ever entered in a school desegregation case, created a 53 school district desegregation area, involving at least 780,000 or 1/3 of the state’s public school pupils, and established a desegrega­tion panel charged with the responsibility of preparing interim (Fall term, 1972), and final (Fall term, 1973) plans of desegregation with, as an irreducible minimum, K-6 pupil reassignment and transportation in as many clusters as practicable by the Fall of 1972, together with faculty integration in the Fall of 1972 by reassigning teachers with­in the 53 affected school districts. This order compels these defendants or some or them to bear all reasonable costs incurred by the judicially created desegregation panel, to disapprove all new construction plans when housing pat­
terns in an area would result in a school largely segregated on racial lines, and to take immediate action concerning the establishment of faculty and staff inservice training and the employment of black counselors. Further, such order compels the Superintendent of Public Instruction to make recommendations to the Court for appropriate interim and final arrangements for the financial, adminis­trative and school governance, and contractual arrange-



■ 91-ments for the desegregation area independently of the pro­visions of Michigan law. (IB a 537-543)Subsequently, in its “ Order for Acquisition of Transpor­tation” the lower court commanded these defendants to pay for the acquisition of at least 295 buses for use in the partial, interim metropolitan desegregation plan during the 1972- 1973 school year. (IBa 576-577) The approximate cost of this initial order to acquire transportation for implemen­tation of a partial interim plan is approximately three million dollars since one school bus meeting Michigan standards costs approximately $10,500,00.There are preliminary aspects of the lower court’s order of June 14,1972 that deserve careful scrutiny by this Court. First, although the District Court specifically and expressly found no de jure segregation as to faculty and staff within the Detroit public schools. (IA a 205-209) this desegregation order commands that each school within the judicially created desegregation area must have at least 10% black faculty and staff. (IBa 541) Thus, in the absence of any finding of a constitutional violation as to faculty and staff teachers within the desegregation area having lawful con­tracts with boards of education covering wages, hours and conditions of employment are now subject to reassignment in school districts governed by other boards of education with whom they have no contractual relationship. See sec­tion 569 of 1955 P A  269, as amended, supra, and 1947 P A  336, as amended, M C L A  423.201 et seq; M SA  17.455(1) et seq.Second, the desegregation area established by the June 14, 1972 order includes 18 school districts, each an inde­pendent body corporate with the power to sue and be sued and to be represented by private counsel of its own choos­ing, under Michigan law, that have never been made parties to this cause. This novel exercise of judicial power, affecting



92—the educational welfare of thousands upon thousands of children and parents living in school districts not even parties to the case and against whom no findings have ever been made, except that the school district and its residents happen to be there, must be carefully evaluated by this Court. The tradition of equity is fairness. It cannot be said that this aspect of the lower court’s order is consistent with any notion of fundamental fairness.The lower court’s rulings and orders establishing a mas­sive metropolitan remedy in this cause must be tested against the controlling federal appellate precedents. These defendants submit that, when so tested, it is manifestly without doubt that the lower court exceeded the scope of its judicial authority in decreeing a metropolitan remedy herein, based only upon a finding of de jure segregation within the Detroit public schools.The leading United States Supreme Court case concern­ing school desegregation remedies is Swann v Charlotte- 
Mecklenburg Board of Education, supra, where a unani­mous court enunciated the following controlling principles:" . . .  The task is to correct, by a balancing of the individual and collective interests, the condition that offends the Constitution.“In seeking to define even in broad and general terms how far this remedial power extends it is important to remember that judicial powers may be exercised only on the basis of a constitutional violation . . .“ . . .  A s with any equity case, the nature of the violation determines the scope of the remedy . . . ”  p 16



93Here, the violation or condition that offends the Con­stitution is the lower court’s finding of de jure segregation within the Detroit public school system. Thus, judicial equitable remedial powers extend only to correcting the condition that offends the constitution as determined by the nature of the constitutional violation, de jure segrega­tion within Detroit. I t  cannot be said that the lower court’s metropolitan remedial orders are consistent with these governing principles. Rather, contrary to such principles, the lower court, based on a constitutional violation within one school district, and no more, has expanded the remedy to include 52 other school districts without the support of any claims, proofs or findings concerning either the estab­lishment of school district boundaries or any de jure con­duct by these 52 school districts.This Court, in a previous opinion in this cause, has recognized these sound principles governing the right to relief in the following language:
“ The issue in this case is not what might be a de­sirable Detroit school plan, but whether or not there are constitutional violations in the school system as presently operated, and, if so, what relief is necessary to avoid further impairment of constitutional rights. 

There must he a trial on the merits as to the alleged 
constitutional violations as a predicate to relief in 
the federal courts . .(Emphasis supplied) 438 F2d 945, at 946On the question of a metropolitan remedy, there has been neither any alleged constitutional violations, nor a trial on the merits concerning same in this cause.Moreover, the recent affirmance, with only one dissent, by the United States Supreme Court, of the holding of a



—94—three judge court that racial imbalance among school dis­tricts caused by housing patterns is beyond the scope of federal judicial intervention, compels the conclusion that the lower court erred in decreeing a metropolitan remedy. 
Spencer v Kugler, 1241-1243, supra. Here, as in Spencer v 
Kugler, supra, there has been no showing or finding that the school district boundary lines have been established and maintained for the purpose of segregating school child­ren by race.

As is demonstrated by the “ Ruling on Issue of Segre­gation” , at one time the City of Detroit and its public school system were 91% white. (IA a 196) Thus, it is be­yond dispute that the municipal and school district bound­ary lines were not established to segregate black students. Further, it must be observed that, of the 52 other school districts included within the metropolitan desegregation area, 9 of such school districts have, 9% or more black students. Thus, it is simply inaccurate to perceive Detroit, with a 63.8% black student body, as a black island sur­rounded by a sea of all white suburban school districts. ( IX  Ba 580-584) Moreover, under the teaching of Swann v 
CharioUe-MecTdenburg Board of Education, 31, 32, supra, district courts are not constitutionally required to monitor changing demographic patterns and make annual adjust­ments.In the only other case involving a metropolitan desegre­gation order similar to the one entered in this case, the Court of Appeals for the Fourth Circuit, reversed the District Court. In doing so, that Court held that absent a showing of invidious discrimination in the establishment and maintenance of school district boundary lines, the federal courts lack any authority to intervene. Bradley v 
School Board of City of Richmond, supra.



•95—A t least in that case, the lower court conducted a trial in which the suburban school districts were heard on the question of whether they had committed acts of de jure segregation. Here, there has never been any hearing, proofs or findings on the questions of school district boundary lines or the conduct of the suburban school districts. This is primarily attributable to the fact that plaintiffs have never plead any alleged constitutional violations with re­spect to such matters.Moreover, no valid distinction can be drawn between the two Bradley cases on the basis that the Virginia case required school district consolidation while, in the instant cause, the lower court has not expressly ordered such consolidation to date. The lower court has directed the Superintendent of Public Instruction to submit recommen­dations “ . . .  for appropriate interim and final arrangements for the (1) financial, (2) administrative and school gov­ernance, and (3) contractual arrangements for the operation of the schools within the desegregation area, including steps for unifying, or otherwise making uniform the personnel policies, procedures, contracts, and property arrangements of the various school districts.”  (IBa 542) Further, the trial court ordered the Superintendent of Public Instruction to make such recommendations independently of applicable existing state law. (IBa 543)An examination of the final recommendations submitted by the Superintendent of Public Instruction reveals that such recommendations contemplate, inter alia, the creation of an area-wide authority with certain finance and govern­ance powers and the imposition of an area-wide operating millage outside the 15 mill limitation, irrespective of whether the voters have approved such increase in the tax limitation set forth in Const 1963, art 9, § 6. (IBa 610-615). Further, the lower court’s remedial orders are directly



