Richmond Virginia School Board v Virginia Board of Education Supplemental Brief in Support of Petitions for Writs of Certiorari

    In  the

§>ttpnmt£ Qlmtrt of tl|? Bllnttojb States
October Term, 1972

No. 72-549

The S chool B oard of the City of B ichmond, Virginia, et al.,
Petitioners,

v.

The State B oard of E ducation of the Commonwealth of Virginia, et al.

No. 72-550

Carolyn B radley, et al.,

v.
Petitioners,

The S tate B oard of E ducation of the Commonwealth of V irginia, et al.

SUPPLEMENTAL BRIEF IN SUPPORT OF PETITIONS FOR WRITS OF 
CERTIORARI TO THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

George B. L ittle 
J ames K. Cluverius

Browder, Russell, Little & Morris 
1510 Ross Building 
Richmond, Virginia 23219

Conard B. Mattox, J r.
City Attorney
1001 East Broad Street
Richmond, Virginia 23219

Attorneys for Petitioners 
The School Board o f the 
City o f Richmond, et al.

J ack Greenberg
J ames M. Nabrit, I I I
Norman J .  Chachkin 

10 Columbus Circle 
New York, New York 10019

Louis R. Lucas
525 Commerce Title Bldg. 
Memphis, Tennessee 38103

W illiam L. Taylor
Catholic University Law School 
Washington, D.C.

J ames R. Olphin
214 East Clay Street 
Richmond, Virginia 23219

M. Ralph P age
420 North First Street 
Richmond, Virginia 23219

Anthony G. Amsterdam
Stanford University Law School 
Stanford, California 94305

Attorneys fo r  Petitioners
Carolyn Bradley, et al.



I n* t h e

ujtriw  Gkwrt of the Initefr Ĵ fatpa
October Term, 1972

No. 72-549

T h e  S chool B oard of th e Cit y  oe R ichmond, 
V irginia, et al.,

P etition ers ,
v .

T he S tate B oard oe E ducation of th e 
Commonwealth oe V irginia, et al.

No. 72-550

Carolyn B radley, et al.,

v.
P etition ers,

T h e  S tate B oard oe E ducation of th e  
Commonwealth of V irginia, et al.

SUPPLEMENTAL BRIEF 
IN SUPPORT OF PETITIONS FOR WRITS OF 

CERTIORARI TO THE UNITED STATES COURT 
OF APPEALS FOR THE FOURTH CIRCUIT

Counsel for petitioners in each of these cases, presently 
pending upon petitions for writs of certiorari, file this 
joint supplemental brief pursuant to Rule 24(5) of this 
Court. A significant decision of another United States 
Court of Appeals has been rendered since the filing of the



2

petitions for writs of certiorari, which conflicts with the 
decision of which review is sought by the petitioners, and 
which underscores the importance and desirability of 
granting review.

On December 8, 1972, the United States Court of Ap­
peals for the Sixth Circuit rendered a decision in B rad ley  
v. M illiken, Nos. 72-1809, -1814, which affirmed the district 
court’s decision to require a plan of desegregation for 
Detroit not limited by school district boundary lines, and 
upheld the power of the court to fashion such a remedy. 
(The district court decision is referred to in note 36 at 
page 53 of the Petition in No. 72-549 and in note 122, 
page 64 of the Petition in No. 72-550.) The Court of Ap­
peals’ opinion in the Detroit case, B rad ley  v. M illiken, is 
directly contrary to the decision below of which review 
is sought. (See the Sixth Circuit’s comment at page 67 
of the opinion, declining to follow the Fourth Circuit.)

The decision of the Court of Appeals for the Sixth Cir­
cuit is appended hereto.



3

Respectfully submitted,

George B. L ittle  
J ames K . Cluverius 

Browder, Russell, Little 
& Morris

1510 Ross Building 
Richmond, Virginia 23219

Costard B . Mattox, J r .
City Attorney
1001 E ast Broad Street
Richmond, Virginia 23219

A ttorn eys fo r  P etition ers  
T h e S chool B o a rd  o f  the 
City o f  R ichm ond, et al.

J ack Greenberg
J ames M. Nabrit, I I I
Norm an J .  Chachkin  

10 Columbus Circle 
New York, New York 10019

Louis R. L ucas 
525 Commerce Title Bldg. 
Memphis, Tennessee 38103

W illiam  L. T aylor
Catholic University Law School 
Washington, D.C.

J ames R. Olph in  
214 E ast Clay Street 
Richmond, Virginia 23219

M. R alph P age 
420 North F irs t Street 
Richmond, Virginia 23219

A nthony G. A msterdam
Stanford University Law School 
Stanford, California 94305

A ttorn eys fo r  P etition ers
C arolyn  B rad ley , et al.



APPENDIX



Nos. 72-1809 -  72-1814

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

R onald Bradley, et  al.,
Plaintiffs-Appellees,

v.
W illiam  G. M illiken , Governor of 

Michigan, etc.; B oard of E duca­
tion o f  the C ity  of Detroit,

Defendants-Appellants,
and

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

Defendant-Intervenor- A ppellee, 
and

Allen  Park Public Schools, et  al., 
Defendants-Intervenors- Appellants, 

and
Kerry Green, et  al.,

Defendants-Intervenors-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 Phillips, Chief Judge, E dwards and Peck, Circuit 
Judges.

Ph illips, Chief Judge. This is a school desegregation case 
involving the metropolitan area of Detroit, Michigan.

The present appeal is the fourth time that the case has been 
before this court since the complaint was filed August 18,



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

1970. The earlier decisions of this court are reported at Brad­
ley v. Milliken, 433 F.2d 897 (1970); Bradley  v. Milliken, 438 
F.2d 897 (1971); and Bradley  v. Milliken, —  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 y e a r .---- F.
2 d ---- .)

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 Court’s 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, et al. 3

District Court of an appealable question as provided by 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:

“[A]mong 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



4 Bradley, et al. v. Milliken, et al. Nos, 72-1809, 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 5 2 (a ), Fed. R. Civ. P., but to the 
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. 72-1809, 72-1814 Bradley, et al. v. Milliken, et al. 5

the State of Michigan through enactment of Act 48 of the 
Public Acts of 1970. Section 12 of the Act delayed implementa­
tion of the plan. The four members of the Board who sup­
ported the April 7 plan were removed from office through a 
citizen initiated recall election. The new members of the 
board and the incumbent members who had originally op­
posed the April 7 plan thereafter rescinded it.

The complaint in this case was filed by individual black 
and white school children and their parents, and the Detroit 
branch of the NAACP against the Board of Education of the 
City 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 Superintendent 
of Public Instruction of the State of Michigan.

The complaint alleged that the Detroit public school system 
was and is segregated on the basis of race as the result of 
actions and policies of the Board of Education and of the 
State of Michigan. The complaint specifically challenged the 
constitutionality of Act 48 of the Public Acts of 1970 of the 
State of Michigan, which in effect repealed the April 7, 1970, 
high school desegregation plan formulated by the Detroit 
Board.

The case was heard originally on plaintiffs’ motion for a 
preliminary injunction to restrain the enforcement of Act 
48. In response to this motion the District Judge denied a pre­
liminary injunction, did not rule on the constitutionality of Act 
48, but granted the motion of the Governor and Attorney Gen­
eral of Michigan for dismissal of the cause as to them. On 
appeal this court held that § 12 of Act 48 was an unconstitu­
tional interference with the lawful protection of Fourteenth 
Amendment rights, that there was no abuse of discretion in 
denying a preliminary injunction, and that the Governor 
and Attorney General should not have been dismissed as par­
ties defendant at that stage of the proceeding. The case was 
remanded to the District Court for an expedited trial on 
the merits. 433 F.2d 897.



On remand plaintiffs moved for immediate implementation 
of the April / plan. On December 3, 1970, following an 
evidentiary hearing on that plan and two updated plans, the 
District Court ordered implementation of the “Magnet” or
McDonald plan effective at the beginning of the next full 

school year, pending ultimate disposition on the merits. Plain­
tiffs appealed and filed a motion for summary reversal. This 
court again held that the District Court had not abused its 
discretion in refusing to adopt the April 7 plan prior to an 
evidentiary hearing on the allegations of constitutional viola­
tions in the complaint. We remanded the case with in­
structions to proceed to trial expeditiously on the merits of 
plaintiffs allegations concerning the Detroit public school 
system. 438 F.2d 945. The trial of the case on the issue of 
segregation began April 6, 1971, and continued until July 
22, 1971, consuming 41 trial days. On September 27, 1971, 
the District Court issued its ruling on the issue of segrega­
tion, holding that the Detroit public school system was racially 
segregated as a result of unconstitutional practices on the part 
of the defendant Detroit Board of Education and the Michigan 
State defendants. 338 F.Supp. 582.

A decision on a motion to join a large number of suburban 
school districts as parties defendant was deferred on the 
ground that the motion was premature, in that no reasonably 
specific desegregation plan was before the court. The Detroit 
Board of Education was ordered to submit desegregation plans 
limited to the City, while State defendants were directed 
to submit plans encompassing the three-county metropolitan 
area. An effort was made to appeal these orders to this 
court. On February 23, 1972, this court held the orders to be
non-appealable and dismissed the appeal. —  F .2 d __ , cert.
denied, —  U.S. — , 41 U.S.L.W. 3175 (Oct. 10, 1972).

