Carmical v. Craven Supplemental Brief for Respondent

    Nos. 7 2 -1 8 0 9  -  7 2 -1 8 1 4

UNITED STATES COURT O f APPEALS
FOR THE SIXTH CIRCUIT

R onald B radley, ft  al .,
Plaintiffs-Appellees,

v.
W illiam  G. M illiken , Governor of 

Michigan, etc.; B oard of E duca­
tion of th e C ity  of D etroit,

Defendants-Appellants,

and
D etroit F ederation of 1 eaciiers 

L ocal 231, American F ederation 
of T eachers, AFL-CIO,

Defendani-lntewenor-Appellee,

and
Allen  P ark Public Schools, e t  al .,

Defendants-Iniervenors-Appellants,

and
Kerry Green , et al .,

Defcndants-lrdervenors-Appellees.

A p p E a l  from the 
United States District 
Court for the Eastern 
District of Michigan,
Southern Division.

Decided and Filed December 8, 1972.

Before PmLUH, Chief Judge. aM' * ’**> Chcrfl

t ,  Chief Bulge. This b a E ^ g a U r . , ,  ear*.



2 Bradley, et a l  v. Mittiken, et al. Nos. 72-1809, 72-1814

19/0. The earlier decisions of this court are reported at Brad­
ley v. Milliken, 433 F.2d 897 (1970); Bradley v. Mittiken, 438 
F.2d 897 (1971); and Bradley v. Mittiken, —  F.2d —  (1972), 
cert, denied, —  U.S. — , 41 U.S.L.W. 3175 (Oct. 10, 1972)! 
(On November 27, 1972 this Court dismissed for want of 

* jurisdiction an “emergency motion” by the Detroit Board of
Education that State officials be required to provide funds 
to keep the Detroit public schools operating for 180 regular 
days of instruction during the current school year —  F 
2d — .)

No specific desegregation plan has been ordered by the 
District Court. The procedural history of the litigation is set 
forth below.

Before this court at the present time are four interlocutory 
orders from which we have granted appeal pursuant to 28 
U.S.C. § 1292(b) and one final order, viz:

1. Ruling on Issue of Segregation, dated September 27, 
1971, reported at 338 F.Supp. 582;

2. Findings of fact and conclusions of law on “Detroit only” 
plans of desegregation, dated March 28, 1972;

3. Ruling on Propriety of a Metropolitan Remedy to Ac­
complish Desegregation of the Public Schools of the City of 
Detroit, dated March 24, 1972;

4. Ruling on Desegregation Area and Development of 
Plan, and Findings of Fact and Conclusions of Law in support 
thereof, dated June 14, 1972; and

5. Order dated July 11, 1972, directing Michigan State 
officials to purchase 295 school buses (which this court con­
siders to be a final order).

On July 13, 1972, following oral argument, -this court granted 
a motion for a temporary stay of the District Courtis order 
of July 11, 1972, ordering the purchase of 295 school buses.

On July 17, 1972, following oral argument, this court directed 
that its stay order remain in effect until entry by the District 
Court of a final desegregation order or until certification by the



Nos. 72-1809, 72-1814 Bradley, et al. v. Milliken, e l al.

District Court of an appealable question as provided bv 28 
U.S.C. § 1292(b),

Thereafter the District Court certified that the orders set 
forth above involve controlling questions of law, as provided 
by 28 U.S.C. § 1292(b), and made a determination of finality 
under Rule 54(b), Fed. R. Civ. P.

On July 20, 1972, this court entered an order granting the 
interlocutory appeal concluding that: ‘

“[Ajmong the substantial questions presented there is at 
least one difficult issue of first impression that never has 
been decided by this court or the Supreme Court. In so 
holding we imply nothing as to our view of the merits of 
this appeal. We conclude that an immediate appeal may 
materially advance the ultimate termination of the litiga­
tion.”

The motion for leave to appeal was granted and the case 
was advanced for oral arguments on the merits on August 
24, 1972.

The July 20, 1972, order of this court included the following 
stay order, which has remained in effect pending final disposi­
tion of the appeal on its merits:

“The motion for stay pending appeal having been con­
sidered, it is further ORDERED that the Order for Ac­
quisition of Transportation, entered by the District Court 
on July 11, 1972, and all orders of the District Court con­
cerned with pupil and faculty reassignment within the 
Metropolitan Area beyond the geographical jurisdiction 
of the Detroit Board of Education, and all other proceed­
ings in the District Court other than planning proceedings, 
be stayed pending the hearing of this appeal on its merits 
and the disposition of the appeal by this court, or until fur­
ther order of this court. This stay order does not apply to 
the studies and planning of the panel which has been ap­
pointed by the District Court in its order of June 14, 
1972, which panel was charged with the duty of pre­
paring interim and final plans of desegregation. Said

.cm.v,,. r,.

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r

f

i

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4 Bradley, el a l  v. Millikan, at a l  Nos. 72-1S09, 72-1814

panel is authorized to proceed with its studies’ and plann­
ing during the disposition of this appeal, to the end that 
there will be no unnecessary delay in the implementation 
of the ultimate steps contemplated in the orders of the 
District Court in event the decision of the District Court 
is affirmed on appeal. Pending disposition of the appeal, 
the defendants and the School Districts involved shall 
supply administrative and staff assistance to the aforesaid, 
panel upon its request. Until further order of this court, 
the reasonable costs incurred by the panel shall be paid 
as provided by the District Court’s order of June 14, 1972.”

This court also has granted leave to appeal to various in­
tervening parties and leave to file numerous amicus briefs. 
Extensive oral arguments on the merits were heard August 
24, 1972. The briefs and arguments of all the parties have 
been considered in the disposition of this appeal.

We affirm two of the rulings of the District Court sum­
marized. above: (1) The Ruling on the Issue of Segregation 
and (2) the Findings of Fact and Conclusions of Law on 
“Detroit-only” plans of desegregation. We hold that the find­
ings of fact of the District Court as set forth in these rulings 
are not clearly erroneous, Rule 52(a), Fed. R. Civ. P., but to tire 
contrary are supported by substantial, evidence.

As to the District Court’s third ruling pertaining to the pro­
priety of a Metropolitan remedy, we affirm in part and re­
verse in part. We vacate this and the two remaining orders 
and remand to the District Court for further proceedings as 
hereinafter set forth in detail in this opinion.

I. Chronology of Proceedings

On April 7, 1970, the Detroit Board of Education adopted 
a plan to effect a more balanced distribution of black and 
white students in the senior high schools through enactment 
of changes in attendance zones involving Some 12,000 pupils, 
to become effective over a three year period. Three months, 
later this modest effort was thwarted by the legislature of



Nos. 72-1803, 72-1814 Bradley, ct al. v. MiTltken, et al.

the State of Michigan through enactment of Act 4o of th 
P ^ lic  Acts of 1970. Section 12 of the Act delayed nnplcmenta- 
S m  of the plan. The four members of the Board ^  sup­
ported the April 7 plan were removed from office t h r o *  
citizen initiated recall election. The new m em ber of t u  
board and the incumbent members who had on& < ) 1
posed the April 7 plan thereafter rescinded it 
1 The complaint in this case was filed by md vffiualLbhmk 
and white school children and their parents, and the Detio . 
branch of the NAACP against the Board of Education of t 
Cm  of Detroit, its members, and the then Superintendent 
of Schools, as well as the Governor, the Attorney General 
the State Board of Education and the State Supenn cnc u ■ 
of Public Instruction of the State of Michigan.
' The complaint alleged that the Detroit public school sys 
was and is' segregated on the basis of race as he result rf
actions and policies of the B o -c t s.. v
State of Michigan. The complaint specifically c < *  J
constitutionality of Act 48 of the Public Ac « «  »
Slate of Michigan, which in effect repealed the A ,1 
high school desegregation plan formicated by

' ’“fire case was heard originally on plaintiffs' motion for a 
preliminary injunction to restrain the enforce,.rent of Am 
48 In response to this motion the District Judge do, red a p - 
liminary injunction, did not rule on .be
48 but granted the motion of the Governor and Attorney Gem 
end of Michigan for dismissal of the cause as to Dem. O 
appeal this court held that § 12 of Act 48 was an «  u- 
tional interference with the lawful protection of I omlecmb 

' Amendment rights, that there was no abuse of
denying a preliminary injunction, and that the. Go . 
and Attorney General should not have been d « d  as par­
ties defendant at that stage of the proceeding. 1 e c ^ c  an as 

. remanded to the District Court for an expedited trial on
the merits. 433 1* .2d 89 b



6 Buidlcy, et al. v. Millikan, at al. Nos. 72-1809, 72-1814

Oo remand pJaintiffs moved for immediate implementation
evV r  7 P a“ ' 0n  Deccmbcr 3, 1970, following an 

hearing on that plan and two updated plans, the
«v  lV ‘ 0rdored implementation of the “Magnet” or
sehooH’ear f  at lhe ^ginning of the next full
school jea  , pending ultimate disposition on the merits Plain-
bSs W * *  ^  * motion for summary reversal I s

^ ” ! : i hrari" g, on i,,c »f < « s  s r

2,“ K-'*” AP‘“ 6, 1971, and continued until July
Z  °/ . consuming 41 trial days. On September 27 1971 
: , PCI Court issued its ruling on the issue of r e g r e t  

mm, holding that the Detroit public school system seas rachnv 
egregaun, as a result of unconstitutional practices on the"  

o tne defendant Detroit Board of Education and the M ich fo , 
sState defendants. 338 F.Supp. 582. °

A decision on a motion to join a large number of suburban
V "100 t f ]!StnCtS as Par,it*  defendant was deferred on the

1,rCmature> in that reasonably 
p " -! r A>K ihAion plan was before the court. The Detroit

S  t o vras ffofo,0s."b m i t X. , t0 Vle Cn>3 wluls State defendants were directed
area encompransing the thrcc-couuly inctropolita,!

: ‘ ^ 311 uas macle to appeal these orders to this
come On February 23, 1972, this court held the orders to be 
jomappealable and dismissed the appeal. —  F Al -  c -rt 

darned, - -  U.S. — , 41 U.S.L.W. 3175 (Oct 10 1972)
. Aber further proceedings concerning proposals for a Dcrioit 
only desegregation remedy and the presentation of two p] mS 

f.ref0r> ^ D is t r i c t  Judge on March 24, 1972 issued '> 
rulmg entitled “Ruling on Propriety of Considering a Metro!



Nos. 72-1809, 72-1814 Bradley, ct a l  v. I\i Ulike n. ct al.

politan Remedy,'’ and on March 28, 1972, lie issued “Findings 
of Fact and Conclusions of Law on Detroit Only Plans of 
Desegregation. He rejected all Detroit only plans, saying 
m part: “Relief of segregation in the public schools of the 
City of Detroit cannot be accomplished within the corporate 
geographical limits of the city.”

Subsequently, the District Court issued an order on June 
14, 1972, entitled “Ruling on Desegregation Area and Order 
for Development of Plan for Desegregation.” In this rulhm 
and order the District Court established tentative boundaries 
for a metropolitan remedy and provided for a panel of nine 
members to design plans for integration of the Detroit schools
and those of 53 metropolitan school districts within certain 
guidelines, ,

The panel recommended preparatory purchases of school 
)uses piior to implementation of an interim plan in Septem­

ber 19/2. Following a hearing, the District Court on July 
I I  ordered State defendants to purchase or otherwise acquire 
295 school buses.

In view of the intervening Congressional action by the en­
actment of the “Broomfield Amendment” certification was 
made to the Attorney General of the United States that the 
constitutionality of § 803 of the Education Amendments of 
1972, Pub. L. No. 92-318, 86 Stat. 235, had been called into 
question^ The Department of Justice intervened, filed a brief 
and participated in the oral arguments before this court.

II. The Issues

Ali of tne parlies to this litigation in one form or another 
present three basic issues which we phrase as follows:

1. Are the District Court’s findings of fact pertaining to 
constitutional violations resulting in system-wide racial segre­
gation of the Detroit Public Schools supported by substan­
tial evidence or are they clearly erroneous?

2. Based on the record in this case, can a constitutionally



uracllcy, el al. v. MiUiken, et al. N()s. 72-1809, 72-1814

C)n this record does the District TihW ’c « 1 •
preparation of a metropolitan ,p.„- r °  ' 0lder requiring 
menf W  « opoutan plan for cross-district assign-
D e l m e 5 “  St'lK>0' dlildr™ throughout liie

III. The Constitutional Viola lieions

(A) Constitutional violations found to have been on,..... .. .
l>y tlto Detroit Board of Education: « « o d

( 1 )

(2)

Segregative zoning and assignment practiees.

(•<) Joe District Judge found that the Detroit 
Board of Education formulated and modified

!  , f I’"  “ ?  tTe" te <* PcrPfJtuafe racial 
. S f db01h 1 Ie aIso f°und that the feeder sys- 
lem T "  Jl,nior and senior higly schools was de- 
Slgn, t0 ™amlam rather than eliminate bhek 
oi white schools at the higher levels. Its prac­
tice of shaping school attendance zones on a 
Port .-south rather than an east-wes, orientatiof 
estihod in atiendanci' zone boundaries con- 

foimmg to racial dividing ]jnCs.

(1>) p f  flf U;r fo“nd {hat the Detroit Board of 
educations policies involved a substantial 

nbci ° f 1!f  tmiccs of transporting black ehil-
dreD past white schools with available schoi space. A

5 V d r m ‘S ™ V lKlt “  " aS tlK‘ »f the Board

In ■„ permitted white students to transfer to fl

" '“ - ^ o l s  located n e a rf



Nos. 72-1809, 72-1814 Bradley, e l al. v. Milliken, et al. 9

(3) fhe District Judge also found that the policies of 
die Detroit Board of Education (and State Board 
of Education) concerning school construction in 
some instances had the purpose of segregating stu­
dents on a racial basis and in many others resulted 
in maintaining or increasing segregation,

(1) Segregative Zoning and Assignment Practices.

(a) The District Judge’s findings of fact pertaining to al­
teration of zones and feeder patterns are as follows:

J he Board has created and altered attendance zones, 
maintained and altered grade structures and created and 
altered feeder school patterns in a manner which has 
laid the natural, probable and actual effect of continuing 
black and white pupils in racially segregated schools. 
Pile Board admits at least one instance where it pur­
posefully and intentionally built and maintained a school 
and its attendance zone to contain black students, 
throughout the last decade (and presently) school at­
tendance zones of opposite racial compositions have been 
separated by north-south boundary lines, despite the 
Board’s awareness (since at least 1962) that drawing 
boundary lines in an east-west direction would result in 
significant integration. The natural and actual effect of 
these acts and failures to act has been the creation and 
perpetuation of school segregation. There has never been 
a feeder pattern or zoning change which placed a pre­
dominantly white residential area into a predominantly 
black school zone or feeder pattern. Every school which 
was 90/<■ or more black in I960, and. which is still in use 
today, remains 90% or more black.” 338 F.Supp. at 588.

The legal conclusion of the District Judge is as follows:

”5. The Board’s practice of shaping school attendance 
zones on a north-south rather than an east-west orienta­
tion. with the result that zone boundaries conformed to 
racial residential dividing lines, violated the Fourteenth



/unendmcmL Noriheross v.  ̂Board of Ed. of Memphis, 
6 Cir., 333 F.2d 661. 338 F.Supp. at 592-93.

10 Bradley, et al. v. Millikan, e l al. Nos. 72-1809, 72-1814

“9 The manner in which the Board formulated and 
modified attendance zones for elementary schools had 
he natural and predictable effect of perpetuating racial 

segregation of students. Such conduct is an act of de 
jure discrimination in violation of the Fourteenth Amend- 
oient' 2 mtcd Stales v. School District 151, D.C., 286 F.
r ' P P V -  Scll° o1 Board of City of Norfolk, 4 Cm, 397 !  .2d 37.” 338 F.Supp. at 593.

Ihere is, of course, other legal support for the legal con-

f X  0? i f ° r \ DaviS V‘ Scho° l District ° f Pontiac, .43 1.2d a/3, 5/6 (6th Cir.), cert, denied , 404 U.S. 913 (1971)•
V' B o a rd ° f  Education, hid. School District No. 

T’ ,r~J  1 2  1253) 1259 ( 10th c ir. 1970); United States v. 
Jefferson County Board of Education, 372 F.2d 836, 867-68 
( 5 *  Cir. 1965), a ffd  in banc, 380 F.2d 3S5 (5th Cir. 1966) 
cert, denied sub nom, Caddo Parish School Board  v. United 
States, 389 U.S. 840 (1970); Clemons v. Board o f Education 
228 F.2d 853, 858 (6th Cm),  cert, denied, 350 U S 10(M 
(19o6 ) ; Spangler v. Pasadena Board of Education 311 F 
Supp. 501, 522 (C.D. Cal. 1970).

\Vitncss Charles Wells, defendant School Boards assistant 
superintendent in charge of the Office of Pupil Personnel 
Services, read into the record and testified in support of the 
m mines of a meeting of the Citizens Association for Better 
Schools. Mr. Wells was the president of the Citizens As­
sociation at the time the meeting was conducted. His testi­
mony includes the following:

Q- (By Mr. Lucas) Go ahead, sir.
“A. ‘November 3, 1960.

‘TO: Honorable Nathan Kaufman, Chairman
Committee on Equal Education Opportunity.

t



Nos. 72-1809, 72-1814 Bradley, et a l  v. MiUiken, el a l  11

‘We should like to begin our presentation by reviewing 
with you briefly the development of our organization. We 
feel it is significant as it represents an attempt on the 
part of people who make up this organization to effective­
ly deal with the frustrations historically inherent: in at­
tempting to provide for minority group children an ade­
quate education within the Detroit Public School System. 
A majority of the people of the Negro race moved into 
the now Center District from other school districts with­
in the limits of the City of Detroit. Although better 
housing conditions were but one of the motives for such 
a move, of equal importance was a desire to provide their 
children with a more equitable and enriched educational 
experience.

‘They were aware of the increased population within 
their new geographical area, and accepted the counselling 
of the then new administration of the Board of Edu­
cation, to the effect that additional tax monies would 
have to be made available if educational standards within 
the City of Detroit were to be improved, or even main­
tained, Consequently, each of them made a strong per­
sonal investment in the mi if age campaign of Spring 1959. 
In this campaign, initially, their efforts did not meet the 
wholehearted approval of the Negro community, since 
from past experience, particularly involving other millage 
campaigns, members of the Negro community had ob­
served that the results of the expenditures of monies 
obtained from additional taxes, had little effect on the 
facilities, the equipment, or the curriculum available to 
their children. (

‘Despite this resistance, they were aware that there 
would be less justification for demanding adequate edu­
cational opportunities for their children if they did. not 
accept their responsible share for the successful passing 
of the millage program. As a consequence of their ef­
forts, their respective schools voted overwhelmingly for 
the millage program, and they logically expected that 
positive results would follow their efforts.



••••

12 Bradley, et al. v. Millikan, et al. Nos. 72-1809, 72-1814

‘Their first disillusionment occurred only a few months, 
but yet a few weeks after the passage of the millage — 
they were rewarded with the creation of the present 
Center District. In effect this District, with a few minor 
exceptions, created a segregated school system. It ac­
complished with a few marks of the crayon on the map, 
the return of the Negro child from the few instances of 
an integrated school exposure, to the traditional pre­
dominantly uniracial school system to which he had for­
merly been accustomed in the City of Detroit.

‘Their attempts to meet this threat to their children’s 
educational experience through existing school organiza­
tions met with little success. Their conferences with 
District and City-Wide administrators including the super­
intendent, Dr. Samuel Brownell, resulted in only ration­
alizations concerning segregated housing patterns, and 
denials of any attempts at segregation. When it was 
pointed out that regardless of motivation, that segrega­
tion was the result of their boundary changes, little com­
promise was effected, except in one or two instances, 
where opposition leadership was most vocal and ag­
gressive.

‘Concurrent with boundary changes, it was alarming­
ly noticeable that the school population within the Cen­
ter District was rapidly increasing, and that the priority 
building program would have little positive effect in 
dealing with the problem. Attempts to discuss this prob­
lem with school and district administration gave promise 
of only minimal relief.

‘Finally, it had been earlier noted by new residents 
moving into what is now the Center District that prior 
to and during its change from a uniracial (predominant­
ly white) to a biracial system and again to a uniracial 
(predominantly Negro) school system that the quality 
of their children’s previous educational experiences did 
not cqiup them to compete on an equal basis with resi­
dent children in the same grade and classifications.

‘These experiences made them aware that no one or­
ganization composed of one or several schools, could ef-



n

fectively coordinate the mutual concern of the many 
parents residing within the Center District. Thus out of 
the several discussions of groups of people whose primary 
concern was the adequate and equitable education of their 
children, this organization was born. It is felt that no 
better description of its purpose, its objective, and its 
reason for being can be found than in the preamble to 
its Constitution, which is:

‘PREAMBLE: Our interest is in equal educational op­
portunities for all persons within the City of Detroit.

‘We do not believe that such opportunities are possible 
within a segregated school system.

‘We oppose a policy of containment of minority groups 
within specified boundaries, an example of which is the 
Center District. While the above is of utmost concern 
to us we are also aware that there is need for improve­
ment and enrichment of the standards within this district 
in practice as well as in theory.

‘We believe that once standards have become reason­
ably adequate, that such standards should be maintained. 
It should be further recognized that future population 
shifts brought about by urban redevelopment will ad­
versely affect the above goals in the Center District, unless 
there is anticipation of the impact of this population 
growth upon this district.

‘Since the inception of our organization we have noted 
the following:

‘The public school system of the City of Detroit is 
divided into nine administrative districts, one of which 
is tire Center District.

‘Yet, every day, when the children in this city leave 
their homes to go forth to public schools, approximately 

' one out of every four leaves a home in the Center District. 
Of the 154,969 children enrolled in public elementary 
schools as of September 30, I960, 2-6,264 or 23.4 percent 
of these children leave a home in the Center District.

Nos. 72-1809, 72-1814 Bradley, et a 1. v. Milliken, e l a l  13



14

!i00' f  Wi,’gS ”  th<=
II,401c,. This n lT Z ,t$ Z % 7  tlM C“ ' “
tola] elemenlirv c,.i ’ i ’ , thc 23A Percent of the

12.7 percent of Vhe bulld i^X  a(f0n ^ accommodated in

ll,s ; “ dre” sil “  ' * “ * »  of 40 1 s- -lHis is in comparison to:

n 'm llC'M"  a l U m °"-«  «»• N o, 72*1809, 72-1814

East 
North 
Northeast 
Northwest 
South 
Southeast 
West

•13 percent 
•05 percent 
■04 percent 
.08 percent 
•01 percent 
•01 percent 
• 05 percent

r r of a" « *  < * # * »  *
49 are i - h i h C inZ  o ‘ t " r °.•“ » ■ * ■ «  «  to
the Center District fntl tl, • ‘S " c t Iil0' f schools in 
Pepil stations, ii, I  * *  *
taxed to the extent of IP , J  ’ , tU c'apacities are over- 
ing Program, as set forth j f  c f ’ an? . the futui;e build- 
of October 17 19m  v *,-V 'r J'C suPnrnitendent’s report

® .o na, P„pi; ' ^ ; ; l " t i ^ <!t; ; r : ? t 0 ,1 ,y llJ8 9 " d-However, this will be insuPP L  . ? 1 tx'n~War period.
t]f  Ccmer District.' Therefore ‘ i/ T **  ^  demauds of 
school bussing prowram val] 1 , S aPParenl that a
P - t . o f i h e  s d f i l t n s l c  p ^ ' “ ^  » W ™ ™ t

- « 7h ; : ; : ^ ^ r gra”’ is admi”iste- d
S ;  S h  u - d“

bussing * i , , : ! . ' a  . ‘'oorganiration of the
th ilcb l, t , ; , J  & e  SCl,W>I ' ”to wteO, the

which ĥey ar r h X d ,e f at'|d-i" 10 ‘ 'K Seh° o1 ‘“to > •“ < bussed, except m minor instances.



