Brief of the City of Boston Amicus Curiae

    In the Supreme Court of the United States 
October Term 1973

No. 73-434
WILLIAM G. MILLIKEN el a l,

Petitioners,
v.

RONALD G. BRADLEY et a l,
Respondents.

No. 73-435
ALLEN PARK PUBLIC SCHOOLS et al,

Petitioners,
v.

RONALD G. BRADLEY et a l,
Respondents.

No. 73-436
GROSSE POINTE PUBLIC SCHOOL SYSTEM,

Petitioner,
v.

RONALD G. BRADLEY et a l,
Respondents.

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

BRIEF OF THE CITY OF BOSTON, MASSACHUSETTS
AMICUS CURIAE 
Leonard P. Strickman,
Special Assistant Corporation Counsel 
Boston College Law School 
St. Thomas More Drive 
Boston, Massachusetts 02135 
Counsel for Amicus Curiae.

Of Counsel:
Thomas J. Carey, Jr.



1

INDEX

INTEREST OF AMICUS CURIAE

ARGUMENT
I. Introduction

II. This Court must at least allow for the develop­
ment of a plan which would, in addition to 
achieving maximum possible desegregation 
within Detroit, provide for a majority-to- 
minority transfer option, effective across school 
district lines, throughout the metropolitan 
area.

III. The State of Michigan, its officers and agents, 
must take affirmative action to promote further 
desegregation throughout the metropolitan 
area.

Page

2

3
3

4

10

CONCLUSION 11

CITATIONS
CASES

Page
Bradley v. Milliken, 484 F. 2d 215 (6th Cir. 1973) 5, 11
Bradley v. Milliken, 345 F. Supp. 914 (E.D. Mich. 1972) 8
Bradley v. Milliken, 338 F. Supp. 582 (E.D. Mich. 1971) 3, 8
Bradley v. School Board of City of Richmond, Virginia,

462 F. 2d 1058 (4th Cir. 1972), affd  by an equally 
divided Court, 412 U. S. 92 (1973) 5

Brown v. Board of Education, 349 U. S. 294 (1955) 4, 6
Bush v. Orleans Parish School Board, 188 F. Supp. 916 

(1960), slay denied, 364 U. S. 500 (1960), aff’d,
365 U. S. 569 (1961) 11



• •
11

Page

Ellis v. Board of Public Instruction, 423 F. 2d 203 (5 th
Cir. 1970) 7

Gomillion v. Lightfoot, 364 U. S. 339 (1960) 3
Keyes v. School District No. 1, Denver, Colorado, 413

U. S. 189 (1973) 5, 7
Lee v. Macon County Board of Education, 267 F. Supp.

458 (M.D. Ala. 1967), afj'd mem. sub. nom., 
Wallace v. United States, 389 U. S. 215 (1967) 10, 11

Beynolds v. Sims, 377 U. S. 533 (1964) 3
San Antonio Independent School District v. Rodriguez,

411 U. S. 1 (1973) 5, 9
Spencer v. Kugler, 326 F. Supp. 1235 (D.N.J. 1971),

afj'd mem., 404 U. S. 1027 (1972) 9
Swann v. Charlotte-Mecklenburg Board of Education,

402 U. S. 1 (1971) 4, 5, 6, 7, 8, 9
United States v. Georgia, (N.D. Ga. No. 12972, Dec. 17,

1969), as reported in 1 Race Rel. L. Survey 253 
(1970) 11

United States v. Scotland Neck Board of Education, 407
U. S. 484 (1972) 8

United States v. State of Texas, 447 F. 2d 441 (5th Cir.
1971), modifying 330 F. Supp. 235 (E.D. Tex.
1971), stay denied sub. nom., Edgar v. United States,
404 U. S. 120 (1971), cert, denied, 404 U. S. 1016 
(1972) 10, 11

Wright v. Council of the City of Emporia, 407 U. S. 451
(1972) 5, 8

CONSTITUTIONS, FEDERAL AND STATE STATUTES

U. S. Constitution Amendment XIV 3, 6
Emergency School Aid Act, 20 U.S.C. §1608(a)(2) (1972) 2
Mass. Ann. Laws, Ch. 76, §§12A, 12B (1971) 2

♦

i

MISCELLANEOUS
Page

Brief for Petitioner, Grosse Pointe Public School System 3 
Brief for United S tates, United States v. Board of School 

Commissioners of Indianapolis, Indiana, Civil Nos. 
73-1968 to 1982 and 1984 (7th Cir., filed January,
1974) 8



j

/

In the Supreme Court of the United States 
October Term 1973

No. 73-434
WILLIAM G. MILLIKEN el al,

Petitioners,
v.

