Brief of State Defendants on the Legal Propriety or Impropriety of Consideration by this Court of a Metropolitan Plan

    DEPARTMENT
STATE OF MICHIGAN
:n t  of a t t o r n e y  g e n e r a

FRANK J. KELLEY
A T T O R N E Y  G E N E R A L

LANSING 
4 8 9 1 3

March 21, 1972

Mr. Frederick W. Johnson, Clerk 
United States District Court 
133 U.S. Courthouse 
Detroit, Michigan 48226

Re: Bradley, et al v. Milliken, et al
Civil Action No. 35257

Enclosed please find Brief of State Defendants on
the Legal Propriety or Impropriety of Consideration by this 
Court of a Metropolitan Plan in the above entitled cause for filing.

cc: Messrs Louis R. Lucas
Mr. Nathaniel R. Jones 
Messrs. J. Harold Flannery,

Paul R. Dimond & Robert Pressman 
Mr. E. Winther McCroom 
Messrs. Jack Greenberg and ^

Norman J. Chachkin 
Mr. George T. Roumell, Jr.
Mr. Theodore Sachs 
Mr. Alexander B. Ritchie 
Mr. Kenneth B. McConnell 
Mr. William M. Saxton 
Condit & McGarry 
Messrs. Douglas H. West and 

Robert B. Webster 
Mr. Robert J. Lord

Dear Sir:

Very truly yours
FRANK J. KELLEY 
Attorney General

EK: hb
Enc. Hon. Stephen J. Roth

Eugene Krasicjcy o  
Assistant Attorney General



UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al,
Plaintiffs,

v.
WILLIAM G. MILLIKEN, et al,

Defendants, Civil Action
DETROIT FEDERATION OF TEACHERS, No. 35257LOCAL #231, AMERICAN FEDERATION 
OF TEACHERS, AFL-CIO,

and
Defendant- 
In tervenor,

DENISE MAGDOWSKI, et al,
De fendants- 
Intervenor.

/

BRIEF OF STATE DEFENDANTS ON THE LEGAL 
PROPRIETY OR IMPROPRIETY OF CONSIDERATION 
BY THIS COURT OF A METROPOLITAN PLAN

Introduction

On September 27, 1971, this Court rendered its written 
opinion containing its findings of fact and conclusions of law that 
the School District of the City of Detroit was a de jure segregated 
school system. Thereafter an order was entered by the Court on 
November 4, 1971 for the submission of plans for the desegregation 
of the school district, both on an intra-district and a metropolitan 
basis.

The Court has requested briefs of all parties on the question 
of the legal propriety or impropriety of consideration by the Court



of a metropolitan remedy. The brief of the state defendants is 
oeing prepared while the Court is holding evidentiary hearings on 
intra-district plans for the desegregation of the Detroit school
system.

ARGUMENT

I.
THE STATE DEFENDANTS DO NOT POSSESS PLENARY 
POWER TO ALTER SCHOOL DISTRICT BOUNDARIES OR 
TO ALTER, AMEND OR REPEAL POWERS, DUTIES AND 
LIABILITIES OF SCHOOL DISTRICT GRANTED BY LAW.

Introduction

It is not open to question that the State of Michigan has 
never practiced racial separation pursuant to State Constitution, 
statute, rule or regulation. Neither is it open to question that 
in the one reported case where a school district sought to segregate 
hy regulation, its actions were promptly nullified by the Michigan 
Supreme Court. Workman v Board of Education of Detroit, 18 Mich 
399 (1869) .