3) There is a possibility of the separation of the 
family unit.

4) Parents are unable to establish a good rapport 
with the teachers and administrators in the new 
school since there exists a time limit in which these 
children will be members of that school.

‘It is recommended that a policy of bussing by geo­
graphical areas instead of by grades be instituted so as 
to eliminate the above problems.

‘The emphasis on curricula objective are not compara­
ble in the various school districts of the Detroit School 
System. There is a tendanev in the Center District to 
stereotype the educational capacity of the children. This 
means that children entering the schools in this district 
whose background enables them to comprehend an en­
riched educational program, are not challenged.

‘For example, one student in the Hutchins Intermediate 
School who desired to prepare for entrance into an East­
ern college found that Latin was not offered, and only 
after considerable effort by members of the community, 
along with Ms family, was Latin placed back in the school 
curriculum. Many other instances can be cited upon 
request,

‘Conversely, children whose initial capacity is retarded 
by deprived socio-economic circumstances also go un­
challenged. The District Administrator has admitted that 
no program exists to take care of these children.

‘The curriculum and counselling as they now exist, 
do not encourage students to achieve their maximum ca­
pacities. We feel that the responsibility for any inequities 
in the educational experience offered to any group of 
children within a given school system must be assumed 
by those persons charged with the overall responsibility 
of administering that System.

- ‘Therefore, we recommend that strong policies be adopt­
ed by the top administration to erase inequities of the

Nos. 72-1809, 72-1814 Bradley, ct al. v. Millikan, et ah 15



Detroit Public School System, and a policy of super­
vision through all levels of administration be instituted 
at all levels of administration to insure equal educational 
opportunities to all children.

‘The Citizens’ Association for Better Schools.’

Q. Do you join in that statement in submission to the 
committee?

“A. Yes, I did.”

16 BnuBcU, et al. V. Millikan, at a l  Nos. 72-1809, 72-1814

. ", " Ul U!e venter (administrative)
District, where attendance boundaries were shaped in a gerry­
mandered fashion to conform to the racial residential pattern.

Q- Willr legard to that same situation, you were ex­
pressing a problem! which your committee had met in 
attempting to discuss this. Can you tell me how you 
came to he discussing this with the Board at that time? 
j. 1 ‘ 1 'vas. witb tbs Board of Education, I be-
le« £ Jt '',as v, i; n the administration of the school system. 

y .-  Bie administrative staff?
A. Including the superintendent.

‘ Q. All right.
A. Our initial concern about the boundaries of the 

cente! district grew out of the concern we had in I860 
about the changing of the attendance areas between the 
Centra. High School and the Mackenzie High School. '
that?' S ‘ 131 the 0ptional ^tendance area also set up in

“A- A Parl of that was optional. Well, let’s put it
f ;iaVUa>’ ;* { 01 Jt }iad been optional, the proposal was
o elmmimc the option. In the process of eliminating the

t E f  wd l a i i T i U C T aii WOu]d bc that b>' large tnc few black children who had been attending Mackenzie
have.bcen PuI]cd hack into the Central area

school? Cnzic at that time was a majority white
A. Predominatly white.
Q. Central by that time had become black?



‘'A. Predominally black.
Q. So the cancellation of the optional area which 

had been there had the effect of preventing black chil­
dren choosing Mackenzie, is that correct?

“A. That is right.
“Q. Were there any other schools — there is a ref­

erence made to the establishment of the center district 
boundaries — were there any other schools which had 
not previous!}' been in certain feeder patterns that were 
drawn back into the center district?

A. 1 am trying to remember now as I said eleven 
years.

“Q. I understand.
“A. If I remember correct!)', the Sherrill School which 

also had been a part of it, that portion north of Tireman 
had been attending Mackenzie and they in turn, the total 
school then would have been returned to the Chadsey 
area.

"Q. What about Tappan and that area, are you fa­
miliar at all with changes that took place?

'‘A. Tappan was the junior high school in which Win­
terhalter, the elementary school in the area south of 
Davison just west of Ewald Circle attended. At that 
time the students from that area attended Tappan and 
all students from Tappan attended Mackenzie.

“The new change would mean that the students from 
Winterhalter, and I think MeKerrow which is just below 
Winterhalter would have attended Tappan through the 
9th grade, but then had been pulled back into the center 
district to attend Central High School.

“The of her students in Tappan would have gone to 
Mackenzie.

“Q. The other students in Tappan, were they pre- 
dominatly white students?

“A. Yes. Our concern about this region really at that 
time was that we could draw a line which separated the 
black residents from the white residents and almost to 
the alley and that in effect was tire boundary line of 
the center district.”

Nos. 72-1809, 72-1814 Bradley, ei al. v. Millikan, et ah 17



18 Bradley, et al. v. Milliken, e l a l  Nos. 72-1809, 72-1814

There was evidence that school feeder patterns were changed 
so as to make particular junior high schools or senior high 
schools either generally white or generally black, as shown 
in the following testimony:

MR. CALDWELL: Your Honor, I have copies of
the Mumford High School district in 1959 which is taken 
from Plaintiffs Exhibit 78-A, and this makes it easier to 
see the schools.

Q. Lets get back to the 1962-’63 overlay,
Trior to the 1962-’63 -■ first of all, will you point out 

to the Court where the Vandenberg and Vernor Schools 
are.

A. This triangle to lire northwest corner of this area, 
(indicating)

Q. Prior to 1982-63 where did the Vernor and Van- 
derburg youngsters go to high school?

“A. Mumford High School.
“Q. A boundary change was made in 1982-63?
“A. That’s right,
Q. Where did those youngsters go to school in that 

year?
“A. Ford High School.
Q. How long did that feeder pattern continue?
A. Until 1966 67 when they returned to Mumford,

“Q. All right.
MR. CALDWELL: Plaintiffs’ Exhibit 128-A, your

Honor, reflects that in I960 VanUenburg and Vernor were 
0 percent black. Mumford was 16.1 black, Ford was .1 
percent black. With regard to Vandonburg and Vernor, 
there was a gradual increase in the black population until 
1966 when Vandonburg was 39.5 percent black and Ver­
nor was 39.8 percent black.

‘ T hen in 1967 the change was made taking Vandenburg 
and Vernor back into Mumford. Vandenburg had be­
come 70 percent black, Vernor had become 63.2 percent 
black. That year the change was made and Mumford 
was 78.1 percent black, Ford was 4.1 percent black.



Nos. 72-1809, 72-1814 Bradley, el a l  v. Mill ikon, et a l  19

" Q. I believe that feeder pattern continued into the 
current school year?

“A. That is right.
“Q- Those schools now feed back into Ford High 

School this year?
“A. That is right.”

The effect of such a policy was attested to by Dr. Gordon 
Foster of the University of Miami, director of the Florida 
School Desegregation Consulting Center:

Q- The effect, Doctor, then, of the removal of Van- 
denberg and Vernor from the Ford feeder pattern into 
the Mumford feeder pattern, what was the effect in terms 
of race?

A. 4 lie effect of this move in 1967-68 of the transfer 
back of the two elementary schools was to increase the 
segregation at Mumford, to take blacks from the Ford 
High School and, therefore, increase the segregated pat­
tern there, and, in my opinion, it reinforced inevitably 
the perception that Ford would be kept white as a 
matter of basic policy and that Mumford would be a 
racially contained isolated high school attendance area.”

Similar testimony regarding the segregative effect of alter­
ing school feeder patterns was given with respect to the 
Jefferson and Hutchins Junior High Schools, Garfield and 
Spain Junior High Schools, Burton and Irving Elementary 
Schools, Higginbotham Elementary School, Jackson and Foch 
Junior High Schools, Stellwagen, Keating and Clark Elemen­
tary Schools, Cleveland and. Nolan Junior High Schools, Com'- 
ville Elementary School, Ford and Brooks Junior High Schools, 
Osborne and Pershing High Schools, Pavkrnan Elementary 
School, the Ellis, Sills, Newberry and Sampson Elementary 
Schools, and Northwestern and Chausey High Schools.

(b) The District Judge made the following findings of 
fact pertaining to busing black children to black schools past 
white schools:



20 Bradley, et a l  v. Millikan, et a l  Nos. 72-1809, 72-1814

The Board, in the operation of its transportation to 
relieve overcrowding policy, lias admittedly bused black 
pupils past or away from closer white schools with avail­
able space to black schools. This practice has continued 
in several instances in recent years despite the Board’s 
avowed policy, adopted in 1987, to utilize transporta­
tion to increase integration.

With one exception (necessitated by the burning of 
a white school), defendant Board has never bused white 
children to predominantly black schools. The Board lias 
not bused white pupils to black schools despite the enor­
mous amount of space available in inner-city schools. 
There were 22,931 vacant seats in schools 90% or more 
black.” 338 F.Supp. at 588.

The legal conclusion of the District Judge follows:

8. I he practice of the Board of transporting black 
students from overcrowded black schools to other identi- 
fiably black schools, while passing closer ideutifiably white 
schools, winch could have accepted these pupils, 
amounted to an act of segregation by the school authori­
ties. Spangler v. Pasadena City Bd. of Ed., D.C., 311 
F.Supp. 501.” 338 F.Supp. at 593.

Additional support for the District Judge’s legal conclusion 
includes: United States v. School District 151, 288 F.Supp. 788, 
798 (N.D. 111. 1967), afj’J ,  401 F.2d 1125, 1131 (7th Cir' 
1968), on remand, 301 F.Supp. 20], 211, 222 (N.D. 111. 1969) 
< fd ,  432 F .2d 1147, 1150 {7th Cir. 1970), ceri. denied , 402 
U.S. 943 (1971); United States v. Board o f School Commis­
sioners, Indianapolis, hid., 332 F.Supp. 655, 669 (S.D. Ind 
1971).

The following testimony pertains to busing black children 
from overcrowded black schools past white schools with 
available pupil capacity to other black schools:

“Q- I am trying to anticipate, Mr. Ritchie’s question. 
Have you noted some examples of the bussing of black 
children from black schools to other black schools?



“A. I have.
“Q. Could you give us a couple illustrations?
“MR. BUSHNELL: While Dr, Foster is looking

through his notes, might I make the request that \\ e 
made yesterday that on conclusion of his testimony we 
have access to the notes made?

“MR. LUCAS: At the conclusion, yes. We have no
objection to that.

“A. In 1960-61, and we don’t have any record for. 
’61-62 so I am not certain as to that year, students were 
transported from Angel! to Greenfield Pans. I his has 
already been part of our testimony, 1 believe, 186 students 
and students from Angel! to Higginbotham, 118 students. 
In 3969 -  "

“Q. Excuse me, Doctor, let me ask you if the Angell- 
Higginbotham — were there white schools available v ith 
space, from your examination of the records?

“A. Yes, there were.
“Q. Between An gel 1 and Iligginbotnana?
“A. Yes, sir, I believe I testified to that before.
“Q. All right.
“A. In 1969 the Ruthruff Elementary School which 

was 99 percent black transported 143 children to Herman 
Elementary, 55 ■ percent black.

e e O
“Q. (By Mr. Lucas,- continuing) Dr. Foster, would 

you step to the map.
' “I think we wore talking about the Rulhruff-Hermau 
Schools.

“A. Yes. We were testifying at recess about trans­
portation of blacks past white sclioois. In i960 vve stated, 
that Ruthruff Elementary which is here in the souto- 
eastern portion of the Mackenzie High School zone on 
the large 1970-71 attendance area map, in 1969 trans­
ported 143 children to Herman Elementary School which 
is just below the blue area on the undermap here -­
Herman Elementary School (indicating). Herman in 
1969 was 55.6 percent black. Ruthruff was 99.1 percent 
black and I think it is important to note that the access

Nos. 72-3809, 72-1814 Bradley, et al. v. Milliken, et al. 21



to Herman goes right past the Parkman Elementary 
School which at that time had 136 spaces available and 
according to their capacity figures -

Q. Parkman was what percentage?
p„ , ' 1 don’t have the figure for ’69 and ’70
1 arkman was 12.8 percent black.”

* © K)

School S ° '  H ? 1* '  w »  Hie Parker Elementary 
it- l o i . 1 t lc geiu’ral center of Die Mackenzie 
1 .git School zone. Parker in 1970 was 79 4 bhek

black T V  100 w5“ch at thal time was 58.5 percent
“ * , . T  ’* * *  1P  P rkman E'emcntarv which in J 9 1u %as 12.8 percent black. '

Q. Did Parkman have capacity at that time, Doctor?

spaces. aikman 111 70’ according t0 my data, had 121
* * o

“MR 5 S n WOlf d, y°U f i ve us the A- L - Homes. 
4 l l F ( T ) l f i i T JlT'> J [l]T ght t,Je Court ni]ed on that?

.. ' J ; t  u  • He says lie is pursuing a non-cnmnli
live matter here If the, be tn.e'ho n.ay’ go “Pad
., Holmes School, children, were bussed from
In school over to the MeCnrw School w h i c i  ,

T  m n ° e %  M ' b'vcs,n ,‘ ^  X l
elite!; - ° Illmor atgh School, which is \0-

U K  BUSIINELL: if the Court please Mr Lucas
just pointed out the location of Past which'the witness 
obviously couldn’t find on the map

;;T11E COURT: Well, he hasn’t moved it
A. I noted the west section of Cooley instead of the

wh \  1  Junj0r : i D]l Sd ,°ol and Clinton Schools
arc >u the east section of the Cooley PIH, School 

attendance zone transported 54 students to the Jefferson 
School which is now in the Murray zone and it is M

kn Ue CaStCra section oi the Murray High School 
‘ C1Kciliee aiea- 1 il,mk i{ is important to note that

22 Biac]ley, et al. v. Millikan, el a l  Nos. 72-1809, 72-1814



these students who were bussed came from a consider­
able distance north and there were several possibilities —

“Q. Excuse me, were the Post children in a black 
school or white school?

A. The Post School this year, 1970-71 was 99.3 per­
cent black. The Clinton School from which they also 
came was 97 percent black.

“Q. What about Jefferson?
A. Jefferson was 8/.6 percent black. There were two 

or three other possibilities much closer to the Post-Clinton 
area. One would have been in the western portion of the 
Mackenzie district here (indicating).

“Q. What is the racial composition?
A. At this time it had 35.4 percent black with a ca­

pacity of 109 stations available. Another possibility would 
have been the Vetal School in the Bedford zone, the 
southern portion of the Bedford High School zone, which 
at this time was 2 percent black with vacancies of 203 
pupil stations and a third alternative could have been 
the Coffey School to the east of the Ford attendance area 
which, at this time was 29 percent black with 69 pupil 
stations available. -

“Q. Did you say to the east was part of the Ford 
attendance area or outside of that, Doctor?

A, It’s in the Ford attendance area.
i> 0 V 1

1 HE COURT: Well, to save time why don’t we pro­
ceed on the assumption that that was his testimony. 
But if it proves otherwise we will strike it.

‘MB. LUCAS: Thank you, sir.
“Q. (By Mr. Lucas) Doctor, I understand that: the 

policy of the district is that bussing to relieve overcrowd­
ing would be done in such a manner as to improve in­
tegration at the receiving school. From your examina­
tion of the current bussing examples which you have 
given, do you have an opinion as to whether or not that 
policy has or has not been followed?

“A. Well, I think from the examples I have given so 
far it would give an indication that integration could

Nos. 72-1809, 72-1814 Bradley, et al. v. Milliken, et al. 23



Lave been effected in a much better way if the children 
instead of going to the schools would have been dropped 
oil at other schools where the racial balance was quite 
(liiterent. 1

24 Bradley, el al. v. Millikan, e l al. Nos. 72-1809, 72-1814

r f ie t' lcre any white schools from your examina- 
ion of data, Doctor Foster, between Angell and Higgin­

botham which had capacity at that time?
A. Yes, there were several which were a good deal 

closer to Angell than Higginbotham. The effect of this 
soil of zoning pattern was to provide segregated student 
iat,os at all three of the elementary schools, and in 
terms of tilings that could be done or could have been 
uone at tnat particular time to correct the segregated 
situation, it is my opinion that, first of all, the students 
being bussed from Angell could have been dropped off 
a any number of places on the way to Higginbotham; 
schools which had the space and had a better racial 
composition for tins sort of input. This having been 
done zone lines could have been redrawn at these three 
schools to have approached a racial balance situation 
which, m my opinion, would have helped to stabilize the 
situation at that time. This would have also assisted in
th! . ° y ! rTTr0wdlf g 5  Pasteur and a couple of classrooms c.rtia at Higginbotham.

Q. Do you have an opinion, Doctor, as to the Per­
ception created by the maintenance of the Higginbotham 
;K;i(;oj under those circumstances, including the transpor­
tation of biack students from Angell into it?
, ./V WdI’ il, is obvious that if you transport black 

cimdicn jiasl white schools to an all black school that the 
community is going to perceive tiffs as a segregated in­
tent, a segregated action. If you have a boundary situa­
ted! which isoates and enforces black students to a par- 
ocular area when the boundary lines could b& changed 
o c ec'tuat0 a hDter pattern racially, then it seems*to 

me tnat community perception would also Ire that the 
school is not doing what it could in terms of integration 
anct equal opportunity.



N°S. /2-1809, 72-1814 Bradley, el al. v. Milliken, el a l  25

1960are tW fWUi yOUV examination of tbe data in 
a,C/ lcie aa>; a(hnimstrative reasons, any administra-

! '  V Z  f  r hiCh " '0Ukl indi“ to *» ™> a
I n L c  o t f a d L ™  ’” aimili,10l! ralher * » » »

A. Iii terms of school capacity there are none, no.”

(Mr' !Ifm itlso" )  “^ I t c d  instances 
bkc!< SludMlls t-loscr white scl.ools to black

We‘ flI.Kl 012 tbe v,llcler and over capacity man in
lo n n d S ff S ! l!a,r  T  lhal iherC s c h o o l s ^; ■■‘•lggmbotham. Vernor, which is listed as be­
en0 7 Capacit>'; MacDowcll, 103, is it? Pasteur 
400 \ 10 sam.e time we fi!id tliat Higginbotham was

^  y ^ I>acit5% Is that w]iat Lbe exhibit ^  T ?

We  ̂ wS0 i;now' do we not, that Pasteur Mac- 
Hovel! aim Veraor were white schools?

A. Both Pasteur and MacDowcli at that time as I
n{ } ’ hacl S0Plc beginning of blade students as a result
, , r e a ; l e  8 l 0 W l h  0 i  t h c - sct!lemcnt of the H i g g i n b o t h a m

(inJ p  They were P^dominatly white schools- at that 

A. Yes.

„9 ' .’tiiani was all or virtually all Had ?
A. ics. a '

«?• i mIoed> i{ had beon the same in 1950, had it not?A, I B S .

, At lbe same tirae that we are talking about you 
v u e  transporting youngsters from Angell to I J ia L -  
botham, is that correct? &yn

“A. Yes.

A n S . ? ! £ » £ ?  “  bCd'g —  <” »
“A. Yes.
\). We also know on that exhibit that they were



26 Rindlaj, et al. v. Millikan, et a l
Nos. 72-1809, 72-1814

w S T i l d dmore than eno°0,| "  FitZgem,d ™d Clinton
■a . w e C t L r s is ,s t : ^ h“ d fc ,h - ?

of Ed,'catio"  » * * 10 «—  
they were educated hi Wta*

cs imony as to the intact busing practice follows:

Detroit system^Doctop on”tra“ p y°' '  S°  i” ‘°  *®

would k H  f a h K v ' ’ co“" ’e),or. my answer 
porting classrooms of w o > ’ >d; 15 t,le Practice of trails- 
another- an °°  i'i , I ’ " T  ” * * *  « *  school to
At the reeei\'ing\ehool. m - M  * »  educated

!scl,2l w w l b ’so iercera1' transP ? fatio“ occurs from a 
is predoniina, ly a wl ,tr ? » sd“» '  "h id ,
this have 'Vl‘“l ofiect. if any. docs
dren? ' 1 segregation on those chi!-

rogMioJ’or sceraeaH “d das-™ m  seg-

regatedornoi segrt-gated geid-aily." 'M  ba s‘« '

P°,'f bav' had t7 dcal7 vith i7 thc past? *-edl,1’fiue which 
,. • occasion, yes, sir.

B o o w i t h ° ^ m r t d n , C7 1,i,ie <Ia,a ° r relevant inforrna- 
Detroit i S  'h to ,  ° ™ SP',' ' ati“n Plaf'tices in the 
bussing, intact b L in g ?  'vi*  type of

A. Yes, sir.

),V hat ditI >;0ur examination reveal, Doctor?
. il ]s 7°y understanding from the dam fDn -i 

was intact bussing generaUy in the late 70 s ^  T  
and early 60’s. '-K' s> as saiCd..



Nos. 72-1S09, 72-1814 Bradley, et a l  v. Millikan, ei a l 27

Ilow did that intact transportation operate, Doc-“Q.
tor?

A. it involved transporting classrooms in whole from 
one school to another receiving school and at the receiv­
ing school the classrooms were kept intact for instructional 
purposes.

Q. Was this policy changed at any time, Doctor, as 
far as you know?

J h  5 J S, n7  undf  landing it was changed in the 
mi JJh,  60s but I don t remember the exact date.

O. What would the change Ire, Doctor? What type 
iim?)USSinS ' VOulcl rosult in tcrms of relieving overcrowd-

A. lou  simply gather children up on a geographical 
basis ana transport them and assign them at random 
o v Inn ever grade they are in the receiving school rather 

than keeping them in an intact classroom.”

. SeSreSatmS children by race within schools has been held 
repeatec.lv to be unconstitutional. Jackson v. Marvell School 
District No. 22 445 F.2d 2D, 212 (Sfh Cir. 1970); Johnson 
v. Jackson la m h  School Board, 423 F.2cl 1055 (5th Cir. 1970).

The record indicates that in at least one instance Detroit 
served a suburban school district by contracting with it to 
educate its black high school students in a Detroit high school 
r lch Wa;: overvvhelrningly black by transporting them away 
bom nearby suburban white high schools and past Detroit 
high schools which were predominately white.

I he District judge found on this score that for years bhek 
df clf 1 in thc ^ rv e r  School District were assigned to black 
schoo.s in the inner city because no white .suburban district 
(or white school m the city) would take the children.

This findi]h? is supported by the testimony of Detroit School 
Superintendent Draehler, which follows:

Q. When was the Carver District in existence as a 
separate entity?

A. 1 he Carver District? The Carver is not in De­
troit.



Q. Is it a separate school district whose students at­
tended some Detroit high schools, in particular Northern?

A. Oh, I see what you’re referring to. ] am told that 
bach in 5 i, 58, at that time I was not in Central Office, 
there were some students from Carver District who did 
not have a place for adequate high school facilities. An 
arrangement was made with Detroit for the Carver stu­
dents to come in on buses and go to Northern High 
School. Now, the nearest school to Carver was Mum- 
ford at the time. And they did go past Murnford towards 
Northern.