■96—contrary to Jones  v Grand Ledge Public Schools, supra, which holds that, under Michigan law, school districts have no legal duty to educate non-resident students. Clearly, implementation of the lower court’s order of June 14, 1972 will work marked and substantial changes in the present internal governmental structure of Michigan’s school dis­tricts.
As shown earlier in this brief, Michigan’s school dis­tricts are as independent from one another as one state is from another. Michigan school districts are legally and politically independent bodies corporate, each having its own locally elected board of education empowered, by stat­ute, to levy taxes, hire personnel, determine curriculum, and generally to operate the schools under its jurisdiction in providing educational services to the children residing within its boundaries. Thus, as stressed by the Chief Justice and 3 other Justices in dissent in Wright v Council of the 

City of Emporia, 4815, supra, “  [t]he discretion of a dis­trict court is further limited where, as here, it deals with totally separate political entities . . . ”Moreover, it must be emphasized that the majority opinion in Wright v Council of the C ity  of Emporia, 4810, supra, in rejecting the dominant purpose test and look­ing only at the effect of the proposed new school district boundary lines, did so only within the narrow context of considering . . the circumstances under which a federal court may enjoin state or local officials from carv­ing out a new school district from, an existing district that 
has not yet completed the process of dismantling a system 
of enforced racial segregation . . . ”  (Emphasis supplied) 4807. Thus, this case is expressly limited to the question of remedy, not, right to relief, and is further limited to the question of relief within the confines of the school dis­trict area previously found to be de jure segregated.



■97-The lack of authority for plaintiffs’ position concern­ing the propriety of a metropolitan remedy has been vividly illustrated to this court during the oral argument on Ju ly  20, 1972 concerning these defendants’ Application for Stay. A t that time, in response to a direct question from the bench, plaintiffs’ counsel cited to this Court United 
States v State of Texas, 321 F  Supp 1043, (ED Tex, 1970), 330 F  Supp 235, (ED Tex, 1971) affirmed and modified 447 F2d 441 (CA  5, 1971) Application for Stay denied sub. noin. Edgar v United States 404 U S  1206 (1971) as 
the federal judicial authority for a metropolitan remedy in this case. It must be stressed that the following analysis of such case will remove, once and for all, any remaining doubt that the metropolitan remedy decreed herein is with­out prior federal appellate precedent.In distinguishing United States v State of Texas, supra, from the instant cause, these defendants will utilize several quotes from the first District Court opinion, followed in each case by the reasons why such cause is not authority for the metropolitan remedy decreed herein:

“ . . . The allegations (in plaintiffs’ complaint) are based particularly on actions in connection with the creation and continued maintenance of nine all-black school districts . . . ” p 1045Thus, that case, unlike the instant cause, wTas pleaded and tried as a case involving the creation and maintenance of numerous school district boundaries, not as a case involving the question of de jure segregation within one school dis­trict, only Detroit, having a 63.8% black student body. Further, it dealt with 9 all-black school districts, not 53 school districts, a substantial number of which already have racially heterogeneous student bodies. (IX  Ba 580-584)



-98-“Prior to 1954, the State of Texas operated separate schools for white and black children pursuant to the State Constitution and statutes. The result was com­monly the so-called dual school districts. The necessity for separate education, enhanced by the sparce settle­ment of many rural areas in the State, also led to the establishment of school district lines enclosing single schools established to serve small communities, often consisting only of members of one race . . .  ” p 1047
“ • • • AH except three of the all-black districts have fewer than 100 students . . . ”  p 1048Thus, that case arose in a situation where, pursuant to both state constitutional and statutory provisions com­manding racially separate schools, miniscule rural all-black school districts were created in sparsely settled rural areas. Here, in a state with a strong tradition of prohibiting racially separate schools by both constitutional and statu­tory provisions, we are dealing with an urban school district that, in 1920, was 91% white (IA a 196) and that presently has a student population that is 63.8% black.“Several of the school districts involved in this suit have experienced boundary changes and have experi­enced increases or decreases in their student enrollment because of interdistrict student transfers. The following districts have experienced boundary changes, due to the annexation or detachment (or both) of portions of their territory, which resulted in the removal of all, or virtually all, white children from the now all-black districts and the siphoning off of black students from neighboring districts with bi-racial enrollments: . . .” p 1049



-99-“ The school districts involved in this suit exhibit a pattern of student transfers which may be categorized as follows:(1) Black students transferring out of districts with bi-racial enrollment into predominantly or totally black districts.(2) White students transferring out of predomi­nantly black districts into predominantly or totally white districts.(3) Students of all races transferring out of their home districts to attend grades not offered there.” pp 1049-1050Thus, in that case, the lower court made specific findings concerning both school district boundary alterations and interdistrict student transfers that contributed to the exist­ence of 9 all-black school districts. Such proofs and findings are totally lacking in the instant cause.“ Separate neighboring or overlapping school dis­tricts, one black and the other white, are unconstitu­tional when created and maintained to perpetuate a dual school system, and such districts require consoli­dation with nearby units so as to assure their students equal educational opportunities: (Citations omitted)“As noted above, Texas schools were segregated by law prior to 1954. This enforced segregation resulted in dual school systems within districts, as well as in the establishment of district lines which enclosed small communities often consisting only of members of one race. The existence of small districts with enrollments under 250 have not resulted solely from the legal re-



— 100quirement of segregation. B y isolating racially homo­geneous residential areas into formal political enclaves, district lines drawn prior to 1954 have entrenched segregation and insured its continuation after its legal basis was declared unconstitutional.” pp 1050-1051Thus, that case stands for the proposition that where, pursuant to state law, school district boundary lines are found to have been created, manipulated and maintained for the purpose of perpetuating a dual school system, the federal courts may remedy same by requiring the reorgan­ization of school districts to eliminate all-black school dis­tricts. Such holding is manifestly inapplicable to this cause. The lower court in this cause, by its own admission, neither took proofs nor made findings concerning the establishment of the boundaries of any of the affected school districts. Further, the lower court herein has not taken proofs or' made any findings as to whether any of the affected school districts, with the exception of Detroit, has committed any acts of de jure segregation.To summarize this part of the argument, based solely upon findings of de jure segregation within one school dis­trict, Detroit, the lower court has decreed a metropolitan remedy that is the most sweeping relief ever granted in a school desegregation case. In the absence of any claims, proofs or findings of metropolitan de jure segregation, whether as to the establishment of school district boun­daries or the conduct of the 52 suburban school districts, it must be concluded that such metropolitan remedy is for the purpose of achieving a judicially perceived desirable racial balance to avoid majority black schools in the Detroit public schools. This metropolitan remedy is being imposed without any finding of a metropolitan constitutional vio­lation.



— 101—The eases are legion that racial balance in the public schools is neither constitutionally required nor judicially enforceable in the federal courts. Absent a constitutional violation, boards of education have no affirmative con­stitutional duty to achieve racial balance in the public schools, Deal I  and I I ,  supra, Davis v School District of 
City of Pontiac, Inc, 575, supra, Keyes  v School District 
No. 1, Denver, Colorado, 1005, supra, and federal courts lack the authority to impose racial balance on the public schools within a school district. Swann v Charlotte-Mecklen­
burg Board of Education, 16, supra. Once a constitutional violation has been established, the constitutional obligation is to fashion a remedy commensurate in scope with the violation to correct the condition that offends the Consti­tution. Swann v Charlotte-Mecklenburg Board of Educa­
tion, 16, supra. However, the constitutional obligation is to convert to a unitary school system in which school au­thorities exclude no pupil of a racial minority from any school on account of race. Even in the remedy stage of a school desegregation case, the Constitution does not require any particular degree of racial balance. Swann v Charlotte- 
Mecklenburg Board of Education, 23-24, supra.Finally, in the absence of a constitutional violation as to the creation and maintenance of school district bound­aries, the federal courts lack the authority to alter or ignore such boundries and impose remedial decrees for the purpose of achieving racial balance within school dis­tricts. Spencer v Kugler, supra, Bradley v School Board 
of C ity of Richmond, supra. Thus, the lower court is in error in decreeing a metropolitan remedy herein and must be reversed by this Court.



— 102—

X I I .