The state defendants believe that a basic semantic 
difficulty has done much to cause a conceptual chaos with respect 
to the fashioning of a remedy in this case. To illustrate: For
there to be a deprivation of rights under the Equal Protection 
Clause of the Fourteenth Amendment, there must be state involvement 
or the involvement of one acting under the color of its authority. 
United States v Guest, 383 US 745 (1966) . This is sometimes called 
"state action," but this use of the term "state action" does not 
indicate that the state has in fact acted. The term is a fiction 
to indicate that in some degree, on some level, an act has been 
done which is not solely the private or the individual act of the

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actor. To illustrate: In Workman, there is no question but that
the rules adopted by the Detroit schools in 1969 to prohibit 
Mr. Workman's child from attending a particular school because of 
her race was state action. And, yet, the adoption of the rules was a 
violation of state law, the adoption of which was also state action. 
Who violated the Workman child's rights? Clearly, it was not the 
State of Michigan, but this does not mean that the Workman child 
was not entitled to the protection of the Equal Protection Clause 
(by today's standards) in the discrimination practiced upon her by 
the Detroit Board. It means that the State of Michigan had no 
obligation to her that it had not fulfilled.

To summarize, the concept of "state action" for the purpose 
of invoking the protection of the Fourteenth Amendment bears no 
relationship to any act by the state and should not be treated as 
such for the purpose of fashioning a remedy.

A. Alteration of school boundaries.

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 FRD 139 (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., July 31, 1970). By the same token there 
will be certain relief which local officials are 
incapable of affording. Cf. 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.
"The state officials here sought to be joined, 
the State Board of Education and the Superintendent 
of Public Instruction, clearly have substantial

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administrative powers over the Virginia educational 
system. The defendant School Board of the City of 
Richmond suggests in particular the authority of 
the state board to consolidate existing school 
divisions, Va. Code § 22-30 (1969 Repl. Voli 
. . p 142

The Virginia statutory section cited immediately above 
read as follows:

"The State Board shall divide the State into 
appropriate school divisions, in the discretion 
of the Board, comprising not less than one county 
or city each, but no county or city shall be 
divided in the formation of such division."

In ascertaining the scope of the powers of the state 
officer defendants herein, under state law, the construction given 
Michigan constitutional and statutory provisions by Michigan courts 
is binding upon the Federal courts. A.F. of L.v Watson, 327 US 
582, 596 (1946), Albertson v Millard, 345 US 242, 244 (1953). Where the 
Michigan Supreme Court has not spoken, the Federal courts are obligated 
to follow tlie decisions of the Michigan Court of Appeals on state law 
questions unless they are convinced that the Michigan Supreme Court 
would decide such questions differently. Ruth v Bituminous Casualty 
Corporation, 427 F2d 290, 292 (CA 6, 1970).

The Michigan Supreme Court has consistently held that
plenary power over the creation and alteration of school districts
and school district boundaries is reposed in the Michigan legislature.
Attorney General v Lowrey, 131 Mich 639, 644-647 (1902), aff'd 199 

(1905)
US 233^ School District of the City of Lansing v Michigan State 
Board of Education, 367 Mich 591, 595-596 (1962).

The legislature may delegate its plenary power over the 
creation and alteration of school districts and school district 
boundaries to administrative officials. However, the manner in 
which administrative officials perform such delegated functions is

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always subject to and limited by the extent to which the legislature 
has delegated its power over school districts and their boundaries. 
lmlay Township Primary School iD istrict No. 5 v State Board of Education, 
35S Mich 478, 482-484 (1960).

Subsequent to the adoption of the 1963 Michigan Constitution, 
the Michigan Court of Appeals has squarely and unanimously held that 
the Michigan legislature possesses plenary power to create and alter 
school districts and their boundaries. Penn Sch Dist v Lewis Cass Dist, 
14 Mich App 109, 120-121 (1968). In that case the plaintiffs were 
attacking the constitutionality of 1964 PA 289, MCLA 388.681 et seq;
MSA 15.2299(1) et seq, which has since expired by its own terms under 
the provisions of Section 13 thereof.

Another example of school district reorganization is found
in Airport Community Schools v State Board of Education,17'Mich App 574 where
(1969) fj the Michigan Court of Appeals again reaffirmed the power of 
the legislature over the creation and alteration of school districts 
and school district boundaries. In that case, the court sustained 
the validity of 1967 PA 239, as amended, MCLA 388.711 et seq; MSA 
15.2299(51) et seq, which dealt with emergency reorganization of 
primary or fourth class school districts lying wholly in, or the 
major part of whose territory lies in a county having a population of 
more than one million persons (Sections 1 and 2). 1967 PA 239, as 
amended, supra, is clearly inapplicable to the instant cause.