“Q- Is Carver a black district?
A. Yes, black and very poor.
Q. Has Carver District subsequently merged with 

Detroit?
“A. Oak Park.
“Q. With Oak Park?
“A. That’s right.
Q. And at that time the transportation was termi­

nated?
AY. That’s right. By the way, as a result of those 

youngsters coming, there was a rumor spread that De­
troit children were being bussed, say, from the Higgin­
botham, which is north — Higginbotham area which is 
north of Murnford High School area but in Detroit, that 
they were being bussed to Northern, too, because they 
were black students, people saw black students from the 
Eight Mile area coming down. But to the best of my 
knowledge these were outside students.

\).  ̂ There were blade children being bussed to Hig­
ginbotham, weren’t they?

“A. There were black children being bussed to Hig­
ginbotham. •

“Q. From Angell?
“A. From Angell past some white schools. And when 

the issue was brought to Doctor Brownell’s attention by 
me in about 59 or ’60 — there were a series of instances

Bradley, et a l  v. Millikan, el ul Nos. 72-1809, 72-1814



Nos. 72-1809, 72-1814 Bradley, et al. v. MiUiken, cl al. 29

like tliat. There was the Angell, there was from the 
military fort in the southwest, they were bussing their 
own children up to the Noble, and Doctor Brownell, as 
soon as it was brought to his attention, abolished that 
as well as the optional areas.

“Q. Was this so-called intact bussing, that is a class 
being brought as a unit?

“A. Generally speaking, yes. That policy of changing 
to geographic bussing occurred about 62-’63 as a result 
of the Equal Education Opportunities Committee.

“Q. Was all of the bussing done in the City of De­
troit of an intact nature until the Equal Opportunities 
study?

“A. To the best of my knowledge it was. I know 
when my children were being bussed, they were bussed 
intact.”

(2) Optional Areas.
The record demonstrates that in many instances when 

neighborhoods in Detroit began to experience some inmigra­
tion of black families, it was Board of Education policy to 
create optional attendance zones, thereby allowing white stu­
dents to change schools to all white or predominately white 
schools, generally located farther toward the city limits. For 
many vears the record indicates this practice to have been 
pervasive. It continued in at least one instance up to the 
1970-71 school year.

As to optional attendance zones, the District Judge found:
“During the decade beginning in 1950 the Board cre­

ated and maintained optional attendance zones in neigh­
borhoods undergoing racial transition and between high 
school attendance areas of opposite predominant racial 
compositions. In 1959 there wens eight basic optional 
attendance areas affecting 21 schools. Optional attendance 
areas provided pupils living within certain elementary 
areas a choice of attendance at one of two high schools. 
In addition there was at least one optional area either- 
created or existing in 1960 between two junior high



30

school of opposite predominant racial components. All 
. „  h\& f ' hoo] optional areas, except two, were in 

neighborhoods undergoing racial transition (from white 
« bl; f  0  during tlie 1950s. The two exceptions were- 

j I L  1C bchvetJn Southwestern (61.62 black in
-JoO) and Western (15.32 black); (2) the option be-

W -tf1 f?enb'V ° C b h c k  ̂ aud Southeastern (30.97 black). 
Wiin the exception of the Denby-Soathcaslern option 
(just noted) all of the options were between high schools 
oi opposite predominant racial compositions. The South­
western-\\ estem mid Denby-Souiheastern optional areas

Joth l W i ° ° n " \950> 1860 mKl 1970 census maps, 
t i-d wh:r C CnV !1 Southeastern, however, had sub- 

S f t n  PT  Populations, a»d tbe option allowed 
f ;  t0 ef aP° integration. The natural, probable f0re-

Sm v  aCtU CffeCt ° f lhese optional ^Bfies was to
school, tT  yT f lT  !°  escapc i^entiiiably ‘black’ 
„ „ , ; n  ■ Jflt bac; a,so been an optional zone (dimi-
" cU,-C balwecn 19* 6 aod 1959} created in an attempt 
• ■ • to separate Jews and Gentiles within the system’

h tv  S’, " t ’i t  T  ]e'visl1 went t;
*  °  i f  T ” " 1 i!ndc& " li,c y'MugsKtrs went to 

C Although many 0f these optional areas had

of’ tlie 'lr n r  b>' 1030 <i,,e t0 " ‘e l « *  flM* most{ae “teas had become predominantly black, one op­
tional area (Southwestern-Western affecting Wilson Tun- 

agi! 3r;ionates) continued until the present school 
Wpi ( and will continue to effect lltl> and 12th m '

W Wh° dCCtCd j° €SCape fr°m P ^ orn tm> Gacn SoiUhwestern to predominantly white Western
High School). Mr, llenrickson, the. Board’s famertd fact 
witness who was employed in 1959 to, inter 'alia elirni 
m tc optional areas noted in 1967 that: Tn operation 
Western appears to be still the school to which whit- 
; S >  eŜ f  £ 01” Predominantly Negro surrounding 
/ ‘ ,rllK Pjject of eliminating thus optional area
(vshicn ailected only 10th graders for the 1970-71 school

1S o  ^  5- i‘ iL’ri’a-e ? ni,tll''vesi(,rp {rom 86.72 black in
W  10 i4 ‘3 i b k c h  19/0.” 338 P.Supp. at 587-88.

Bradley, el al. v. MiUiken, et ah Nos. 72-1809, 72-1814



Nos. 72-1809, 72-1814 Bradley, et al. v. Millikan, et a l  31 

From these facts the District Judge arrived at the following
legal conclusion:

“7. The Board’s policy of selective optional attendance 
zones, to the extent that it facilitated the sepaiation of 
pupils Oil the basis of race, was in violation of the Four­
teenth Amendment. Hobson v. Hansen, D.C., 269 IbSupp. 
401, ail’d sub nom., Smuck v. Hobson, 408 F.2d Do. 
[(D.C. Cir. 1969)].” 338 F.Supp. at 593.

Additional support for the District Judge’s legal eon- 
elusion includes: United States v. Texas Education
A g en cy ,__ F.2d —  (5th Cir. 1972); Northcwss v. Board
of Education of Memphis, 333 F.2d 661, 66o-66 (6tli 
Cir. 1964) (different but analogous situation); United States 
v. Board o f School Commissioners of Indianapolis, 332 D 
Supp. 655, 668 (S.D. Ind. 1971); Spangler v. Pasadena City 
Board o f Education, 311 F.Supp. 501, 502 (C.D. Cal. 19/0).

The effect of use of optional zones was described in Dr.
Foster’s testimony:

‘The first method or technique 1 might cite that is 
used to maintain segregation would be the use of op­
tional zones. 1

“Would it be possible for me to step to the boaid if:
illustrate?

“Q. Please do.
(The witness proceeded to the blackboard.)
“A, Optional zone's are some tunes also referred to as 

dual zones or dual overlapping zones. I think it will 
be easier for me to illustrate this briefly.

(The witness drew a sketch on the board.) __ _
“A, If you have, let’s say, two nigh school dish lets, 

District X and District Y, frequently when you set up 
an optional zone you carve the zone out of one district, 
occasionally two, but assume we carve it out of District 
Y and the'children in this optional zone are then per­
mitted to go to either high school X or high school v, 
this becomes in a sense an overlapping zone because



‘ 1' if > JTJ ‘tiuvc u >
i . i - i o w ,  / Z -1 5 1 4

!f .We refcr i0 the boundaries of school District X at
also Jtah s '■ ° nIy .ind;idcs the i)revi°us boundary but fiiso takes in tlie optional zone. '

“District Y in turn would include its previous bound

S i n  th " 1Cluding; hf  0pti0nal zone- 1 think till; may 
gi” of the annotation of the word ovei:-

Essentially optional zones arc set up for two or three

r Z ’i o Z t .n  t " ' b l a c k ” £ & £  
, - 1 1  01 attending one of the two attendance areas

is'  ' fa  the boundaries of die zone and another
,  V .  o ^ ion aU y  for religious purposes to provide a]

~ « r r of(liffei'ciit- W  s«neatL t6 aie. sel UP for socioeconomic reasons and 1 have 
f0U them set up ])v boards of superin
(indents as political gimicks in order to help pass a bond 
vsue or one dung or another or a school boaid or sun “  
nte m ent will set up temporary optional zones as a flvor 

cm a-n constituents in return for assistance in helping 
the s md board with one thing or another. 1 *

* ,‘k m tll(‘ frame work in which we operate they
' ' USCd pnmanly for maintaining segregated patterns.

QfoptioMi ^  hUhe '
A- Yes, 1 have.” '

1>. apalyak <>f She purpose a„d effect of each op.

S  Cm‘a" d P,''“  ll'“‘ i» M a c k e , i - S J

aSy i h c ' vas " S“<11,ri“ “riI> -  s™ « » „

bvc vitfuc that you of,



Nos. 72-1809, 72-3.814 Bradley, et a l  v. MilJiken, el al. 3j

“A. In terms of assignment I can see no advantage to

il' .  * *
“Q. Do you have an opinion as to its use in terms of

segregation or desegregation, Doctor Foster: _
“A. In my opinion it was used as an optional zone 

to allow whites during the period it was in existence m 
the ’50’s and also until such time as it was done away 
with in 1962 to be assigned to predominantly white Mac­
kenzie High School. iq - n

“O Doctor Foster, from your examination m the JoU
census and in turn the I960 census exhibits, do you have 
an opinion as to the effect of such an optional zone on 
the community, residence pattern m the communey :

« * 0
“A. Community people and residents in a situation 

such as this generally have a perception tnat theic is 
som eth in wrong with their school, that the whites neec 
ro p tio m l zone to gel out into a less black situation and, 
therefore this increases their perception of racial isola
lion and, in fact, physical containment.

“O. Does this have an effect, Doctor in terms of the 
residence pattern? I believe you testified m 19o0 the 
optional area w as entirely white or zero to 4.9 per cent
white.

# £ *■
“A In my opinion this tends to increase the instability 

o f t t e o r m d  ' t! ■ cmHy feel tl *  an ad
h„e iomoounj into,jo, sil'nilion mol it meremes Unto 
flight in this sort of situation.

& # $
-O Doctor Foster, does tire rise of those techniques in 

some areas lr.evc :m effeet in terms of the percepiosn or 
the coramnniu of schools Unities I k  oolu.il too seuoot,, 
to which the option was invtlvea?

“A. Thank you. Yes, I think the perception is not only



of rank and file community residents, but people of con­
siderable influence in the community, along with School 
Board administration people, School Board members, 
School Board officials. In many cases they have sub­
stantiated this perception that 1 have recounted; that the 
optional zones did lead to greater pupil segregation 
and a feeling of frustration that the school authorities 
were not doing what was called for in terms of desegre­
gation, and it had a generally debilitating effect on the 
image of the schools as far as all of these groups were 
concerned.”

Mr. Henriekson, defendant School Board’s principal wit­
ness and divisional director of planning and building studies 
in the School Housing Division, did not deny the discriminatory 
effect of at least some of these optional zones.

“Q. In 1959 optional areas frustrated integration, did 
they not?

“MR. BUS] IN ELI.: Objection to the form of the ques­
tion.

“THE COURT: He may answer.
“A. Some of these areas in 1959 had no efleet what­

ever with movement of black or while students. They 
were either all black or all white, Some of them such 
as the Western-Southwestern area can be said to have 
frustrated integration and continued over the decade.

( I )  Building Construction.

The District judge found and tire record contains evidence 
that the Detroit Board of Education practices in school con­
struction generally tended to have segregative effect; the great 
majority of schools were built in either overwhelming all 
Black or all white neighborhoods so. that the new schools 
opened as one race schools.

The District Judge’s school construction findings were as 
follows:

34 Bradley, el al. v. MilUken, ct al. Nos. 72-le>09, /2-1814



Nos. 72-1809, 72-1814 Bradley, el al. v. Millihen, et al. oo

“In I960 the defendant State Board of Education and 
Michigan Civil Rights Commission issued a Joint Policy 
Statement on Equality of Educational Opportunity, re­
quiring that

'Local school boards must consider the factor of racial 
balance along with other educational considerations 
in making decisions about selection of new school 
sites, expansion of present facilities . . . .  Each of 
these situations presents an opportunity for inte­
gration.’

Defendant State Board’s ‘School Plant Planning Hand­
book’ requires that

‘Care in site locations must be taken if a serious 
transportation problem exists or if housing patterns 
in an  area would result in a school largely segregated 
on racial, ethnic, or socio-economic lines.’

T h e  d e fe n d a n t C ity  B o a rd  h a s  p a id  l i t t le  h e e d  to  th e s e  
s ta te m e n ts  an d  g u id e lin e s . T h e  S ta te  d e fe n d a n ts  h a v e  
s im ila r ly  fa ile d  to  ta k e  a n y  a c t io n  to  e f fe c tu a te  th e se  
p o lic ie s . E x h ib it  N N  re fle c ts  c o n s tru c tio n  (n e w  o r  a d ­
d it io n a l ) a t  1 4  sch o o ls  w h ic h  o p e n e d  (o r  u se in  1 9 7 0 -7 1 ; 
o f th e se  1 4  sch o o ls , 11 o p e n e d  o v e r  9 0 7  b la c k  a n d  o n e 
o p e n e d  le ss  th a n  1 0 7  b la ck . S c h o o l c o n s tru c tio n  c o s tin g  
$ 9 ,2 2 2 ,0 0 0  is o p e n in g  a t  N o rth w e s te rn  H ig h  S c h o o l w h ic h  
is 9 9 .9 7  b la c k , an d  n ew  c o n s tru c tio n  o p en s a t  B ro o k s  
Ju n io r  H ig h , w h ic h  is 1 .5 2  b la c k , a t a co s t o f $2 ,500 ,01 )0 . 
T h e  c o n s tru c tio n  a t B ro o k s  ju n io r  H ig h  p lay s  a  d u al seg - 
re g a to ry  ro le : n o t  o n ly  is th e  c o n s tr u c t io n  s e g re g a te d , it  
w ill re s u lt  in  a f e e d e r  p a tte rn  c h a n g e  w h ic h  w ill re m o v e  
th e  la s t  m a jo r ity  w h ite  sch o o l fro m  th e  a lre a d y  a lm o st 
a l l -b la c k  M ackeiv/.ie H ig h  S c h o o l a t te n d a n c e  a re a .

“S in c e  1 9 5 9  th e  B o a rd  h as c o n s tr u c te d  a t  le a s t 13  sm all 
p r im a ry  sch o o ls  w ith  c a p a c it ie s  o f  fro m  3 0 0  to 4 0 0  p u p ils . 
T h is  p r a c t ic e  n e g a te s  o p p o rtu n itie s  to  in te g r a te , 'c o n ­
ta in s ’ th e  b la c k  p o p u la tio n  an d  p e rp e tu a te s  a n d  c o m ­
p o u n d s s c h o o l s e g re g a tio n .” 3 3 8  E .S u p p . a t  5S8-89.



36 Bradley, et al. v. Millikan, el al. Nos. 72-1809, 72-1814

Other cases in which such findings have been held to con­
stitute a de jure act of segregation include: Swann v. Charlotte- 
Mecklenburg Board, of Education, 402 II.S. 1, 21 (1971); 
Cisneros v. Corpus Christi Independent School Did.. —  F.2d 
—  (5th Cir. 1972), cert, applied for, 41 U.S.L.W. 3255 (Oct. 
31, 1972); Kelly v. Guinn, 456 F.2d 100 (9th Cir. 1972), 
petition for cert, filed, 41 U.S.L.W. 3114 (U.S. Aug. 28, 1972); 
Davis v. School District of Pontiac, 443 F.2d 573, 576 (6th 
Cir.), cert, denied  402 U.S. 913 (1971); Sloan v. Tenth School 
District, 433 F.2d 587, 590 (6th Cir. 1970); United Stales 
v. Board of Education of Tulsa, 429 R2d .1253, 1259 (10th 
Cir. 1970); Brewer v. School Board o f Norfolk, 397 F.2d 
37, 42 (4th Cir. 1968); United States v. Board of Public 
Instruction, 395 F.2d 66, 69 (5th Cir. 1988); Kelley  v. Alt- 
heimer, Arkansas Public School Dist. No. 22, 378 F.2d 483, 
496-97 (8th C ir. 1967); Johnson v. San Francisco Unified School 
District, 339 F.Supp. 13,15, 1326, 1341 (N.D. Cal. 1971); 
United States v. Board o f School Commissioners o f Indianapolis, 
332 F.Supp. 655 (S.D. Inch  1971); Spangler v. Pasadena City 
Board o f Education, 311 F.Supp. 50.1, 522 (C.D. C a l. 1970); 
United Stales v. School District 151, 288 F .S u p p . 786, 798 
( N .D . 111.), affd ,  404 F.2cl 1125 ( 7 t h  C ir . 196S); Lee  v. Macon 
County Board of Education, 267 F .S u p p . 4 5 8 , 4 7 2  ( M .D . A la .) ,  
aff’d per curiam sub nom., Wallace v . United States, 3 8 9  U .S . 

215 (1967).
R e c o rd  e v id e n c e  p e r ta in in g  to  D e tr o i t  B o a rd  o f  E d u c a tio n  

b u ild in g  c o n s tru c tio n  p r a c t ic e s  an d  th e ir  re su lts  in c lu d e :

“Q . D o c to r  F o s te r , I sh o w  y o u  a  d o c u m e n t in  e v i­
d e n c e , P la in t il l 's  E x h ib i t  7 0 . I  d ir e c t  y o u r a tte n t io n  to  
p a g e  1 5  o f th e  e x h ib it . T h e  e x h ib it  is S c h o o l P la n n in g  
H a n d b o o k , B u lle t in  4 1 2 , re v ise d , Ja n u a ry , 1 9 7 0 , M ic h ig a n  
D e p a r tm e n t  o f  E d u c a tio n . D ir e c t in g  y o u r  a t te n t io n  to  
C h a p te r  2 , th e  S c h o o l S ite , a n d  th e  la s t  fu ll p arag rap h , in  
th e  le f t -h a n d  co lu m n  on p a g e  15 , D o c to r , w o u ld  y o u  re a d  
th a t  p a ra g ra p h ?

“A. ‘C a re  in  s ite  lo c a tio n  m u st b e  ta k e n  if  a ser io u s  
tra n s p o rta t io n  p ro b le m  ex ists  o r  i f  h o u s in g  p a tte rn s  in



an area would result in a school largely segregated on 
racial, ethnic or socio-economic lines.5

‘ Q. Doctor, would yon step down to the map, please? 
Do you have a copy, Doctor, of Plaintiff’s Exhibit 79?

“A. Yes, I do.
“Q. Doctor, would you examine Plaintiff’s Exhibit 153, 

which shows new school construction, 1960 to 1970? Per­
haps you had better step back here. Doctor, the black- 
squares on here represent schools opening SO to 100 per­
cent black in pupil enrollment. Would you direct your 
attention to the Drew Junior High School on the map 
and examine the exhibit and tell me when Drew was 
opened?

“A. According; to the exhibit, the Drew junior High 
School was opened in 1970.

“Q. And what was it opened as in terms of its en­
rollment, Doctor?

“A. 1,587 students.
“Q. And its percent black?
“A, 95 per cent black.
“(A And the Eileen Primary School, Doctor, can you 

locate it on the map?
“A. The Eileen Primary is in the Cooley High Sdrool 

zone, I believe.
“Q. And when did it open. Doctor?
“A. 1970.
“Q. And what was its enrollment and its pupil popula­

tion in terms of black?
“A- 333 students. The per cent black was 99.1.
“Q- Would you examine the map and locate the E. 

M. Turner Primary?
“A. Yes.
“Q. What year was that opened, Doctor?
"A. The Turner Primary was opened in 1969.
“Q. And its enrollment of pupil population?
“A. 362 pupils, 97.5 percent black.
“Q. Can you find the Stewart School on there, Doc­

tor?

Nos. 72-1809, 72-1814 Bradley, et a l  v. Millikcn, et al. 37



A. The Stewart School is in the same general area 
aŝ  Turner, a little to the south.

Q- What year was it opened?
“A. 1970. '
■t Q- -*is population and percent black?
“A. 766 enrollment, 98.8 percent black.
‘Q. Marxhausen Primary, Doctor, can you locate that 

on the map?
A. Maixhausen is in the Finney zone,
Q. Is that near or far away from the A. L. Holmes 

School, Doctor?
“A. As I remember, rather close to the Holmes School
>• 0Can you locate the Holmes School with reference to that? '
A. The Holmes School is the next one to the north­

west.
Q. And what was its pupil population when it 

opened?
"A- Marxhausen was opened in 1970 with a pupil 

population of 302, 92,4 percent black.
“Q. Would you locate Mad: Primary, Doctor?
A Mack Primary is also in the Finnev zone. 

y .  And when did it open? '
no M uck o p e n e d  in  19/ 0 w ith  a n  e n r o llm e n t o f  173  
9 8 .8  p e rc e n t b la c k . ' ’

Q. C o u ld  you lo c a te  th e  A n g e l! P r im a ry  a re a  D o c ­
to r?  ' • :

“A. T h e  A n g e l! a rea  is in  the- N o rth w e ste rn  a tte n d a n c e  
zo n e , '

J3-  A l<d w lia t w as its  e n r o l lm e n t  a n d  p e r c e n t  b la c k 0 
A. A n g el! w as 1 2 8 2  .stu dents w h en  it o p en e d  in 

U p .  th e  p e r c e n t  b la c k  w as 9 9 .9

n  ,<(?- * s iI ie re  m  a s le r is k  h y  th a t  p a r t ic u la r  sch o o l 
D o c to r ?  ' 7

A. On th e  e x h ib it?
“Q. Yes.
A. Yes, there is.
‘Q. Would you refer to the cover and tell us what 

that asterisk indicates?

3S Bradley, cl al. v. Millikan, et a l  Nos. 72-1809, 72-1814



“A. It says, The racial count data included in ex­
isting school with the same name.’

“Q. Can you locate the Stark School, Doctor?
“A, The Stark School is in the Southeastern zone. 
“Q. And what was its enrollment?
“A. The enrollment was 822 when it opened in 1969.
“Q. And the percent black?
“A. 98.4 percent black.
“Q. Can yon locate the new King Senior High School, 

Doctor?
“A. The new King Senior High School?
“Q. Yes.
“A. Here.
“Q. When did it open? '
“A. It opened in 196S.
“Q. What was its enrollment?
“A. 1,897 pupils.
“Q. And its percent black:
“A. 98.8 percent black.
“Q. Can you locate the Field Annex, Doctor?
“A. Just to the northeast of King, the Field Annex. 
“Q. And what was its enrollment?
“A. 461.
“Q. Its per cent black?
“A. 90.5 per cent black.
“Q, Can you locale the Glazer School, Doctor hosier: 
“A. The Glazer School is in the Central zone.
“Q. And when did it open?
“A. In 1967.
“Q. And. what was its enrollment* Doctor?
“A. 870 students.
“Q. What was its per cent black?
“A. 100 per cent black.”