S T A T E  O F F IC IA L S  M A Y  N O T  B E  C O M P E L L E D  B Y  
A  D IS T R IC T  C O U R T  IN  A  S C H O O L  D E S E G R E G A ­
T IO N  R E M E D IA L  O R D E R  TO P E R F O R M  A C T S  
B E Y O N D  T H E IR  L A W F U L  A U T H O R IT Y  TO P E R ­
F O R M  U N D E R  S T A T E  L A W .The Michigan Constitution establishes the limitations on defendants in the expenditures of funds.Const 1963, art 4, § 30:“ The assent of two-thirds of the members elected to and serving in each house of the legislature shall be required for the appropriation of public money or property for local or private purposes.”Const 1963, art 9, § 17:No money shall be paid out of the state treasury except in pursuance of appropriations made by law.”The District Court has ordered defendants to pay for 295 buses, the costs of the panel, hiring black counsellors and to provide inservice training for teachers and admin­istrators and to assume other costs to carry out the District Court’s order of June 14,1972. The cost, estimated by these defendants, of an interim program of inservice training prior to the opening of the 1972-1973 school year is over $3,000,000. Another $3,000,000 would be spent on the pur­chase of 295 buses. The legislature has not appropriated money to be spent for such purposes. These defendants are thus ordered to perform actions not authorized by Michigan law and to expend state funds contrary to state laws not found unconstitutional by the district court, and before appellate review of the ordered remedy.



—103-In remedying state imposed segregation in the public schools, the federal courts may only order state officials to exercise such powers as they possess under state law. This rule was succinctly stated in Bradley et al v School- 
Board of the City of Richmond, Virginia, et al, 51 F E D  139, 142 (ED  Ya, 1970), as follows:“ To be sure, state officials may only be directed, in fulfillment of this duty, to use those powers granted to them by state law. For this reason the relief which may be demanded of state, as opposed to local, officials is restricted. Smith v North Carolina, State Board of 

Education, Misc. No. 674 (4th Cir., Ju ly  31, 1970). B y the same token there will be certain relief which local officials are incapable of affording. Of. Thaxton 
v. Vaughan, 321 F2d 474 (4th Cir. 1963). In each case, however, the obligation is commensurate with the scope of the power conferred by state law .”Here, there is no obligation on the part of state defend­ants and intervening defendants given the “ scope of the power conferred by state law” , Bradley, supra, to provide funds for the enumerated purposes. State law specifically prohibits expenditures of funds for a purpose for which there has been no appropriation. Const 1963, art 9, § 17, supra. That no appropriation has been made is shown in the next section of this brief.In further proceedings in the Smith case, cited above, the Court of Appeals for the Fourth Circuit at 444 F2d 6 (CA  4, 1971), affirmed the action of a single Circuit Judge in restricting the demands which could be made on the State Board of Education and the Superintendent of Pub­lic Instruction. The Circuit Judge, while noting that the state authorities were obviously involved in public educa-



—104—tion in the state, also said that they could find no authority for those defendants to be involved with school attendance plans. Having found no such statutory authority, and find­ing that authority over school attendance zones was vested in the local school districts, the Court, sitting en banc, vacated the order of the district judge requiring the public officers to involve themselves in the desegregation plans. The Court did not, however, preclude the defendants from assisting “ within their respective areas of responsibility as established by state law.”  p. 8.The same principle which was used in Bradley and Smith was applied in United States v School District 151 
of Cook County, Illinois, 301 F  Supp 201 (ND 111, 1969), affirmed as modified 432 F2d 1147 (CA  7, 1970), cert den 402 U S  943 (1971), where the District Court for the North­ern District of Illinois declared that a person’s constitu­tional rights could not be denied merely because the imple­mentation of those rights would require the expenditure of funds, though the court did not reject the concept that financial resources were relevant to the type of plan en­acted. It  did say that funds must be raised by the schools to the extent that they were authorised:“ . . . Ultimately, however, public officials must ‘ * * * esercise the p0wer that is theirs * * * to raise funds adequate to * * * maintain without racial dis­crimination a public school system. * * * ’ G riffin  v 

County School Board, 377 U .S . 218, 233, 84 S. Ct. 1226, 1234, 12 L .E d. 2d 256 (1964).”  p  232.Lest it be forgotten in the rush to require these defend­ants to pay for the enumerated expenses of the Detroit and metropolitan school districts, it is clear that while these defendants are not empowered to provide these services, the local school districts, in some instances, clearly are.



-105-School districts are authorized at section 594 of the school code, M C L A  340.594; M SA  15.3594 to purchase buses. Authorization for the boards to hire personnel, such as counselors, is provided at M C L A  340.569; M SA 15.3569 and M C L A  340.574; M SA  15.3574.The G riffin  and other cases cited in this section clearly stand for the propostion that public officials, if  they have both the power to levy taxes and the authority to spend those taxes for a given purpose, may be required to levy taxes for that given purpose. It  does not stand for the proposition that public officials without power to levy taxes, appropriate money, or spend for unauthorized pur­poses, will be required to do so by a federal court.
X I I I .

T H E  E X P E N D IT U R E S  O F S T A T E  F U N D S  FR O M  T H E  
S T A T E  T R E A S U R Y  R E Q U IR E D  B Y  T H E  D IS T R IC T  
C O U R T  IN  T H IS  C A S E  A R E  N O T  A U T H O R IZ E D  
B Y  T H E  A P P R O P R IA T IO N  A C T S  O F T H E  M IC H IG A N  
L E G IS L A T U R E  A S  R E Q U IR E D  B Y  T H E  M IC H IG A N  
C O N ST IT U T IO N .The District Court has ordered these defendants to pay for not less than 295 buses. (IBa 576-77) The record is un­disputed that a new bus costs approximately $10,500.00 so that the projected cost of 295 buses is in excess of $3,000,000.00. The District Court has also ordered these defendants to pay the costs of the panel. (IBa 538) These are presently estimated at approximately $22,500.00. Further, all the defendants are ordered to hire black counsellors and to provide in-service training of teachers in the 53 school, district “ desegregation area.”  (IBa 542) The District Court was informd by these defendants that



— 106—initial cost of in-service training was approximately $3,000,000.00.There are four current acts of the legislature of Mich­igan which appropriate funds for the . . Michigan Board of Education, any affected local school district or board of education, general educational purposes, or gen­eral emergency purposes.”  (IBa 597)
1937 PA  120 (IX  Ba 641-42)We begin by considering Michigan statutes making emergency appropriations. Research reveals that there is only one such statute, 1937 P A  120, as amended, M C LA  5.1 et seq; M SA  3.316(1) et seq. Basically this statute appro­priates the annual sum of $100,000.00 and sets up a special commission consisting of the governor, the speaker of the house of representatives, the president of the senate and members of the house and senate appropriations commit­tees (a total of 24 members for both committees) to release sums from such appropriation for emergency purposes. It must be noted that the only member of the commission that is a party to this action is the governor.Sec. 2 therefor provides in part:“ The commission shall not have the authority to appropriate money for any purpose that could have been anticipated and made while the legislature was in session, nor for any purpose that has been considered and denied by the legislature.”  ( IX B a  641)The statute further provides that no release of funds from the appropriation shall be made unless it is approved by a majority of the members of the commission. The governor is authorized to veto any action of the commission