Next, we turn to 1955 PA 269, as amended, MCLA 340.1 et seq;
MSA 15.3001 et seq, hereinafter referred to as the school code of 1955, 
which is the basic statute dealing with the organization and functions 
of Michigan's school districts. As the following examination of the 
pertinent provisions of this statute demonstrate, the state defendants 
herein have not been delegated the power by the Michigan legislature

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to unilaterally effectuate a metropolitan remedy by the school 
district consolidation and creation of an educational authority.

Part 2, Chapter 3 of the school code of 1955, as amended, 
supra, deals with the consolidation of school districts. Section 
401 thereof provides:

"Any 2 or more school districts, except districts 
of the first and second class, in which the total 
number of children between the ages of 5 and 20 
years, is 75 or more, may consolidate to form a 
single school district as hereinafter provided.
The consolidated district so formed shall be a 
district of the fourth class or third class, 
depending upon the classification its population 
entitles it to under the provision of part 1 of 
this act." [Emphasis supplied]

Thus, by express and explicit statutory language, the Michigan 
legislature has plainly stated that a first class school district 
(Detroit) is excepted from the consolidation provisions of the statute.

Turning to school district annexation, we must examine
Part 2, Chapter 4 of the school code of 1955, as amended, supra,
which provides the procedures for annexation of school districts.
Section 431 thereof states, in pertinent part, as follows:

"Any school district shall become annexed to 
another school district whenever the board of 
the annexing district shall have by resolution 
so determined and a majority of the qualified 
school electors of the district becoming annexed, 
voting on the question at an annual or special" 
election, shall have approved such annexation.
The vote on the question shall be by printed"or 
duplicated ballot. Before such election shall 
be neld, the board of the annexing district shall 
obtain the approval of the superintendent of 
public instruction of the proposed annexation. The 
election shall be held within 120 days after passage 
of the resolution by the board of the annexing 
district. . . . "  [Emphasis supplied]

Thus, the legislature has plainly provided that school district 
annexation requires affirmative action, by resolution, of the school 
board of the annexing district and voter approval in the school 
districts being annexed.

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Sections 440 through 443 of the school code of 1955, as
amended, supra, cover the attachment or annexation of nonoperating 
school districts to operating school districts. The role of the 
state defendants herein in this process is limited to the authority 
of the superintendent of public instruction to approve such attach­
ments, and the authority of the state board of education to hear 
administrative appeals relating to such annexations or attachments 
under Section 442. Obviously, this procedure is inapplicable to 
the instant cause.

Sections 446 through 449 of the school code of 1955, as 
amended, supra, relate to the division of a school district with no 
bonded indebtedness and attachment of the parts thereof to two or 
more other school districts. This process is initiated by either 
the board of education or the registered electors of the school 
district to be divided and requires a vote of the electors in the 
school district to be divided. The authority of the state defendants 
herein is limited to tne power of approval of such divisions by the 
superintendent of public instruction. See Section 447. Again, this 
procedure for altering school district boundaries is not applicable 
to a metropolitan remedy.

Part 2, Chapter 5 of the school code of 1955, as amended, 
supra, provides the procedures for transfer of territory between 
existing school districts. Such property transfers are initiated 
locally by either boards of education or resident landowners seeking 
to have their property transferred. When the area to be transferred 
exceeds ten percent of the state equalized valuation of the school 
district from which it is sought to be transferred, a vote of the 
electors in the school district is required. See Section 461. The 
role of the state defendants herein in such process is limited to the 
authority of the state board of education to hear administrative

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appeals, if they are sought, from the decisions of intermediate 
boards of education concerning property transfer requests. See 
Section 467. Thus, this procedure is not applicable to a metropolitan
remedy.

Brief mention should be made of Section 3 of the school
code of 1955, as amended, supra, which provides the procedures for
dissolving a disorganized school district and attaching it in whole
or in part to one or more school districts. A disorganized school
district is one in which either there are not enough persons in the
district qualified under the law to hold district offices or there
are not enough persons who will accept such offices. This procedure
is obviously not relevant to the instant cause. Further, this process
is carried out by statute without any participation by any of the

[ 1 ]state defendants herein.