After further proceedings concerning proposals for a Detroit 
only desegregation remedy and the presentation of two plans 
therefor, the District Judge on March 24, 1972, issued a 
riding entitled “Ruling on Propriety of Considering a Metro­

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



Nos. 72-1809, 72-1814 Bradley, et al. v. Milliken, et al. 7

politan Remedy,’ and on March 28, 1972, he issued Findings 
of Fact and Conclusions of Law on Detroit Only Plans of 
Desegregation.’’ He rejected all Detroit only plans, saying 
in 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 ruling 
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 
buses prior to implementation of an interim plan in Septem­
ber 1972. Following a hearing, the District Court on July 
11 ordered State defendants to purchase or otherwise acquire 
295 school buses.

In view of the intervening Congressional action by the en­
actment of the “Rroomfield 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

All of the parties 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



adequate system of desegregated schools be established with­
in the geographic limits of the Detroit school district?

3. On this record does the District Judge’s order requiring 
preparation of a metropolitan plan for cross-district assign­
ment and transportation of school children throughout the 
Detroit metropolitan area represent a proper exercise of the 
equity power of the District Court?

III. The Constitutional Violations

(A) Constitutional violations found to have been committed 
by the Detroit Board of Education:

(1) Segregative zoning and assignment practices.

(a) The District Judge found that the Detroit 
Board of Education formulated and modified 
attendance zones to create or perpetuate racial 
segregation. He also found that the feeder sys­
tem for junior and senior high schools was de­
signed to maintain rather than eliminate black 
or white schools at the higher levels. Its prac­
tice of shaping school attendance zones on a 
north-south rather than an east-west orientation 
resulted in attendance zone boundaries con­
forming to racial dividing lines.

(b ) He further found that the Detroit Board of 
Education’s policies involved a substantial 
number of instances of transporting black chil­
dren past white schools with available school 
space.

(2 ) He also found that it was the policy of the Board 
of Education to create optional attendance areas 
which permitted white students to transfer to all 
white or predominately white schools located nearer 
the city limits.

8 Bradley, et a l  v. Milliken, et a l  Nos. 72-1809, 72-1814



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

(3) The District Judge also found that the policies of 
the 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:

“The Board has created and altered attendance zones, 
maintained and altered grade structures and created and 
altered feeder school patterns in a manner which has 
had the natural, probable and actual effect of continuing 
black and white pupils in racially segregated schools. 
The 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



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

Amendment. Northcross v. Board of Ed. of Memphis, 
6 Cir., 333 F.2d 661.” 338 F.Supp. at 592-93.

* * *

“9. The manner in which the Board formulated and 
modified attendance zones for elementary schools had 
the 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
ment. United States v. School District 151, D.C., 286 F. 
Supp. 786; Brewer v. School Board of City of Norfolk, 4 
C ir, 397 F.2d 37.” 338 F.Supp. at 593.

There is, of course, other legal support for the legal con­
clusions set out above. Davis v. School District o f Pontiac, 
443 F.2d 573, 576 (6th Cir.), cert, denied, 404 U.S. 913 (1971); 
United States v. Board o f Education, h id . School District No. 
1, 429 F.2d 1253, 1259 (10th Cir. 1970); United States v. 
Jefferson County Board o f Education, 372 F.2d 836, 867-68 
(5th Cir. 1965), aff’d  in banc, 380 F.2d 385 (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 Cir.), cert, denied, 350 U.S. 1006 
(1956); Spangler v. Pasadena Board of Education, 311 F. 
Supp. 501, 522 (C.D. Cal. 1970).

Witness Charles Wells, defendant School Board’s assistant 
superintendent in charge of the Office of Pupil Personnel 
Services, read into the record and testified in support of the 
minutes 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.



Nos. 72-1809, 72-1814 Bradley, et al. v. Milliken, et al. 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 millage 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. Milliken, ct 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 eqiup 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-



Nos. 72-1809, 72-1814 Bradley, et al. v. Milliken, et al. 13

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:

‘PREAM BLE: 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 the 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, 1960, 36,264 or 23.4 percent 
of these children leave a home in the Center District.



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

‘There are 221 elementary school buildings in the De­
troit Public School System. Of these 28 are in the Center 
District. This means, then, that the 23.4 percent of the 
total elementary school population is accommodated in 
12.7 percent of the buildings.

‘Fifteen percent of these children sit in classes of 40 to 
44 students per class. This is in comparison to:

‘Sixty-two and one-half percent of all the children in 
the city’s elementary schools who sit in classes of 45 to 
49 are children in the Center District. These schools in 
the Center District find their capacities short by 6,352 
pupil stations. In other words, their capacities are over­
taxed to the extent of 16 percent; and the future build­
ing program, as set forth by the superintendent’s report 
of October 17, 1960, will make available only 11,189 ad­
ditional pupil stations within the next ten-year period. 
However, this will be insufficient to meet the demands of 
the Center District. Therefore, it is apparent that a 
school bussing program will have to become a permanent 
part of the school housing program. Thus the manner 
in which the bussing program is administered becomes a 
matter of acute concern.

‘Presently, children are being bussed by grades. Under 
this system a number of problems are created:

1) It makes necessary a reorganization of the 
bussing school, as well as the school into which the 
children are bussed.

2) They are not integrated into the school into 
which they are bussed, except in minor instances.

East
North

.13 percent 

.05 percent 

.04 percent 

.08 percent 

.01 percent 

.01 percent 

.05 percent

Northeast
Northwest
South
Southeast
West



Nos. 72-1809, 72-1814 Bradley, et al. v. Milliken, et al. 15

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 tendancy 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 his 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



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

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.”
* » O

Mr. Wells cited the example of the Center (administrative) 
District, where attendance boundaries were shaped in a gerry­
mandered fashion to conform to the racial residential pattern.

“Q. With regard 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 be discussing this with the Board at that time?

“A. It was not with the Board of Education, I be­
lieve it was with the administration of the school system.

“Q. The administrative staff?
“A. Including the superintendent.
“Q. All right.
“A. Our initial concern about the boundaries of the 

center district grew out of the concern we had in 1960 
about the changing of the attendance areas between the 
Central High School and the Mackenzie High School.

“Q. Is that the optional attendance area also set up in 
that?

“A. A part of that was optional. Well, let’s put it 
that way, a part of it had been optional, the proposal was 
to eliminate the option. In the process of eliminating the 
option what it would mean would be that by and large 
the few black children who had been attending Mackenzie 
would have been pulled back into the Central area.

“Q. Mackenzie at that time was a majority white 
school?

“A. Predominatly white.
“Q. Central by that time had become black?



Nos. 72-1809, 72-1814 Bradley, et al. v. Milliken, et al. 17

“A. Predominatly 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 previously been in certain feeder patterns that were 
drawn back into the center district?

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

“Q. I understand.
“A. If I remember correctly, 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 McKerrow 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 other 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 the boundary line of 
the center district.”



18 Bradley, et al. v. Milliken, et al. 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 Plaintiff’s Exhibit 78-A, and this makes it easier to 
see the schools.

“Q. Let’s get back to the 1962-’63 overlay.
“Prior to the 1962-’63 — first of all, will you point out 

to the Court where the Vandenberg and Vemor Schools 
are.

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

“Q. Prior to 1962-63 where did the Vemor and Van- 
derburg youngsters go to high school?

“A. Mumford High School.
“Q. A boundary change was made in 1962-63?
“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. CALDW ELL: Plaintiffs’ Exhibit 128-A, your

Honor, reflects that in 1960 Vandenburg and Vemor were 
0 percent black. Mumford was 16.1 black, Ford was .1 
percent black. With regard to Vandenburg and Vemor, 
there was a gradual increase in the black population until 
1966 when Vandenburg was 39.5 percent black and Ver- 
nor was 39.8 percent black.

“Then in 1967 the change was made taking Vandenburg 
and Vemor 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, et al. v. Milliken, et al. 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 Vemor from the Ford feeder pattern into 
the Mumford feeder pattern, what was the effect in terms 
of race?

“A. The 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, Cour- 
ville Elementary School, Ford and Brooks Junior High Schools, 
Osborne and Pershing High Schools, Parkman Elementary 
School, the Ellis, Sills, Newberry and Sampson Elementary 
Schools, and Northwestern and Chadsey 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 al. v. Milliken, et al. Nos. 72-1809, 72-1814

“The Board, in the operation of its transportation to 
relieve overcrowding policy, has 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 1967, 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 has 
not bused white pupils to black schools despite the enor­
mous amount of space available in inner-city schools. 
There were 22,961 vacant seats in schools 90% or more 
black.” 338 F.Supp. at 588.

The legal conclusion of the District Judge follows:

“8. The practice of the Board of transporting black 
students from overcrowded black schools to other identi- 
fiably black schools, while passing closer identifiably white 
schools, which 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, 286 F.Supp. 786, 
798 (N.D. 111. 1967), a f d ,  404 F.2d 1125, 1131 (7th Cir. 
1968), on remand, 301 F.Supp. 201, 211, 222 (N.D. 111. 1969), 
aff’d, 432 F.2d 1147, 1150 (7th Cir. 1970), cert, denied, 402 
U.S. 943 (1971); United States v. Board o f School Commis­
sioners, Indianapolis, Ind., 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?



Nos. 72-1809, 72-1814 Bradley, et al. v. Mittiken, et al. 21

“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 we 
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 Angell to Greenfield Park. This has 
already been part of our testimony, I believe, 186 students 
and students from Angell to Higginbotham, 118 students. 
In 1969 -

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

“A. Yes, there were.
“Q. Between Angell and Higginbotham?
“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.

» « »
“Q. (By Mr. Lucas, continuing) Dr. Foster, would 

you step to the map.
“I think we were talking about the Ruthruff-Herman 

Schools.
“A. Yes. We were testifying at recess about trans­

portation of blacks past white schools. In 1969 we stated 
that Ruthruff Elementary which is here in the south­
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



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

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?
“A. Parkman I don’t have the figure for ’69 and ’70. 