Similar testimony was given with respect to the Stevenson, 
Cortez, Boaubien, Sander, St. Clair Annex, Murray, Kettering, 
Krolik, Joy, Tendler, Belleville, McGraw, Knudsen, Kcidan, 
Jamieson, Butzel, Woodward, Tendler and Norvell Schools. 
White schools built to accommodate white residential areas in-

Nos. 72-1809, 72-1814 Bradley, el al. v. Milliken, ei a l  39



eluded Fox, Lessenger, Murrihv Tift .. ,
Reeves> Broo];s' and M c K e r n ^  Annex.’ * ’ " Earhait-

Q- Thank you, Doctor.

Tumh-w » an opinion as („ ,]ic * 4  t , ' t  y° “
ati'ucfion on segregation in  £ £ £ £

o u t e d  t  r n  * * *  r - ir , ,c i io n  < * * « • »  « • « *
say this biCTise ° 1,ncrease segregation. I
opened that' wer  ̂ e ilh c? a h W" e 

ope'„lgpor' i0" a" ’ nl‘ral>t'r ° f ° nC M“  * '  o f c  upon 
 ̂ * *

in ° r  ' i,e locati<m of *  soliool

^ t , j ! ! , X y m  Z n ? lme"r “ “  I1Upi,s “ “ g o o d  to  
“Q- Y es, sir.

A . Y es, it  d oes,

« d ,M , X n U  'b f c Z S m ' d ‘£ “ “7  D f  ™°!i° n

"o  te ™ S 0 f  l i p 's e le e iK n ,  f e e  a se . yes.

sh o u ld  h e  i S t !  01 t?1\ aUern;ltives w h ic h  c a n  o r 
« ,  ni > (,u r o p in io n , D o c to r ?

the p ro b le m  o f  i n t ^ 'V -  a a y  a iid  a £ e  to  co n s id e r

* * * * * *  s ite s  1 ^ 5  H  r [Ul5y
P o in te d  o u t, 1  b e lie v e  in D - j ■■ {  h V i 5 M e ,‘> tI)ls w as 
S ta te  D e p a r t m e n t ^  1 1  * * * * lro ff l th e  M ic h ig a n

m u n ity  d o es it  h m V w h - u 'a  ? oi:  t l ie  « *m -
o v e rw h e lm in g  e n r o l lm e n t  o f  ™ “  ° 3V M d  w it]l ™o in o x u n u il o i o n e  r a c e  o r th e  o th e r?

40 Bnullcy’ c1 a l  v- MiMken, et a l  Nos. 72-1809, 72-1814



Nos. /2-1809, V2-]811 Bradley, el al. v. MiUiken, el a 1. 41

• A;i Gf,nci'al the community perceives, in my opin­
ion that the scnool has been thought of as being, going 
to be an all white school or all black school and in either 
case generally that it is racially isolated.”

(N) lhe constitutional violations found to have been committed 
by the State of Michigan.

.. f 1) Under Michigan law, M.S.A. §15.1961, school build- 
lug construction plans must be approved by the State Board 
offcduealmn. Prior to 1962 the State Board also lead statutory
‘U h°1K> .lo S"P'"rvise schoo] selection. The proofs con- 
cernmg the effect of Detroit's school construction program 
are neuuore largely applicable to show State responsibility 
ior the segregatory results. ’

\2/! {he critical years covered by this record the
Mme °r Micnigan discriminated against Detroit by allowing 
the Detroit School District a capital improvement bonding 
uulnomy of only two percent as compared to five per cent 
ior aL schwl districts in the State up to the year 1969.

( 3 \ during critical years covered bv this record the 
school Drstnct oi Detroit was denied any allocation of Slate 
innds ior pupil transportation, although such funds were made 
generally available to all students who lived over a mile and 
a i n  from their assigned scltools in rural outstate Michigan
l ] lCt auiiullga S0J11e suburban districts continued to receive 

, ?c, transportation money because of a “grandfather clause" 
whicii continues their status of some years am See S P 
l m > REC;- ASSIGN , Sec. 71 (2 ) ( a ) (b ) (1972).'

, ln l u7°  L}ie Detroit School Board undertook hnple- 
incntatKm or its April 7 desegregation plan applicable to its 
high sc nook On meeting considerable resistance thereto it 
nonethemss proceeded. At that point the State Legislature 
intervened by Act 48 of Public Acts of 1970 specifically over- 
nuing Lie Detroit Board of Education’s desegregation plan 
Mdnle this statute has since been invalidated by judgment of



tins court, its contribution to preventing desegregation and to 
ntimung and increasing segregation of the Detroit school 

system cannot be overlooked.

(■>) finally, the cross-district transportation of black hhdi 
schoo students from the Carver School, located in Ferndale 
school district, to a black high school in Detroit could not 
have taken place without the approval, tacit or express, of 

L S^ eB0ar( of ^ c a t io n . (See supra pp. 27-29)
. , 1G J udSes findings pertaining to constitutional

violations by the State of Michigan are as follows :

“T lie  S ta te  an d  its  a g e n c ie s , in  a d d itio n  to  th e ir  g e m  
; ; r a ' ^ n s i b h t y  fo r  and  su p erv is io n  o f  p u b lic  e d u ca tio n  
have acted  d ire c t ly  to  co n tro l a n d  m a in ta in  th e  p a tte rn  
o f  seg ro g a tu m  in  th e  D e tr o i t  sch o o ls . T h e  S ta te  re fu se d  
vmtd th is  sessio n  o f d ie  le g is la tu re , to  p ro v id e  authorize’ 
m n o, fu n d s  fo r  th e  tra n s p o rta t io n  o f  p u p ils  w ith in  
- c t i o a  re g a rd le s s  o f  them  p o v e r ty  o r  d is ta n c e  fro m  th e  
-enoo, to  w h ic h  th e y  w e re  a ss ig n e d , w h ile  p ro v id in g  in  

in a n y  n e ig h b o r in g , m o stly  w h ite , s u b u rb a n  d is tr ic ts  th e  

n ) W Jr S e  0/ , Si a te  *suDP°rte*cI tra n s p o rta tio n . T h is  an d  
„  ' aM nt:lil' ^ D i n o n s ,  su ch  ns th o se on b o n d in g  a n d  
t h e w o r k m g  of th e  s ta te  aid  fo rm u la  w h e re b y  s u b u rb a n

, i "U ,‘ 1 'S ' v f e. a b ,c  10 m a k e  ^  la r g e r  p e r  p u p il e x p e n d i-  
hU' f  d e f P te  ^  ^  e ffo r t, har e c r e a te d  an d  p e rp e  M a te d  
s y s te m a tic  e d u c a tio n a l in e q u a lit ie s .

4*' ‘ ‘V e ^ c ie js jj ig  w h a t M ic h ig a n  c o u rts  h a v e  h e ld
o b e  n; p ie r ,a ry  p o w e r’ w h ic h  in c lu d e s  p o w e r  ‘to  u se  a 

summary s c h e m e , to  c r e a te , a lte r , re o r g a n iz e  o r e v e n  
C i o1^  a s  1 d , , ; J  t .1 e o  h t 1
d is u ie t ^ i l s  ' ,a n x l ’ th e  in h a b ita n ts  th e r e o f ,’ a c te d  to  
r e ? » , f Ul^ e  tI le  s cIl° o1 d is tr ic t  o f  th e  C ity  o f  D e tr o it  

. I l i e  S ta te  af tc d  th l'0» g h  Act 4 8  to  im p e d e , d e la y  an d  
m in im iz e  ra c ia l in te g ra tio n  in  D e tr o it  sch o o ls . T h e  fimt 
s e m e n e e  o f  S’ee , 12 o f th e  A c t w as d ire c t ly  related Vo 

lC A p .n ' 1  1 9 ',°  d e s e g re g a tio n  p la n . T h e  re m a in d e r  o f 
t l ie  s e c tio n  sougnt; to  p ro s c r ib e  fo r  e a c h  s c h o o l in  th e  c w h t 
d is tn ca s  c r ite r io n  o f  ‘tr e e  c h o ic e ’ (o p e n  e n r o l lm e n t)  m id  
n e ig h b o ilm o d  sch o o ls  ( ‘n e a r e s t  s c h o o l p r io r ity  a c c e p -

42 Bradtey> et al. v. Millikan, ct al. Nos. 72-1809, 72-1814



Nos. 72-1809, 72-1814 Bradley, el al. v. Millikan, et al. 43

la n c e ’ ) ,  w h ic h  h a d  as th e ir  p u rp o se  an d  e f fe c t  th e  m a in ­
te n a n c e  of s e g re g a tio n .

“In  v iew  o f  o u r fin d in g s o f  f a c t  a lre a d y  n o te d  w e  th in k  
i t  u n n e c e s s a ry  to  p a rs e  in  d e ta il th e  a c t iv it ie s  o f  th e  lo c a l 
b o a rd  an d  th e  s ta le  a u th o r it ie s  in  th e  a re a  o f sch o o l c o n ­
s tru c tio n  and  th e  fu rn is h in g  o f sch o o l fa c i lit ie s .  I t  is our 
co n c lu s io n  th a t  th e se  a c t iv it ie s  w e re  in  k e e p in g , g e n e ra lly , 
w ith  th e  d is c r im in a to ry  p r a c t ic e s  w h ic h  a d v a n c e d  o r  p e r ­
p e tu a te d  ra c ia l se g re g a tio n  in th e s e  sc h o o ls .” 3 3 8  F . 
S u p p . a t 5 8 9 .

T h e  D is t r ic t  ju d g e  a rr iv e d  a t th e  fo llo w in g  le g a l co n c lu s io n s :

“ 11. U n d e r  th e  C o n s titu t io n  o l  th e  U n ite d  S ta te s  a n d  
th e  co n s titu tio n  a n d  law s o f  th e  S ta te  o f  M ic h ig a n , th e  
re s p o n s ib ility  lo r  p ro v id in g  e d u c a tio n a l o p p o rtu n ity  to  
a ll  c h ild re n  on co n s titu tio n a l te rm s is u lt im a te ly  th a t o f  
th e  s ta te . T u r n e r  sc W a r r e n  C o u n ts ' B o a rd  o f E d u c a tio n , 
D .C .,  3 1 3  F .S u p p . 3 8 0 ;  A rt, V I I I ,  §§ 1 a n d  2 , M ic h . C o n ­
s t itu tio n ; D a s z k ie w ic z  v . D e tr o it  B d . o f  E d . o f  C ity  o f 
D e tr o it ,  3 0 1  M ic h . 2 1 2 , 3  N .W .2 d  7 1 .

“12. T h a t  a  s ta te 's  fo rm  o f  g o v e rn m e n t m a y  d e le g a te  
th e  p o w e r  o f  daily a d m in is tra tio n  o f p u b lic  sch o o ls  to  
o ffic ia ls  w ith  le ss  th a n  s t a te - v id e  ju r isd ic tio n  d o es n o t 
d isp el th e  o b lig a tio n  o f  th o se  w h o  h a v e  b ro a d e r  co n tro l 
to  u se  th e  a u th o r ity  th e y  h a v e  co n s is te n tly  w ith  th e  c o n ­
s titu tio n ) In  su ch  in s ta n ce s  th e  c o n s t itu t io n a l o b lig a tio n  
to w a rd  th e  in d iv id u a l s c h o o l ch ild re n  is a  sh a re d  one. 
B ra d le y  re S e h , B d . ol C ity  o l R ich m o n d , D .C .,  51  F .H .D . 
139 , 143 .

“ 13 . L e a d e r s h ip  an d  g e n e ra l su p e rv is io n  o v e r  a ll p u b ­
lic  e d u ca tio n  is v e s te d  in  th e  S ta te  B o a rd  o f  E d u c a tio n . 
A rt. V IH , § 3 , M ic h . C o n s t itu t io n  o l 1 9 8 3 . T h e  d u tie s  
o f  th e  S ta te  B o a rd  a n d  s u p e rIn te n d c u t in c lu d e , b u t  a re  
not lim ite d  to , s p e c ify in g  th e  n u m b e r  ol h o u rs  n e c e s s a ry  
to  c o n s t itu te  a  sch o o l d a y ; a p p ro v a l u n til 1 9 3 2  o f sch o o l 
s ite s ; a p p ro v a l o f  sch o o l c o n s tru c tio n  p la n s ; a c c r e d ita t io n  
o f  sc h o o ls ; a p p ro v a l o f  lo a n s  b ased  o n  s ta te  a id  fu n d s ; 
re v ie w  o f  su sp en sio n s an d  ex p u ls io n s  o f  in d iv id u a l s tu ­
d e n ts  fo r  m isco n d u c t [O p .A tfy .-G en ., Ju ly  7 , 1 9 7 0 , N o.



4 / 0 .)] ; a u th o rity  o v e r  tra n s p o rta tio n  ro u te s  a n d  d isb u rse - 
menl o f  tra n s p o rta t io n  fu n d s ; te a c h e r  c e r tif ic a t io n  and 
tire luce. M .S .A . 1 ,> .1 0 2 3 (1 ) ,  M .C .L .A . § 3 8 8 .1 0 0 1 .  S ta te  
Jaw  p ro v id e s  re v ie w  p ro c e d u re s  fro m  a c t io n s  o f  lo ca l

f o ^ Cf ’ C diatH d is tr ic ts  ( s e e  M-s -A- 15.3442, M .C.LA  
S 3 a 0 .4 4 n ) ,  w ith  a u th o r ity  in  th e  S ta te  H oard  to  ra tify , 
l e je c i ,  a m e n d  o r  m o d ify  th e  a c t io n s  o f  th e se  in fe r io r  st-ib i 
a g e n c ie s . S e c  M .S .A . 1 5 ,3 4 6 7 ; 1 5 .1 9 1 9 (6 1  )• 1 5  19 1 9 ( 7 8  
h ) ;  1 5 .2 2 9 9 ( 1 ) ;  1 5 .1 9 6 1 ; 1 5 .3 4 0 2 , M .C .L .A . § § 34 o f e  
3 8 8 .6 2 1 , 3 8 8 .6 2 8 ( a ) ,  3 S S .6 S 1 , 3 8 8 .8 5 ] ,  3 4 0 .4 0 2 -  R r i d - f  
h a m p to n  S c h o o l D is tr ic t  N o . 2  F r a c t io n a l o f  C a r s o m i L .  

f ; ! : , 1:  Y' S u P 1'- o f  P t ! iy ic  In s tru c tio n , 3 2 3  M ic h . 6 1 5  3 6  
A ; V! u , ■ g e a e r a l,  th e  s ta te  s u p e r in te n d e n t is 
fTlx< 11 y.ie au try  W °  cio all th in g s  n e c e s s a r y  to  p ro m o te  
th e  w ed  are  o f th e  p u b lic  sch o o ls  an d  p u b lic  e d u c a tio n a l 
in s tru c tio n s  an d  p ro v id e  p ro p e r  e d u c a tio n a l fa c i l i t ie s  fo r  
t lie  y o u  in  o f  th e  s ta te . ’ M .S .A  1 5 3 0 5 0  u c r  <, 
§ 3 4 0 .2 5 2 .  S c e  also  M .S .A . 1 5 .2 2 9 9 ( 5 7 ) ?  M .C X A  
s. 3 8 8 .7 1 / , p ro v id in g  in  c e r ta in  in s ta n c e s  f o r  re o n m m w - 
tio n  o f  sch o o l d is tr ic ts . ' ~ '

. 1 :( S ta J e  in c lu d in g  a ll  o f th e  d e fe n d a n ts ,
m e  c h a r g e d  u n d e r  th e  M ic h ig a n  c o n s t itu t io n  w ith  
Cim.y or p ro v id in g  p u p ils  an  e d u c a tio n  w ith o u t d iscrin n  
ion w it  a  re s p e c t  to  ra c e . A rt, V I I I ,  § 2 , M ic h . C o n s t itu -  

( lo n <  , < p ro v id

/ N o  p e rso n  sh a ll b e  d e n ie d  th e  e q u a l p ro te c t io n  
or th e  la w s; n o r sh a ll an y  p e rso n  b e  d e n ie d  th e  e n - 

i°y} ;  ] ]  r ig h ts  o r  b e  1
nayeu a g a in s t  in  th e  e x e rc is e  th e r e o f  b e c a u s e  o f  r e ­
lig io n , r a c e , c o lo r  o r n a tio n a l o rig in . T h e  le g is la tu r e  
sh ad  im p le m e n t th is  se c tio n  b y  a p p ro p r ia te  le s is la -  
tio n . 3 3 8  F .S u p p , a t 5 9 3 -9 4

44 Bradley, el a l  v. Millikan, et a l  Nos. 72-1809, 72-1S1-1

S o n ic  0 . th e  e v id e n c e  in  th is  re co rd  s u p p o rtin g  th e  D is t r ic t  
J u d g e s  fin d in g s of S ta te  a c ts  w h ic h  discriminatory a fter ted  
Jim D e tr o i t  .Foard, o f E d u c a t io n  a n d  c o n tr ib u te d  to pupil 
se g re g a tio n  fo llo w s. T h e  S ta te  s ta tu to ry  sc h e m e  o f support, o f 
tran sp o rta tio n , lo r  sch o o l c h ild re n  d ir e c t ly  d is c r im in a te d  a g a in s t



Nos. 72-1809, 72-1S14 Bradley, c i id. v. Millikcn, et a l  45

PuWi°c Ins?uc‘^ ]ir- 11>0rter> !he State Superintendent of 
W,C," ga”’ te!tifed »  >“ * * *  taln,

(i iVil; J-,ucas) Dr. Porter, does the State mv
"A -i t ,p2 “! tn™sPortetioR in llic State of M ic h iii?

1 to v n ,  1, Pi‘yS r° " g',ly 73 IK’rccnl of the cost’L . >CiU {]le appropriation was $29 million '

2

i in tcr of
I that would be aided by the state?* ira^P°rtatxon

roniniif m ^  tl Ver  ̂ comP^oated formula that 197 compulations, and we are hi the .... i J ,r
reducing this -  ' ......  * ' ™ aS ugUl now of

™ .  :

h  i m ,

e lig ib le  fo r  tr a n s p o r ta t io n ?  ^  a rc  L lc >

t h c .1 t i c ?  i b 4 i S ' b l f S ? Item dsI 'ro ' ' g h0U l tlK ’ S la le -



46 n m J k v '

,m y
meoiporated asa city that i dill ' ' ! Jilst suiyplaec

or carla;,, c i f e  £  , £  ^ T '1 * “
prcrom lime and meeive Uac f'mds -  ^  *  * „

J M E COURT- r f7 • > , 1 _
get jit is whether u n d e r Lllcas 3S dying to 
ci|y has ceased  state aid for T °  pracUce 'vJletJ* r  any 
c% - ' ‘ ior transportation within the

» oftalr  " 1 ,e r c*> *law says that if the bus i„ . i Sp0rtalion’ because the 
the school crosses outside of th ^ J,0 *f6t Ul? students to
lsr then eligible for aid ^  ™ * e f  f  boundary, the dtv 
d is ta n c e s  where that c^sls W° have a 1Ul™ber

o r ig in S .o °h fd !.:<„1[ h f , h  C - ' e  'V hm  thc « « * . *
assisted? ' tt0  « )  Inmte transportation is

o i t y O , o f , t h e f t  *  , f hT  >h U <lMt lives ,;,e 
lie is also clioibio Mel com,,

0 r a l  V O  o ffic ia ls , sch o o l I m U !  f U C  * < *  ” <* * 8 « c  
tra n s p o rta tio n , T h e r e  is  j-o  i v v .h V ^ '" *  ™ l i Hov« Iin g  

Q- ( B c M U a K - U  f g a i n s t  th a t , 
the law but didn't prwidc n ‘‘*  Icgis!al,;»  Ranged 
th g ib l .r  |u] state- a f h i t u j <’'n Il,011i<'  ^  n ic e  ?
}'Ou are saying? ' ” jiluU!ed »<*v. is that whni

bus Iran^orbtion' b u n ^ e h ^ l !^ !  t0
tern ou.i deptirtrueiit had to ?»Y‘h * *  T  thc Hhslaturc

’ 10; in c re a s e  Urn ? , s i nc e  , h , y  , ; , j

T ' < - J  h m f c U  ‘t a b ' i ' l h d - ' - r t m n a
lie ma;c not receive (ho slate aid t  ' “C“ Ilc k  •< . '
at j k ; present time? bct,lllSe 33 is unfunded

A '  iJia{ J's correct.

Q- BU‘  "  1,0 iiV0S U“  ili'iiince away and ,lvcd



Nos. 72-1809, 72-1814 Bradley, et a l  v. Millikan, el a l  47

outside the City of Detroit, for example, then he could 
receive state aide?

“A. That is correct, or any other area.”

The record demonstrates that the State also discriminated 
against the Detroit school system by limiting Detroit’s capital 
improvement bonding authority to two per cent of assessed 
valuation until 1969. This compares with a bonding authority 
of five per cent provided for other school districts.

“O. Mr. Brown, one other question, sir. There lias 
been a good deal of discussion in the course of this trial 
about bonding authority and use made of the funds that 
are derived, from that authority. I would like to ask 
you several questions, sir, about that and see if 
we can’t get it all in order. Has the district — and I 
ask you this question on the basis of your experience 
with the State Board of Education as well as being secre­
tary and business manager of the Detroit district — lias 
the Detroit Board of Education always bad bonding au­
thority so that bonds could b e  issued without vote of 
the p e o p le ?

“A. Has it always bad?
“Q. Yes, sir, it you know,
“A. I  d o  not k n o w  a lw a y s. I t  h a s  fo r  m a n y  y ears.
“Q. W h a t  w as th e  le v e l  o f  th a t  b o n d in g  a u th o r ity ?
“A . I t  w e n t fro m  2  p e r c e n t  —
“Q. I  am  tall-ring a b o u t o r ig in a lly  fro m  th e  t im e  y ou  

first k n e w  a b o u t it. I t  w a s  a  2  p e rc e n t - ­
“A , 2  p e r c e n t  o f  e q u a liz e d  v a lu a tio n  th a t  co u ld  b e  

le v ie d  b y  th e  B o a rd , th e n  i t  w a s ch a n g e d .

“Q. A ll r ig h t. N o w , in  o rd e r  to  get m o re  th a n  2  
p e r c e n t  o f th e  e q u a liz e d  v a lu a tio n  o f  th e  p ro p e rty  w ith in  
a  d is tr ic t  whai d id  th e  B o a rd  h a v e  to  d o ?

“A . T h e  B o a rd  o f E d u c a tio n  b a d  to  ta k e  th e  m a tte r  to  
th e  ta x p a y in g  e le c to rs  o f  th e  c ity  to  g e t  a p p ro v a l to  b o n d  
th e  d is tr ic t  b e y o n d  th a t  c a p a c ity .

“Q. W h o  is e l ig ib le  to  v o te  in  th o se  b o n d in g  e le c tio n s  
a t  th a t  lim e ?



Bradley, el al. v. Millikan, et al. Nos. 72-1809, 72-1814

“A. At that time the taxpaying electors of the district.
“Q. You mean bv that the property owners?
“A. Yes.
“THE COURT: Real estate property owners?
“A. Yes.
“Q. You indicate that that 2 percent authority was 

increased. When and how much?
“A. I ’m sorry, 1 can’t tell you the exact year. It was 

increased by 1 percent. It went from 2 to 3, but I 
can’t quote the year.

“Q. How did that authority of 3 percent compare 
to the authority granted all other districts in the state?