In concluding this section of the brief, the state defendants 
would emphasize the following summary points to this Court:

1. In remedying state imposed segregation, the 
state defendants herein have only those 
powers conferred upon them by state law.

2. Under settled Michigan law, plenary power over 
the creation and alteration of school districts 
and their boundaries is reposed in the Michigan 
legislature. See also Const 1963, art 8, § 2 
and Welling v Livonia Board of Education, 382 
Mich 620, 623 (1969).

[1] The dissolution and attachment of disorganized school districts 
under Section 3 is carried out by intermediate district boards of education.

8-



3. The legislature may delegate its powers over the 
creation and alteration of school districts and 
their boundaries to administrative officials. 
However, the performance of such delegated 
functions by administrative officials is subject 
to and limited by the scope of the authority 
conferred upon them by statute.

4. A review of existing Michigan statutes relating 
to the alteration of school districts and their 
boundaries conclusively demonstrates that the 
defendants herein lack the power, under Michigan 
law, to unilaterally initiate, implement and 
effectuate a metropolitan remedy.

B . The state defendants are without lawful power 
to limit, alter, amend or repeal the powers, 
duties and liabilities granted local school 
districts by statute.

From the authorities cited in subdivision I-A of this 
brief, it is clear that the authority to limit, alter, amend or 
repeal the powers, duties and liabilities of local school districts 
rests in the Michigan legislature. The Michigan legislature is not 
a party to this suit and none of the state defendants have legislative 
powers.

The Michigan Supreme Court has ruled in Welling v Livonia 
Board of Education, supra, that pursuant to Mich Const 1963, art 8,
§ 2 the legislature has set up a system of free public elementary 
schools by enacting the provisions of 1955 PA 269, known as the 
school code of 1955, supra.

It is respectfully submitted that the legislature? not any 
or all of the state defendants, has the authority to limit, alter,

I

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amend or repeal the powers, duties and liabilities granted to local 
school districts by statute.

With the exception of 1970 PA 48, §12, pertaining strictly 
to the Detroit schools and declared unconstitutional in Bradley v 
Milliken, 433 F2d 897 (CA 6, 1970), every duty and obligation 
imposed on the local school districts by the laws and Constitution 
of the State of Michigan remain in full force and effect. Certainly 
only the Michigan legislature can repeal the laws or exempt the local 
school districts from their application.

C. A metropolitan plan not authorized by Michigan 
law could result in impairment of contracts of 
dissolved school districts contrary to the 
federal and state constitutions.

As was noted in state defendants Milliken and Kelley's 
"Response to the Metropolitan School District Reorganization Plan 
. . . ," the legal infirmities presented by a metropolitan plan are 
not limited to those in which this Court would be adding, altering 
or removing duties of statutorily-created entities. A serious 
question is presented as to the possible impairment of contract in 
two areas: bonded indebtedness and teacher contracts. US Const,
art I, § 10, and Mich Const, art 1, § 10, both prohibit the impair­
ment of contract. Adoption of a metropolitan plan could result in 
the dissolution of an uncertain amount of local school districts, 
many of which have outstanding bonded indebtedness. Part of such 
bond contracts are pledges to levy sufficient taxes on all property 
of the school district to meet principal and interest on such bonds.
The legislature has also imposed such a duty upon school districts 
to make the necessary levies for principal and interest upon outstanding 
bonded indebtedness. See 1955 PA 269, § 685, MCLA 340.685; MSA 15.3685. 
There is provision in Michigan law for successor districts upon

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annexation or consolidation to make necessary debt levies upon the 
territory of a dissolved school district to meet such contractual 
and statutory obligation. See MCLA 340.436; MSA 15.3436 and MCLA 
340.432; MSA 15.3432. These portions of the school code of 1955, 
supra, also make provisions for assumption of such indebtedness by 
the new district. Unless the reorganization were effected under 
and pursuant to Michigan law, it may well be argued that such bond 
contracts would be jeopardized since the successor board of education 
would be without authority to levy taxes necessary for the payment 
of principal and interest within the respective territories securing 
the bonded indebtedness of the various affected school districts.