Parkman was 12.8 percent black.”
a © ©

“A. Another example was the Parker Elementary 
School which is in the general center of the Mackenzie 
High School zone. Parker in 1970 was 79.4 black; 61 
children were bussed from Parker again to the Herman 
Elementary School which at that time was 58.5 percent 
black and again past the Parkman Elementary which in 
1970 was 12.8 percent black.

“Q. Did Parkman have capacity at that time, Doctor?
“A. Parkman in ’70, according to my data, had 121 

spaces.
«  ©  ©

“Q. Excuse me, would you give us the A. L. Homes.
“MR. BUSHNELL: I thought the Court ruled on that?
“THE COURT: He says he is pursuing a non-cumula-

tive matter here. If that be tme he may go ahead.
A. A. L. Holmes School, children were bussed from 

this school over to the McGraw School which is in the 
south end of the Northwestern District in center city. 
In 1970-71 the Post Junior High School, which is lo­
cated —

“MR. BUSHNELL: If the Court please, Mr. Lucas
just pointed out the location of Post which the witness 
obviously couldn’t find on the map.

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

east. The Post Junior High School and Clinton Schools, 
which are in the east section of the Cooley High School 
attendance zone transported 54 students to the Jefferson 
School which is now in the Murray zone and it is lo­
cated in the eastern section of the Murray High School 
attendance area. I think it is important to note that



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

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 87.6 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 Redford zone, the 
southern portion of the Redford 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.
0  0  9

“THE 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.

“MR. 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



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

have been effected in a much better way if the children, 
instead of going to the schools would have been dropped 
off at other schools where the racial balance was quite 
different.

* 9 «

“Q. Are there any white schools from your examina­
tion 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 
sort of zoning pattern was to provide segregated student 
ratios at all three of the elementary schools, and in 
terms of things that could be done or could have been 
done at that 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 
at any number of places on the way to Higginbotham, 
schools which had the space and had a better racial 
composition for this 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, in my opinion, would have helped to stabilize the 
situation at that time. This would have also assisted in 
the overcrowding at Pasteur and a couple of classrooms 
extra at Higginbotham.

“Q. Do you have an opinion, Doctor, as to the per­
ception created by the maintenance of the Higginbotham 
School under those circumstances, including the transpor­
tation of black students from Angell into it?

“A. Well, it is obvious that if you transport black 
children past white schools to an all black school that the 
community is going to perceive this as a segregated in­
tent, a segregated action. If you have a boundary situa­
tion which isolates and enforces black students to a par­
ticular area when the boundary lines could be changed 
to effectuate a better pattern racially, then it seems to 
me that community perception would also be that the 
school is not doing what it could in terms of integration 
and equal opportunity.



Nos. 72-1809, 72-1814 Bradley, et al. v. Milliken, et al. 25

“Q. Doctor, from your examination of the data in 
1960 are there any administrative reasons, any administra­
tive problems which would indicate to you a reason 
why this boundary was maintained rather than drawn 
in some other fashion?

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

Defendant’s witness (Mr. Henrickson) admitted instances 
of busing black students past closer white schools to black 
schools:

“Q. We find on the under and over capacity map in 
the Higginbotham area that there were three schools sur­
rounding Higginbotham. Vernor, which is listed as be­
ing 121 over capacity; MacDowell, 103, is it? Pasteur, 
90. At the same time we find that Higginbotham was 
489 under capacity. Is that what the exhibit shows, sir?

“A. Yes.
“Q. We also know, do we not, that Pasteur, Mac­

Dowell and Vernor were white schools?
“A. Both Pasteur and MacDowell at that time, as I 

recall, had some beginning of black students as a result 
of the growth of the settlement of the Higginbotham 
area.

“Q. They were predominatly white schools at that 
time?

“A. Yes.
“Q. Higginbotham was all or virtually all black?
“A. Yes.
“Q. Indeed, it had been the same in 1950, had it not?
“A. Yes.
“Q. At the same time that we are talking about you 

were transporting youngsters from Angell to Higgin­
botham, is that correct?

“A. Yes.
“Q. Those were black kids being transported from 

Angell to Higginbotham?
“A. Yes.
“Q. We also know on that exhibit that they were



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

transported past such schools as Fitzgerald and Clinton 
which had more than enough capacity to handle them?

“A. We have made no denial of that.”

For some years it was a Board of Education policy to trans­
port classrooms of black children intact to white schools where 
they were educated in segregated classes.

Testimony as to the intact busing practice follows:

“Q. (By Mr. Lucas, continuing) Will you go into the 
Detroit system, Doctor, on transportation.

“A. Answering it generally, counsellor, my answer 
would be that the intact bussing is the practice of trans­
porting classrooms of children intact from one school to 
another and leaving them intact when they are educated 
at the receiving school.

“Q. Doctor, when such transportation occurs from a 
school which is 90 percent or more black to a school which 
is predominantly a white school, what effect, if any, does 
this have in terms of racial segregation on those chil­
dren?

“A. This would lead to what we call classroom seg­
regation or segregation within a particular school. It 
could be sometimes resegregation, but essentially it is a 
segregated situation within a school which could be seg­
regated or not segregated generally.

“Q. Doctor, in your experience with school segregation 
and school desegregation plans, is this a technique which 
you have had to deal with in the past?

“A. On occasion, yes, sir.
“Q. Doctor, did you examine data or relevant informa­

tion with respect to the transportation practices in the 
Detroit school system in connection with this type of 
bussing, intact bussing?

“A. Yes, sir.
“Q. What did your examination reveal. Doctor?
“A. It is my understanding from the data that there 

was intact bussing generally in the late 50's, as I said, 
and early 60s.



Nos. 72-1809, 72-1814 Bradley, et al. v. Milliken, et al. 27

‘Q. How did that intact transportation operate, Doc­
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?

“A. It is my understanding it was changed in the 
middle ’60’s but I don’t remember the exact date.

“Q. What would the change be, Doctor? What type 
of bussing would result in terms of relieving overcrowd­
ing?

“A. You simply gather children up on a geographical 
basis and transport them and assign them at random 
to whatever grade they are in the receiving school rather 
than keeping them in an intact classroom.”

Segregating children by race within schools has been held 
repeatedly to be unconstitutional. Jackson  v. Marvell School 
District No. 22, 445 F.2d 211, 212 (8th Cir. 1970); Johnson  
v. Jackson Parish School Board, 423 F.2d 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 
which was overwhelmingly black by transporting them away 
from nearby suburban white high schools and past Detroit 
high schools which were predominately white.

The District Judge found on this score that for years black 
children in the Carver School District were assigned to black 
schools in the inner city because no white suburban district 
(or white school in the city) would take the children.

This finding is supported by the testimony of Detroit School 
Superintendent Drachler, which follows:

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

“A. The Carver District? The Carver is not in De­
troit.



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

“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. I am told that 
back in ’57, ’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 Mumford 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?
“A. 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 Mumford 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.

“Q. There were black 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



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

like that. 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 years 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 were 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 Bradley, et a l  v. Milliken, et al. Nos. 72-1809, 72-1814

schools of opposite predominant racial components. All 
of the high school optional areas, except two, were in 
neighborhoods undergoing racial transition (from white 
to black) during the 1950s. The two exceptions were: 
(1 ) the option between Southwestern (61.6% black in 
1960) and Western (15.3% black); (2 ) the option be­
tween Denby (0% black) and Southeastern (30.9% black). 
With the exception of the Denby-Southeastem option 
(just noted) all of the options were between high schools 
of opposite predominant racial compositions. The South­
western-Western and Denby-Southeastern optional areas 
are all white on the 1950, 1960 and 1970 census maps. 
Both Southwestern and Southeastern, however, had sub­
stantial white pupil populations, and the option allowed 
whites to escape integration. The natural, probable, fore­
seeable and actual effect of these optional zones was to 
allow white youngsters to escape identifiably ‘black’ 
schools. There had also been an optional zone (elimi­
nated between 1956 and 1959) created in ‘an attempt 
• • • to separate Jews and Gentiles within the system,’ 
the effect of which was that Jewish youngsters went to 
Mumford High School and Gentile youngsters went to 
Cooley. Although many of these optional areas had 
served their purpose by 1960 due to the fact that most 
of the areas had become predominantly black, one op­
tional area (Southwestern-Western affecting Wilson Jun­
ior High graduates) continued until the present school 
year (and will continue to effect 11th and 12th grade 
white youngsters who elected to escape from predominant­
ly black Southwestern to predominantly white Western 
High School). Mr. Henrickson, the Board’s general fact 
witness, who was employed in 1959 to, inter alia, elimi­
nate optional areas, noted in 1967 that: ‘In operation 
Western appears to be still the school to which white 
students escape from predominantly Negro surrounding 
schools.’ The effect of eliminating this optional area 
(which affected only 10th graders for the 1970-71 school 
year) was to decrease Southwestern from 86.7% black in 
1969 to 74.3% black in 1970.” 338 F.Supp. at 587-88.



Nos. 72-1809, 72-1814 Bradley, et al. v. Milliken, et al. 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 separation of 
pupils on the basis of race, was in violation of the Four­
teenth Amendment. Hobson v. Hansen, D.C., 269 F.Supp. 
401, aff’d sub nom., Smuck v. Hobson, 408 F.2d 175. 
[(D.C. Cir. 1969)].” 338 F.Supp. at 593.