■107—within 5 days of such action and the commission is em­powered to override such veto within 14 calendar days thereafter.This commission has been described as “ the little legis­lature”  by the attorney general in O AG 1947-48, No 597, p 461. It  was created by 1937 P A  120 as an executive body which can exercise no legislative functions.When the legislature enacted 1937 P A  120, supra, Const 1908, art 5, § 13 provided that the legislature shall meet on the first Wednesday in January of every odd year. Thus, it must be concluded that the legislature intended that the commission act only when the legislature is not in session. It  is noted that the people amended Const 1908, art 5, § 13 at the Biennial Spring Election held on April 2, 1951, to require the legislature to meet on the second Wednesday in January of each year. Since the enactment of 1937 P A  120, its provisions have been administered by the commission on the basis that the little legislature was authorized to act only when the legislature was not in session. It  should also be observed that since 1959 the commission has not acted at all. This administrative con­struction is supported by the clear intent of the legislature as expressed in the portion of See. 2 of 1937 P A  120, supra, quoted above. An administrative construction given to a statute by persons charged with the duty of executing it is entitled to the respectful consideration of the courts and should not be overruled without cogent reasons. Magreta v 
Ambassador Steel Co, 380 Mich 513 (1968).The 1972 Michigan legislature is presently in session although both houses are adjourned to September 5 and 6, 1972 respectively because of the pending primary election for members of the House of Representatives which was held on August 8, 1972. Journal of the House No 98,



•108—p 2705; Journal of the Senate No 96, p 1814. It should be noted that under Rule 14 of the Joint Rules of the House and Senate, 1971-72, upon a majority vote of a committee composed of President pro tempore of the Senate, the majority leader of the Senate, the Speaker of the House of Representatives and the Speaker pro tempore of the House of Representatives, either or both houses of the legislature in session but adjourned to a date certain can be convened in the case of emergency.In 1972 P A  225, § 19, ( IX  Ba 620) which will be discussed infra, the legislature has provided for emergency loans to insolvent school districts upon “ approval of an application for an emergency loan by concurrent resolution of the legislature or, when the legislature is not in session by majority vote of the members of the special commission on appropriations created by Act No. 120 of the Public Acts of 1937, as amended. . . . ”  Although this is a 1972 statute, its plain terms confirm the legislative intent that the special commission on appropriations created by 1937 P A  120 shall act only when the legislature is not in session.Based upon the administrative construction of 1937 P A  120, and, particularly the legislative intent as expressed in Sec. 2 thereof, the special commission created under 1937 P A  120 has exercised its powers only when the legislature was not in session. Since the 1972 Michigan legislature is in session and adjourned to September 5 and 6, 1972, it must follow that 1937 P A  120 is not available as a general emergency purpose appropriation act for the purpose of expending state funds for buses, the costs of the panel, hiring black counsellors and providing in-service training for teachers in the desegregation area.



—109—
1972 P A  225 (IX  Ba 617-620)We nest consider 1972 P A  225 appropriating the sum of $300,000.00 from the general fund to the school emer­gency loan revolving fund. Pursuant to Sec. 3 of 1972 P A  225, a board of education of a school district, which incurs a deficit, is unable to meet its financial obligations and its financial condition is attributable, at least in part, to annual collections on tax settlement day of less than 85% of ad valorem taxes levied by the district, may apply for an emergency loan from the state. Before a school district can be eligible for an emergency loan it must certify that the school district is insolvent, based upon a certified audit by the state treasury department. Application for an emer­gency loan must be made to the state board of education, which shall make an appropriate recommendation to the governor for review and recommendation to the legisla­ture. The legislature, if in session or the special commis­sion on appropriations created by 1937 P A  120, supra, must approve the loan. Loans made under the act must be repaid in not more than 10 years plus interest at the rate of 6% per annum. This act expires on June 30, 1973.It must be stressed that no school district is eligible to obtain an emergency loan unless it incurs a deficit verified by the state treasury department which is attributable, at least in part, to annual collections of ad valorem property taxes less than 85% on tax settlement day.This Court is asked to take judicial notice of the records of the Municipal Finance Commission, an agency of the state of Michigan. Their records indicate that there is presently only one school district in Michigan, the Baldwin Public School District located in the central part of the state, with a tax collection of less than 85% on tax settle­ment day. The records of the Municipal Finance Com-



—H O -mission also show that for the fiscal years 1966-67 through 1970-71, the tax collection rate for the Detroit School District was 95% or better for each fiscal year.Thus, it must be concluded that none of the 53 school districts within the “ desegregation area”  designated by the District Court would be eligible for emergency loans under 1972 P A  225. It  is also abundantly clear under the plain terms of 1972 P A  225 that none of the $300,000 appropriated thereunder is available to any of these defendants to be expended for any of the purposes ordered by the District Judge.
1972 PA 246 (IX Ba 597-616)Consideration should next be given to 1972 P A  246, which makes appropriations from the general fund for the department of education for the fiscal year 197J°-73. This act makes no appropriation for the governor, the attorney general or the state treasurer, defendants herein The total appropriation is slightly in excess of $36,000,000. In our discussion of this act we will round off sums to the nearest amount.A t the outset it should be stressed that some $14,000,000 of such appropriation is to be paid for Michigan residents attending Michigan colleges and universities by way of scholarships or grants. In excess of $2,000,000 each have been appropriated for the operation of the Michigan School for the Blind and Michigan School for the Deaf. The legis­lature has appropriated in excess of $3,000,000 for library services, and nearly $5,000,000 for vocational * education and rehabilitation services. A s to the appropriation of state funds for library services and vocational education and rehabilitation services, some of the appropriations that had been made match federal grants. Additional moneys



- 111-are also appropriated to match federal grants and must be spent in accordance with appropriate federal laws. In additon, $500,000 has been appropriated for the State Technical Institute and Rehabilitation Center.The remaining moneys have been appropriated to the department of education to staff component units of the department, including an education data center, department services, school management, research and education plan­ning, educational audit and improvements, elementary and secondary grant program, special education, higher educa­tion planning, certification and teachers education, the staffing of the financial aids to students section and adult and continuing education and other services.In large part, the appropriations for departmental serv­ices are line items for “ salaries and wages—not to exceed -----  actual positions”  and for contractual services, sup­plies and materials to serve the various sections. In Sec. 9 the legislature has made its intent crystal clear that appro­priations for unclassified positions shall be used for such positions only and the appropriations for salaries and wages shall be used only with respect to classified positions established by the civil service commission. ( IX  Ba 611)Moreover, in See. 2(b) the legislature has specified that “  [e]ach of the amounts appropriated shall be used solely for the respective purposes herein stated except as other­wise provided by law . . . ”  ( IX  Ba 610)In making an appropriation, the legislature may attach any condition it may deem expedient or wise, and the body receiving the appropriation cannot receive it without com­plying with the conditions. Weinberg v Regents of Univer­
sity, 97 Mich 246, 254 (1893). The State Department of Education, created by Const 1963, art 8, § 3, “ shall have



—112-powers and duties provided by law.”  In the case of the Department of Education, the legislature not only has the power to impose conditions on an appropriation, but since the Department has “ powers and duties provided by law” , the legislature has the power to require compliance with the conditions. Thus, the holding of the court in 
State Board of Agriculture v Auditor General, 226 Mich 417, 425 (1924), —• that the condition may not invade the constitutional powers of the recipient — has no applica­tion to the Department of Education.Since the expenditures required by the District Court under its orders of June 14,1972 (IBa 535) and Ju ly  11,1972 (IBa 576) are not within the purposes as set forth in 1972 P A  246, these defendants have no authority to expend any of the moneys contained therein for the purposes as ordered by the District Court.While this Court’s question is directed to current acts only, an examination of previous annual appropriations acts for the department of education for the past three fiscal years, 1971 P A  120, 1970 P A  84 and 1969 P A  307, is useful because it reveals no appropriation for the purchase of school buses for school districts, for the hiring of black counsellors or for in-service teacher training and for the payment of the cost of any panel ordered by a district court or any other court for that matter. The same is true of the provisions of 1972 P A  246. Thus, if any of the line items in 1972 P A  246 could somehow be construed to include the orders of the District Court, clearly such expenditures would be for new programs not previously approved by the legislature. Sec. 7 of 1972 P A  246, quoted in part here, would be applicable. It  provides:“ No state agency shall establish new programs nor expend programs including any program involving