RONALD G. BRADLEY el a l,
Respondents.

No. 73-435
ALLEN PARK PUBLIC SCHOOLS et a l,

Petitioners,
v.

RONALD G. BRADLEY el al.,
Respondents.

No. 73-436
GROSSE POINTE PUBLIC SCHOOL SYSTEM,

Petitioner,
v.

RONALD G. BRADLEY et al.,
Respondents.

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

BRIEF OF THE CITY OF BOSTON, MASSACHUSETTS
AMICUS CURIAE



2

INTEREST OF AMICUS CURIAE

In the face of burgeoning urban problems, the City of 
Boston, like most major American cities, is concerned with 
ways to achieve equal educational opportunities for the chil­
dren who reside within it — equality both amongst its own 
residents and in relation to other children in the Boston met­
ropolitan area. The City has shown a commitment to metro­
politan approaches to education substantially predating a de­
segregation lawsuit in which its School Committee is presently 
a defendant.

More than 1,800 minority children who live in Boston are 
attending public schools in neighboring suburban communities 
under the auspices of the Metropolitan Council for Educa­
tional Opportunity (METCO), as authorized by Mass. vVnn. 
Laws Ch. 76, §§ 12/V, 12B (1971). Children from a number 
of suburban communities are attending “magnet” public 
schools and participating in other city-based educational 
programs with Boston children. City officials have recently 
contributed to the establishment and operation of the Metro­
politan Planning Project, a consortium with seventeen sub­
urban public school systems instituted under the federal 
Emergency School Aid Act, 20 U.S.C. § 1608(a)(2)(1972), 
with the purpose of eliminating minority group isolation in 
the schools through collaborative metropolitan planning.

The City of Boston believes that the questions raised in the 
petitions for certiorari are susceptible to a number of different 
approaches. We present this brief, amicus curiae, as a possi­
ble alternative to the approach urged by respondents, whose 
objective of equal educational opportunities we feel we share.

3

ARGUMENT
I

INTRODUCTION
The District Court found, upon the conclusion of an exten­

sive trial, 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 I lie public schools 
of the City of Detroit,” Bradley v. MiUiken, 338 F. Supp. 
582 at 592. As to the Detroit Board of Education, that con­
clusion is not being seriously contested in this Court. The 
record supports the contention of the petitioners that no acts 
of discrimination by the suburban school districts against the 
respondents have been either alleged or proved.

As a threshold matter this Court must consider two 
questions: whether the finding of the courts below that the 
State of Michigan, its officers or agents, have intentionally 
contributed to the segregation of respondents was supported 
by substantial evidence; and whether discriminatory acts by 
the Detroit Board of Education contributing to the segrega­
tion of respondents are, for the purposes of the fourteenth 
amendment, state action which thereby imposes remedial re­
sponsibility upon the State. On the assumption that this 
Court answers either threshold question affirmatively, there 
would be no question that the district court had the power to 
adopt a remedy which went beyond the geographical confines 
of the City of Detroit.1

1 At least this much is conceded in the brief of petitioner Crosse 
Pointe Public School System. That brief says:

Where essential to provide a remedy for a clearly cognizable 
constitutional violation, political subdivision lines may be sub­
ject to modification by the exercise of the equitable powers of 
the federal judiciary.89

89 Clearly, Gomillion v. Lighlfool, 364 U. S. 339, 5 L. Ed. 2d 
110 (1960) and Reynolds v. Sims, 377 U. S. 533, 12 L. Ed. 2d 506 
(1964), are determinative of the question of the ultimate power 
of the federal court with respect to school district lines. . . .
(Brief for petitioner Crosse Pointe Public School System p. 46.)



4

There is, of course, a substantial difference between the 
power of the district court to order metropolitan remedies and 
the propriety of the court’s ordering particular metropolitan 
remedies. Amicus contends that the principles enunciated by 
this Court in Brown v. Board of Education {Brown II), 349 
U. S. 294 (1955), Swann v. Charlotte-Mecklenburg Board of 
Education, 402 U. S. 1 (1971), and other school desegregation 
cases support the conclusion of the courts below that a Detroit- 
only desegregation plan will not vindicate respondents’ rights 
to equal protection of the laws, and further that those prin­
ciples require at a minimum development of a remedy which 
would, in addition to achieving “the greatest possible degree of 
actual desegregation,” Swann, supra at 26, within the City of 
Detroit, provide for: 1) “an optional majority to minority 
transfer provision,” Swann, supra at 26, effective across school 
district lines throughout the metropolitan Detroit area; and 
2) affirmative action by the State of Michigan, its officers and 
agents, in pursuing their educational policies and programs, 
to promote further desegregation throughout the Detroit 
metropolitan area. Whatever conclusion this Court reaches 
about the district court’s order for the development of a plan 
of desegregation to effect the reassignment of pupils across 
school district lines, this Court should affirm the propriety 
and necessity of a remedy incorporating these two points.