Additional support for the District Judge’s legal con­
clusion includes: United States v. Texas Education
Agency, —  F.2d —  (5th Cir. 1972); Northcross v. Board 
of Education o f Memphis, 333 F.2d 661, 665-66 (6th 
Cir. 1964) (different but analogous situation); United States 
v. Board o f School Commissioners o f Indianapolis, 332 F. 
Supp. 655, 668 (S.D. Ind. 1971); Spangler v. Pasadena City 
Board o f Education, 311 F.Supp. 501, 502 (C.D. Cal. 1970).

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

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

“Would it be possible for me to step to the board to 
illustrate?

“Q. Please do.
(The witness proceeded to the blackboard.)
“A. Optional zones are sometimes 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 high school districts, 

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 Y, 
this becomes in a sense an overlapping zone because



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

if we refer to the boundaries of school District X at 
this point it not only includes the previous boundary but 
also takes in the optional zone.

“District Y in turn would include its previous bound­
aries, also including the optional zone. I think this may 
explain the origin of the connotation of the word ‘over­
lapping.

“Essentially optional zones are set up for two or three 
reasons, one is to allow white students or black students 
the option of attending one of the two attendance areas 
which make up the boundaries of the zone and another 
is for, occasionally for religious purposes to provide al­
ternatives for persons of different religions. Sometimes 
these are set up for socio-economic reasons and I have 
on occasion seen them set up by boards of superin­
tendents as political gimicks in order to help pass a bond 
issue or one thing or another or a school board or super­
intendent will set up temporary optional zones as a favor 
to certain constituents in return for assistance in helping 
the school board with one thing or another.

“I think in the frame work in which we operate they 
are used primarily for maintaining segregated patterns.

o o o

“Q. Dr. Foster, have you made a study and analysis 
of optional zones in the Detroit school system?

“A. Yes, I have.”

Dr. Foster’s analysis of the purpose and effect of each op­
tional zone in existence in the Detroit School District is 
exemplified in his testimony on the Mackenzie-Central option.

“Q. Doctor Foster, do you have an opinion as to the 
administrative use of the optional attendance zone in 
1960 between and prior to that in Mackenzie-Central 
area?

“A. Yes. I think it was used primarily — you mean 
as to the purpose of it?

“Q. Well, as to whether or not it had any administra­
tive value that you know of. Doctor, aside from race?



Nos. 72-1809, 72-1814 Bradley, et al. v. Milliken, et al. 33

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

* o e

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 in 
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.

* Q. Doctor Foster, from your examination of the 1950 
census and in turn the 1960 census exhibits, do you have 
an opinion as to the effect of such an optional zone on 
the community, residence pattern in the community?

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

such as this generally have a perception that there is 
something wrong with their school, that the whites need 
an optional zone to get out into a less black situation and, 
therefore, this increases their perception of racial isola­
tion and, in fact, physical containment.

“Q. Does this have an effect, Doctor, in terms of the 
residence pattern? I believe you testified in 1950 the 
optional area was entirely white or zero to 4.9 per cent 
white.

*  *  »

“A. In my opinion this tends to increase the instability 
of the community because they generally feel this is an ad 
hoc temporary interim situation and it increases white 
flight in this sort of situation.

* * *
“Q. Doctor Foster, does the use of these techniques in 

some areas have an effect in terms of the perception of 
the community of schools besides the actual two schools 
to which the option was involved?

#  #  9

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



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

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 I 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. Henrickson, 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?

“MB. BUSHNELL: Objection to the form of the ques­
tion.

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

ever with movement of black or white 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.”

(3) Building Construction.

The District Judge found and the 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:



In 1966 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.’

The defendant City Board has paid little heed to these 
statements and guidelines. The State defendants have 
similarly failed to take any action to effectuate these 
policies. Exhibit NN reflects construction (new or ad­
ditional) at 14 schools which opened for use in 1970-71; 
of these 14 schools, 11 opened over 90% black and one 
opened less than 10% black. School construction costing 
$9,222,000 is opening at Northwestern High School which 
is 99.9% black, and new construction opens at Brooks 
Junior High, which is 1.5% black, at a cost of $2,500,000. 
The construction at Brooks Junior High plays a dual seg- 
regatory role: not only is the construction segregated, it 
will result in a feeder pattern change which will remove 
the last majority white school from the already almost 
all-black Mackenzie High School attendance area.

“Since 1959 the Board has constructed at least 13 small 
primary schools with capacities of from 300 to 400 pupils. 
This practice negates opportunities to integrate, ‘con­
tains the black population and perpetuates and com­
pounds school segregation.” 338 F.Supp. at 588-89.

Nos. 72-1809, 72-1814 Bradley, et al. v. Milliken, et al. 35



Other cases in which such findings have been held to con­
stitute a de jure act of segregation include: Swann v. Charlotte- 
M ecklenburg Board of Education, 402 U.S. 1, 21 (1971); 
Cisneros v. Corpus Christi Independent School Dist., —  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 o f Pontiac, 443 F.2d 573, 576 (6th 
Cir.), cert, den ied  402 U.S. 913 (1971); Sloan  v. Tenth School 
District, 433 F.2d 587, 590 ( 6th Cir. 1970); United States 
v. Board o f Education o f Tulsa, 429 F.2d 1253, 1259 (10th 
Cir. 1970); Brewer v. School Board o f N orfolk, 397 F.2d 
37, 42 ( 4th Cir. 1968); United States v. Board o f Public 
Instruction, 395 F.2d 66, 69 (5th Cir. 1968); Kelley  v. Alt- 
heimer, Arkansas Public School Dist. No. 22, 378 F.2d 483, 
496-97 (8th Cir. 1967); Johnson  v. San Francisco Unified School 
District, 339 F.Supp. 1315, 1326, 1341 (N.D. Cal. 1971); 
United States v. Board o f School Commissioners o f Indianapolis, 
332 F.Supp. 655 (S.D. Ind. 1971); Spangler v. Pasadena City 
Board o f Education, 311 F.Supp. 501, 522 (C.D. Cal. 1970); 
United States v. School District 151, 286 F.Supp. 786, 798 
(N.D. 111.), aff’d, 404 F.2d 1125 (7th Cir. 1968); L ee  v. Macon  
County Board of Education, 267 F.Supp. 458, 472 (M.D. Ala.), 
aff’d  per curiam sub nom., W allace v. United States, 389 U.S. 
215 (1967).

Record evidence pertaining to Detroit Board of Education 
building construction practices and their results include:

“Q. Doctor Foster, I show you a document in evi­
dence, Plaintiff’s Exhibit 70. I direct your attention to 
page 15 of the exhibit. The exhibit is School Planning 
Handbook, Bulletin 412, revised, January, 1970, Michigan 
Department of Education. Directing your attention to 
Chapter 2, the School Site, and the last full paragraph in 
the left-hand column on page 15, Doctor, would you read 
that paragraph?

“A. ‘Care in site location must be taken if a serious 
transportation problem exists or if housing patterns in

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



Nos. 72-1809, 72-1814 Bmdletj, et al. v. Milliken, et al. 37

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

Q. Doctor, would you step down to the map, please? 
Do you have a copy, Doctor, of Plaintiffs 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 80 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.
“Q. And the Eileen Primary School, Doctor, can you 

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

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?



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

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

“Q- What year was it opened?
“A. 1970.
“Q. Its population and percent black?
“A. 766 enrollment, 98.8 percent black.
“Q. Marxhausen Primary, Doctor, can you locate that 

on the map?
“A. Marxhausen 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.
Q. Can 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 Mack Primary, Doctor?

“A. Mack Primary is also in the Finney zone.
“Q. And when did it open?
“A. Mack opened in 1970 with an enrollment of 173, 

98.8 percent black.
“Q. Could you locate the Angell Primary area, Doc­

tor?
“A. The Angell area is in the Northwestern attendance 

zone.
Q- And what was its enrollment and percent black?

“A. Angell was 1,282 students when it opened in 
1970. The percent black was 99.9

“Q. Is there an asterisk by that particular school, 
Doctor?

“A. On the exhibit?
“Q. Yes.
“A. Yes, there is.
“Q. Would you refer to the cover and tell us what 

that asterisk indicates?



“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 you 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 1968.
“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 locate the Glazer School, Doctor Foster? 
“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. 850 students.
“Q. What was its per cent black?
“A. 100 per cent black.”

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

Nos. 72-1809, 72-1814 Bradley, et al. v. Milliken, et al. 39



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

eluded Fox, Lessenger, Murphy, Taft, Fleming, Earhart, 
Reeves, Brooks and McKenny Annex.

“Q. Thank you, Doctor.
“Doctor Foster, from your examination of the pattern 

of construction in this school system, 1960 to 1970, do you 
have an opinion as to the effect of that pattern of con­
struction on segregation in the Detroit School System?

“A. My opinion is that construction practices were 
followed in such a way as to increase segregation. I 
say this because of the large number of schools that were 
opened that were either all black or all white or with 
a disproportionate number of one race or the other upon 
opening.

«  «  *

“Q. (By Mr. Lucas) Does the location of a school 
in a particular place have a long term effect on a school 
system?

“A. In terms of the nature of the pupils assigned to 
the school, do you mean?

“Q. Yes, sir.
“A. Yes, it does.
“Q. Are there alternatives in schoolhouse construction 

which can or should be considered by a school district 
in terms of affecting the racial composition of student 
bodies?

“A. In terms of site selection there are, yes.
“Q. What are some of the alternatives which can or 

should be utilized, in your opinion, Doctor?
“A. It is customary in this day and age to consider 

the problem of integration or segregation very carefully 
in selecting sites for school buildings and, well, this was 
pointed out, I believe, in the bit I read from the Michigan 
State Department.