—113-—federal or other funds, beyond the scope of those already established, recognized and appropriated for by the legislature, until such program and the avail­ability of money shall be submitted by each agency to the budget director for recommendation to the legis­lature and until each program has been authorized and funds appropriated therefor by the legislature . . . ”  ( IX  Ba 611)Beading the line item appropriations in 1972 P A  246, and the restrictions placed thereon by the legislature, it is clear that the act makes no provision for the purchase of and payment for 295 buses recommended by the panel, for the costs of the panel, for the hiring of black counsellors, or for the costs of in-service training for teachers and adminis­trators as ordered by the District Court. (IBa 535; IB a  576)
1972 PA 258 (IX Ba 621-640)The next appropriation act to consider is 1972 P A  258, signed by the Governor on August 8, 1972 and given im­mediate effect by the legislature, which is known as the state school aid act of 1972. ( IX  Ba 621-640) It  must first be observed that, pursuant to the item veto power con­ferred upon him by Const 1963, art 5, § 19 to veto any distinct item or items appropriating moneys in an appro­priation bill, the Governor vetoed Sections 22, 46, 47 and 48 of 1972 P A  258.In analyzing 1972 P A  258, it is instructive to first observe that, pursuant to Const 1963, art 9, § 11, the people have established the state school aid fund in the following language:“ There shall be established a state school aid fund which shall he used exclusively for aid to school dis­

tricts, higher education and school employees’ retire-



—114—
ment systems, as provided by law. One-half of all taxes imposed on retailers on taxable sales at retail of tan­gible personal property, and other tax revenues pro­vided by law, shall be dedicated to this fund. Pay­ments from this fund shall be made in full on a scheduled basis, as provided by law.”[Emphasis supplied]The Address to the People accompanying this constitu­tional section provided, in pertinent part, as follows:“ This is a new section which directs the legislature to establish a school aid fund to which must be dedicated one-half of all state sales tax collections and such other revenues as the legislature may determine. Moneys in the fund must be used for support of educa­tion and school employees’ retirement systems. Pay­ments from the fund are to be made in full on a basis scheduled by legislative enactment. ’ ’Thus, it is clear that the constitutionally established state school aid fund must be used exclusively for aid to school districts and other specified educational purposes. This fund was not created for the purpose of providing funds to be appropriated, by enactment of the legislature, to any of these defendants. Further, payments from the fund to its designated recipients must be made as provided by statute.In Sec. 11 of 1972 P A  258, the legislature has provided as follows:“ There is appropriated from the school aid fund established by section 11 of article 9 of the constitu­tion of the state for each fiscal year, the sum necessary to fulfill the requirements of this act, with any de­ficiency to be appropriated from the general fund by



115the legislature. The appropriation shall be allo­
cated as provided in this act.”  [Emphasis supplied] ( IX  Ba 622)It should be observed that Sec. 14 of 1972 P A  246 provides:“ There is appropriated to the state school aid fund from the general fund of the state for the fiscal year ending June 30, 1973, such sum as may be necessary to pay the amount of state aid for schools as author­ized by Senate Bill No. 1269 of 1972.”  ( IX  Ba 613)Further, 1972 P A  258 is also Senate Bill No. 1269. Thus, for the 1972-73 fiscal year the legislature has appropriated, from the general fund to the state school aid fund what­ever additional amount is necessary to meet the require­ment of 1972 P A  258 for aid to school districts.Sections 17 and 18(1) of 1972 P A  258 provide:“ Sec. 17. On or before August 1, October 1, Decem­ber 1, February 1, April 1 and June 1, the department shall prepare a statement of the amount to be dis­tributed in the installment to the districts and deliver the statement to the state treasurer, who shall draw 

his warrant in favor of the treasurer of each district 
for the amount payable to the district according to the 
statement and deliver the warrants to the treasurer of 
each district.”  [Emphasis supplied]“ Sec. 18. (1) Except as provided in chapters 3, 4and 6, each district shall apply the moneys received by it under this act on salaries of teachers and other employees, tuition, transportation, lighting, heating and ventilation and water service and on the purchase



•116-of textbooks and other supplies. An amount equal to not more than 5% of the total amount received by any district under chapter 2 may be expended by the board for capital costs or debt service for debts contracted after December 8, 1932. No part of the money shall 
be applied or taken for any purpose whatsoever except 
as provided in this section. The department [State Department of Education] shall determine the reason­ableness of expenditures and may withhold from any district the apportionment otherwise due for the fiscal year following the discovery by the department of a violation by this district. . . . ”  [Emphasis supplied] ( IX  Ba 623)By its plain and unambiguous terms, this statute appro­priates funds to school districts rather than to any of these defendants. Thus, 1972 P A  258 provides neither funds nor authority for these defendants to make any of the expend­itures required of them by the District Court herein. Further, the Department of Education and, ultimately, the State Treasurer, disburse the funds appropriated to school districts by 1972 P A  258 in accordance with the allocation formulas established by the legislature and the funds may be expended by the school districts only for those purposes authorized by the legislature,In addition to appropriating state school aid fund moneys to school districts, Chapter 17 of 1972 P A  258 contains appropriations from such fund to both the Michi­gan Public School Employees’ Retirement System and the Detroit Public School Employees’ Retirement System. ( IX  Ba 639-40) Clearly, such appropriations provide neither funds nor authority for these defendants to make any of the expenditures required of them by the District Court herein.



-117-In summary, by both constitutional (Const 1963, art 9, § 11) and statutory provisions (Sections 11, 17, 18 and Chapter 17) the state school aid fund moneys appropriated by 1972 P A  258, as supplemented by Section 14 of 1972 P A  246, are appropriated either to school districts or to retire­ment systems for public school employees. This statute, 1972 P A  246, clearly does not appropriate state school aid funds to any of these defendants. Thus, 1972 P A  246 pro­vides neither funds nor authority for these defendants to make any of the expenditures required of them by the District Court.
X IV .

SECTION 803 OF THE EDUCATION AMENDMENTS OF 
1972, PUB. L. NO. 92-318, APPLIES TO METROPOL­
ITAN TRANSPORTATION ORDERS WHICH HAVE 
BEEN OR MAY BE ENTERED BY THE DISTRICT 
COURT IN THIS CASE.Section 803 of the Education Amendments of 1972, Pub L  No 92-318, reads as follows:“Sec. 803. Notwithstanding any other law or pro­vision of law, in the case of any order on the part of any United States District Court which requires the trans­fer or transportation of any student or students from any school attendance area prescribed by competent State or local authority for the purposes of achieving a balance among students with respect to race, sex, religion, or socio-economic status, the effectiveness of such order shall be postponed until all appeals in con­nection with such order have been exhausted or, in the event no appeals are taken, until the time for such appeals have expired. This section shall expire at mid­night on January 1,1974.”



-118-A . IN IT IA L  O B S E R V A T IO N S1. The section was offered by Congressman Broomfield as a “non-germane” amendment to the educational amend­ment contained in S 659.117 Cong Rec H10407-10408 (Daily ed, November 4, 1971).2. The expressed sole purpose of the amendment was to stay during appeal. Congressman Broomfield said:“My amendment would only delay a lower court’s busing order until all those parties had a chance to plead their case in their court of last resort.” Id, p H10408.
3. By its express terms the language of the amendment purports to do no more than grant a stay “ of any order on the part of any United States District Court which re­quires the transfer or transportation of any student or students from any school attendance area prescribed by competent State or local authority for the purpose of achieving a balance among students with respect to race, sex, religion, or socio-economic status”  until all appeals in connection with such orders have been exhausted or the time therefore has expired.4. The stay granted pending appeal is applicable only to orders requiring “ the transfer or transportation of any student or students from any school attendance area pre­scribed by competent State or local authority.”  Therefore, it is at least arguable that the amendment has no applica­tion to what is believed to be the historic de jure segregated school system—where by state law (statute and constitu­tion) all black children, regardless of where they lived within the school system, were required to attend certain schools, and all white children, regardless of where they