“A. It was less by 2 percent. In other words, all 
other districts in the state had the authority to bond up 
to 5 percent of the state equalized valuation while Detroit 
was limited to 3.

“THE COURT: This is true at a time when Detroit
only had a 2 percent authority?

“A . T h is  is c o r r e c t ,
“Q . N o w , sir, w h e n  w as th e  a u th o r ity  in c re a s e d  from 

3  p e r c e n t?

“A. D u rin g  th e  la s t session  o f  th e  L e g is la tu r e ; n o t th e  
c u rre n t o n e  b u t th e  o n e  im m e d ia te ly  p r e c e d in g  so th a t  
fo r  th is  y e a r  w e  h a v e  th e  3  p e r c e n t  a u th o r ity  th a t  th e  
o th e r  d is tr ic ts  n o w  h a v e .

“Q . H a s  th a t  e x tra  a u th o r ity  b e e n  u til iz e d  b y  th e  
d is tr ic t?

“A . N o.
“Q. A s y e t?

“A . N o t as y e t, T h e  p la n s  a re  b e in g  m a d e  a n d  w e  
h a v e  to  c a r ry  fo rw a rd  q u ite  a p ro g ra m  o f  d e te rm in in g  
p r io r it ie s  an d  so fo r th , so it  lias  n o t b e e n  u se d  v e t,

“Q . S o  th e  b o n d in g  aui.hori.iy  cu rre n tly  b e in g  u sed  
by th e  d is tr ic t  is  th e  a u th o r ity  th a t  it  h a d  b e fo r e  th e  
1 9 7 0  sessio n  o f  th e  L u g is la t ie o ?

“A. T in s  is c o rr e c t .

“ Q . W h a t  is th e  s ta te  o f th a t  p rio r b o n d in g  a u th o r ity ?  
Is  it a ll e x h a u s te d  o r is th e r e  so m e re s e rv e  s t ill  a v a i la b le ?



Nos. 72-J809, 72-18?-t Bradley, el ah v. Millikan, cl al. 49

“A . I t  is ex h a u ste d  to  th is  e x te n t. T h e  B o a rd  o f  E d u ­
c a tio n  h as  a d o p te d  a p ro g ra m  w h ic h  u ses all o f  th a t  a u ­
th o rity . W e  h a v e  p re s e n tly  b e fo r e  th e  M u n ic ip a l F in a n c e  
C o m m iss io n  in  L a n s in g  th e  last a m o u n t o f  th a t  a u th o r ity  
m id in  th e  a m o u n t o f  $ 2 2 ,9 5 0 ,0 0 0 . W e  h a v e  n o t as o f  
to d a y  re c e iv e d  a p p ro v a l o f  th a t , b u t  th e  B o a r d ’s p ro g ram  
ca lls  fo r  th e  fu ll a u th o r ity ,” "

t h e  c le a r e s t  e x a m p le  o f  d ire c t  S ta te  p a r t ic ip a t io n  in  e n ­
c o u ra g in g  th e  s e g re g a te d  co n d itio n  o f D e tr o it  p u b lic  sch o o ls , 
h o w e v e r , is th a t  o f  sc lio o l co n s tru c tio n  in D e tr o it  an d  th e  
su rro u n d in g  s u b u rb a n  a re a s . U n til .1962 th e  S ta te  B o a rd  o f  
E d u c a t io n  h au  ( d ie d  s ta tu to ry  co n tro l o v e r  s ite  p la n n in g  

fo r  n e w  sch o o l c o n s tru c tio n . D u r in g  th a t  t im e , as w as p o in te d  
o u t a b o v e , L ie  S ta te  a p p ro v e d  sch o o l c o n s tru c tio n  w h ic h  
fo s te re d  s e g re g a tio n  th ro u g h o u t th e  D e tr o i t  M e tro p o lita n  a re a  
( S e e  supra p p . 3 4 - 4 0 ) ,  S in c e  1 9 5 2  th e  S ta te  B o a rd  h a s  c o n ­

tin u es! to  v ' in v o lv e d  in a p p ro v a l ol s c h o o l c o n s tru c tio n  p lan s.

IV . C o n c lu s io n  as to  C o n s t itu t io n a l V io la tio n s

T h e  d is c r im in a to ry  p ra c t ic e s  on  th e  p a r t o f  th e  D e tr o it  
S c h o o l B o a rd  an d  th e  S ta te  o f  M ic h ig a n  re v e a le d  b y  th is  re c o rd  
a re  s ig n ifk -w t, p e rv a s iv e  a n d  ca u sa lly  re la te d  to  th e  su bsfau - 

t ia l  a m o u n t o f  s e g re g a tio n  fo u n d  h i th e  D e tr o it  s c h o o l sy ste m  
b y  th e  D is t r ic t  Ju d g e .

T h e r e  is, o f co u rse , a s ig n if ic a n t d is t in c tio n  b e tw e e n  th is 
re co rd  a n d  th o se  sch o o l se g re g  don c a s e s  w in c h  h a v e  H ooded 

t?KJ c'*>yrts s in c e  Brown v. Topeka, supra. T in 's c lis lin c tD .- is 
th a t  M ic h ig a n  h as  n e v e r  e n fo rc e d  s e g re g a tio n  b y  S ta te  law s 
w h ic h  p io v id c u  fo r  s e p a ra te  b la ck  an d  w h ite  sch o o l sy ste m s, 
as w as th e  p a tte rn  p r io r  to  1 9 3 !  in m a n y  o th e r  S la te s . As 

a co n se q u e n t e, th e re  a lw ay s h a w  b e e n  so m e in s ta n c e s  o f 
a c tu a l sch o o l in te g ra tio n  in  D e tr o i t  a n d  still m o re  in s ta n ce s  
o f  to k e n  sch o o l in te g ra tio n .

D e fe n d a n ts  see l: to  in s u la te  tJie m se lv e s  fro m  re m e d ia l a c t io n  
b y  fe d e ra l co u rts  b y  p o in t in g  to  d ie lo n g  s ta n d in g  p u b lic  p o lic e



50 Bradley, e l al. v. Millikan, ct a l  Nos. 72-1809, 72-181-3

ol Michigan, as expressed in its statutes, of integration of 
public education. However, this court is not blind to the 
fact that governments can act only through the conduct of 
then- officials and employees and that unconstitutional actions 
ol individuals can be redressed. See,  e.g., Clemons v. Board 
° f Education, 228 F.2d 853 (6th Cir.), cert, denied. 350 US 
1006 (1956). ' '

Hie record in this case amply supports the findings of the 
District Court of unconstitutional actions by public officials 
a.i. boin the local and State level.

Historically tie jure segregation has come about through 
statutory command explicitly establishing dual school systems. 
Michigan s declared public policy is urged as a controlling 
distinction. No matter how important this distinction may 
be, it does not in our judgment negate the dc jure segregation 
findings entered in this case by the District Judge." The 
record contains substantial evidence to support the finding 
ol the District Court that the segregation of the Detroit public 
schools, however rooted in private residential segregation, also 
was validated and augmented by the Detroit Board’ of Educa­
tion and Michigan Stale Board action of pervasive influence 
through.the system. Even if the. segregation practices were 
a m°re subtle than the compulsory segregation statutes 
of Southern Mates, they were nonetheless effective. There 
should not be one law for the South and a different one 
lor the North.

It is our view that the findings of fact pertaining to actions 
oi the Detroit Board of Education and the State of Michigan 
which eauseu or contributed to Detroit school segregation 
are not clearly erroneous and that the District Court was 
therefore authorized and required to take effective measures 
to desegregate the Detroit Public School System. Brown v. 
Board of Education o f Topeka [I], 347 U.S. 483 (1954); Brown 
v. Board o f Educe lion of Topeka [11], 349 U.S. 294 (1955); 
Swann v. Chanoffc-M ccklcnbtirg Board of Education, 402 U.S.



1 (1971); Davis v. Board of Commissioners, 402 U.S. 33 
(1971).

This record contains a substantial volume of testimony con­
cerning local and State action and policies which helped 
produce residential segregation in Detroit and in the metro­
politan area of Detroit. In affirming the District Judge’s 
findings of constitutional violations by the Detroit Board of 
Education and by the State defendants resulting in segregated 
schools in Detroit, we have not relied at all upon testimony 
pertaining to segregated housing except as school construction 
programs helped cause or maintain such segregation.

V. The District Court’s Ruling that no Detroit 
Only Desegregation Plan is Possible.

S u b s e q u e n t to  th e  e n try  o f  its  f in d in g s  o f c o n s t itu t io n a l 
v io la tio n s  on th e  p a rt o f  th e  D e tr o it  B o a rd  o f  E d u c a tio n  an d  
th e  S ta te  o f  M ic h ig a n  re s u lt in g  in. s y s te m -w id e  segregation o f 

D e tr o it  p u b lic  sc h o o ls , th e  D is t r ic t  C o u rt re q u e s te d  p la n s  fo r  
D e tr o i t  o n ly  d e s e g re g a tio n . H is f in d in g s  o f  fa c t  p e r ta in in g  
to  th e s e  p la n s w a rra n t re p e tit io n  in fu ll:

“FI F  FACT AND C * '
O N

DETROIT-ONLY PLANS OF DESEC TEC7 TION

“in  a c c o r d a n c e  w ith  o rd e rs  o f th e  c o u r t  d e fe n d a n t 
D e tr o it  B o a rd  o f E d u c a tio n  s u b m itte d  tw o  p la n s , lim ite d  
to  th e  c o r p o r a te  lim its  o f  th e  c ity , fo r  d e s e g re g a tio n  
o f the p u b lic  sch o o ls  o f  th e  C ity  o f  D e tr o it , w h ic h  w e  
w ill r e fe r  to  as P la n  A an d  P la n  C ; p la in t if fs  s u b m itte d  
a  s im ila r ly  lin n  le d  p la n , w h ic h  w ill b e  re fe r re d  to  as th e  
F o s te r  P la n . H e a rin g s  w e re  h a d  on sa id  p lan s on M a rc h  
1-1, 1 5 , 1 6 , 1 7  an d  2 1 , 1 9 7 2 . in  c o n s id e r in g  th e s e  p la n s 
th e  co u rt d o e s  n o t lim it its e lf  to  th e  p ro o fs  o ffered  a t  th e  
h e a r in g  ju s t  c o n c lu d e d ; it  co n sid e rs  as p a rt o f  th e  e v id e n c e  
b e a r in g  o n  th e  issu e ( i.e., C ity -O n ly  P la n s )  a ll p ro o fs  su b ­
m itte d  in  th e  ease  to  th is  p o in t , and  it  s p e c if ic a lly  in c o r ­
p o ra te s  h e r e in  b y  r e fe r e n c e  th e  F in d in g s  a n d  C o n c lu s io n s

Nos. 72-1809, 72-1814 Bradley, el cl. v. Millikan, cl at. 51



“T h e  C° “ r l  * « * • *  W b w f a g  fa c tu a l f in d iu g s : 

“P L A N  A.

" T t r ^ s t t e 0 m 1 >]?;ri t s~ " :"s
«'<> pu/tlic L in o  „ t  t t L  N 'n  t N  10 L e g a t e
v irh i.'illy  ru led  o u t  l ,v  t  fi h e n  , t t “  *»  l e r e l  is

»ny appreciable a ™  * e modd <»

e x p a n d e d  m o d e] ‘t o o l 'd  J ’ ' " o  ' ‘T 1’ t ! , “ ' I l ,c
p u p ils  o f  a  to ta l o f  M () 000 fi, ’f t  t  “ b o u l
its  e f fe c t  w o u ld  h e  to  “ t  ’ "  V * *
sch o o l sy ste m  a n j  i r '1’ ',' A N  sy ste m  w ith in  (tle

sc h o o ls  n o t h w in d ed  in  h e  M ™ l f N  ,W 8 R * sH on ™

A N ,  - - . i t  m u o a t  ' p t w : ; . "  

desegregation'nor t ! i  titytraih m ° t i f ' "  A fe ’,cil'her a

“PLA iN  C .

A e  g ra d e s  an d  t o d d t t ' n ' t L N '  “ ‘L  “ 
ra c ia ily  id cuU iiiablc . ‘ J<)'Se SCjl° u' s n o  Joes

“P L A I N 'D F I ’S" P L A N

p,ajl woiiW

thC S1Ud“ t kld> “ ^  H- L  taS tateSnSlit



Nos. 72-1809, 72-1814

would dearly make the entire Detroit public school system 
racially identifiable as Black.

3. Die plan would require the development of trans­
portation on a vast scale which, according to the evidence 
could not be furnished, ready for operation, by the open­
ing of the 19/2-73 school year. The plan contemplates 
tne transportation of 82,000 pupils and would require 
the acquisition of some 900 vehicles, the hiring and train- 
mg o.. a great number of drivers, the procurement of space 
lor storage and maintenance, the recruitment of main­
tenance and the not negligible task of designing a trans­
portation system to service the schools.

'1- plan would entail an overall recasting of the
Detroit school system, when there is little assurance that 
it would not have to undergo another reorganization if a 
metropolitan plan is adopted,

\VOui'-’ jrtvoJvc the expenditure of vast sums of 
money and effort which would be wasted or lost.

6. The plan does not lend itself as a buildin* block 
for a metropolis;, i plan.

' • . Die pim i w ould make the Detroit school system 
™ire identifiable Black, and leave man> of its sc!
75 to 90 per cent Black.

*<8j J: 1W0U!<I chaD T a school system which is now 
"  aC ; a!K! ,vVllU<‘ to one that would be perceived as 
" lack» VU;rer’y J!,treii;;in» tSu- HlglT of Whites from the 
Clty llna the D'Tami, thereby increasing the Black stuchmt 
p o p u la tio n ,

”9. it would subject the students and parents, faculty 
mm acmuinstrabon, to the trauma of reassignments, v ith 

U c JUo-m°o<l mat such re assignments would continue 
*oi any appreciable time,

T” Slir,ij'nar>8 " ’c find that none of the three nlans 
would result m the desegregation of the public schools 
oi toe Detroit school district.

"CONCLUSIONS OF LAW

L Thc court lias continuing jurisdiction of this action 
tor ah purposes, including the granting of effective relrif 
Sec iiuiing on Issue of Segregation, September 27, 1971.

Bradley, e l al. v. Millikan, el al. 53



hiadleij, el: a l  v. MiUiken, cl a l  Nos, 72-1S09, 72-1814

9 1' lni; 01 die C0lli‘t s finding of illegal school 
W T *  th,e ol)li- :Uion 01 ‘ho .school defendants is to 

i, 1 rl!]C >“’■ of an educationally sound, practicable 
* ” f C1lef eSre?at,()l1 1]lal f)ro,niscs realistically to achieve 

i V1Jd 1 au ! 1 ie yjoatest possible degree of actual 
s^ o d  des^egauon. Green v. County School Board,
,—i , ' . ' HoIllU-S ('f)llllf!/ SiOdvd Of

id , z T t o  i9: c " rt" r -  "■ « , /
hn ° l  U'S- 29° ' Clurlatlc-Uccklcn-Hoard, of education, 402 U.S. !,

3 Oeiroit  ̂ hoard of Education .Plans A and C are
g lh"U, 1C1°nt becauso they do not promise to effect

Cmm Cm""J  s ' w  Ba,ml

run,4’ • PJmnt-[FS r ja f ’ \vllilc iL 'vonld provide a racial mix 
more m keeping with the Black-White proportions of die 
tudent population than under either of the Board’s plans 

°r as the system now stands, would accentuate the racial 
ldc nufiabilxiy of the district as a Black school system, 
ana wQuid not accomplish desegregation. "
. ‘f5’ The conclusion, under the evidence in this case 
is inescapable that relief of segregation in the public
vt l 0lStf f thc Cit'd of cannot be accomplished

\v Imn the corporate geographical limits of the city. The 
, atP’ however, cannot escape its constitutional duty to 

dcscgregarc the public schools of the City of Detroit by
t h id ' n . d ' d lity; A  ]u!,fU M « r% , potohd ...1
L 1C1( v - hxicnmond, (s u p  o p in io n  p. O f) :

"rlw po 'gr conferred by stntc low on control ond 
iocai omcials to determine flic shape of school at- 
icjic.uncc units cannot he employed. as it has been 
ticrc to!- the purpose and with the effect of sealbm 
011 ™ c C0gdaves a racial composition more an' 
peahng to the local electorate and obstructin'- the 
desegregation of schools. The equal protection 
euiu.se has required lar greater inroads on local gov­
ernment structure than the relief sought here, which 
is attainable without deviating from state statutory



72-1809, 72-1814 Bradley, ct a l  v- -......
. 0r7̂  TT*? 713'

t a r n .  Cov^»re Reynolds 7

f t t o f l l  a s f w ' W 2 8  (C a W .S u p .C t .  A u g. 3 0 ,

n « « * « f o n t r f
suporable obstacles to descgiU;,, , Polifr

of * .  - 0 » *

after all. . . , ^
"School district lines are sm'.ply ”“ U“  J ° ! Ibstitulionr.l 

veniencc and may not f c  .  ,  dlstncts of
rights. If Jim boundary U i ^  s„l,urbS » a
lire City c ,  D ’- 1.....  u ■■ i > diat tliev could nfit nviu>
drawn today lew would cb ^  for solutions
stand constitutional d ' f * £ e *.Qn iederal courts
to die problem ol school st-, w- ntPrvenUon the ad- 
have not “treated as immune systcmi to
miuislrative structure o < ■ - .[{) dcscgrcgate. Geo- 
the extent that it f 1"c ^ in d e p e n d e n t units have
graphically or at n ' i ■< l> ^  e 0, continue eo- 
hecn compelled to w -̂.ge j  _ , (em {nr school de­
operative. operation as a - -
segregation purposes. _ , ,

“'rhat r l ! ° f s o i  1 1

t i
b: -
b b h d  by ib-omu n s  p y r e ; ;  y ; ; y n ;  „m mum
other school cases have mn , f tl,c command
situation,3 the logic of then «p -  !
(;f brown T1 supports our sum ol cm . . . . . .

W h ile

“FOOTNOTES

“i Bradley v. Bichr^nd, m  » M « -
.... ' g T g b u T 'N 'T r l a d u , ,  or Sevier County,

“3 Haney v. uorvn.j ~



56

410 F.2d 920 (8th Cir. 1909); Bradley v. Sri 1 cud Board of the 
City of Richmond, supra, slip opinion pp. iPM-t-n; Hall y*...gy 
Heiona Parish School Board, 197 F.Snpp. 649 (Ed). La. 1. 01), 
aff’d. 287 F.2d 376 (5th Cir. 1961) and 366 U.S. 51_5 (19h2); 
v. Macon County Bd. oi Kduc,, 498 I'.'.tcl 7 46, 7 :> ~  (oth y i r . p ! 1 ’ 
Gomillion v. Lightfoot, 364 U.S. 339 (I960'!; Turner v Littleton- 
Lake Gaston School Dist., 442, F.2d 334 (4th (dr. 1 9 i l ) ; Lm tca  
States v. Texas 447 F.2d 551 (5th Cir. 1971); l.cmun v. Bossier 
Parish School Board, 446 F.2d 911 (5th Cir. 1971)4'

Bradley, el al. v. Millikan, cl a!. \os. 72-3609, 72-1814

The District Judge’s finding that no Detroit only plan 
can achieve desegregation of the Detroit public school system 
points up another substantial distinction between this case 
and the classical school .segregation ease. This record presents 
a wholly new fact pattern in a school segregation ease so far 
as this Circuit is concerned. Cf. Bradley v. School Board, 
City of Richmond, 388 h.Supp. 6. (h.D. 8 a. 3 D f 1),
read , 462 F.2d 1038 (4lh Cir. 1972), petition for cert, filed,
41 U.S.L.W. 3211 (U.S. Get. 5, 1972ll .VI-e Ham"(/ \a County
Board of Education oj Sevier County G-,-1i 1 .2d :r r • 4)U*I (8 th Cir,
1970). Thi s com-t nev<?r belore bar> beon eon Ironted by a
finding that anv 1<dSS COliiprel tensive ;a solotion tnan a metro-
politan area plan ■t 1wouai rc;-.'uTi. ;.. « ., it 111 <iil ,Uj

all v, h
:enoo] system

imrnediately sumarmlet1! by praeticii illy Re suburban
school systcj ns, with an overwTielnm;;gly -•.vliite nlajoi■ity popu-
lation :in the■ total metro' 1 •| ) ' ■ 1 ' 'm area.

Relcvilli i to am1 suppOil iV<: oi the Di.strie* !udgd fG./f-G .-,-rs iinom^s
are tinjse sobool census figurcs si rowi j i g trends tow;vrd segre-
gat ion in the Del'roit sc.hop’s (luring the last dec:ade

v960 100 of 251 scl'pids wen (}(} or nu)re white
71 cif 251 scl tee)]s were 90; l nr more 1Pack
687 of all schoc ,1s were 907 or men■( ’ 0no race,

1170 69 of 282 S'cllOiels were 907 or more vi-hitc
133 0f 28;l sell tools \vev■e ■)(14 or rnore black
71.67 of a11 scltools were 909 or more one race.

1960-61 65.87 of lire total number oi black students in 
regular schools were in 907 or more black sdrools.



1970-71 74.91: of the total number of black students m
regular schools were in 907 or move black schools.

This record reflects a present and expanding pattern of 
all black schools in Detroit (resulting in part from State ac­
tion) separated only by school district boundaries from nem- 
bv all white* schools. We cannot sec how such segregation 
can be anv less harmful to the minority students than n the 
same result were accomplished within one school district.

The boundaries of the Detroit School district are identical to 
the geographical boundaries of the City of Detroit. 1 Jus means 
that the Detroit school district, like the City, contains wit > 
in its boundaries two entirely separate cities (and school 
districts), Hamtvamck and Highland Park, and surrounds a 
third City (and school district), Dearborn, on three sides 
Immediately adjacent to the boundaries of the Detroit school 
district arc'seventeen school districts. An overwhelming, ma- 
pritv of these districts, other than Detroit, Highland 1 aik, 
River Rouge and Hamtnumk, are entirely white or contain 
only a token number of black .students.

]'u :c, t],e District Judge, we see no validity to an argument 
which asserts that the constitutional right to equality before the 
law is hemmed in by the boundaries of a school district.

A. Status of School V’ irki umlm hmewgan D m

This conclusion is supported by the status of school districts 
uml i Co and by the imrikehe! < cmtiol cv icne^
m o, j , R  shawl districts by tin lepkhriuw of Mielugan o r  
by Stale agencies and officials, which wc now discuss.

' i t  j, \Vell eriablished under the Constitution and laws of 
Mubwan tloot rim public school system is a State fyncrion myl 
that local school districts arc instrumentalities of tne State 
created for administrative convenience.

The Northwest Ordinance of 1787 governing the Temlory
of Michigan provided:

Nos. 72-1809, 72-1814 Bradley, et a l  v. MiJliken, ct a t  01



morality and knowledge, being necessary to 
good government 'anti the happiness of mankind, schools 
and' the means of edneation shall forever he encm.raged.
Art. III.