“Q. What effect in terms of perception of the com­
munity does it have when a school is opened with an 
overwhelming enrollment of one race or the other?



Nos. 72-1809, 72-1814 Bradley, et al. v. Milliken, et al. 41

“A. Generally the community perceives, in my opin­
ion, that the school 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.”

(B) The constitutional violations found to have been committed 
by the State of Michigan.

(1 ) Under Michigan law, M.S.A. § 15.1961, school build­
ing construction plans must be approved by the State Board 
of Education. Prior to 1962 the State Board also had statutory 
authority to supervise school site selection. The proofs con­
cerning the effect of Detroit’s school construction program 
are therefore largely applicable to show State responsibility 
for the segregatory results.

(2 ) During the critical years covered by this record the 
State of Michigan discriminated against Detroit by allowing 
the Detroit School District a capital improvement bonding 
authority of only two percent as compared to five per cent 
for all other school districts in the State up to the year 1969.

(3 ) During the critical years covered by this record the 
School District of Detroit was denied any allocation of State 
funds for pupil transportation, although such funds were made 
generally available to all students who lived over a mile and 
a half from their assigned schools in rural outstate Michigan, 
and although some suburban districts continued to receive 
State transportation money because of a “grandfather clause” 
which continues their status of some years ago. See S.B. 
1269, REG. SESSION, Sec. 7 1 (2 ) (a ) (b )  (1972).

(4 ) In 1970 the Detroit School Board undertook imple­
mentation of its April 7 desegregation plan applicable to its 
high schools. On meeting considerable resistance thereto, it 
nonetheless proceeded. At that point the State Legislature 
intervened by Act 48 of Public Acts of 1970 specifically over­
ruling the Detroit Board of Education’s desegregation plan. 
While this statute has since been invalidated by judgment of



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

this court, its contribution to preventing desegregation and to 
continuing and increasing segregation of the Detroit school 
system cannot be overlooked.

(5 ) Finally, the cross-district transportation of black high 
school students from the Carver School, located in Femdale 
school district, to a black high school in Detroit could not 
have taken place without the approval, tacit or express, of 
the State Board of Education. (See svpra pp. 27-29)

The District Judge’s findings pertaining to constitutional 
violations by the State of Michigan are as follows:

“The State and its agencies, in addition to their gen­
eral responsibility for and supervision of public education, 
have acted directly to control and maintain the pattern 
of segregation in the Detroit schools. The State refused, 
until this session of the legislature, to provide authoriza­
tion or funds for the transportation of pupils within 
Detroit regardless of their poverty or distance from the 
school to which they were assigned, while providing in 
many neighboring, mostly white, suburban districts the 
full range of state supported transportation. This and 
other financial limitations, such as those on bonding and 
the working of the state aid formula whereby suburban 
districts were able to make far larger per pupil expendi­
tures despite less tax effort, have created and perpetuated 
systematic educational inequalities.

“The State, exercising what Michigan courts have held 
to be is ‘plenary power’ which includes power ‘to use a 
statutory scheme, to create, alter, reorganize or even 
dissolve a school district, despite any desire of the school 
district, its board, or the inhabitants thereof,’ acted to 
reorganize the school district of the City of Detroit.

“The State acted through Act 48 to impede, delay and 
minimize racial integration in Detroit schools. The first 
sentence of Sec. 12 of the Act was directly related to 
the April 7, 1970 desegregation plan. The remainder of 
the section sought to prescribe for each school in the eight 
districts criterion of ‘free choice’ (open enrollment) and 
‘neighborhood schools’ ( ‘nearest school priority accep­



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

tance’), which had as their purpose and effect the main­
tenance of segregation.

“In view of our findings of fact already noted we think 
it unnecessary to parse in detail the activities of the local 
board and the state authorities in the area of school con­
struction and the furnishing of school facilities. It is our 
conclusion that these activities were in keeping, generally, 
with the discriminatory practices which advanced or per­
petuated racial segregation in these schools.” 338 F. 
Supp. at 589.

The District Judge arrived at the following legal conclusions:

“11. Under the Constitution of the United States and 
the constitution and laws of the State of Michigan, the 
responsibility for providing educational opportunity to 
all children on constitutional terms is ultimately that of 
the state. Turner v. Warren County Board of Education, 
D.C., 313 F.Supp. 380; Art. VIII, §§ 1 and 2, Mich. Con­
stitution; Daszkiewicz v. Detroit Bd. of Ed. of City of 
Detroit, 301 Mich. 212, 3 N.W.2d 71.

“12. That a state’s form of government may delegate 
the power of daily administration of public schools to 
officials with less than state-wide jurisdiction does not 
dispel the obligation of those who have broader control 
to use the authority they have consistently with the con­
stitution. In such instances the constitutional obligation 
toward the individual school children is a shared one. 
Bradley v. Sch. Bd. of City of Richmond, D.C., 51 F.R.D. 
139, 143.

“13. Leadership and general supervision over all pub­
lic education is vested in the State Board of Education. 
Art. VIII, § 3, Mich. Constitution of 1963. The duties 
of the State Board and superintendent include, but are 
not limited to, specifying the number of hours necessary 
to constitute a school day; approval until 1962 of school 
sites; approval of school construction plans; accreditation 
of schools; approval of loans based on state aid funds; 
review of suspensions and expulsions of individual stu­
dents for misconduct [Op.Atty.Gen., July 7, 1970, No.



4705]; authority over transportation routes and disburse­
ment of transportation funds; teacher certification and 
the like. M.S.A. 15.1023(1), M.C.L.A. § 388.1001. State 
law provides review procedures from actions of local 
or intermediate districts (see M.S.A. 15.3442, M.C.L.A. 
§340.442), with authority in the State Board to ratify, 
reject, amend or modify the actions of these inferior state 
agencies. See M.S.A. 15.3467; 15.1919(61); 15.1919(68 
b ) ; 15.2299(1); 15.1961; 15.3402, M.C.L.A. §§340.467, 
388.621, 388.628(a), 388.681, 388.851, 340.402; Bridge- 
hampton School District No. 2 Fractional of Carsonville, 
Mich. v. Supt. of Public Instruction, 323 Mich. 615, 36 
N.W.2d 166. In general, the state superintendent is 
given the duty ‘[t]o do all things necessary to promote 
the welfare of the public schools and public educational 
instructions and provide proper educational facilities for 
the youth of the state.’ M.S.A. 15.3252, M.C.L.A. 
§340.252. See also M.S.A. 15.2299(57), M.C.L.A. 
§ 388.717, providing in certain instances for reorganiza­
tion of school districts.

“14. State officials, including all of the defendants, 
are charged under the Michigan constitution with the 
duty of providing pupils an education without discrimina­
tion with respect to race. Art. VIII, § 2, Mich. Constitu­
tion of 1963. Art. I, § 2, of the constitution provides:

‘No person shall be denied the equal protection 
of the laws; nor shall any person be denied the en­
joyment of his civil or political rights or be discrimi­
nated against in the exercise thereof because of re­
ligion, race, color or national origin. The legislature 
shall implement this section by appropriate legisla­
tion.’ ” 338 F.Supp. at 593-94

Some of the evidence in this record supporting the District 
Judge’s findings of State acts which discriminatorily affected 
the Detroit Board of Education and contributed to pupil 
segregation follows. The State statutory scheme of support of 
transportation for school children directly discriminated against

44 Bradley, et al. v. Nlilliken, et al. Nos. 72-1809, 72-1814



Nos. 72-1809, 72-1814 Bradley, et al. v. Milliken, et al. 45

Detroit. Dr. John W. Porter, the State Superintendent of 
Public Instruction in Michigan, testified as to the State trans­
portation aid formula:

“Q. (By Mr. Lucas) Dr. Porter, does the State pay 
the cost of pupil transportation in the State of Michigan?

“A. The State pays roughly 75 percent of the cost. 
Last year the appropriation was $29 million.

“Q. Do you know what percent of the school children 
in the State of Michigan are transported to the school 
at public expense?

“A. Yes, I do. 40 percent of all students in Michigan 
are transported. That equates out to about 833,000 stu­
dents last year.

“Q. Dr. Porter, is there some formula in terms of 
distance which makes a child eligible for transportation 
that would be aided by the state?

“A. Yes. It is a very complicated formula that 197 
computations, and we are in the process right now of 
reducing this —

Q. (Interposing) You mean the financial formula is 
complicated. But, in terms of distance from his home 
to the school —

“A. A mile and a half outside the city limits. Until 
this year the legislature amended the Act based upon the 
recommendations of the State Board of Education to allow 
for in-city transportation which we had never had before. 
The legislature did not appropriate funds for that. So, 
now the funds that are now used are basically for rural 
areas and suburban areas where the students live a mile 
and a half from the school.

“Q. When you say ‘city,’ is there some limitation? 
For instance, would Grosse Pointe, Harper Woods, areas 
like that that surround the City of Detroit, are they 
eligible for transportation?

A. In the in-city. But, if the students come across 
the city boundary lines they live more than a mile and 
a half, which is quite prevalent throughout the state, 
then they are eligible for the funds.



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

“Q. Well, I think my question may have been con­
fusing. Is there some type of city — is it just anyplace 
incorporated as a city that is differentiated from the rural 
areas, or certain cities elegible for this state aid at the 
present time and receive the funds —

“THE COURT: I think what Mr. Lucas is trying to
get at is whether under the old practice whether any 
city has ceased state aid for transportation within the 
city.