— 119—lived within the system, were required to attend certain other schools. See, e. g., Green v County School Board of 
New K ent, 391 U S  430 (1968). This also appears to be the intention of the sponsors of the amendment as disclosed by the congressional debates, of which more later.5. The purpose of the amendment, i. e., the providing of a stay pending appeal in connection with orders requir­ing transfer of students from school attendance areas pre­scribed by competent State or local authority, is entirely different from the purpose evinced by either section 802(a) of the Education Amendments of 1972, or by 42 U S C  2000c(b) and 2000c-6 held to be inapplicable to that case in 
Swann v Charlotte-Mecklenburg Board of Education, 402 U S  1, 17-18 (1971). Section 802(a) prohibits the use of appropriated funds for transportation of students to over­come racial imbalance in any school or school system or to carry out a plan of racial desegregation. In Swann, the question was the “ remedy for state-imposed segregation in violation of Brown I . ”  p 18. The state imposed segrega­tion was separate schools for white and black prescribed by state law. The case did not involve school attendance areas. The statute, 42 U S C  2000c and 2000c-6, by its express terms did not purport to affect existing remedies, but only to in­sure that the sections were not interpreted to expand exist­ing remedies. In short, the Court in Swann quite properly concluded that 42 U S C  2000c and 2000c-6 did not expand its powers to deal with the Brown I  segregation violation.
B , T H E  D I S T R I C T  C O U R T ’S  D E C IS IO N  A N D  

O R D E R S —D E S E G R E G A T IO N  OR R A C IA L  B A L ­
A N C E ?These defendants respectfully submit that a fair reading of the record in this case conclusively reveals that sometime during these proceedings the District Court developed an



— 120—abiding conviction, in good faith, that it should remedy what it perceived as an undesirable racial imbalance (63.8% black, 34.8% white) existing in the Detroit public schools when compared to the larger metropolitan area. While these defendants vigorously disagree with the legal conclusions advanced by the District Court in support of a metropolitan remedy, they do not for one minute ques­tion the sincerity of the District Court, both as a person and as an institution, in striving to effectuate what it perceived as the best interests of the school children of the Detroit public schools.On page 22 of the “Buling on Issue of Segregation” the Court said:
“ * * * It  is, the Court believes, unfortunate that we 

cannot deal with public school segregation on a no­
fault basis, for if racial segregation in our public 
schools is an evil, then it should make no difference 
whether we classify it de jure or de facto. Our objec­
tive, logically, it seems to us, should be to remedy a 
condition which we believe needs correction. * * * ”  
(lA a  210)A t the hearing of October 4, 1971, the Court remarked as follows:“ The Court has made its determination of things as they are, or as it found things in the public school system of the City of Detroit. Our concern now—to take a thought from Aristotle—is of things as they might be, or ought to be.

“ As the Court indicated during the course of the taking of proofs, it entertains serious reservations



•121-about a plan of integration, which encompasses no more than the public schools of the City of Detroit. It appears to us that perhaps only a plan which embraces all or some of the greater Detroit metropolitan area can hope to succeed in giving our children the kind of education they are entitled to constitutionally.
# # #“A  large metropolitan area such as we have in our case cannot be made the subject of instant integration. 

We must bear in mind that the task we are called upon 
to perform is a social one, which society has been un­
able to accomplish. In  reality, our courts are called 
upon, in these school cases to attain a social goal, 
through the educational system, by using law as a 
lever. (Emphasis supplied)

#  #  *

“ 1 would sum up our endeavors in developing a 
metropolitan plan as an embarkation on an unchart­
ered course in strcmge waters in an effort to rescue 
disadvantaged children.”  (Emphasis supplied) (IV  a 454-455)In commenting on the plaintiffs’ plan for desegregation of the Detroit public schools in the Findings of Fact and Conclusions of Law on Detroit Only Plans of Desegrega­tion, the Court said:“ 7. The plan would make the Detroit school system more identifiably Black, and leave many of its schools 75 to 90 percent Black.“8. It  would change a school system which is now Black and White to one which would be perceived as



- 122-Black, thereby increasing the flight of Whites from the city and the system, thereby increasing the Black student population.”  (IBa 458)An examination of the Ruling on Desegregation, June 14, 1972, makes the purpose and intent of the District Court crystal clear.“ Pupil reassignment to accomplish the desegrega­
tion of the Detroit public schools is required within the geographical area which may be described as en­compassing the following school districts (see Exhibit P.M . 12), and hereinafter referred to as the ‘ desegre­gation area’ ” : (Emphasis supplied)(53 school districts are described by name, includ­ing Ecorse, Hamtramck, Highland Park, Inkster, River Rouge, Westwood, among others) (IBa 539)“Within the limitations of reasonable travel time and distance factors, pupil reassignments shall be ef­fected within the clusters described in Exhibit P.M. 12 so as to achieve the greatest degree of actual desegre­gation to the end that, upon implementation, no school, grade or classroom be substantially disproportionate to the overall pupil racial composition.”  (IBa 539-540)Exhibit P.M . 12 (IX B a 580-584) shows that the racial make­up of pupils in the “ desegregation area” is roughtly 75% white and 25% black. It also indicates the following:Ecorse Hamtramck Highland Park Inkster River Rouge Westwood

50.8% black pupils 28.7% black pupils 85.1% black pupils 88.0% black pupils 43.2% black pupils 39.9% black pupils



—mI f  the true purpose and intent of the District Court’s desegregation area is “ to accomplish the desegregation of the Detroit public schools” , the transporting of white pupils from Highland Park into Detroit will only leave Highland Park with proportionately more black students. The same can be said of Inkster, Ecorse, River Rouge, Westwood and Hamtramck so that each district would contain much more than an average 25% black pupils for the desegregation area. The truth is that when these districts were made part of the ‘ ‘ desegregation area,”  there could be no intent to transport white pupils from any of these school districts into Detroit. Rather, the clear purpose was to transport black children from each of these districts into predominantly white school districts in order to reach the 75% white and 25% black configuration for the desegregation area. This is amply borne out by examining the clusters in Exhibit P.M . 12. (IX B a  582)
Total Percent

Total Black Black
District 
Cluster 6

Students Students Students

Birmingham 16,912 7 .0Hazel Park 7,868 1 .0Highland Park 7,708 6,556 85.1Royal Oak 18,583 5 .0Detroit Murray 9,564 7,042 73.660,635 13,611 22.4”(IX B a 582)It is demonstrable that in order to achieve a rough popu­lation of 75% white and 25% black in Cluster 6, black pupils from Highland Park and Detroit Murray will be transported to Birmingham, Hazel Park and Royal Oak, while white pupils from Birmingham, Hazel Park and Royal Oak will be transported to Highland Park and Detroit Murray. There will be no movement of pupils between Highland



—124—Park and Detroit Murray. Thus, it cannot be said that the pupils in Highland Park, white or black, must be reas­signed “ to accomplish the desegregation of the Detroit Public Schools.” What must be said, and it is the only conclusion possible, that the inclusion of Highland Park within the “ desegregation area” as a part of Cluster 6 will serve to racially balance pupils in the Birmingham, Hazel Park, Royal Oak, and Highland Park School Districts as well as in the Detroit Murray constellation.Examination of the inclusion of Inkster and Westwood within the “ desegregation area” is even more conclusive.
Total Percent

Total Black Black
District Students Students Students
Cluster 12Cherry Hill 4,627 16 .3Inkster 4,311 3,795 88.0Wayne 23,218 30 .1Westwood 4,961 1,980 39.9Detroit Chadsey 5,998 2,053plus Cadillac JH S1/5 Cooley 4,250 2,526 44.743,420 10,400 22.0”(IX B a 583)How the inclusion of the Inkster and Westwood school districts can help to desegregate the Detroit Chadsey and remaining identified Detroit schools is beyond our imagina­tion. The Detroit school constellations are less than 50% black. Inkster is 88% black and Westwood is 40% black. In order to achieve the mix of 75% white and 25% black in Cluster 12, black pupils from not only the Detroit schools but Inkster and Westwood school districts will be trans­ported to Cherry Hill and Wayne school districts, and white