With this genesis, Michigan’s four Constitutions have clearly 
established that the public school system in that Mate >s solely 
a State function. The Constitution of lS3o nr A.hele X 
Section 3, provided, in part: “The legislature shall provide 
for a svsiem of common schools . ." The Consfdahton of
1850 Article XIII. Section 4, provided, m part. 11“ 
leture shall . , . provide for and ostchbsh a system o primary 
schools , , Section ) of lire same Article provided, . . ■te Superintendent of P u b lic  Inst, treBon shall have general

supervision of public instruction . . .  ,
' The Constitution of 1903 in Article XI, Section 2 , pnnaded 
.ha, the Superintendent of I«„,rt“ Uon rfrall m
general supervision of public instruction in the Stale. At tide 
XI, Section 9 , provided, in part as follows:

“The legislature shall continue a bysteiu of F i r ^
schools, whereby every school district 9, th-
provide for the education of pupils wiiuout ch<aat  - «  
tuition . . .

The Constitution of 1333, the present Cunsulutinn of the 
State of Michigan, in Article V I I t, Section 2 , ptovrdes, nr part,

as follow.1;:
“Tiie It'pslaHue shall mhinaic and suppw't a f-Ftcrn 

olfr - . ! 1 1 s 5
by law.”

In  in te rp e ro tin g  th e  a b o v e  e d u c a tio n a l p ro v is io n s o f  th e  

C o n s i itu h o n  o f 185(1, th e  M ic h ig a n  S u p re m e  C n m i s . at, d  
■Tire, s c h o o l d is tr ic t  is a S ta te  a g e n cy , M o re o v e r , IS 0 . 
le g is la t iv e  c r e a tio n  . . Attorney General v Lmcrcy  l o l  
P P r f  p ®  0 1 4  9 2  X .W . 2 8 9 ,  2 0 0  ( 1 9 0 2 ) .  A g a in , m ie r p r e tm g

58 BnriteK, cl c l  v. M f c ,  «f «'■ K « . 72-1809, 72-1814



the Constitution of 1850, the Supreme Court of Michigan m 
Attorney General v. Detroit Board of Education, 154 Mich. 
584, 590, 118 N.W. 606, 609 (1908), adopted lower court
language which read:

“Education in Michigan belongs to the State. It is no 
part of the local self-government inherent in the towns.up 
or municipality, except so far as the legislature may chose 
to make it such. The Constitution  ̂has turned the whole 
subject over to the legislature . . .”

The Supreme Court of Michigan interpreted Article XI, 
Section 9, of the Constitution of 1908 to mean:

“The legislature has entire control over the schools 
of the State subject only to the provisions above cererred 
to The division of the territory of the State into districts, 
the conduct of the school, the qualifications of teachers, 
the subjects to be taught therein are all within its con­
trol.’' Child Welfare v. Kennedy School Dist., 2:20 Mich. 
290, 296, 189 N.W. 1002, 1004 (1922).

in the leading ease concerning eousiiuetiou of this section 
of the. Michigan'Constitution of 1983, the Michigan Supreme 
Court said:

“H is the responsibility of the State board of education 
to snocrvi.se the system of free public schools set up by 
tbe 1 d, as a part of that responsibility, to
pro Irate regaintio i  ’ ’
necessary to constitute a school day for elementary senooi 
students as well as for oilier classifications or groupings 
of students, to determine the curricula and, in general, 
to exorcise leadership and supervision over the public 
school system.” Welling v Lit ! rd o f 1 - t
382 Mich. 620, 624, 171 N.W .2d 5a,o, 546 ( 1964;.

Michigan has not treated its school districts as sacrosanct. 
To the contrary, Michigan always has regarded education as 
the fundamental business of the State as a whole. Local

Nos. .72-1809, 72-1814 Bradley, et al. v. MilUkcn, cl al. 59



60 Bradley, et d .  v. Millikan ,a l  Xm. 72-1809, 72-1814

school districts are creatures of the State avid act as instru­
mentalities of the Stale under State eonlrol. Cf Se.iglm ^

V Avcc Creme 1’uhlw Schools,36S Mich US W '
975 (1962); McLaughlin v. Board of Education, -oo i lc 1­
667, 239 N.W. 374, (1931).

The record discloses a number of examples of State control 
over local public education in Michigan.

1. Following the holding of Welling so Livonia Board of
Education, supra, that there was no minimum length of day 
required under the 180-day school attendance rule absem a 
State Board of Education regulation, the Micmgan St. 
Board of Education, acting under its Constitutional manda e 
without legislative authority, established an admimstui in. 
rule requiring local school hoards to provide a minimum 
muni)cr of hours per school year. See, School C r
Account for Distribution of Slate Aid. Bulletin ho. 100o, 
Michigan State Department of Education (19,0,!.

2. Public Act 283 of 1964 (MSA § 15.2299 ( 1 )  e t s e q ,
MCI,A § 388.631 ct sen.) required Michigan senool distucts 
to operate K-12 systems, When Public Act 280 became ef­
fective, 1,438 .public school districts existed m Mrdngan. L> 
the beginning of 1968, this figure bad been reduced *> 7Jb, 
meaning that 700 school districts in Michigan have uisap- 
r , vod 1934 through reorganization. Annual Bepon
Co wdiw on SJrod DiArid Beoig . ,/adon, a c a  Journal 
of the Senate 422-423 (March 1, 1968).

3. Pursuant to Act 289 of 1961, supra, the State Board of 
Education ordered the umrgcr of the Browndown go. e 
Har>d Maple Grove and Carson school districts, all in Mayne 
County. The action is best explained by the £ac* that nrowns- 
town was, at that time, the wealthiest school owinu m the 
State indeed, with a property valuation of So glide backing 
each child, perhaps the wealthiest district in the nation, while 
the other three districts were extremely poor.



N os. 7 2 -1 8 0 9 , 7 2 -1 8 1 4 Bradley, et al. v . Milliken, el al. 6 1

4. W h e n  th e  S u m p te r  S c h o o l D is t r ic t  w as o n  th e  v e rg e  o f  
b a n k ru p tc y  in  1 9 6 8 , th e  S ta le  B o a rd  o f E d u c a tio n , a c t in g  

u n d e r  P u b lic  A c t 2 3 9  o f  1.987 (M S A  § 1 5 .2 2 9 9 ( 5 1 )  e l seq., 
M C L A  § 3 8 8 .6 9 1  et seq .), m e rg e d  th e  d is tr ic t  w ith  fo u r 
a d jo in in g  d is tr ic ts , in c lu d in g  th e  A irp o rt S c h o o l D is tr ic t . 

S ig n ific a n tly , th o u g h  S u m p te r  w a s in W a y n e  C o u n ty , A irp o rt 

w a s  in M o n ro e  C o u n ty , s h o w in g  th a t  co u n ty  lin e s  a r c  n o t 
in v io la te  in  M ic h ig a n .

5 . T h e  N a n k in  M ills  S c h o o l D is t r ic t  in  W a y n e  C o u n t) ' w as 
b e s e t  w ith  f in a n c ia l p ro b le m s  an d  h a d  n o  h ig h  sch o o l, A g a in , 

p u rsu a n t to  A c t 2 3 9 , th e  S ta te  B o a r d  o f  E d u c a t io n  In  1 9 6 9  
o rd e re d  tin's sch o o l d is tr ic t  to  m e rg e  w ith  tire L iv o n ia , G a rd e n  
C ity  a n d  W a y n e  C o m m u n ity  sch o o ls .

6 . W h e n  th e  In k s te r  S c h o o l D is tr ic t  in W a y n e  C o u n ty  w as 
o n  th e  v e r g e  o f  f in a n c ia l b a n k ru p tcy , th e  M ic h ig a n  le g is la tu re  
p a sse d  P u b lic  A ct 3 2  o f  1 9 6 8  ( M S A  § 1 5 .1 9 1 6  el seq., MCLA 
§ 3 8 8 .2 0 1  el s eq .) e n a b lin g  th e  d is tr ic t  to  b o rro w  $ 7 0 5 ,0 0 0  
b u t  on  th e  co n d itio n  th a t  i f  tire d is tr ic t  co u ld  n o t b a la n c e  its  
b u d g e t , th e  S ta te  B o ard  o f  E d u c a t io n  co u ld  re o rg a n iz e , m e rg e  

or a n n e x  th e  d is tr ic t . T h e  le g is la t iv e  h is to ry  o f  A c t  32  in d ic a te s  
a t  le a s t tw o le g is la to rs  v o te d  a g a in s t tire  b ill  in  th e  H o u se  o f 

l le p r e s e u ta t iv e s  b e c a u s e  o f  th e  e x c e s s iv e  c o n tro l g iv e n  to  th e  
S ta te  B o a rd  o f E d u c a tio n :

“I v o te d  N o on D a n s e  P I ’ i N o. 3 3 3 1  b e c a u s e  in s o !B e g  
up the m ach in e)-) to b a il  o u t di tresse d  n isi r ie ls , it 'rakes; 
fro  nr th e  lo ca l e o m m iir .i’ ios th e  co n i o>] o v e r  tb e ir  < w .,: 
e d u c a t io n a l sy stem  b y  p ro v id in g  fo r  execs.-.w e a i'h itrars  
r e o r g a n iz a t io n  p o w ers  in  th e  h an d s o f th e  B o a rd  o f  
E d u c a tio n . . A

“T h is  ) ill c e r ta in ly  "e ls  tip th e  S la te  B o a rd  o f  b o o  n  
lio n  to b e  ■ d ie !;;! ;  r of a 'i r. on) d is tr ic ts  that run in to  
fin a n c ia l p ro b le m s .” 1 9 6 S  Jo u rn a l of th e  H o u se o f  R e p r e ­
s e n ta tiv e s  1 9 5 5 .

7 . T o o  sm all an d  to o  p o o r to  o p e r a te  a h ig h  s c h o o l, th e  a ll­
b la c k  C a rv e r  S c h o o l D is t r ic t  in  s u b u rb a n  O a k la n d  C o u n ty



#

0 2  Bradley, el a l  v. M iM u m , et a l  N os. 7 2 -1 8 0 9 , 7 2 -1 8 1 7

r e a c h e d  a cr is is  in 1 9 0 0  w h en  su rro u n d in g  w lh te  d is tr ic ts  

re fu s e d  to  a c c e p t C a rv e r  p u p ils  on  a tu it io n  b a s is . -<
e rn o r  and  S u p e r in te n d e n t o f  P u b lic  In s tru c tio n  h e lp e d  to  

m e rg e  th e  C a rv e r  d is tr ic t  w ith  O a k  P a rk .

8 T h e  S ta te  B o a rd  o f  E d u c a tio n  an d  S u p e r in te n d e n t o f 

P u b lic  in s t r u c t io n  m a y  w ith h o ld  S ta te  a id  fo r  fa r tu rr  to  

o p e r a te  th e  m in im u m  sch o o l y e a i .  m m , r;■ J -°' <l ’ * . f  
§ 3 4 0  5 7 5 . In 1 9 7 0 , fu n d s w e re  w ith h e ld  fro m  th e  C m ) ... 
G ra n d  R a p id s  S c h o o l D is tr ic t . 17 M ic h ig a n  S c h o o l b o a i a  

jo u r n a l  3  ( M a r c h ,  1 9 7 0 ) .  F o r  A tto rn e y  G enera.. O p in io n s  

h o ld in g  th a t  S ta te  a id  m ay  b e  w ith h e ld  b y  th e  S u ite  •0 1 1 0  
E d u c a tio n  fro m  s c h o o l d is tr ic ts  fo r h ir in g  m m e m h e d  w ach exs, 

d e fa u lt in g  on  S t a te  lo an s an d  fo r o th e r  re a so n s , s e e  O p . A  }• 
G e n  N o. BR0, 1 9 4 9  3.950 R e p o r t  o f  th e  A tto rn e y  G e n o a !  IM  

(T a n n e r )  2 4 , 1 9 4 9 , R o t h ) ;  N o. 2 3 3 3 ,  1 9 5 5  R e p o r t  o U h e  a t ­

to rn e y  G e n e ra l 5 G l ( O c to b e r  2 0 , 19o o ,
4 0 9 7 , 1 9 3 ! - 1 9 8 2  R e p o r t  o f  the. A tto rn e y  G e n e ra l ,m 3 ( G a o !  ,

8 , 1 9 6 2 , K e l l e y ) .

9 T im  S la te  o f  M ic h ig a n  c o n tr ih n tc s , on  th e  a v e ra g e  .v l«  

o f  t  t M r  h o d  ' O ' !  ’ \  ;
in th e  M et.i lit , '1 «  o f  I t  t '■ > Uc f
districts, the* State’s contribution exceeds 503 and m ogm 
ra0Ve 0  exceeds 4 0 9 , State aid is appropriated bom the G t . i

I ■ ; ’ "  ! 1 •! e
is d the load school Rsiwm c r a o .
formula devised by the legislature. See, e. g,. D-bnc wet M •. 
( 1 9 7 ! ) ,  M S A  § 1 5 , 1 9 1 9 ( 5 1 ) ,  M C t A   ̂ 3S8.GL1-

Thc-rh the local school districts obtum hums from the

f 5< *’ i ' -1 thc vlti,Tui" ' aul];ont>; c
ing equalized property valuations throughout the mate r  m 
Stale Tax Commission. MSn s 1.0 A  cl r  <7-A■ -' ^  !, ,
et seq,; MSA § 7.206, hi C L  A. § 211.1 m; mm. s /m MG. A  
& 9 1 1 3.1 T h e  S ta te ’s d u ty  to  e q u a liz e  is re q u ire d  b y  t w 

t i l c W , ; , ,  C o n s t itu t io n , A r t ic le  I X ,  S r t t t a .  3 . T h is  g g  
g , , , a l g a l  v a h w tio n ” serv os as th e  b asis  bar c a lc u la im ;:  lo c a l



Nos. 72-1809, 72-1814 Bradley, et al. v. Mill ike n, et al. 63

re v e n u e  y ie ld s . S e e , Ranking of Michigan Public High School 
— School Districts by Selected Financial Data, 1970, B u lle t i i  

1 0 1 2 , M ic h ig a n  S ta le  D e p a r tm e n t  o f  E d u c a tio n  ( 1 9 7 1 ) .

10 . T h e  M ic h ig a n  S c h o o l C o d e  reaffirm s th e  u lt im a te  c o n ­
tr o l o f  th e  S ta te  o v e r  p u b lic  e d u c a tio n . L o c a l  sch o o l d is tr ic ts  
m u st o b s e rv e  a ll S ta te  law s r e la t in g  to  s c h o o ls ,1 h o ld  s c h o o l a 
m in im u m  n u m b e r  o f  d ays p e r  y e a r ,1 2 e m p lo y  o n ly  c e r tif ie d  
te a c h e r s ,3 te a c h  c iv ic s , h e a lth  a n d  p h y s ic a l e d u c a tio n  an d  

d riv e rs ’ e d u c a t io n ,4 e x c u se  s tu d e n ts  to  a tte n d  re lig io u s  in s tru c ­
tio n  c la s s e s ,5 o b s e rv e  S ta te  re q u ire m e n ts  w h e n  te a c h in g  sex  

e d u ca tio n ,'6 m a k e  a n n u a l f in a n c ia l a n d  o th e r  re p o rts  to  th e  
S u p e r in te n d e n t  o f  P u b lic  In s t r u c t io n ,7 a d o p t o n ly  te x tb o o k s  
w h ic h  a re  lis te d  w ith  tire  S u p e r in te n d e n t o f  P u b lic  In s t r u c ­
t io n 8 an d  m u st fo llo w  a ll ru les and  re g u la tio n s  o f th e  S ta te  
D e p a r tm e n t  o f  E d u c a tio n .

L o c a l  s c h o o l d is tr ic ts , u n less th e y  h a v e  th e  a p p ro v a l o f  
th e  S ta te  B o a rd  o f E d u c a tio n  o r th e  S u p e r in te n d e n t o f  P u b lic  
In s tr u c t io n , c a n n o t  c o n s o lid a te  w ith  a n o th e r  s c h o o l d is t r ic t ,9 

a n n e x  te r r i to r y ,10 11 d iv id e  o r  a t ta c h  p a rts  o f o th e r  d is t r ic ts ,11 
b o rro w  m o n ie s  in a n tic ip a tio n  o f  S ta te  a i d e 2 c o n s tru c t , re -

1 MSA g 15.3258(c), MCi , t  § 840.25a (c).
2 MSA g 15.3575, MCLA g 340.575.

3 MSA |I 18.1023(10} (a),  15.3570, MCLA gg 355.1010 (a), 340.570.
« MS i! ’ TCLA SS 383.371, 3 40 36.1; VIS \ gg 15 3781­

15.3787, MCLA gg 840.781-340,783; MSA g 9.2511(c), MCI,A g 257.811 
(e).

5 MSA § 15.3732(g), MCLA § 340.732(g).
6 MSA g 15.3780, MCLA § 340.789.

7 MR A g 15.3612, MCLA § 340.612; MSS §§ 15.3616, 15.3688, MCLA 
gg 340.616, 340.688.

8 MSA g 15.3887(1), MCLA § 340.887(1).

9 MSA § 15.3408, MCLA § 340.402.
5 0 MSA § 15.3431, MCLA § 340.431.

11 MSA § 15.3447, MCLA § 340.447. 
i f  MSA § 15.3587(1), MCLA § 340.567(a).



#

6 4  Bradley, el al. v. Millikan, et al. N os. 7 2 -1 8 0 9 , 7 2 -1 8 1 4

c o n s tru c t  o r re m o d e l sch o o l b u ild in g s  o r a d d itio n s  to  th e m ,’ 3 
e s ta b lis h  a p ro g ra m  lo r  th e  p re v e n tio n  and  tr e a tm e n t  o f  

b e h a v io r  p ro b le m s  o f  c h i ld r e n ,’ 4 e m p lo y  a  s u p e r in te n d e n t 
w ith o u t a  b a c h e lo r ’s d e g re e  fro m  a c o lle g e  a c c e p ta b le  to  
th e  S ta te  B o a rd  o f  E d u c a t io n ,13 14 15 e s ta b lis h  fa c i lit ie s  a n d  p ro ­

g ram s fo r th e  d a y  c a r e  o f  th e  p h y s ic a lly  h a n d ic a p p e d  or 

in it ia te  p ro g ra m s fo r  th e  m e n ta lly  h a n d ic a p p e d .15

T h e  p o w e r  to  w ith h o ld  S ta te  a id , o f  co u rse , eff e c ts  e n o rm o u s 
le v e r a g e  u p o n  a n y  lo c a l s c h o o l d is tr ic t , s in c e  on th e  a v e ra g e  
3 4  p e r  c e n t  o f th e  o p e ra tio n  b u d g e t o f  th e  5 4  s c h o o l d is tr ic ts  
in c lu d e d  in  th e  M e tro p o lita n  P la n  is p a id  fo r  b y  th e  S ta te .

In  th e  in s ta n c e  o f  th e  C ity  o f  D e tr o it ,  th e  S ta te  e x h ib ite d  
its  u n d e rs ta n d in g  o f  its  p o w e r  o v er th e  lo c a l s c h o o l d is tr ic t  

b y  th e  a d o p tio n  o f  A c t 4 S  o f  th e  P u b lic  A cts  o f  1 9 7 0  w h ic h  
re p e a le d  a h ig h  s c h o o l d e s e g re g a tio n  p la n  p re v io u sly  a d o p te d  
b y  th e  D e tr o i t  B o a rd  o f  E d u c a tio n .

B .  B e  ju r e  A cts  o f  D e s e g r e g a t io n

T h u s , th e  re c o rd  e s ta b lis h e s  th a t  th e  S ta te  h a s  c o m m itte d  
d e  ju re  a c ts  o f s e g re g a tio n  a n d  th a t  th e  S ta te  c o n tro ls  tire 

in s tru m e n ta lit ie s  w h o se  a c tio n  is n e c e s s a ry  to  re m e d y  th e  
h a rm fu l e ffe c ts  o f  th e  S ta te  a c ts . T h e r e  can  b e  l i t t le  d o u b t 
th a t  a fe d e ra l co u r t  h a s  fro th  th e  p o w e r  an d  th e  d u ty  to  

e f fe c t  a  fe a s ib le  d e s e g re g a tio n  p la n . In d e e d , su ch  is  th e  
e s s e n c e  o ' Breton II. Brotcn v . Beard of Education, 3 1 9  U .S , 
2 9 4 , 3 0 0 -0 ]  ( 1 9 0 5 ) .  In  tire in s ta n t ca s e  th e  o n ly  fe a s ib le  

d e s e g re g a tio n  p lan  in v o lv e s  th e  c ro w in g  w ti e b o u n d a ry  lin es  

b e tw e e n  th e  D e tr o i t  S c h o o l D is t r ic t  a n d  a d ja c e n t  o r n e a r b y  

s c h o o l d is tr ic ts  fo r  th e  lim ite d  p u rp o se  o f  p ro v id in g  a n  e ffe c tiv e

13 MSA § 15.1961, MCLA § 380.051, Op. A tty. Gen. No. 1837, 1952­
1954 Report of the Attorney General 440 (Nov. 8 1954).

14 MSA §15.3618, MCLA § 340.016. 
is MSA § 15.3773, MCLA § 340.573.

16MSA § 15,3537(1), MCLA § 340.587(a); MSA § 15.3775, MCLA 
§ 340.775.



N os, 7 2 - 1 8 0 9 ,  7 2 - 1 8 1 4  Bradley, et a l  v, Uillikcn, cl al. 6 5

d e s e g r e g a t io n  p la n .  T h e  p o w e r  to d is r e g a r d  s u ch  art if ic ia l  
b a rr ie rs  is all th e  m o re  c le a r  w h e r e ,  as h e r e ,  th e  S t a t e  lias 
b e e n  g u i l ty  o f  d is c r im in a t io n  w h ic h  h a d  th e  e f fe c t  o f  c r e a t in g  
a n d  m a i n t a in i n g  ra c ia l  s e g re g a t io n  a lo n g  sc h o o l  d is t r ic t  lines. 
S e e  S e c t io n  I f f  B ,  pp. 4 1 -4 9 ,  supra. United Stales v. Scotland 
K eck Board of Education, 4 0 7  U .S .  4 8 4 ,  4 8 9  ( 1 9 7 2 ) ;  Wright 
v. City o f Emporia, 4 0 7  U .S .  4 5 1 ,  4 6 3  ( 1 9 7 2 ) ;  United States v. 
Stale of Texas, 4 4 7  F .2 d  4 4 J ,  4 4 3 - 4 1  ( 5 t h  Civ. 1 9 7 1 ) ;  Raney  v. 
County Board of Education of Sevier County, 4 2 9  F .2 c l  3 6 4 ,  

3 6 8  ( Stir C ir .  1 9 7 0 ) .  See also Davis v. Board o f School Com­
missioners, 4 0 2  U .S .  3 3 ,  3 6 - 3 8  ( 1 9 7 1 ) ,

T h e r e  ex ists ,  h o w e v e r ,  an ev e n  m o re  c o m p e l l in g  b a s is  fo r  

t h e  D is t r i c t  C o u r t ’s c r o s s in g  a rt if ic ia l  b o u n d a r y  l in es  to  cu re  
t h e  S t a t e s  co n s t i tu t io n a l  v io la t io n s .  ' I ho in s ta n t  ea se  ca l ls  

u p  h a u n t in g  m e m o r ie s  o f  th e  n o w  lo n g  o v e rr u le d  and d is ­
c r e d ite d  “s e p a ra te  b u t  e q u a l  d o c t r in e ’' o f  Bicesy v. Berguson, 
1 6 3  U .S .  5 3 7  ( 1 8 9 ® ) .  I f  w c  h o ld  t h a t  sch o o l d is t r ic t  b o u n d ­
aries  are  a b s o lu te  b a r r ie r s  to  a D e t r o i t  sc h o o l  d e s e g r e g a t io n  
p la n ,  w e  w o u ld  b e  o p e n in g  a  w a y  to  n u l l i fy  Brown v. Board- 
of Education  w in  e h  o v e rr u le d  Elessy, supra,

T li is  court: in c o n s id e r in g  this re c o rd  finds it im p o s s ib le  

to  d e c la r e  “d e a r l y  e r ro n e o u s ” th e  D is t r i c t  j u d g e ’s c o n c lu s io n  

th a t  any D e t r o i t  o n ly  d e s e g r e g a t io n  p la n  w ill le a d  d ir e c t ly  
in a s in g le  s e g n o  n ed  D e tr o i t  ‘■-■•ho 4 o r e  3 ;  o\ w v . 'h rh m n g ly  

b la c k  in all o f  its scho o ls ,  .surrounded b y  a r in g  o f  s u b u rb s  and 
s u b u r b a n  s c h o o l  d is tr ic ts  o v e r w h e lm in g ly  w h ite  in c o m p q :  i ! ion 

in  a S t a t e  in w h ic h  th e  ra c ia l  c o m p o s i t io n  is 8 7  p e r  c e n t  

w li i t e  and 13 p e r  con i b la ck .  D ig  c i ty  s c h o o l  sy s te m s  for  
b la c k s  s u rro u n d e d  b y  s u b u rb a n  school sy s te m s  fo r  w h ite s  c a n ­

n o t  r e p re s e n t  e q u a l  p r o te c t io n  o f  th e  law.