II

THIS COURT MUST AT LEAST ALLOW FOR THE 
DEVELOPMENT OF A PLAN WHICH WOULD, IN 
ADDITION TO ACHIEVING MAXIMUM POSSIBLE 
DESEGREGATION WITHIN DETROIT, PROVIDE FOR 
A MAJORITY-TO-MINORITY TRANSFER OPTION, 
EFFECTIVE ACROSS SCHOOL DISTRICT LINES, 
THROUGHOUT THE METROPOLITAN AREA.

5

It is no longer contested that respondents have suffered a 
denial of their constitutional rights. In Swann this Court 
suggested the parameters of remedial judicial authority:

. . .  [A] school desegregation case does not differ funda­
mentally from other cases involving the framing of 

) equitable remedies to repair the denial of a constitutional
I right. The task is to correct by a balancing of the individ-
I ual and collective interests the condition that offends the

Constitution. 402 U. S. at 15-16.
The “individual and collective interests” which must be 

balanced with those of the respondents to be freed of the 
consequences of the deprivation of their constitutional rights 
may be summarized as follows:

1) maximum retention consistent with constitutional 
requirements of the choice to attend schools in their own 
communities for the hundreds of thousands of school children 
in the Detroit metropolitan area and their parents;2

2) the maintenance of control by the State of its own 
internal political structure;3

3) the maintenance of local control over those aspects of 
educational policy making which have historically been a 
function of local school districts in the State of Michigan.4

2 See Keyes v. School District No. 1, Denver, Colorado, 413 U. S. 189, 
240-52 (1973) (Mr. Justice Powell concurring in part and dissenting 
in part); Bradley v. Milliken, 484 F. 2d 215, 264-68 (6th Cir. 1973) 
(Weick, J., dissenting).

3 See San Antonio Independent School District v. Rodriguez, 411 
U. S. 1, 40-44, 49-50, 58 (1973); Wright v. Council of the City of

I Emporia, 407 U. S. 451, 478 (1972) (Mr. Chief Justice Burger
| dissenting); Bradley v. School Board of City of Richmond, Virginia,

462 F. 2d 1058, 1066-70 (4th Cir. 1972), aff'd by an equally divided 
Court, 412 U. S. 92 (1973).

4 See San Antonio Independent School District v. Rodriguez, 411 
U. S. 1, 40-50 (1973); Wright v. Council of the City of Emporia, 407 
U. S. 451, 467-69 (1972); Id. at 477-78 (Mr. Chief Justice Burger dis­
senting) ; Keyes v. School District No. 1, Denver, Colorado, 413 U. S. 
189, 240-248 (1973) (Mr. Justice Powell concurring in part and 
dissenting in part).



6

As long ago as 1955 this Court recognized that school 
desegregation decrees would have to deal with the difficult 
kinds of administrative problems before it in the present case. 
In Brown I I  Chief Justice Warren said for a unanimous Court:

. . . [T]he courts may consider problems related
to administration arising from the physical condition of 
the school plant, the school transportation system, per­
sonnel, revision of school districts and attendance areas 
into compact units to achieve a system of determining 
admission to the public schools on a nonracial basis, and 
revision of local laws and regulations which may be neces­
sary in solving the foregoing problems. 349 U. S. at 
300-01.

The “breadth and flexibility . . . inherent in equitable
remedies” (Swann, supra at 15) conditioned by “a facility for 
adjusting and reconciling public and private needs” (Broivn II, 
supra at 300), afford the district courts the means required 
for resolving competing interests. The remedies proposed by 
amicus promise to respondents a meaningful vindication of 
their constitutional rights while preserving the integrity of 
countervailing public concerns.

The principal question in this case is not, as petitioners 
suggest, whether a majority black school system, as such, is 
unconstitutional. Rather it is whether black children who 
have been the victims of racial discrimination may consti­
tutionally be confined in majority black schools, without any 
option of attending practicably available schools within the 
same state not enrolling a majority of blacks.

The focus for assessing the constitutionality of a given 
school system cannot simply be on the ratio of black to white 
students in each school; the Swann case specifically rejects 
such a notion, 402 U. S. at 24-25. Rather, the focus must be 
on the relationship of the school system to the child, whose 
rights are protected by the fourteenth amendment. Mr.