■125-children from Cherry Hill and Wayne school districts will be transported not only to the Detroit schools but to Inkster and Westwood school districts. Thus, there can be no basis to conclude that the pupils in Inkster and West- wood are needed to desegregate the Detroit public schools.A  study of Cluster 14, involving River Rouge, and Clus­ter 13, involving Ecorse, compel the similar conclusion that neither school district is necessary to desegregate the De­troit public schools, but rather the District Court is applying a racial balance not only to the Detroit public schools but the River Rouge and the Ecorse school districts as well.Finally, brief reference should be made to the inclusion of the Hamtramck school district in the desegregation area as necessary to accomplish the desegregation of the De­troit public schools. Its black students represent 28.7% of its pupil population. Thus, this district is a little above the 75% white and 25% black pupil composition for the 53 district desegregation area. In order to meet this formula, it will be necessary to transport a limited number of black pupils out of Hamtramck but certainly not to the Detroit Pershing constellation. Obviously this transporta­tion will be to Clawson, Lamphere, Madison Heights or Troy, thus assisting in small part at least in the desired racial balance in these five school districts but not the Detroit Perishing constellation.It  is recognized that the panel appointed by the District Court has recommended some adjustments in the various clusters but the suggested changes do not affect in one iota the inescapable conclusion that under the guise of accomplishing the desegregation of the Detroit public schools, the District Court has proceeded to order the racial balancing of the white and black pupil populations in a “desegregation area” within southeastern Michigan roughly



—1 2 6 -matching the total population of white and black pupils in this large geographical area.The point is further illustrated by the Ruling on Deseg­regation Area, June 14, 1972, at page 6:“ Provided, however, that if  in the actual assign­ment of pupils it appears necessary and feasible to achieve effective and complete racial desegregation to reassign pupils of another district or other districts, the desegregation panel may, upon notice to the par­ties, apply to the Court for an appropriate modifica­tion of this order.”  (IBa 539)The panel in effect is given the prerogative to racially balance an unlimited area, subject only to it being “ feasi­ble.”
The “ social goal” to be attained “ through the educational system, by using law as a lever” had been achieved. This social goal is to minimize the proportion of black students in the public schools. Stated another way, the social goal is racial balance.
C. T H E  M E A N IN G  O F  S E C T IO N  803In Swarm, supra, the Court in speaking of Title IV  of the Civil Rights Act of 1964, 42 U S C A  2000c et seq, made the following observation:. . The legislative history of Title IV  indicates that Congress was concerned that the Act might be read as creating a right of action under the Fourteenth Amendment in the situation of so-called ‘de facto segregation , where racial imbalance exists in the



•127—schools but with no showing that it was brought about by the discriminatory action of state authorities. * * * ”  pp 17-18The point made by the Court, but not stressed, probably because it is quite obvious, is that for there to be a con­stitutional violation there must be a racial imbalance caused by the discriminatory acts of state authorities. When this condition exists the remedy, in part, consists of re­quiring racial balance, Swann, supra, pages 23-24, but this does not mean that every school in the community must reflect the racial composition of the school system as a whole. Swann, supra pp 16, 24.Section 803 stays ‘ ‘ * * * orders which require the trans­fer or transportation of any student or students from any school attendance area prescribed by competent State or local authority for purpose of achieving a balance among students with respect to race * # Plaintiffs would have us believe, based upon the Court’s construction of Title I Y  in Swann, that this language should apply only to a case where the racial imbalance exists in the schools, but with no showing that it was brought about by discrim­inatory action of state authorities. Is this the meaning in­tended by Congress! (The question of whether this is the only meaning that may be attached and still save the con­stitutionality of the section will be discussed infra).The first observation to be made is that if Congress had intended section 803 to so mean, it certainly has the ability to so state. C f 42 U S C  2000c-6. The second observation is that if it were not known before, Swamn made it crystal clear that racial imbalance per se is not actionable: The actionable constitutional violation is racial imbalance brought about by discriminatory action of state authorities. It is approaching the ridiculous to say that after Swann, and



•128-
even before, a District Court would predicate a constitu­
tional violation upon racial imbalance per se without the 
facade of tbe role played by a public official. Tbe Four­
teenth Amendment explicitly states “ No state shall * *As the Court did in Swann, it is not unusual for a court to consider the legislative history of an act to determine the congressional intent. K ing  v Smith, 392 U S  309 (1968). 
Duplex Printing Press Co v Deering, 254 U S  443 (1921). In Duplex, the Court said that while debates expressive of the views of individual members are not a safe guide to the legislative intent, the reports of committees and explana­tory statements of members in charge of the bill in the course of its passage are regarded as an exposition of the legislative intent, p 474-475.The Educational Amendments of 1972, including the pro­vision that became section 803, was significant, compli­cated and controversial legislation. Needless to say, its legislative history is extended, and for this reason, it is not feasible to include a substantial portion in this brief. The essence of the legislative history is found in the debates in the House on the conference report on June 8, 1972, the day on which the conference report was adopted.“ Mr. O ’H A R A . Mr. Speaker, I  am particularly interested in the provisions of section 803 of the con­ference report.First, I  would like to ask Mr. B R O O M F IE L D  about his meaning when his amendment spoke of an order of a district court requiring the transfer or transporta­tion of students ‘for the purpose of achieving a balance among students with respect to race, sex, religion, or socio-economic status.’ In  all of the court orders with which I  am familiar, the court has stated that its pur-



—129-pose is to prevent unconstitutional segregation of students. May I  inquire of the gentleman from Mich­igan if  it was his intention that section 803 apply to orders that have the practical effect of achieving some sort of racial balance, although the court may have stated that its order was entered for the purpose of correcting unconstitutional segregation?Mr. B R O O M F IE L D . Yes; it was my intention to cover such cases and specifically, it was my intention to cover cases like those now being litigated in Rich­mond and Detroit.Mr. O ’H A R A . May I  ask the chairman of the con­ference committee, the gentleman from Kentucky, if his understanding is the same as that of the gentleman from Michigan (Mr. B R O O M FIE LD )?Mr. P E R K IN S . Yes, it is. It is my understanding that section 803 covers district court orders which re­quire the transfer or transportation of students for racial purposes whether the court, order is framed in terms of correcting unconstitutional segregation or whether it is framed in terms of ‘achieving a balance among students with respect to race. ’Mr. O ’H A R A . I f  I  could continue to have the atten­tion of the gentleman from Kentucky, the effective date of section 803 is Ju ly  1 of this year.The joint explanatory statement of the committee of conference says:
‘ This section does not authorize the reopening of final orders, however, appealable orders are considered to be within the scope of this amendment.’



- 1 3 0 -Does this mean that if  an order requiring the trans­fer or transportation of students has been entered prior to Ju ly  1, 1972, the effectiveness of such order shall be postponed until all appeals in connection with such order have been exhausted or, in the event that no appeals are taken, until the time for such appeal has expired?Mr. P E R K IN S . The gentleman from Michigan is correct. Section 803 will apply to such orders whether entered before or after Ju ly  1,1972, as long as appeals of such orders have not been exhausted, or in the event no appeal of such order was taken, until the time for such appeal has expired.Mr. O ’H A R A . I  thank the gentleman from Michigan and the gentleman from Kentucky for their explana­tions and I  urge adoption of the conference report with the very important provisions contained in sec­tion 803.”118 Cong. Rec. H5416 (Daily ed. June 8, 1972).
D . R E T R O S P E C T IV E  OR P R O S P E C T IV E  

O P E R A T IO NStatutes or amendments pertaining to procedure are generally held to operate retrospectively, where the statute or amendment does not contan language clearly showing a contrary intention. Indeed, in the absence of any savings clause, a new law changing a rule of practice is generally regarded as applicable to all cases then pending. 50 Am Ju r , Statutes, § 482, p 505-506.In Duplex Printing Press, supra, one of the questions