“A. Yes, we have a number of instances where the city 
would be receiving aid for transportation, because the 
law says that if the bus in order to get the students to 
the school crosses outside of the city boundary, the city 
is then eligible for aid, and we, and we have a number 
of instances where that exists.

“THE COURT: In other words, where the student
originates his ride outside the city limits transportation is 
assisted?

“A. That’s right, or where the student lives in the 
city but the bus has to go outside of the city and come 
back he is also eligible. This, how’ever, does not negate 
local city officials, school board officials from providing 
transportation. There is no prohibition against that.

“Q. ( By Mr. Lucas) You said the legislature changed
the law but didn’t provide the money. Now, they are 
eligible for state aid but it is unfunded now, is that what 
you are saying?

“A. The law was changed last year to permit in-city 
bus transportation but in changing the law the legislature 
said our department had to disburse the funds to the 
eligible existing areas which meant that since they did 
not increase the amount of funds appropriated we could 
not provide for in-city transportation.

“Q. If a child lives in the city and lives more than a 
mile and a half from the school to which he is assigned 
he may not receive the state aid because it is unfunded 
at the present time?

“A. That is correct.
“Q. But if he lives the same distance away and lived



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.

‘Q. Mr. Brown, one other question, sir. There has 
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 — has 
the Detroit Board of Education always had bonding au­
thority so that bonds could be issued without vote of 
the people?

“A. Has it always had?
“Q- Yes, sir, if you know.
“A. I do not know always. It has for many years.
“Q. What was the level of that bonding authority?
“A. It went from 2 percent —
“Q. I am talking about originally from the time you 

first knew about it. It was a 2 percent —
“A. 2 percent of equalized valuation that could be 

levied by the Board, then it was changed.
“Q. All right. Now, in order to get more than 2 

percent of the equalized valuation of the property within 
a district what did the Board have to do?

“A. The Board of Education had to take the matter to 
the taxpaying electors of the city to get approval to bond 
the district beyond that capacity.

“Q. Who is eligible to vote in those bonding elections 
at that time?

Nos. 72-1809, 72-1814 Bradley, et al. v. Milliken, et al. 47



“A. At that time the taxpaying electors of the district.
“Q. You mean by 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, I 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. This is correct.
Q. Now, sir, when was the authority increased from 

3 percent?
“A. During the last session of the Legislature; not the 

current one but the one immediately preceding so that 
for this year we have the 5 percent authority that the 
other districts now have.

“Q- Has that extra authority been utilized by the 
district?

“A. No.
“Q. As yet?
“A. Not as yet. The plans are being made and we 

have to carry forward quite a program of determining 
priorities and so forth, so it has not been used yet.

“Q. So the bonding authority currently being used 
by the district is the authority that it had before the 
1970 session of the Legislature?

“A. This is correct.
“Q. What is the state of that prior bonding authority? 

Is it all exhausted or is there some reserve still available?

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



Nos. 72-1809, 72-1814 Bradley, et al. v. Milliken, et al. 49

“A. It is exhausted to this extent. The Board of Edu­
cation has adopted a program which uses all of that au­
thority. We have presently before the Municipal Finance 
Commission in Lansing the last amount of that authority 
and in the amount of $22,950,000. We have not as of 
today received approval of that, but the Board’s program 
calls for the full authority.”

The clearest example of direct State participation in en­
couraging the segregated condition of Detroit public schools, 
however, is that of school construction in Detroit and the 
surrounding suburban areas. Until 1962 the State Board of 
Education had direct statutory control over site planning 
for new school construction. During that time, as was pointed 
out above, the State approved school construction which 
fostered segregation throughout the Detroit Metropolitan area 
(See supra pp. 34-40). Since 1962 the State Board has con­
tinued to be involved in approval of school construction plans.

IV. Conclusion as to Constitutional Violations

The discriminatory practices on the part of the Detroit 
School Board and the State of Michigan revealed by this record 
are significant, pervasive and causally related to the substan­
tial amount of segregation found in the Detroit school system 
by the District Judge.

There is, of course, a significant distinction between this 
record and those school segregation cases which have flooded 
the courts since Brown v. Topeka, supra. This distinction is 
that Michigan has never enforced segregation by State laws 
which provided for separate black and white school systems, 
as was the pattern prior to 1954 in many other States. As 
a consequence, there always have been some instances of 
actual school integration in Detroit and still more instances 
of token school integration.

Defendants seek to insulate themselves from remedial action 
by federal courts by pointing to the long standing public policv



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

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 
their officials and employees and that unconstitutional actions 
of individuals can be redressed. See, e.g., Clemons v. Board  
o f Education, 228 F.2d 853 (6th Cir.), cert, denied, 350 U.S. 
1006 (1956).

The record in this case amply supports the findings of the 
District Court of unconstitutional actions by public officials 
at both the local and State level.

Historically de 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 de jure segregation 
findings entered in this case by the District Judge. The 
record contains substantial evidence to support the finding 
of 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 State Board action of pervasive influence 
through the system. Even if the segregation practices were 
a bit more subtle than the compulsory segregation statutes 
of Southern States, they were nonetheless effective. There 
should not be one law for the South and a different one 
for the North.

It is our view that the findings of fact pertaining to actions 
of the Detroit Board of Education and the State of Michigan 
which caused 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 o f Education o f T opeka [1], 347 U.S. 483 (1954); Brown 
v. Board o f Education o f T opeka [I I] ,  349 U.S. 294 (1955); 
Swann v. Charlotte-M ecklenburg Board o f Education, 402 U.S.



Nos. 72-1809, 72-1814 Bradley, et al. v. Milliken, et al. 51

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

Subsequent to the entry of its findings of constitutional 
violations on the part of the Detroit Board of Education and 
the State of Michigan resulting in system-wide segregation of 
Detroit public schools, the District Court requested plans for 
Detroit only desegregation. His findings of fact pertaining 
to these plans warrant repetition in full:

“FINDINGS OF FACT AND CONCLUSIONS OF LAW
ON

DETROIT-ONLY PLANS OF DESEGREGATION

“In accordance with orders of the court defendant 
Detroit Board of Education submitted two plans, limited 
to the corporate limits of the city, for desegregation 
of the public schools of the City of Detroit, which we 
will refer to as Plan A and Plan C; plaintiffs submitted 
a similarly limited plan, which will be referred to as the 
Foster Plan. Hearings were had on said plans on March 
14, 15, 16, 17 and 21, 1972. In considering these plans 
the court does not limit itself to the proofs offered at the 
hearing just concluded; it considers as part of the evidence 
bearing on the issue ( i.e., City-Only Plans) all proofs sub­
mitted in the case to this point, and it specifically incor­
porates herein by reference the Findings and Conclusions



contained in its “Ruling on Issue of Segregation,” filed 
September 27, 1971.

“The court makes the following factual findings: 

“PLAN A.

1. The court finds that this plan is an elaboration and 
extension of the so-called Magnet Plan, previously au­
thorized for implementation as an interim plan pending 
hearing and determination on the issue of segregation.

2. As proposed we find, at the high school level, 
that it offers a greater and wider degree of specialization, 
but any hope that it would be effective to desegregate 
the public schools of the City of Detroit at that level is 
virtually ruled out by the failure of the current model to 
achieve any appreciable success.

“3. We find, at the Middle School level, that the 
expanded model would affect, directly, about 24,000 
pupils of a total of 140,000 in the grades covered; and 
its effect would be to set up a school system within the 
school system, and would intensify the segregation in 
schools not included in the Middle School program. In 
this sense, it would increase segregation.

“4. As conceded by its author, Plan A is neither a 
desegregation nor an integration plan.

“PLAN C.

“1. The court finds that Plan C is a token or part-time 
desegregation effort.

“2. We find that this plan covers only a portion of 
the grades and would leave the base schools no less 
racially identifiable.

“PLAINTIFFS’ PLAN

“1. The court finds that Plaintiffs’ Plan would accom­
plish more desegregation than now obtains in the system, 
or would be achieved under Plan A or Plan C.

“2. We find further that the racial composition of 
the student body is such that the plan’s implementation

52 Bradley, et al. v. M ill ike n, et al. Nos. 72-1809, 72-1814



Nos. 72-1809, 72-1814 Bradley- et al. v. Milliken, et al. 53

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

“3. The 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 1972-73 school year. The plan contemplates 
the transportation of 82,000 pupils and would require 
the acquisition of some 900 vehicles, the hiring and train­
ing of a great number of drivers, the procurement of space 
for storage and maintenance, the recruitment of main­
tenance and the not negligible task of designing a trans­
portation system to service the schools.

“4. The 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.

“5. It would involve the expenditure of vast sums of 
money and effort which would be wasted or lost.

“6. The plan does not lend itself as a building block 
for a metropolitan plan.

“7. The plan would make the Detroit school system 
more identifiably Black, and leave many of its schools 
75 to 90 per cent Black.

“8. It would change a school system which is now 
Black and White to one that would be perceived as 
Black, thereby increasing the flight of Whites from the 
city and the system, thereby increasing the Black student 
population.

“9. It would subject the students and parents, faculty 
and administration, to the trauma of reassignments, with 
little likelihood that such reassignments would continue 
for any appreciable time.

“In summary, we find that none of the three plans 
would result in the desegregation of the public schools 
of the Detroit school district.

“CONCLUSIONS OF LAW

“1. The court has continuing jurisdiction of this action 
for all purposes, including the granting of effective relief. 
See Ruling on Issue of Segregation, September 27, 1971.