It should also be stressed that the Michigan legislature 
has empowered Michigan school districts operating grades K through 
12 to borrow money and issue bonds to a limit of 5% of the assessed 
valuation of the respective school district without a vote of the 
electors of the district. This power is conferred upon fourth class 
school districts, MCLA 340.77a; MSA 15.3077(1); third class school 
districts, MCLA 340.115; MSA 15.3115; second class school districts, 
MCLA 340.158; MSA 15.3158; and first class school district, MCLA 
340.220a; MSA 15.3220(1). It is respectfully submitted that the 
successor metropolitan school district if ordered by the Court would 
be none of the enumerated class of school districts and would lack 
statutory power to borrow money and issue bonds without a vote of 
the people.

The second limitation raised by the constitutional prohibition 
against impairment of contract concerns contracts with educational 
personnel. Many school districts in the metropolitan area presently 
have collective bargaining agreements, containing extensive and 
diverse provisions, with their teachers, administrators and other 
employees. Needless to say, some or all of the collective bargaining

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agreements would have to be terminated. It is demonstrable that 
all of their terms could not be respected by a successor district.

Similar contracts exist with private individuals and
corporations and these contracts must be safeguarded in the same 
manner as the bonded debt obligation.

D. A metropolitan plan would result in loss of 
extra voted millages for operating purposes.

For the fiscal year 1970-71, Michigan Department of 
Education Bulletin 1012 reveals that in Wayne County, school districts 
received allocated millage for operating purposes in the general amount 
of 8.90 mills. Extra voted millage varied from 9.50 in the Ecorse 
Public School District to 29 mills in the Redford Union District.
For Oakland County, school districts generally received 9.63 allocated 
mills and the extra voted mills varied from 10 mills for Lake Orion 
Community Schools to 23.40 extra voted mills for Bloomfield Hills 
School District. In Macomb County, the general allocated millage was 
9.58 and the extra voted millage varied from 4.50 in Anchor Bay School 
District to 25 in the Clintondale Public Schools.

Michigan school districts are subject to the 15 mill limita­
tion prescribed by the people in Const 1963, art 9, § 6, unless the 
electors of a county prescribe a higher limit, not to exceed 18 mills. 
Such higher limit has not been prescribed in Wayne, Macomb and Oakland 
Counties.

1933 PA 62, MCLA 211.201 et seq; MSA 7.61 et seq, provides 
for a county tax allocation board to divide the 15 mill limitation 
between the county, township, community college districts and school 
districts within the county, and specifies that school districts 
snail receive a minimum of 4 mills, and such additional sum of mills 
as tiie county tax allocation board shall determine within the 
respective budget requests and the remaining millage available over

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the minimums prescribed for the respective units of government.
This statute also permits the electors of a school district to vote 
extra mills for operating purposes not to exceed 50 mills for all 
purposes within a county. The respective millages enumerated for 
school districts in the three county area were allocated and voted 
in accordance with such statutory authorisation and procedures. The 
50 mill limitation is imposed by Const 1963, art 9, § 6.

Const 1963, art 9, § 3 requires that taxes be levied 
uniformly within a governmental unit.

If this Court were to approve a metropolitan plan,and the 
successor district would be a new entity, its power to levy taxes 
for operating purposes would have to be conferred by law. Moreover, 
its lawful levies must be at a uniform rate throughout the territorial 
boundaries of the district. At best it could only levy allocated 
millage until such time as its electors voted extra millage as 
provided by law. Any extra-voted millage approved by the electors of any 
component district would expire with the dissolution of the district.

If this Court were to order a reorganization of the metro­
politan area,with an existing district as the surviving entity, not 
only is such reorganization not contemplated by Michigan law, but 
assuming arguendo its validity, the board of education of such 
existing district could levy extra voted millage, if any, only to 
the extent authorized by its electors. At best, it must be recognized 
that a new successor district, if it could lawfully levy taxes at all, 
would levy only allocated millage for operating expenses,and securing 
approval of its electors might prove difficult.