•—131—considered was whether the Clayton Act was operative in the litigation because the act was passed more than two years after the litigation began. The Court, in holding that the act was applicable, said:
“ • . . Insofar as the act (a) provided for relief by injunction to private suitors (b) imposed conditions upon granting relief under particular circumstances, and (c) otherwise modified the Sherman Act, it was effective from the time of its passage, and applicable to pending suits for injunction. Obviously, this form of relief operates only in futuro, and the right to it must be determined as of the time of hearing (citations omitted).”  p 464Although Justices Brandeis, Holmes, and Clark dissented, they concurred with the majority on this point.The intention of Congress in this regard is abundantly clear. “ Mr. O ’H A R A . I f  I  could continue to have the at­tention of the gentleman from Kentucky [Congressman Perkins, chairman of the House conference committee], the effective date of § 803 is Ju ly  1 of this year.“ The joint explanatory statement of the committee of conference says:‘ This section does not authorize the reopening of final orders, however, appealable orders are considered to be within the scope of this amendment. ’“ Does this mean that if an order requirng the trans­fer or transportation of students has been entered prior to Ju ly  1, 1972, the effectiveness of such order shall



—132—be postponed until all appeals in connection with such order have been exhausted or, in the event that no appeals are taken, until the time for such appeal has expired.“ Mr. P E R K IN S . The gentleman from Michigan is correct. Section 803 will apply to such orders whether entered before or after Ju ly  1, 1972, as long as appeals of such orders have not been exhausted, or in the event no appeal of such order was taken, until the time for such appeal has expired. ’ ’Cong. Rec., supra.Section 803 is applicable to the District Court’s ruling on desegregation area and order for development of plan of desegregation, June 14, 1972, and its order for acquisition of transportation, Ju ly  11, 1972, as well as all future orders of the District Court in this regard.
XV.

SECTION 803 IS CONSTITUTIONAL.“ The judicial Power of the United States, shall be vested in one supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish. * * * ”  U S  Const, art I I I , § 1.“ Congress has the undoubted power to regulate the practice and procedure of the Federal Courts * * 
Sibbach v Wilson Co, 312 U S  1, 9 (1940) reh den 312 U S  713 (1940).“ * * * A ll federal courts, other than the Supreme Court derived their jurisdiction wholely from the



133exercise of the authority to ‘ ordain and establish’ inferior courts, conferred on Congress by Article I I I , Section 1, of the Constitution. Article I I I  left Congress free to establish inferior federal courts or not as it thought appropriate. It could have declined to create any such courts leaving suitors to the remedy afforded by state courts with such appellate review by this Court as Congress might prescribe, (citation omitted). The Congressional power to ordain and establish inferior courts includes the power ‘ of investing them with jurisdiction either limited, concurrent, or exclusive, and withholding jurisdiction from them in exact de­grees and character which to Congress may seem proper to the public good.’ (citation omitted). * *
Lockertyv Phillips, 319US182,187 (1942).In its plain, unambiguous language § 803 says one tiling: It  ordains a stay of any district court order “ which requires the transfer or transportation of any student or students from any school attendance area prescribed by competent state or local authority for the purposes of achieving a balance among the students with respect to race * * It is totally procedural. It affects no ones substantive rights. To argue that Congress has acted unconstitutionally in imposing this procedural requirement is to withhold from Congress not only those powers expressly granted by the supreme law. of the land, but those powers repeatedly con­firmed by the United States Supreme Court.Further, it cannot be denied that Congress exercised its constitutional power with restraint!1] and solely in the pub-II]

See colloquy between Senators P ell & Cranston, 118 Cong Kee § 8378 
(D a ily  ed, M ay 24, 1972).



—134—-lie interest to afford an opportunity for the Supreme Court to provide definitive answers for two of the most contro­versial issues that are facing the nation: (1) Whether a lack of racial balance in a school district constitutes de jure segregation per se, and (2) Whether the determination of an unconstitutional racial imbalance authorizes a district court to fashion a remedy to include area outside of the boundaries of the area where the racial imbalance is found to exist.As these defendants have indicated above, they do not believe that § 803 applies to those cases where the separa­tion of the races in the schools is decreed by state statute or constitution, except in a case like Richmond where the district court’s remedy went beyond the school district boundaries. In the case of racial separation by constitu­tional or statutory mandate, geographical attendance areas are not primarily involved—attendance is determined pri­marily by race. As appears from the language of the section and as Congressman Broomfield made clear in his remarks before Congress, 118 Cong. Bee. H5416 (Daily ed, June 8, 1972), the section is drawn specifically to cover cases like the case at bar and the Richmond case.Plaintiffs, undoubtedly, will claim § 883 to be unconstitu­tional because of the “ work now”  mandate of the United States Supreme Court in Green v County School Board of 
New Kent County, 391 U S  430 (1968). See also Swann, p 13. I f  this is plaintiffs ’ position, they misconstrue the meaning of the “ now”  cases. In those cases, there were dual school systems rendered constitutionally void by Brown I  and 
Brown I I . There was no issue as to the constitutional viola­tion, it had been determined by Brown I . Yet, the defend­ant Boards of Education by both adamancy and subterfuge refused to establish a unitary system. Green, and its com-



— 135panions, were the direct command of the court to these boards of education that the time for stalling was over.B y contrast, the primary issue in the case at bar is whether de jure segregation exists. This issue has not been determined as a matter of law by the United States Supreme Court, and, in fact, has not been considered by the Court, although K eyes, supra, is pending.
I f  plaintiffs’ contend that Green, et al, renders all stays unconstitutional, how do they explain the stay orders granted by this court in Davis v School District of the City  

of Pontiac, 443 F2d 572 (CA  6,1971), Northcross v Board of 
Education of C ity of Memphis, (rnisc 1576, June 2, 1972, en banc Ju ly  10, 1972), the stay order granted in Bradley v 
School Board of C ity of Richmond, Virginia, (CA 4, No 72-1058, February 8, 1972), and the stay order granted by Mr. Justice Black in Corpus Christi Independent School 
District v Cisneros, 404 U S  1211 (1971). Where Congress not only has the constitutional power to establish the court but also has to determine its procedure and its jurisdiction, can it be said that the Courts have powers over procedure which, if  exercised by Congress, are unconstitutional.These defendants submit that there can be no question that section 803 is a valid exercise of congressional power pursuant to U S  Const, art I I I , § 1.

ADDENDUMWe would direct this Court’s attention to a recent case 
United States v Board of Education, 459 F2d 720 (CA  10, 1972) in which the Court affirmed the lower court’s ruling that 5 of the 9 black elementary schools in the school system were de facto, not de jure, segregated schools and that, as to these 5 schools, no remedy was required. This case under-



-136-scores the sound rule of law, not followed by the trial court herein, that specific findings of de jure segregation must be made with reference to each particular school since the remedial powers of a court extend only to those schools that are segregated by virtue of discriminatory state action.Finally, in light of the time constraints involved in the preparation of this brief, these defendants respectfully reserve ariy and all additional defenses, issues or questions for purposes of further appellate argument.
CONCLUSIONThe relief respectfully sought by these defendants is for this Court to reverse the District Court with respect to the following orders:

1. Ruling on Issue of Segregation, September 27, 1971 to the extent such ruling contains findings of fact and conclusions of law adverse to either these de­fendants or the Detroit School District defendants;2. Ruling on Propriety of Considering a Metropolitan Remedy to Accomplish Desegregation of the Public Schools of the City of Detroit, March 24, 1972;3. Findings of Fact and Conclusions of Law on Detroit-Only Plans of Desegregation, March 28, 1972;
4. Ruling on Desegregation Area and Development of Plan, and Findings of Fact and Conclusions of Law in Support thereof, June 14,1972;



—137-5. Order for Acquisition of Transportation, Ju ly  11, 1972,and to remand the case to the District Court directing that such Court, enter an order dismissing plaintiffs’ complaintwith prejudice. Respectfully submitted,F R A N K  J .  K E L L E Y  Attorney GeneralRobert A . Derengoski Solicitor GeneralEugene Krasieky Gerald F . Young George L. McCargar Patrick Kowaleski Assistant Attorneys GeneralAttorneys for Governor, Attorney General, State Board of Educa­tion, Supt. of Public Instruction and State Treasurer of the State of Michigan



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