7

Justice Powell, commenting upon this relationship in Keyes v. 
School District No. I, Denver, Colorado, 413 U. S. 189 (1973), 
stated of each child:

. . . [A]s a minimum . . . one has the right 
not to be compelled by stale action to attend a segregated 
school system. 413 U. S. at 225.

While Mr. Justice Powell went on to explain that by “segre­
gated school system” he meant segregated in law rather than 
in fact, the Swann case makes clear that the simple reassign­
ment of pupils does not end the de jure character of a school 
system which has been unlawfully segregated, so long as any 
majority black schools remain. Recognizing that pupil re­
assignment is a critical factor in most any constitutional plan 
of remedy, the unanimous Court was quite clear in Swann 
that where, after reassignment is completed, majority black 
schools continue to exist, more is required:

An optional majority-to-minority transfer plan has 
long been recognized as a useful part of every desegre­
gation plan. Provision for optional transfer of those in 
the majority racial group of a particular school to other 
schools where they will be in the minority is an indis­
pensable remedy for those students willing to transfer to 
other schools in order to lessen the impact on them of the 
state-imposed stigma of segregation. In order to be 
effective, such a transfer arrangement must grant to the 
transferring student free transportation and space must 
be made available in the school to which he desires to 
move. Cf. Ellis v. Board of Public Instruction. 423 F. 2d. 
203, 206 (CA5, 1970). 402 U. S. at 26-27.

If this Court prohibits the district court from entering any 
sort of metropolitan decree, it will simultaneously preclude 
this “indispensable remedy” for unconstitutional segregation. 
For the record establishes (exhibits PC-2, PC-3) that “the 
greatest possible degree of actual desegregation,” Swann, 402 
U. S. at 26, within the City of Detroit would result in virtually



all schools having a majority of black pupils; thus there would 
be virtually no schools within the City of Detroit to which an 
aggrieved black child would have the right of transfer. Preser­
vation of the right of these children “to transfer to other 
schools in order to lessen the impact on them of the state- 
imposed stigma of segregation” requires at least this metro­
politan remedy. Assuredly, such an option should be ex­
tended reciprocally to black and white children through 
the metropolitan area affected by a final decree, as implicitly 
required by Swann, 402 U. S. at 26. The reciprocal existence 
of the option can only promote further desegregation.5

Wright v. Council of the City of Emporia, 407 U. S. 451 (1972), 
and United States v. Scotland Neck Board of Education, 407 
U. S. 484 (1972), both of which find majority black school 
systems to be constitutionally acceptable in the process of 
desegregation, do not support petitioners’ assertion that the 
district court must fashion a remedy solely within Detroit city 
limits. In neither case was the right to a majority-to-minority 
transfer option asserted; nor was evidence introduced as in 
the present case, establishing the practicable availability of 
schools with respect to which a majority-to-minority transfer 
option could have been exercised.

8 In its brief in United Stales v. Board of School Commissioners 
of Indianapolis, Indiana, Nos. 73-1968 to 1982 and 1984 (7th Cir., 
filed Jan., 1974), the Government advances the following position:

. . . [W]here transfers across district lines have been allowed in 
the past for educational purposes, and where black children have 
been effectively excluded from the opportunity to attend schools 
in particular systems and must instead attend school in a de jure 
segregated system because housing discrimination has determined 
where they may attend school, part of the remedy for the de jure 
segregation may be transfers across district lines. . . .  p. 25.
In the present case the district court found that transfers across 

district lines have been allowed for educational purposes in the 
Detroit area, Bradley v. Milliken, 345 F. Supp. 914, 935, and that 
housing discrimination has determined where black children may 
attend school. Bradley v. Milliken, 338 F. Supp. 582, 587.

8 9

Similarly, Spencer v. Kugler, 326 F. Supp. 1235 (D. N. J. 
1971), aff'd mem. 404 U. S. 1027 (1972), relied upon by peti­
tioners, is inapposite. The court in that case, in refusing to 
“remedy” schools and school systems which were majority 
black, had received no evidence of actionable racial discrimina­
tion as is present in the case currently before this Court.

The remedy proposed by amicus would preserve local control 
in any school system which had not itself been found to have 
acted unconstitutionally. As this Court found desirable in 
upholding Texas’ statutory scheme for financing public educa­
tion in San Antonio Independent School District v. Rodriguez, 
411 U. S. 1, 52 n.108 (1973), “ the preponderating bulk of all 
decisions affecting the schools [would be] made and executed at 
the local level, guaranteeing the greatest participation to those 
most directly concerned”—except for those parents who found 
educational offerings outside their communities sufficiently 
attractive to justify voluntarily relinquishing the education 
franchise as it affects the schools their children attend. The 
State of Michigan could retain control over the demarcation 
of political subdivisions. And each family which found the 
school /community nexus of critical importance could choose 
to have its children attend schools in the community, i.e., 
political subdivision, of their residence.