V i .  T h e  D is t r ic t  J u d g e ’s O r d e r  t o  P r e p a r e  A 
M e t r o p o l i ta n  A re a  D e s e g r e g a t io n  P la n

T h e  th ird  m a jo r  issue in  th is  ca s e  p e r ta in s  to  th e  v a l id i ty  
o f  th e  D is t r ic t  J u d g e ’s r u l in g  on  d e s e g r e g a t io n  a re a  a n d  o rd e r  
for  d e v e lo p m e n t  o f  a p lan  o f  d e s e g r e g a t io n  d a te d  J u n e  14,



1972, accompanied by a statement of findings of facts and 
conclusions of law in support thereof.

At the outset it is obvious from what we have said pertain­
ing to the inadequacy of any Detroit only desegregation plan 
that this court feels: that some plan for desegregation beyond 
the boundaries of the Detroit School District is both within 
the equity powers of tire District Court and essential to a 
solution of this problem. We reiterate this, keeping in mind 
the admonition from Chief Justice Marshall:

“The government of the United States has been 
emphatically termed a government of laws, and not of 
men. It will certainly cease to deserve this high appel­
lation. if the laws furnish no remedy for the violation 
of a vested legal right,” Marbury v. Madison, 5 U.S. 
( 1  C ranch) 1 3 7 ,  163 : IS03).

W e  r e je c t  th e  c o n t e n t io n  th a t  sch o o l d is t r ic t  l in es  a re  
s a c r o s a n c t  a n d  th a t  t h e  ju r i s d ic t io n  o f  tn.c D is t r i c t  C o u r t  to  
g ra n t  e q u i ta b l e  r e l i e f  in  th e  p r e s e n t  c a s e  is l im i te d  to  th e  
g e o g r a p h ic a l  b o u n d a r ie s  o f  D e tr o i t .  W e  r e i t e r a te  t h a t  school 
d is tr ic ts  an d  s c h o o l  b o a rd s  a re  in s t r u m e n ta l i t ie s  o f  t h e  S ta te .  
See Cooper v. Aaron, 3 5 8  U .S .  1, 16  ( 1 9 o 8 ) .  As e a r ly  as 

Brown 11 th e  S u p rtw w  C o u r t  p o in te d  o u t  th a is

“ [ T i n e  co u r ! :  w a v  co m m ie ; p ro b h  re;, re ] ' ; ; ' . : !  to a d ­
m in is tr a t io n  a r is in g  from  th e  p b y . T u '  c o n d i t io n  ot W e 
sc h o o l  p in rd, th e  school t r a n s p o r ta t io n  s y s te m , p e r s o n ­
n e l ,  r e v is io n  o f  sch o o l d is t r ic ts  a n d  a t t e n d a n c e  a re a s  in to  
c o m p a c t  u n its  to a c h ie v e  a system- o f  d e t e r m i n in g  a d m is ­
sion to  th e  p u b l ic  s c h o o ls  on a n o n r a c ia !  ba s is ,  . . . .’ 349 
U.S. at 300-01.

T h e  Supreme C o u r t  h a s  h e l d  th a t  s c h o o l  b o u n d a r y  l in es  
c a n n o t  b e  c h a n g e d  o r  n e w  sc h o o l  sy s te m s  created , w h e r e  th e  

resu lt  is a  la r g e r  im b a la n c e  in  r a c ia l  ratios' in  s c h o o l  sy s te m s  
w h e r e  all v e s t ig e s  o f  e n f o r c e d  r a c ia l  s e g r e g a t io n  h a v e  not b e e n  
e l im in a te d .  United Stales v, Scotland Neck Board o f Edu-

6 6  Bradley, el al. v. MiJliken, et al. Nos, 7 2 -1 8 0 9 , 7 2 -1 8 1 4



Cf™ >  407 l ]f\  481 (W 2 ) ;  Whfcftf v. Crmieil of the City 
« ( Emporia, 407 U.S. 451 ( 1 9 7 2 ) .  This is true regardless of 

W ° se ” b r ig h t  v. CTO/ o f Emporia, 407 U.S. at

If school boundary lines cannot be changed for an uneon- 
stituaonal purpose, it follows logically that existing boundary 
,ues cannot be frozen for an unconstitutional purpose.

Me therefore conclude that the District Court in the present 
case is not confined to the boundary lines of Detroit in fash­
ioning equitable relief.

Jo  i h e  e x t e n t  t h a t  th is  o p in io n  is in  co n flic t  w ith  Bradley 
v. School home! of Richmond, 4G2 F .2 d  1 0 5 8  ( 4 t h  C D  1 9 7 9 ) 

peldwn for cert, filed, 4 1  U . S . L . W .  3 2 1 1  ( I f  S O c t  5  1Q7 oT  
v. c  r e s p e c t f u l ly  d e c l in e  to fo l lo w  t h a t  d e c is io n .  ’ "

VIL Ri- llts Cif Other School Districts To Be
M a d e  P a r t ie s  a n d  T o  B e  H e a r d

r  1,1 h, \ “i !llii13-  Gli ft'oph.'iy of Considering a Metropolitan 
thc ° KtvU:t C°uri “ 1 litau ;

: 05 ^ P r« e n t  p u rp o s e s ” to  co m p r is e  th e  th r e e  c o u n t ie s  o f  
W yne, O a k la n d  and M a c o m b .  In  his  - F i n d i n g s  o f  F a c t  a n d  
C o n e m s jo n s  01 - a w  in  S n p p o i  f  11 « g  (

, f liK 1 ];ms” ’ ’ tri , not
L K(’“ i ;a  h u , ° !s ^ ’th  i c s j i m t  to ih e r P d h h -

am f UU' ic\ iu ihe colmt“'v of Waym, Oald
; r ,  * ' 7 '  ”?*h - , J ’ ! ii:S i i ! , ! l l i *  on  W m g r c g a F o n  A re a  a n d  
O r d e r  ro r  ) p m e n l  o f  1 , th e  D

1 ' ‘ to  n u l . d e  sC
' ( 1 ' ' t > > d ' h oo l d h,i m '

K : i  h a v e  yt'l  b e e n  a tfo rd ed  a n  o p p e r -  
tu m tji  .u  Olfer p ro o f .  S o m e  o f  th e  o t h e r  s c h o o l  d is tr ic ts  are  
n o t  p a r t ie s  to  t h e  li t ig a t io n .

, . y n d e r  t?,u ' - -^ b o r it ic s  h e r e to f o r e  d iscu sse d ,  th e s e  s c h o o l  
f i i s t i ic t s  a re  a n u s  and in s t r u m e n ta l i t ie s  o f  d m  S t a t e  o>f M i f j

M  i0"-' n.-.,- in;tylue a l l
b e  su ed . Sec 1 1  M .S .A .  §§ 1 5 .3 1 5 4 ,  1 5 .3 1 9 2 ,

Nos, 7 2 ,1 8 0 9 , 7 2 -1 8 1 4  Bradley, cl a l  v. Millikan, et a l  67



6 8  Bradley, el a t  v. Millikan, et a l  Nos. 7 2 -1 8 0 9 , 7 2 -1 8 1 4

Rule 19, Fed. R. Civ. P. provides that a person who is 
subject to service of process shall be joined as a party to 
the action if “in his absence complete relief cannot be ac­
corded among those already parties.” Under this rule joinder 
of necessary parties is required if jurisdiction over them can 
be obtained and if joinder will not defeat federal jurisdiction 
of tire case. See Bradley v. School Board oj CAly of Richmond, 
51 F.R.D. 139 (E.D. Va. 1970).

We hold that school districts which are to be affected by 
the decree of the District Court are “necessary parties” under 
Rule 19. As a prerequisite to the implementation of a plan 
in this ease affecting any school district, the affected district 
first must be made a pent)' to this litigation and afforded an 
opportunity to be heard.

W h i l e  a g r e e in g  w ith  th e  D is t r ic t  C o u r t  in its c o n c lu s io n  th a t  
i t  c a n  c o n s id e r  a m e tr o p o l i ta n  r e m e d y ,  w e  ex p ress  n o  v iew s  

as to  th e  d e s e g r e g a t io n  area  s e t  for th  in  th e  ord ers  of th e  
D is t r ic t  C o u r t .

W e  v a c a t e  th e  o rd e r  of M a r c h  2 8 ,  1 9 7 2 .  e n t i t le d  “ R u l in g  
on P rup ricM  of a M e tr o p o l i ta n  R e m e d y  to A c c o m p l is h  D e ­
s e g r e g a t io n  of th e  P u b l i c  S c h o o ls  of D e t r o i t . ” For th e  g u id ­
a n c e  o f  th e  D is tr ic t  C o u r t  on r e m a n d ,  h o w e v e r ,  w e  h o ld  th a t ,  
in f a s h io n in g  an  e q u i ta b le  r e m e d y  in th is  ease, it w ill  n o t  b e  

n e c e s s a r y  lo r  Use D is t r i c t  C o u rt  to  find d is c r im in a to r )  co n d u ct  
on th e  p a r t  o f  e a c h  sc h o o l  d is tr ic t ,  c i th e r  d o  ju re  o r  tie  f a c to ,  
as a p r e r e q u is i t e  to  in c lu d in g  s u c h  d is tr ic t  in  a d e s e g r e g a t io n  
a r e a  to  b e  d e f in e d  b y  the c o u r t ’s d e c re e .

As said in United Stains v. Texas Education Agency, --------

F . 2 d  —  ( 5 t h  C ir .  1 9 7 2 ) ;

“S a m e  s c h o o ls  m a y  b e  t h e  ‘re s u l t ’ o f  s ta te - im p o s e d  
s e g r e g a t io n  e v e n  th o u g h  n o  sp e c i f ic  d is c r im in a to r y  s c h o o l  
b o a r d  a c t io n  m a y  b e  sh o w n  as to  th o s e  scho o ls .  H a d  th e  
sc h o o l  a u th o r i t ie s  n o t  sp e c i f i c a l ly  s e g r e g a t e d  th e  m in o r i ty  
.students in  c e r ta in  sch o o ls ,  o i l ie r  s ch o o ls  m a y  h a v e  
d e v e lo p e d  as d e s e g r e g a te d  fa c i l i t ie s .  T h u s ,  th o u g h  th e y  
m a y  not h e  ‘p o ck e ts  o f  d is c r im in a t io n , ’ th e s e  s c h o o ls  are



Nos. 72-1809, 72-1814 Bradley, et al. v. Milliken, el al. 69

the ‘results’ of discrimination.” Untied Stales v. Texas 
Education Agency, supra, --------  F.2d at —— .

W'e also vacate the District Court’s Ruling on Desegrega­
tion Area and Development Plan, dated June 14, 1972, except 
those parts of the order appointing a panel charged with the 
duty of preparing interim and final plans of desegregation. 
1 he panel appointed by the District Court is authorized to 
proceed with its studies and planning under the direction of 
the District Court. Pending further orders of the District 
Court or this Court, the defendants and school district,s in­
volved will continue to supply administrate.e and staff assist­
ance to the panel upon its request. Until further order of 
the court, the reasonable costs incurred by the panel will be 
paid as provided by the District Court’s order of June 34, 1972.

T h e  o r d e r  o f  th e  D is t r ic t  C o u r t  d ir e c t in g  th e  purchase ' of 
sch o o l b u ses ,  d a te d  J u ly  11 ,  1 9 7 2 ,  a lso  is v a c a te d ,  s u b je c t  to  th e  
r ig h t  o f  th e  D is t r i c t  C o u r t ,  i n  its  d is c re t io n ,  to  c o n s id e r  th e  
e n try  o f  a n o th e r  o r d e r  r e q u ir in g  th e  p u r c h a s e  o f  s c h o o l  b u ses  
a t  th e  a p p r o p r ia te  tim e.

VII], Equitable Relief

h i  tins u, m e m  e h a w  n n p w  w e d  ih c  broad  p u e ’ s of 

a D is t r ic t  C o u r t  to fa.-]lion e q u i t a b l e  re l ie f  in sch o o l d e s e g r e ­
g a t io n  eases .  1 or th e  g u id a n c e  of th e  D is t r ic t  C o u rt  on a m a u d , 

v e  n o w  re v ie w  tine d e c is io n s  o n  th is  s u b je c t  In f o r t h  ir d e p th .

1) The Fundamental Cored tin Piona] Holdi ng:

" W e  c o n c lu d e  th a t  in  th e  h e ld  o f  p u b l i c  e d u c a t io n  th e  
d o c t r in e  of s e p a r a te  b u t  e q u a l  has  n o  p la c e .  S e p a r a te  
e d u c a t io n a l  f a n  litre;; a rc  in h e r e n t ly  u n e q u a l .  T h e r e f o r e ,  
w e  b o ld  th a t  t h e  p la in  til is a n d  o th e rs  .similarly s i tu a te d  
fo r  w h o m  trie a c t io n s  h a v e  b e e n  b r o u g h t  a re ,  b v  r e a s o n  
o f  th e  s e g re g a t io n  c o m p la in e d  of,  d e p r iv e d  o f  th e  e q u a l  
p r o te c t io n  o f  th e  law s g u a ra n te e d  b y  th e  F o u r t e e n t h  
A m e n d m e n t .” Brown v. Board of Education, 3 3 7  U S 
4 8 3 ,  4 9 5  ( 1 9 5 4 ) .



7 0  Bradley, et al. v. Millike n, ct ah N os. 7 2 -1 8 0 9 . -M

2 )  T h e  S u p r e m e  C o u r t ’s I n i t ia l  D e s c r ip t io n  oi th e  E q u i t a b l e  

R e m e d y :

“I n  f a s h io n in g  an d  e f f e c tu a t in g  th e  d e c r e e s ,  th e  co u rts  
w ill  b e  g u id e d  b y  e q u i ta b le ,  p r in c ip le s .  T ra d i t io n a l ly ,  
e q u i ty  lias b e e n  c h a r a c te r i z e d  b y  a p r a c t i c a l  f le x ib i l i ty  in  
s h a p in g  its  r e m e d ie s 4 a n d  b y  a  f a c i l i t y  for a d ju s t in g  a n d  
r e c o n c i l in g  p u b l i c  and p r iv a te  n e e d s .5 T h e s e  ca s e s  c a l l  
fo r  th e  e x e rc is e  o f  th e s e  t r a d i t io n a l  a t t r ib u te s  o f  e q u i ty  
p o w e r .  A t  s ta k e  is t h e  p e r s o n a l  in te r e s t  o f  th e  p la in t if fs  
in  a d m iss io n  to  p u b l i c  sch o o ls  as so o n  as p r a c t i c a b l e  on  a 
n o n d is e r im in a to r y  basis .  T o  e f f e c tu a te  this  in t e r e s t  m a y  
ca l l  f o r  e l im in a t io n  o f  a  v a r ie ty  o f  o b s ta c le s  in  m a k in g  
th e  tr a n s it io n  to sch o o l sy s te m s  o p e r a te d  in a c c o r d a n c e  
w i t h  th e  co n s t i tu t io n a l  p r in c ip le s  se t  fo r th  in  o u r  M a y  17, 
1 9 5 4 ,  d ec is io n .  C o u r ts  o f  e q u i ty  m a y  p r o p e r ly  ta k e  in to  
a c c o u n t  th e  p u b l i c  in te r e s t  in  t h e  e l im in a t io n  o f  s u ch  
o b s ta c le s  in  a  s y s te m a t ic  a n d  e f f e c t iv e  m a n n e r .  B u t  i t  
sh o u ld  go w ith o u t  s a y in g  that th e  v i ta l i ty  o f  th e s e  c o n ­
stitutional p r in c ip le s  c a n n o t  b e  a l lo w e d  to y ie ld  s im p ly  
b e c a u s e  o f  d is a g r e e m e n t  w ith  th e m .

“While giving weight to these public and private con­
siderations, the courts wifi require that the .defendants 
make a prompt and reasonable start toward full compli­
ance with our May 17, 195 1, ruling. Once such a start 
lias been made, toe courts may find that additional time 
is necessary to cany out the ruling in an effective man­
ner. The burden rests upon the dciendants to establish 
that such time is necessary in the public interest and is 
consistent with good faith, eoi at
practicable date. T o  that cud, the courts may consider 
problems related to administration., arising from the 
physical condition of the school plant, the school trans­
portation system, personnel, revision of school districts 
and attendance areas into compact units to achieve a 
system or dcLcrrnining a h • on to the public schools on 
a nonracial basis, and revision of local lavs and regal a-

4 See A l e x a n d e r  v. H i l l m a n ,  SCO U.S. 222, 239.
5 See I I c e n t  C o .  v. B o w l e s ,  3?1 U.S. 321, 329-330.



l io n s  w h ic h  m a y  b e  n e c e s s a r y  in  s o lv in g  t h e  f o r e g o in g  
p ro b le m s .  T h e y  w il l  a lso  c o n s id e r  t h e  a d e q u a c y  o f  a n y  
p la n s  th e  d e f e n d a n ts  m a y  p ro p o s e  to  m e e t  th e s e  p r o b ­
le m s  a n d  to  e f f e c tu a te  a  t r a n s i t io n  to  a r a c ia l ly  n o n d is -  
e r im in a to r y  sc h o o l  sy s te m .  D u r i n g  th is  p e r io d  o f  
t r a n s i t io n ,  t h e  co u rts  w il l  r e ta in  ju r i s d ic t io n  o f  th e s e  ca s e s .” 
Brown v. Board- o f Education o f Topeka [11], 349 U.S. 
294, 300-01 (1955)

N os. 7 2 -1 8 0 9 , 7 2 -1 8 1 4  Bradley, et a l  v. Millikan, c f  a l  71

3 )  D e l a y  Is  N o  L o n g e r  T o le r a b l e :

" I n  d e t e r m i n in g  w h e t h e r  r e s p o n d e n t  S c h o o l  B o a r d  m e t  
t h a t  c o m m a n d  b y  a d o p t in g  its  ‘i r e c d o m - o f - c h o i c e 4 5 p la n ,  
it  is r e le v a n t  t h a t  th is  first s te p  did n o t  c o m e  u n t i l  s o m e  
11 y e a r s  a f te r  Brown I  w a s d e c id e d  a n d  1 0  y e a rs  a f te r  
Brown 11 d ir e c t e d  th e  m a k in g  o f  a  ‘p r o m p t  a n d  r e a s o n ­
a b l e  s ta r t , ’ T h i s  d e l ib e r a te  p e r p e t u a t io n  o f  t h e  u n c o n ­
s t i tu t io n a l  d u a l  sy s te m  c a n  o n l} '  h a v e  c o m p o u n d e d  th e  
h a r m  o f  su ch  a sy s te m . S u c h  d e la y s  a r c  no  lo n g e r  to l e r ­
a b le .  f o r  ‘ the  g o v e r n in g  co n s t i tu t io n a l  p r in c ip le s  n o  lo n g e r  
b e a r  tire im p r in t  o f  n e w ly  e n u n c i a te d  d o c tr in e /  Watson 
v. City of Memphis, supra, a t  5 2 9 ;  see  Bradley v. School 
Board, supra; Royers v. Ranh 3 8 2  U .S .  19 5 .  M o r e o v e r ,  
a plan that at this late dale fails to provide meaningful 
assurance of prompt and effective discsiohlishiiient o f a 
clued system is also intolerable. ‘The. t im e  f a r  m e r e  
‘d e l ib e r a t e  speed’ h as ru n  o u t , ’ Crifju: v. County School 
Board, 3 7 7  U .S ,  2 1 8 ,  7 3 J ;  ‘tire co n i  e x t  in w h ic h  iso m u s t  
in t e r p r e t  and apply this langmum [ o f  Brown 11] to  p le a s  
fo r  desegregation l ia s  been significantly altered.’ Goss 
v. Board o f Education, 3 7 3  U .S .  5 8 3 ,  3 8 9 .  S e e  Calhoun 
v. Latimer, 3 7 7  U .S .  263. The lm d( ' on i m ' r,< l board  
iod'S; is in comc /nncnru chi t  a phm ih d  pro,nines 
realisiicalhj to work, and promises / ali td'dhj to work 
m eed  Green v. County School Board, 391 U .S .  4 3 0  4 3 8  
3 9  ( 1 0 5 8 )  ( E m p h a s i s  a d d e d .)

4) Si rite Imposed Segregation Must be Completely Removed 
at: Earliest lae.etieable Date:

“The obligation of the district courts, as it always has



Bradley, e l al, v. Milliken, el al. Nos. 7 2 4 8 0 9 ,  7 2 4 8 1 4tz

b e e n ,  is to  assess th e  e f fe c t iv e n e s s  o f  a  p ro p o s e d  p la n  
in a c h ie v in g  d e s e g r e g a t io n .  There is no universal answer 
to complex problems of desegregation; there is obvious­
ly no one plan that will do the job in every case. The 
matter must be assessed in light o f the circumstances 
present and the options available in each instance. I t  
is in c u m b e n t  u p on  th e  s c h o o l  b o a r d  to  e s ta b l i s h  th a t  its 
p ro p o se d  p la n  p ro m ises  m e a n i n g f u l  a n d  im m e d ia t e  
p ro g re s s  to w a rd  d is e s ta b l is h in g  s ta te - im p o s e d  s e g re g a t io n .  
I t  is in c u m b e n t  u p o n  th e  d is t r ic t  co u r t  to  w e ig h  t h a t  
c la im  in  l ig h t  o f  th e  fa c ts  a t  h a n d  a n d  in  light: o f  a n y  
a l te r n a t iv e s  w h ic h  m a y  b e  sh o w n  as f e a s ib le  a n d  m o r e  
p r o m is in g  in  th e ir  e f fe c t iv e n e s s .  W here the court finds 
the hoard to he acting in good faith and the proposed 
plan to have real prospects for dismantling the state- 
imposed dual system ‘at. the earliest practicable dale ’ 
then the plan may he said to provide effective relief. 
O f co u rs e ,  th e  a v a i la b i l i ty  to  t h e  b o a r d  o f  o th e r  m o r e  
p r o m is in g  courses o f  a c t io n  m a y  in d ic a te  a la c k  o f  g o o d  
fa i th ;  a n d  a t  the le a st  it p la c e s  a h e a v y  b u r d e n  u p o n  th e  
b o a r d  to e x p la in  its p r e f e r e n c e  for  an a p p a r e n t ly  less 
e f fe c t iv e  m e th o d .  M o re o v e r ,  w h a t e v e r  plan is  a d o p te d  
w il l  r e q u ir e  e v a lu a t io n  in p r a c t i c e ,  a n d  th e  c o u r t  should  
r e ta in  ju r is d ic t io n  u n t il  it  is c le a r  that s la te - im p o s e d  s e g ­
r e g a t io n  h a s  b e e n  completely removed. See N o . 80 5 ,  
nancy v. Board of Education, post, a t  4 1 9 . ” Green v. 
Con < i school Board, - i I5S. 950, 935 4 9 5 s ) (Empha­
sis a d d e d .)