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E . A metropolitan plan would seriously affect 
the rights of tenure teachers.

Any metropolitan plan which this Court would put into 
effect would presumably entail the creation of a new school district 
and a new controlling board of education for the district. As 
pointed out earlier, the statutes do not envision the creation 
of school districts or boards of education by the courts. The 
teachers in such new districts would, however, be subject to the 
provisions of Michigan's Tenure of Teachers Act, 1937 (Ex Sess)PA 4, 
MCLA 38.71 et seq; MSA 15.1971 et seq.

Under this act teachers in the newly formed district who 
did not have tenure status would again be subject to the full two 
year probationary period. MCLA 38.81; MSA 15.1981. Teachers with 
tenure status in the former districts would become probationary 
teachers and could be put on probation for up to a year in the 
new district. MCLA 38.92; MSA 15.1992. As pointed out in Munro 
v Elk Rapids Schools, 385 Mich 618 (1971), little protection is 
given to probationary teachers by Michigan law,unless the controlling 
board fails to provide a written statement that the work of the 
probationary teacher is unsatisfactory. Under that decision school 
boards may dismiss probationary teachers so long as the statutory 
notices of unsatisfactory service are timely given.

It must be recognized that many teachers with years of 
experience within a district dissolved by a possible order of this 
Court could be required to serve a new probationary period of one 
year. The morale of such teachers would be seriously affected to 
the detriment of the learning experience. Further, if the new 
controlling board became dissatisfied with their services and gave 
a timely, appropriate statement of its dissatisfaction, such teachers 
could be discharged.

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Thus, consideration and implementation of a metropolitan 
plan would have considerable impact upon teachers and tenure rights.

F. This court has no jurisdiction over the 
Pontiac School District.

At least two of the metropolitan plans before this Court 
would affect the Pontiac School District. The defendant Detroit 
School District plan would dissolve such district. Plan 3 submitted 
by the State Board of Education would remove the taxing and allocating 
powers of such district and ultimately could serve to eliminate the 
district entirely.

The remaining objection to tne metropolitan remedy which 
has been presented to this Court is that it causes a jurisdictional 
conflict with a co-equal federal district court. The metropolitan 
plan presented to this Court contemplates inclusion of the Pontiac 
school district. Such school district, by reason of the decision 
of Judge Damon Keith in Davis v School District of Pontiac, 309 F 
Supp 734 (ED Mich, 1970), aff'd 443 F2d 573 (CA 6, 1971), is not 
within the jurisdiction of this Court.

It is respectfully submitted that the Pontiac School District 
is an integrated school district. This Court is without jurisdiction 
to dissolve it or in any other manner limit or negate its authority 
or existence.

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THIS COURT LACKS AUTHORITY, UNDER ITS FINDINGS 
OF FACT AND CONCLUSIONS OF LAW TO ALTER, REORGANIZE 
OR DISSOLVE SCHOOL DISTRICT BOUNDARIES OR TO OTHER­
WISE DEFINE LIMIT OR REMOVE STATUTORY POWERS OF 
LOCAL MICHIGAN SCHOOL DISTRICTS.___________________

Inherent in the legal propriety of consideration of a 
metropolitan remedy by the court is the inclusion of adjoining 
school districts which have not participated in this case and 
which obviously have not, therefore, been judicially declared to 
be de jure racially segregated. Nor has there been any suggestion 
in the complaint of plaintiff or findings of fact and conclusions 
of law made by this Court that the state defendants or the State of 
Michigan is implicated in fostering a state-wide dual system. If 
a metropolitan remedy were to be ordered, this Court would be requiring 
relief which in the long history of civil rights cases is unprecedented 
in its scope. In no other case that state defendants are aware of 
has a federal court, in its plan for desegregation included school 
districts which had not been found to either have been guilty them­
selves of segregation or been part of a state-wide, state-imposed 
plan of segregation.