“2. On the basis of the court’s finding of illegal school 
segregation, the obligation of the school defendants is to 
adopt and implement an educationally sound, practicable 
plan of desegregation that promises realistically to achieve 
now and hereafter the greatest possible degree of actual 
school desegregation. G reen  v. County School Board, 
391 U.S. 430; Alexander v. H olm es County Board o f 
Education, 396 U.S. 19; Carter v. W est Feliciana Parish 
School Board, 396 U.S. 290; Swann v. Charlotte-M ecklen- 
burg Board o f Education, 402 U.S. 1.

“3. Detroit Board of Education Plans A and C are 
legally insufficient because they do not promise to effect 
significant desegregation. Green  v. County School Board, 
supra, at 439-440.

“4. Plaintiffs’ Plan, while it would provide a racial mix 
more in keeping with the Black-White proportions of the 
student population than under either of the Board’s plans 
or as the system now stands, would accentuate the racial 
identifiability of the district as a Black school system, 
and would not accomplish desegregation.

“5. The conclusion, under the evidence in this case, 
is inescapable that relief of segregation in the public 
schools of the City of Detroit cannot be accomplished 
within the corporate geographical limits of the city. The 
State, however, cannot escape its constitutional duty to 
desegregate the public schools of the City of Detroit by 
pleading local authority. As Judge Merhige pointed out 
in Bradley  v. Richmond, (slip opinion p. 64):

‘The power conferred by state law on central and 
local officials to determine the shape of school at­
tendance units cannot be employed, as it has been 
here, for the purpose and with the effect of sealing 
off white conclaves of a racial composition more ap­
pealing to the local electorate and obstructing the 
desegregation of schools. The equal protection 
clause has required far greater inroads on local gov­
ernment structure than the relief sought here, which 
is attainable without deviating from state statutory

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



Nos. 72-1809, 72-1814 Bradley, et al. v. Milliken, et al. 55

forms. Compare Reynolds v. Sims, 377 U.S. 533; 
Gomillion v. Lightfoot, 364 U.S. 339; Serrano v. 
Priest, 40 U.S.L.W. 2128 (Calif.Sup.Ct. Aug. 30, 
1971).

‘In any case, if political boundaries amount to in­
superable obstacles to desegregation because of struc­
tural reason, such obstacles are self-imposed. Politi­
cal subdivision lines are creations of the state itself, 
after all.’

“School district lines are simply matters of political con­
venience and may not be used to deny constitutional 
rights. If the boundary lines of the school districts of 
the City of Detroit and the surrounding suburbs were 
drawn today few would doubt that they could not with­
stand constitutional challenge. In seeking for solutions 
to the problem of school segregation, other federal courts 
have not “treated as immune from intervention the ad­
ministrative structure of a state’s educational system, to 
the extent that it affects the capacity to desegregate. Geo­
graphically or administratively independent units have 
been compelled to merge or to initiate or continue co­
operative operation as a single system for school de­
segregation purposes.”1

“That the court must look beyond the limits of the 
Detroit school district for a solution to the problem of 
segregation in the Detroit public schools is obvious; that 
it has the authority, nay more, thte duty to (under the 
circumstances of this case) do so appears plainly an­
ticipated by Brown II,2 seventeen years ago. While 
other school cases have not had to deal with our exact 
situation,3 the logic of their application of the command 
of Brown II supports our view of our duty.

“FOOTNOTES

“1 Bradley v. Richmond, supra [slip opinion p. 68],
“2 Brown v. Bd. of Ed. of Topeka, 349 U.S. 294, pp. 300-301.
“3 Haney v. County Board of Education of Sevier County,



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

410 F.2d 920 (8th Cir. 1969); Bradley v. School Board of the 
City of Richmond, supra, slip opinion pp. 664-65; Hall v St 
Helena Parish School Board, 197 F.Supp. 649 (E.D. La 1961) 
aff’d. 287 F.2d 376 (5th Cir. 1961) and 368 U.S. 515 (1962)- Lee 
v. Macon County Bd. of Educ., 448 F.2d 746, 752 (5th Cir. 1971) • 
Gomillion v. Lightfoot, 364 U.S. 339 (1960); Turner v, Littleton- 
Lake Gaston School Dist., 442 F.2d 584 (4th Cir. 1971); United 
States v. Texas 447 F.2d 551 (5th Cir. 1971); Lemon v. Bossier 
Parish School Board, 446 F.2d 911 (5th Cir. 1971) ”

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 case. This record presents 
a wholly new fact pattern in a school segregation case so far 
as this Circuit is concerned. Cf. Bradley v. School Board, 
City o f Richmond, 338 F.Supp. 67 (E.D. Va. 1971), 
rev d, 462 F.2d 1058 (4th Cir. 1972), petition for cert, filed, 
41 U.S.LAV. 3211 (U.S. Oct. 5, 1972); see Haney v. County 
Board o f Education o f Sevier County, 429 F.2d 364 (8th Cir. 
1970). This court never before has been confronted by a 
finding that any less comprehensive a solution than a metro­
politan area plan would result in an all black school system 
immediately surrounded by practically all white suburban 
school systems, with an overwhelmingly white majority popu­
lation in the total metropolitan area.

Relevant to and supportive of the District Judge’s findings 
are these school census figures showing trends toward segre­
gation in the Detroit schools during the last decade:

1960 100 of 251 schools were 90% or more white
71 of 251 schools were 90% or more black 
68% of all schools were 90% or more one race.

1970 69 of 282 schools were 90% or more white
133 of 282 schools were 90% or more black 
71.6% of all schools were 90% or more one race.

1960-61 65.8% of the total number of black students in
regular schools were in 90% or more black schools.



Nos. 72-1809, 72-1814 Bradley, et al. v. Milliken, et al. 57

1970-71 74;9% of the total number of black students in
regular schools were in 90% or more 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 near­
by all white schools. We cannot see how such segregation 
can be any less harmful to the minority students than if 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. This means 
that the Detroit school district, like the City, contains with­
in its boundaries two entirely separate cities (and school 
districts), Hamtramck 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 are seventeen school districts. An overwhelming ma­
jority of these districts, other than Detroit, Highland Park, 
River Rouge and Hamtramck, are entirely white or contain 
only a token number of black students.

Like the 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 Districts under Michigan Law

This conclusion is supported by the status of school districts 
under Michigan law and by the historical control exercised 
over local school districts by the legislature of Michigan and 
by State agencies and officials, which we now discuss.

It is well established under the Constitution and laws of 
Michigan that the public school system is a State function and 
that local school districts are instrumentalities of the State 
created for administrative convenience.

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



Religion, morality and knowledge, being necessary to 
good government and the happiness of mankind, schools 
and the means of education shall forever be encouraged.” 
Art. III.

With this genesis, Michigan’s four Constitutions have clearly 
established that the public school system in that State is solely 
a State function. The Constitution of 1835 in Article X, 
Section 3, provided, in part: “The legislature shall provide 
for a system of common schools . . .” The Constitution of 
1850, Article X III, Section 4, provided, in part: “The legis­
lature shall . . . provide for and establish a system of primary 
schools . . . Section 1 of the same Article provided, “. . . 
the Superintendent of Public Instruction shall have general 
supervision of public instruction . . .”

The Constitution of 1908 in Article XI, Section 2, provided 
that the Superintendent of Public Instruction “shall have 
general supervision of public instruction in the State.” Article 
XI, Section 9, provided, in part as follows:

The legislature shall continue a system of primary 
schools, whereby every school district in the State shall 
provide for the education of pupils without charge for 
tuition . . . ”

The Constitution of 1963, the present Constitution of the 
State of Michigan, in Article VIII, Section 2, provides, in part, 
as follows:

“The legislature shall maintain and support a system 
of free public elementary and secondary schools as defined 
by law.”

In interpereting the above educational provisions of the 
Constitution of 1850, the Michigan Supreme Court stated, 
“The school district is a State agency. Moreover, it is of 
legislative creation . . .” Attorney General v. Lowrey, 131 
Mich. 639, 644, 92 N.W. 289, 290 (1902). Again, interpreting

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



Nos. 72-1809, 72-1814 Bradley, et al. v. Milliken, et a t  59

the Constitution of 1850, the Supreme Court of Michigan in 
Attorney General v. Detroit Board o f 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 township 
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 referred 
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 W elfare v. Kennedy School Dist., 220 Mich. 
290, 296, 189 N.W. 1002, 1004 (1922).

In the leading case concerning construction of this section 
of the Michigan Constitution of 1963, the Michigan Supreme 
Court said:

“It is the responsibility of the State board of education 
to supervise the system of free public schools set up by 
the legislature and, as a part of that responsibility, to 
promulgate regulations specifying the number of hours 
necessary to constitute a school day for elementary school 
students as well as for other classifications or groupings 
of students, to determine the curricula and, in general, 
to exercise leadership and supervision over the public 
school system.” W elling v. Livonia Board o f Education, 
382 Mich. 620, 624, 171 N.W.2d 545, 546 (1969).

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



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

school districts are creatures of the State and act as instru­
mentalities of the State under State control. Cf. Senghas v. 
L ’Anse Creuse Public Schools, 368 Mich. 557, 118 N.W.2d 
975 (1962); M cLaughlin  v. Board o f Education, 255 Mich. 
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 W elling v. Livonia Board of 
Education, supra, that there was no minimum length of day 
required under the 180-day school attendance rule absent a 
State Board of Education regulation, the Michigan State 
Board of Education, acting under its Constitutional mandate 
without legislative authority, established an administrative 
rule requiring local school boards to provide a minimum 
number of hours per school year. See, School Districts Child  
Account for Distribution o f State Aid, Bulletin No. 1005, 
Michigan State Department of Education (1970).