5) The C o u r t  Has The bower and The Duly to EHmi r w 
Effects of bast Discrimination:

"We hear in mind that the court has not merely the 
power but the duty to render a decree which will so far 
as possible eliminate the discriminatory effects of the 
pas! as iced as bar like di'criinirmHon in the fu ’tnvf" 
Louisiana v. United Stales, 3 8 0  U. S. 145. 154 .  C o m ­
p a r e  the remedies disou.v d in. c. g., V/.T5 v. .NTimport 
Cries Shipbuilding & Cry Pock Co . 398 U . S. 2  fl; l hiited 
States v. Crescent Amusement Co.. 323 U. S. 173; Stand-



anl Oil Co. v. United Slates, 221 U. S. 1. See also 
Griffin v. County School Board, 377 U. S. 23.8, 232-231, 
Green v. County School Board, 391 U.S. 430, n. 4 at 438 
(relating to die remedial command of Brown 11) (Em­
phasis added.)

6) R eseg w sg a t io n  is Im p e r m is s ib le :

L i k e  t h e  t r a n s fe r  p ro v is io n s  h e ld  in v a l id  in  Goss v. Board 
of education, 3 7 3  U .S .  GS3, 63d, ‘ [ i ] t  is re a d i ly  a p p a r e n t  
t h a t  th e  t r a n s fe r  [p ro v is io n ]  le n d s  i t s e l f  to  p e r p e tu a t io n  
ol s e g r e g a t io n . ’ W h i l e  w e  th e r e  in d ic a t e d  t h a t  ‘f re e -  
rra n sfer  p la n s  u n d e r  so m e c i r c u in s ta n c e s  m ig h t  b e  v a l id ,  
v> e ex p lic it  iy s ta ted  th a t  'no offic ia l t r a n s fe r  p lan  or 
provision o f which racial segregation is the inevitable 
consequence may stand under the Fourteenth Amend­
ment. Id., a t 6 8 9 .  S o  i t  is h e r e ;  n o  a t t e m p t  lias b e e n  
m a d e  to  ju s t i iy  t h e  t r a n s fe r  p ro v is io n  as a d e v ic e  d e ­
s ig n e d  to  m e e t  l e g i t i m a t e  lo c a l  p ro b le m s , ’ ib id .;  r a t h e r  
it p a t e n t l y  o p e r a te s  as a  d e v i c e  to  a l lo w  re segre‘gallon 
o f  t h e  ra c e s  to  th e  e x t e n t  d e s e g r e g a t io n  'w ould b e  
a c h i e v e d  b y  g e o g r a p h ic a l ly  d ra w n  zones. .R esp o nd en t 's  
a r g u m e n t  in  th is  C o u r t  re v e a ls  its p u rp o se .  W e  are  
f r a n k ly  to ld  in th e  B r i e f  th a t  w i th o u t  th e  In  n s fe r  o p t io n  
it is uppr> b e n d e d  th a t  w h ite  s tu d e n ts  w ill j i c e  th e  s c h o o l  
s y s te m  mie.gw w i . .!1: : t it shoffid g o  w ith  m! sar i ; a.';

i c e  \ ita iu ’) e l  ih u  co n st itu te . ;  rd prim-m i « ca n n o t  
bc- a l lo w e d  iu  \ ie ld  s im p ly  b e c a u s e  o f  d is a g r e e m e n t  w i th  
t h e m . ’ Brown II, at: 30 0 .

ffiV- do no! iiold 8 . 4  dun- t r a n s fe r ’ ca n  I m v  no  p b .-o  
hi a di : e g .e g . : !  i i, p lan . B u t  Iffie ‘f re e d o m  of .•] ■ 
if it c a n n o t  b o  sh o w n  that s u ch  a p lan w ill  fu r th e r  r a th e r  
th a n  d e la y  c o n v e rs io n  to  a u n i ta r y ,  n o n r a d a l ,  nondis- 
e n m i n a t o r y  sc h o o l  sy s te m , i t  m u st  b e  h e ld  u n a c c e p ta b l e .  
See Green v. County School B oard ,  supra,  at 439-441.

"Vdc conclude, therefore, that the Board ‘must hr re­
quired to formulaic a new plan ami, in light of other 
courses which appear open to the Board, . . . fashion

Nos. 7 2 -1 8 0 9 , 7 2 -1 8 1 4  Bradley, et al. v. Mill ikon, et a t  73



siejis which promise realistically to convert promptlv to 
a system without a white school and a ‘Negro' school 
but just schools.’ h i ,  at 442. Monroe v. Board o f Cow-

added T * ’ 39J U'S' 450, 459-60 ( ]96S) (Emphasis

7) The R e m e d ia l  Tools: -

I n  Swann v. Board of Education, 4 0 2  U .S .  I ,  15, C h i e f  J u s t i c e  
B u r g e r ,  writing fo r  a u n a n im o u s  C o u r t ,  sa id :

“U s c h o o l  a u th o r i t ie s  fa i l  in th e ir  a f f irm a tiv e  o b l ig a t io n s  
" n o c r  i lK 'sf  h o ld in g s ,  ju d ic ia l  a u th o r i t y  m a y  b e  im 'o k e d .  
° / !Ce ail(] a v io la t io n  h a v e  b e e n  sh o w n , th e  sc o p e
°  a a u a n c t  c o u r l 's e q u i ta b l e  p o w e r s  to  r e m e d y  p a s t  
w ro n g s  is b ro a d ,  fo r  b r e a d t h  a n d  f le x ib i l i ty  a re  in h e r e n t  
in  e q u i ta b l e  re m e d ie s .

I l l e  c:’ -srcr ice  °g e q u i ty  ju r is d ic t io n  h a s  b e e n  th e  
p o w e r  o f  th e  C h a n c e l lo r  to d o  e q u i t y  a n d  to  m o u ld  
e a c n  d e c r e e  to  th e  n e c e s s i t ie s  o f  t h e  p a r t ic u la r  ca s e ,  
i ' j e x m m t y  l a t h e r  than  r ig id i ty  lias d is t in g u is h e d  it. 
r ] , e . h y g h t a a  of m eres- and  p r a c t i c a l i t y  h a v e  m a d e  

eq iut) .  m e  n n w u w c w :  m  n ic e  a d jn s tn -m g  a ,d  ;v : m

<4 Bradley, et a l  v. Millikan, et al. Nos. 7 2 -1 8 0 9 , 72 -1814

tbnd in Awm, >/. supra, ai GOO."

a ) 1 he id e x i L 'e  R a t io :

Uie v o lu m in o u s  r e c o r d  in  th is  e a s e  sh o w s,  th e

a p p r o v e d  by the C o u r t  o f  A p p e a ls ,  th a t  th e  s c h o o l  b o a rd  
n a d  to ta l ly  d e fa u l te d  in its a c k n o w le d g e d  d u ty  to  c o m e  
f o r w a r d  w it h  an a c c e p t a b le  p la n  o f  its o w n ,  x it !  , '
m g  tn e  p a t ie n t  e fforts  o f  th e  D is t r i c t  J u d g e  w h o ,  on

c i R a tio n  b e tw e e n  tie. 
n ee d s  as w e l l  as b e tw  
He of it Co. x. houdes.

p r e d ic a te  fo r  th e  D is t r ic t  C ou rt 's  
b * b o  w as t\‘.oh> ! b  first, its o .p ies '- ’

4 ' s  u se  o f  th e  7 1 2 - 2 9 7  
'ss f in d in g , a p p r o v e d  b y



f

N os. 7 2 - 1 8 0 9 ,  7 2 - 1 8 1 4  Bradley, cl ah v. M{[liken, el a l  7 5

at l e a s t  th r e e  o c c a s io n s ,  u rg e d  th e  b o a r d  to  s u b m it  p la n s .  
As th e  s t a t e m e n t  o f  f a c t s  sh o w s,  t h e s e  f in d in g s  arc. 
a b u n d a n t ly  s u p p o r te d  b y  th e  re c o rd .  I t  w a s  b e c a u s e  o f  
tin's to t a l  fa i lu re  oi th e  s c h o o l  b o a r d  t h a t  th e  D is t r i c t  
C o u r t  w a s  o b l ig e d  to  tu rn  to  o t h e r  q u a li f ied  s o u rce s ,  a n d  
D r .  F i n g e r  w a s  d e s ig n a te d  to  a ss ist  t h e  D is t r i c t  C o u r t  to  
d o  w h a t  th e  b o a r d  should, h a v e  d one.

“W e  s e e  th e r e f o r e  t h a t  th e  u s e  m a d e  o f  m a t h e m a t i c a l  
ra t io s  w a s  n o  m o r e  t h a n  a s to r t in g  p o in t  in th e  p ro c e s s  
oi s h a p in g  a r e m e d y ,  r a t h e r  th a n  a n  in f lex ib le  r e q u ir e -  
m e n ' ,  f  rom  th a t  s ta r t in g  p o in t  th e  D is t r i c t  C o u r t  p r o ­
c e e d e d  to  In l in e  a d e c r e e  t h a t  w a s  w ith in  its  d i s c r e ­
t io n a ry  p o w e rs ,  as an e q u i ta b le  r e m e d y  f o r  t h e  p a r t i c u ­
la r  c i r c u m s t a n c e s .  As w e  said in  Green, a  s c h o o l  a u th o r i ­
ty 's  r e m e d ia l  p la n  o r  a d is t r ic t  c o u r t ’s r e m e d ia l  d e c r e e  is 
1° De ju d g e d  b y  its c f le c t iv e n e s r .  A w a re n e s s  o f  th e  r a c ia l  
i m p o s i t i o n  or th e  w h o le  s c h o o l  sy s te m  is l ik e ly  to  b e  
a u s e fu l  s t a r t i n g  p o in t  in  si;;:-.ping: a r e m e d y  to  c o r r e c t  
f a s t  co n s t i tu t io n a l  v io la t io n s .  In  s u m , th e  v e ry  l im ite d  
u se  m a d e  of m a t h e m a t i c a l  ratios w a s  w it h in  th e  e q u i ta b l e  
r e m e d u a  enseretion  o f  th e  D is t r ic t  C o u r t . ” Swann v. 
Board o f Education, 4 0 2  U .S. 1 , 2-1-25 ( 1 9 7 0 ) .

b )  Noncor!iguotis School Zoning:

“d u e  m o p s s u b m it te d  in Slum- e a se s  gra. m w .dly  d e m ­
o n s tr a te  fe a t  o n e  o f  th e  p r im -m d  p , . g  ’f,. ,l i g .,h„d  b\ 
sc h o o l  j) la : :.u> is en d  b y  co u rts  to he k up dm c ] me:.-,’ 

sy s te m  he- h ;-Si a. h a n k  — mud m m gnm :. d ra s t ic  — 

g eiT y m  in d e r in g  o f  sem ol d is t r ic ts  a n d  a t t e n d a n c e  zo n es .  
An a d d it io n a l  s te p  w a s  p a ir in g ,  ‘clustering./  or  'g r o u p in g ’ 
of school-:  w i th  a t t e n d a n c e  e .g  me: ids m a d e  d e l ib e r a te -  
h  to a co c ..■ i : ■!:' h If.,- tran.s'fci o f  N e g r o  s t i r ' e n i s  on? o f  
f ro m  o i l )  g m g a t e d  \ eg ro  s c h o o ls  and  t r a n s fe r  o f  w h i t e  
s tu d e n ts  to  fo r m e r ly  a l l -N e g ro  schools-. M o r e  o f te n  th a n  
n u g  th e s e  z o n e s  a r c  n e i t h e r  c o m p a c t  n o r  co n t ig u o u s ;  
in d e e d  t h e y  m a y  b e  on o p p o s i te  en d s  o f  th e  c i ty .  As a n  
intciern  c o r r e c t ;  we m e a s u r e ,  th is  c a n n o t  b e  sa id  to  b e  
b e y o n d  th e  b ro a d  r e m e d ia l  p o w e rs  o f  a  com:!:.



76 Bradley, et a l  v. Millihen, el a l  Nos. 72-1S09, 72-1814

Absent a constitutional violation there would be no 
basis for judicially ordering assignment of students on a 
racial basis. All tilings lacing equal, with no history of 
discrimination, it might well be desirable to assign pupils 
to schools nearest their homes. But all things are not 
equal in a system that has 1 ecu deliberately constructed 
and maintained to enforce racial segregation. The reme­
dy for such segregation may be administratively awkward, 
inconvenient', and even bizarre in some situations and 
may impose burdens on some; but all awkwardness and 
inconvenience cannot be avoided in the interim period 
when remedial adjustments are being made to eliminate 
the dual school systems.

“No Used or ever, substantially fixed guidelines can 
he established as to how far a court can go, but it must 
be recognized that there are limits. The objective is 
to disman!ie the dual school system. “Racially neutral’ 
assignment plans proposed by school authorities to a dis­
trict court may be inadequate; such plans may fail to 
counteract the continuing effects of past school segmga- 
tion resulting from discriminatory location of school sites 
or dm tuition of school size in order to achieve or main­
tain an arbiicia] mead sepa alien When school .eithori 
tics present a district court with a ‘loaded game board,’ 
affirmative action in the form of remedial altering of 
attendance zones is proper to achieve truly non-discrim­
inatory assignments. In short, an assignment plan is not 
acceptable simply because it appears to be neutral.

In this area, we must of necessity rely to a large ex­
tent, as this Court has for more than 16 years, on the 
informed juugnient of the district courts in the first in­
stance and on courts of appeals.

“We hold that the pairing end grouping of nmiconligu- 
nus school cones is a permissible tool and such action is 
lo he considered in light of the objectives sought. Judicial 
steps in shaping such zones going beyond combinations 
of contiguous areas should be examined in light of what 
f> saict in sundiyisious (1 ), (2), and (8) of this opinion



Nos. 72-1809, 72-1814 Bradley, e l al. v. Millikan, el a!. 77

concerning the objectives to be sought. Maps do not 
tell the whole story since noncontiguous school zones 
may be more accessible to each other in tcims of the 
critical travel time, because of traliic patterns and good 
highways, than schools geographically closer together. 
Conditions in different localities will vary so widely that 
no rigid rules can be laid down to govern all situations.” 
Swann v. Board o f Education, supra, at 27-29. (Empha­
sis added.)

c) Transportation of Students:

“T h e  s c o p e  o f  p e r m is s ib le  t r a n s p o r ta t io n  o f  s tu d e n ts  as 
an i m p le m e n t  o f  a re m e d ia l  d e c r e e  h as  n e v e r  b e e n  d e ­
f ined  b y  tin’s C o u r t  a n d  b y  th e  v e r y  n a tu r e  o f  th e  p r o b le m  
it c a n n o t  b e  d e f in e d  w it h  p re c is io n ,  N o rigid  g u id e lin es  
as to  s tu d e n t  t r a n s p o r ta t io n  c a n  b e  g iv e n  f o r  a p p l ic a t io n  
to  tire in ih i i te  v a r ie ty  o f  p r o b le m s  p r e s e n t e d  in  th o u sa n d s  
of s itu a t io n s .  Bus transportation has been an inlapjal 
part of ilia public education system for years, and teas 
perhaps the single most important factor in the transi­
tion from the one-mum school]wuse to the consolidated, 
school. Eighteen million o f lies Nation’s public school 
children, approximately 39b, were transported to their 
schools Lay bus in 1980-1970 in all p uds of the country.

“T h e  im p o r ta n c e  o f  b u s  t r a n s p e r i a l i e n  as a n o rm a l  and  
a c c e p t e d  tool of e d u c a t io n a l  p o licy  is re a d i ly  d iscern ib le ,  
in this ■.'.■■..■’ d u e .  . ■;:■'■■ ■ j : :: . >;,■;■ ’. V: ■ C m  -

lo tto  s c h o o l  a u th o r it ie s  d id  n 4  p n rp n i t to ass ig n  si m l ■; ' 
on th e  bas is  ol g e u g ra p lm  !iy d ra w n  zones u n t i l  EXE! 
an d  th a n  tin y a l lo w e d  a lm o st  u n l ' m l a d  t r a n s fe r  p r iv i ­
le g e s .  The District Court's conclusion that assipnm mi 
o f children to the school neerr-d fh ir Inm,<> scrciny th ir 
tirade would not p,reduce an affective dismantling of the 
dual system is supported by the record.

“Thus the remedial techniques used in the District 
Court’s order were within that court’s power to pro-



etde equitable relief; implementation o f the decree is 
icell tcilnin the capacity of the school authority.

“The decree provided that the buses used to implement 
«e plan would operate on direct routes. Students would 

be piCKed up at schools near their homes and tram- 
ported to the schools they were to attend. The trips 
lor elementary school pupils average about seven miles 
and the Iwsinct Court found that they would take “not 
over 3o minutes at the most.” This' system compares 
iavoiabiy with the transportation plan previously operated 
mr  v';r![ ’ f 1’ Ullder which each day 23,600 student* on 
al! grade levels were transported an average of ]5 miles
°,nc vvay for an average trip requiring over an hour. In 
ne.se circumstances, we find no basis for holding that die 
oca! senooi authorities may not be required to employ 
f  transportation as one tool of school desegregation. 

1. esegregattem plans cannot be limited to the walk-in 
school.

. 3 "  ohi f iion, to transportation of students may have 
vaacwjy wnen the time or distance o f  travel is so street 

i0 uHl ' res; the health of the d a d o "  ' m << n 
impiaye on the educational process. D is t r ic t  co u rts  m u s t  

ihe ^rnducss  of any t r a n s p o r ta t io n  p la n  in  l ig h t

?,! 1 ,s sai(? n) suh Iiviri™s (1), (2), and (3) abo' o.
Jl ,, m ->' riceas he lv e ;  that the limits on time Qf travel
Wm \:: n ' fa- 0 i-  pmobablv with none

?,,c; ' v! [.00 v.,3. O],. :;.,u ,. r

/S Bradley, el ad. v. Millikan, et a l  Nos. 72-1809, 72-1814

compei m 
difilc o. ;

■ “"■ ■ ■■ ai a desegregation case is, of course, a 
v  ̂ > sen mere fa-’ . is hut fun-dam; :rt; w.-

i!;; ;,'d; ' -V t:!a 1 nir'di:d r n c n s v u  s courts of , v ; 3 v have 
lrad U l0 :!U ,! : ( d ” Swann v. Board of r e d , , ; : . . . ,
s u ' i ' - r a ,  al 29-81. ( Kmphmi, ;1(]m ,).)

t h l h l o r t h C a r o l i n a  v. S t e a m : , 4 0 2  U.S. 43, 4 6 ,  the Chief 
3 SUCC sai(l: <>Aii 1!uU'd in ‘divom, s u p r a ,  at 29, bus iransuorhi- 
ll° n Ik“: ]' ::‘d i an integral part oi all edumtiowd g * .
lL'm}  is l,n];U-]y d>al a truly effective remedy could
00 devised wiil-toai continued reliance on it.''



d) Lqtuiy Power to Require Payment of Tax Funds for 
Integrated Schools:

In the exercise of its equity powers, a District Court may 
oidei that public funds be expended, particularly when such 
an expenditure is necessary to meet the minimum requirements 
mandated by the Constitution. Griffin v. County School Board 
of Prince Edward County, 377 U.S. 218, 233 (1901); Eaton v. 
New Hanover County Board of Education, 459 F .2 J 684 (4th 
Cir. 1972)} Brewer v. School Board of City of Norfolk, 453 
F.2d 943, 947, 948 (4th Cir.), cert, denied, 400 U.S. 933 
(1972); Plaquemines Parish School Board v. United Stales 
415 F.2d 817 (5th Cir. 1989).

'I'hese and other cases cited in this opinion outline the 
broad scope of equitable relief that may be fashioned by the 
District Court m this case on remand after all school districts 
to be affected are afforded an opportunity to be heard as 
he re in abo ve i wove d «d.

j
IX. Other Issues

Nume io”.s oSs-’r v u s are p:\ s. ,.lcd a lT h  on noi: require 
discussion,

IV e  do n o t  c o n s id e r  it m e o w r ; ,  In co n s t r u e  d ie  ' 4 b , w  - 
field Amendment/' Pub. ]... No, 92-318, 86 dial, 235, 3'44;.

r' as C-beunAe Amendments o! .PA':;, 5 m s:  e,o feed 
deSegregw re  o n e r  'em. been r a i d e d .

Eh’al\. Cincinnati Board o f Education, 41.9 F .2 d  1 3 3 7 ,  1 3 9 2  

<6tll  Cir- ; y'19), carl, denied, 402 U.S. 905 (1971) is not con 
11 1 ■ 1 litirc" the Dost net Court made fi idiugs of fact that
tlmre had been no unconstitutional conduct on the part of 
b:a Cincinnati bomb of Edewibom Tlris court held (hut 

fhiding.s of fact were not clearly erroneous. Ride 52(a) 
Fed. 11 C iv .  P.

A ll  o i l ie r  c o n te n t io n s  p r e s e n te d  b y  th e  a p p e l la n ts  h a v e  b e e n  
c o n s id e r e d  a n d  a r c  fo u n d  to  b o  w it h o u t  m e r it .

Nos. 72-1809, 72-3814 Bradley, et at. v. Milliken, cl hi. 79



X, Conclusion

1. rhe Ruling ol the District Court on the Issue of Sogre- 
go.tion, dated September 27, 1971, and reported at 338 F.Supp. 
582, is affirmed.

2. The findings of fact and conclusions of law on “Detroit-
on,y” P]ans desegregation, dated March. 28, 1972 are af­
firmed.

3. I  he Ruling on Propriety of a Metropolitan Remedy to 
Accomplish Desegregation of the Public Schools of the City 
of Detroit, dated March 24, 1972, is affirmed in part, but- 
vacated for the reasons sot forth above.

4- r[ilc baling in  Desegregation Area and Development 
o{ Kia71> dated June 11, 1972, is vacated except as hereinabove 
prescribed.

o. Ihe order dated July 11, 1972, directing the purchase 
of school buses is vacated.

'ihe case is remanded to the District Com! for farther 
proceedings not inconsistent with this opinion,

l\o costs me lexeci. L.aeh party will bear his own costs.

80 Bradley, el al. v, Millikan, et ah Nos. 72-1809, 72-1814