The most recent case in which an adjacent school district 
was included for the purposes of remedy in a school desegregation
case was Bradley v School Board of the City of Richmond, ___ F Supp
___, (ED Va, decided Jan. 5, 1972). In reaching the conclusion that
the Court could ignore school district boundary lines in formulating 
a desegregation plan, the Court found that the separate school 
systems involved did not have any right to claim that their territory 
was inviolate:

"The claim that the defendant counties have a right 
to keep their separate systems to be utilized solely 
by residents of the respective counties has little 
merit in the face of past discriminatory practices 
on the part of all of the defendants.11 p. 67 of the 
slip" opinion'. [Emphasis supplied]

II.

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Having found that each of the county districts had been guilty of
discriminatory practices, the court cited, at p 68 of the slip
opinion, that portion of Lee v Macon County Board of Education,
448 F2d 746 (CA 5, 1971), which says:

"Even historically separate school districts, 
where shown to be created as part of a state­
wide dual school system or to have cooperated 
together in the maintenance of such a system, 
nave been treated as one for purposes of 
desegregation." p 752.

On page 21 of the slip opinion in the Richmond case, 
Judge Merhige says:

"The Court concludes, in the context here 
presented, that the duty to take whatever steps 
are necessary to achieve the greatest possible 
degree of segregation in formerly dual systems 
by the elimination of racially identifiable 
schools is not circumscribed by school division 
boundaries created and maintained by the 
cooperative efforts of local and central State 
officials." [Emphasis supplied]

While this Court has found that the defendants have created 
or allowed the creation of a dual system in the City of Detroit, 
there has been no suggestion that the school district boundaries 
were ever created and maintained by the cooperative action of local 
and state officials. The cases cited by Judge Merhige in support 
of his position are also informative. These case are Green v 
County School Board of New Kent County, 391 US 430 (1968), Davis 
v Board of School Commissioners of Mobile County, 402 US 33 (1971) 
and Swann v Charlotte-Mecklenburg Board of Education, 402 US 1 (1971). 
In none of these cases were any school district boundary lines changed, 
nor was it contemplated in any of the three factual situations that 
any such district boundary lines might be changed. The discussion 
in Green and Davis concerned itself solely with the propriety of 
altering attendance zones within districts which had been found to be 
segregated. In Swann the Court indicated that one of the four

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"problem areas" on the central issue of student assignment was:
"what the limits are, if any, on the rearrangement of school 
districts and attendance zones, as a remedial measure." p 22. In 
discussing this issue, however, Mr. Chief Justice Burger limited 
his discussion to attendance zones under the heading: "Remedial
Altering of Attendance Zones." It is abundantly clear, therefore, 
that these cases cited by Judge Me^hige shed no light on the pro­
priety of this Court's ordering of a metropolitan plan but confine 
themselves to the propriety of altering attendance zones within a 
segregated school district.

There are cases, however, where lower courts have ordered 
that existing school district boundaries would be ignored in develop­
ing a desegregation plan. The factual situations involved in these 
cases can be grouped into two general categories:

1. Cases where territory is removed from,and no 
longer a part of,a school district which has 
been found to be segregated de jure and is in 
the process of developing a desegregation plan, 
i.e., Lee v Macon County Board of Education, 
supra; Turner v Warren County Board of Education,
313 F Supp 380 (ED NC, 1970); Burleson v County 
Board of Election Commissioners of Jefferson 
County, 308 F Supp 352 (ED Ark, 1970), aff'd per 
curiam 432 F 2d 1356 (CA 8, 1970).

2. Cases where the court has found as a matter of 
law that there has been a state-wide policy of 
segregation in the schools, i.e., Haney v County 
Board of Sevier County, 410 F2d 920 (CA 8, 1969); 
Bradley v School Board of the City of Richmond, 
supra; United States v State of Texas, 321 F Supp 
1043 (ED Tex, 1970).