In the event this Court does not sustain the district court’s 
order of the development of a desegregation plan which will 
assign children to schools across district lines, it certainly must 
as a starting point reiterate the requirement of Swann that 
“the greatest possible degree of actual desegregation,” 402 
U. S. at 26, be undertaken within the City of Detroit. The 
accompanying requirement of a real and meaningful transfer 
option of the type found “indispensable” in Swann and urged 
by amicus is the minimum acceptable if the violations estab­
lished are to be remedied.



10

III

THE STATE OF MICHIGAN, ITS OFFICERS AND 
AGENTS, MUST TAKE AFFIRMATIVE ACTION TO
PROMOTE FURTHER DESEGREGATION THROUGH­
OUT THE METROPOLITAN AREA.

In a remedy which involves more than a single school 
system, accountability of State defendants to the courts is 
necessary to the vindication of respondents’ rights. The 
record discloses no other existing agencies competent to co­
ordinate the administration or financing of a multidistrict 
remedy. The role of the State, its officers and agents, surely 
includes an obligation “ to take affirmative action to dis­
establish all state enforced or encouraged public school segre­
gation and to eliminate the effects of past state enforced or 
encouraged racial discrimination,” Lee v. Macon County 
Board of Education, 267 F. Supp. 458, 480 (M.D. Ala. 1967), 
a ffd  mem. sub. riom., Wallace v. United States 389 U. S. 215 
(1967).

While it is for the district court to identify the particulars 
of state responsibility, state-directed decrees in earlier desegre­
gation cases, such as Lee v. Ad aeon County Board of Education, 
supra, and United States v. State of Texas, 447 F. 2d 441 (5th 
Cir. 1971), modifying 330 F. Supp. 235 (E.D. Tex. 1971); 
stay denied sub. nom. Edgar v. U. S., 404 U. S. 120 (1971), 
cert, denied, 404 U. S. 1016 (1972), suggest some of the ap­
propriate areas of state administrative responsibility:

a. Student transfers (State of Texas, supra at 443). The 
State defendants may be required in the present case to pro­
vide public information and education on the availability of a 
majority-to-minority transfer option, perform oversight “clear­
inghouse” administration, and arrange, either through their

11

own resources, or by securing agreements from the school dis­
tricts involved, for the financing of a pupil transfer program.

b. School construction (Lee, supra at 480-81). The State 
defendants already have responsibilities in the area of school 
construction, Bradley v. Milliken, 484 F. 2d, 215, 238. To 
the extent that new construction is contemplated, or structural 
remodeling required by the implementation of a plan of 
desegregation, State defendants may be ordered to exercise 
their statutory powers so as to promote further desegregation 
and arrange for necessary financing.

c. School transportation (Lee, supra at 481-82; Stale of 
Texas, supra at 445). Again the State defendants may be 
required to provide administration and arrange financing.

In Lee, State of Texas, and similar desegregation decrees 
entered against State officials in other states,6 district courts 
exercised authority as broad as statewide remedies required. 
In the present case, the district court should be able to issue 
a decree equally as broad in substance, confined only by the 
geographical practicability of remedying the violation of the 
constitutional rights of the respondents.

CONCLUSION
WHEREFORE, if this Court fails to affirm the order of the 

district court for the development of a metropolitan desegre­
gation plan which would reassign pupils across school district 
lines, it should at least affirm the propriety and necessity of a 
remedy which achieves maximum possible desegregation 
within the City of Detroit, establishes a majority-to-minority 
transfer option throughout the metropolitan area, and places

6 See, e.g., United States v. Georgia (N.D. Ga. No. 12972, Dec. 17, 
1969), as reported in 1 Race Rek L. Survey 253 (1970); Bush v. 
Orleans Parish School Board, 188 F. Supp. 916 (1960); stay den. 364 
U.S. 500 (1960); aff'd. 365 U.S. 569 (1961).



12

upon the State of Michigan, its officers and agents, the re­
sponsibility to promote further desegregation throughout the 
metropolitan area.

Respectfully submitted,
Leonard P. Strickman

Special Assistant Corporation Counsel
Boston College Law School
St. Thomas More Drive
Boston, Massachusetts 02135
Counsel for Amicus Curiae

Of Counsel:
Thomas J. Carey, Jr.

CITY OF BOSTON PRINTING SECTION