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A. Cases where territory is removed from,and no longer 
a part of,a school district which has been found to 
be segregated de jure and is in the process of 
developing a desegregation plan._____________ ______

In the Lee, Turner and Burleson cases cited above an 
attempt was made to detach territory from a school district which 
the court had ordered to be desegregated. These cases cannot be 
relied upon in ordering a metropolitan remedy in the instant case.
As was said in Lee, supra:

"It is unnecessary to decide whether long-established 
and racially untainted boundaries may be disregarded 
in dismantling school segregation. New boundaries 
cannot be drawn where they would result in less 
desegregation when formerly the lack of a boundary 
was instrumental in promoting segregation." p 752

The obvious distinction of these cases with the instant case is that
in the above cases the territory which was ordered reattached after
detachment was represented by counsel at trial and was within the
finding of the trial court of de jure segregation. In the instant
case the metropolitan districts were not represented by counsel at
the trial of this cause and have certainly not been found guilty of
any acts which would establish or maintain segregation.

B. Cases where the court has found as a matter of law
that there has been a state-wide policy of segregation 
in the schools. ___

The courts have also ignored school district boundatry lines 
in situations where segregation has been so ingrained into a state's 
educational system that it can be said that all school district 
boundaries were established and maintained with the purpose of 
promoting racial segregation.

In Bradley v School Board of the City of Richmond, supra,
the court found, as discussed on pp 16-18of this brief, that cill 

haddefendants_/been guilty of discriminatory practices, obviously includ­
ing school boards of Henrico and Chesterfield Counties, which were

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primary defendants. The court also found that the school division 
boundaries had been "created and maintained by the cooperative 
efforts of local and central state officials." p 21 of the slip 
opinion.

Likewise in Haney v County Board of Sevier County, supra, 
the trial court determined that de jure segregation had taken place 
in the creation of school district boundary lines in Sevier County: 
"We find as a matter of law that the school district lines of 
Sevier County were created to reflect racial separation by schools." 
p 926. As a result of this finding the court determined that the 
school districts, all of which were represented at the trial by 
counsel, were not limited by Arkansas statute in the means of 
altering their boundary lines.

A trial court finding similar to that in Haney, supra,
was made in United States v State of Texas, supra:

"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 requirement 
of segregation. By 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, 1051

Because of this gerrymandering of the school district
lines, the trial court determined that consolidation with nearby
districts was an appropriate remedy:

"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." p 1050

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As in the previous cases, all of the affected school districts were 
represented by counsel at the trial on the merits.

Two conclusions can be drawn from the cases cited in the 
two categories above:

1. A metropolitan remedy is inappropriate in the absence 
of a finding either that the metropolitan districts are guilty of 
de jure segregation or that the state was guilty of creating and 
maintaining school district boundary lines with the intent of 
promoting a dual school system.

2. Where school district boundary lines are to be 
altered as a result of court action, the school district should be 
allowed to participate in the trial on the merits.

Green v School Board of New Kent County, supra, is a case
which deserves special attention because the United States Supreme
Court was dealing there with a school system which was 57.3% black
and 42.7% white. The local board propounded a "freedom of choice"
plan to desegregate the district. The Supreme Court found this plan
to be unacceptable but did not order that any district lines be
changed, even though it was clear that the state had created and
maintained a dual school system. Rather, the court said:

"The Board must be required to formulate a new 
plan and, in light of other courses which appear 
open to the Board, such as zoning®, fashion steps 
which promise realistically to convert promptly 
to a system without a 'white' school and a 'Negro' 
school, but just schools." p 442
Footnote 6 is as follows:
"'In view of the situation found in New Kent 
County, where there is no residential segre­
gation, the elimination of the dual school 
system and the establishment of a "unitary, 
non-racial system" could be readily achieved 
with a minimum of administrative difficulty by 
means of geographic zoning— simply by assign­
ing students living in the eastern half of the

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county to the New Kent School and those living 
in the western half of the county to the Wat­
kins 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 respondent 
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."

This United States Supreme Court case supports the con­
clusion thatifae fact that a school district is majority black does 
not require that a metropolitan remedy be pursued.

Respectfully submitted
FRANK J. KELLEY 
attorney General

Gerald F. Young 
George L. McCargar 
Patrick Kowaleski
Assistant Attorneys General

Attorneys for State Defendants
Business Address:
7 Story Office Building 
525 West Ottawa Street 
Lansing, Michigan 48913

Dated: March 21, 1972

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