2. Public Act 289 of 1964 (MSA § 15.2299 (1 ) et seq., 
MCLA § 388.681 et s e q .) required Michigan school districts 
to operate K-12 systems. When Public Act 289 became ef­
fective, 1,438 public school districts existed in Michigan. By 
the beginning of 1968, this figure had been reduced to 738, 
meaning that 700 school districts in Michigan have disap­
peared since 1964 through reorganization. Annual Report, 
Committee on School District Reorganization, 1968 Journal 
of the Senate 422-423 (March 1, 1968).

3. Pursuant to Act 289 of 1964, supra, the State Board of 
Education ordered the merger of the Brownstown No. 10, 
Hand, Maple Grove and Carson school districts, all in Wayne 
County. The action is best explained by the fact that Browns­
town was, at that time, the wealthiest school district in the 
State, indeed, with a property valuation of $340,000 backing 
each child, perhaps the wealthiest district in the nation, while 
the other three districts were extremely poor.



Nos. 72-1809, 72-1814 Bradley, et al. v. Milliken, et al. 61

4. When the Sumpter School District was on the verge of 
bankruptcy in 1968, the State Board of Education, acting 
under Public Act 239 of 1967 (MSA § 15.2299(51) et seq., 
MCLA §388.691 et seq .) , merged the district with four 
adjoining districts, including the Airport School District. 
Significantly, though Sumpter was in Wayne County, Airport 
was in Monroe County, showing that county lines are not 
inviolate in Michigan.

5. The Nankin Mills School District in Wayne County was 
beset with financial problems and had no high school. Again, 
pursuant to Act 239, the State Board of Education in 1969 
ordered this school district to merge with the Livonia, Garden 
City and Wayne Community schools.

6. When the Inkster School District in Wayne County was 
on the verge of financial bankruptcy, the Michigan legislature 
passed Public Act 32 of 1968 (MSA § 15.1916 et seq., MCLA  
§ 388.201 et seq . ) enabling the district to borrow $705,000 
but on the condition that if the district could not balance its 
budget, the State Board of Education could reorganize, merge 
or annex the district. The legislative history of Act 32 indicates 
at least two legislators voted against the bill in the House of 
Representatives because of the excessive control given to the 
State Board of Education:

“I voted No on House Bill No. 3332 because in setting 
up the machinery to bail out distressed districts, it takes 
from the local communities the control over their own 
educational system by providing for excessive arbitrary' 
reorganization powers in the hands of the Board of 
Education. . .”

“This bill certainly sets up the State Board of Educa­
tion to be a dictator of all school districts that run into 
financial problems.” 1968 Journal of the House of Repre­
sentatives 1965.

7. Too small and too poor to operate a high school, the all­
black Carver School District in suburban Oakland County



reached a crisis in 1960 when surrounding white districts 
refused to accept Carver pupils on a tuition basis. The Gov­
ernor and Superintendent of Public Instruction helped to 
merge the Carver district with Oak Park.

8. The State Board of Education and Superintendent of 
Public Instruction may withhold State aid for failure to 
operate the minimum school year. MSA § 15.3575, MCLA 
§ 340.575. In 1970, funds were withheld from the City of 
Grand Rapids School District. 17 Michigan School Board 
Journal 3 (March, 1970). For Attorney General Opinions 
holding that State aid may be withheld by the State Board of 
Education from school districts for hiring uncertified teachers, 
defaulting on State loans and for other reasons, see Op. Atty. 
Gen. No. 880, 1949-1950 Report of the Attorney General 104 
(January 24, 1949, Roth); No. 2333, 1955 Report of the At­
torney General 561 (October 20, 1955, Kavanaugh); No. 
4097, 1961-1962 Report of the Attorney General 553 ( October 
8, 1962, Kelley). 9

9. The State of Michigan contributes, on the average, 34% 
of the operating budgets of the 54 school districts included 
in the Metropolitan Plan of Integration. In eleven of the 54 
districts, the State’s contribution exceeds 50% and in eight 
more, it exceeds 40%. State aid is appropriated from the Gen­
eral Fund, revenue raised through state-wide taxation, and 
is distributed annually to the local school districts under a 
formula devised by the legislature. See, e. g., Public Act 134 
(1971), MSA §15.1919(51), MCLA §388.611.

Though the local school districts obtain funds from the 
assessment of local property, the ultimate authority in insur­
ing equalized property valuations throughout the State is the 
State Tax Commission. MSA § 7.631, et seq., MCLA § 209.101, 
et seq.; MSA §7.206, MCLA §211.148; MSA §7.52, MCLA 
§ 211.34. The State’s duty to equalize is required by the 
Michigan Constitution, Article IX, Section 3. This “State 
equalized valuation” serves as the basis for calculating local

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



Nos. 72-1809, 72-1814 Bradley, et al. v. Milliken, et al. 63

revenue yields. See, Ranking o f Michigan Public High School 
-  School Districts by Selected Financial Data, 1970, Bulletii 
1012, Michigan State Department of Education (1971).

10. The Michigan School Code reaffirms the ultimate con­
trol of the State over public education. Local school districts 
must observe all State laws relating to schools,' hold school a 
minimum number of days per year,1 2 employ only certified 
teachers,3 teach civics, health and physical education and 
drivers’ education,4 excuse students to attend religious instruc­
tion classes,5 * 7 observe State requirements when teaching sex 
education,5 make annual financial and other reports to the 
Superintendent of Public Instruction/ adopt only textbooks 
which are listed with the Superintendent of Public Instruc­
tion8 9 10 11 12 and must follow all rules and regulations of the State 
Department of Education.

Local school districts, unless they have the approval of 
the State Board of Education or the Superintendent of Public 
Instruction, cannot consolidate with another school district,9 
annex territory,'0 divide or attach parts of other districts," 
borrow monies in anticipation of State aid,'2 construct, re­

1 MSA § 15.3252(c), MCLA § 340.252(c).
2 MSA § 15.3575, MCLA § 340.575.
3 MSA §§ 15.1023(10) (a), 15.3570, MCLA §§ 388.1010(a), 340.570.
4 MSA §§ 15.1951,15.3361, MCLA §§ 388.371, 340.361; MSA §§ 15.3781- 

15.3782, MCLA §§340.781-340.782; MSA §9.2511(c), MCLA §257.811 
(c).

3 MSA § 15.3732(g), MCLA §340.732(g).
« MSA § 15.3789, MCLA § 340.789.
7 MSA §15.3612, MCLA §340.612; MSA §§ 15.3616, 15.3688, MCLA 

§§ 340.616, 340.688.
8 MSA § 15.3887(1), MCLA § 340.887(1).
9 MSA § 15.3402, MCLA § 340.402.
10 MSA § 15.3431, MCLA § 340.431.
11 MSA § 15.3447, MCLA § 340.447.
12 MSA § 15.3567(1), MCLA § 340.567(a).



construct or remodel school buildings or additions to them,13 
establish a program for the prevention and treatment of 
behavior problems of children,14 employ a superintendent 
without a bachelor’s degree from a college acceptable to 
the State Board of Education,15 16 establish facilities and pro­
grams for the day care of the physically handicapped or 
initiate programs for the mentally handicapped.15

The power to withhold State aid, of course, effects enormous 
leverage upon any local school district, since on the average 
34 per cent of the operation budget of the 54 school districts 
included in the Metropolitan Plan is paid for by the State.

In the instance of the City of Detroit, the State exhibited 
its understanding of its power over the local school district 
by the adoption of Act 48 of the Public Acts of 1970 which 
repealed a high school desegregation plan previously adopted 
by the Detroit Board of Education.

B. De Jure Acts of Desegregation

Thus, the record establishes that the State has committed 
de jure acts of segregation and that the State controls the 
instrumentalities whose action is necessary to remedy the 
harmful effects of the State acts. There can be little doubt 
that a federal court has both the power and the duty to 
effect a feasible desegregation plan. Indeed, such is the 
essence of Brown II. Brown v. Board o f Education, 349 U.S. 
294, 300-01 (1955). In the instant case the only feasible 
desegregation plan involves the crossing of the boundary lines 
between the Detroit School District and adjacent or nearby 
school districts for the limited purpose of providing an effective

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

13 MSA §15.1961, MCLA § 388.851, Op. Atty. Gen. No. 1837, 1952- 
1954 Report of the Attorney General 440 (Nov. 8 1954).

14 MSA § 15.3618, MCLA § 340.616.
is MSA § 15.3573, MCLA §340.573.
16 MSA § 15.3587(1), MCLA § 340.587 (a); MSA § 15.3775, MCLA 

§ 340.775.



desegregation plan. The power to disregard such artificial 
barriers is all the more clear where, as here, the State has 
been guilty of discrimination which had the effect of creating 
and maintaining racial segregation along school district lines. 
See Section III B, pp. 41-49, supra. United States v. Scotland 
N eck Board o f Education, 407 U.S. 484, 489 (1972); Wright 
v. City o f Emporia, 407 U.S. 451, 463 (1972); United States v. 
State o f Texas, 447 F.2d 441, 443-44 (5th Cir. 1971); Haney v. 
County Board o f Education o f Sevier County, 429 F.2d 364, 
368 (8th Cir. 1970). See also Davis v. Board o f School Com­
missioners, 402 U.S. 33, 36-38 (1971).

There exists, however, an even more compelling basis for 
the District Court’s crossing artificial boundary lines to cure 
the State’s constitutional violations. The instant case calls 
up haunting memories of the now long overruled and dis­
credited “separate but equal doctrine” of Plessy v. Ferguson, 
163 U.S. 537 (1896). If we hold that school district bound­
aries are absolute barriers to a Detroit school desegregation 
plan, we would be opening a way to nullify Brown v. Board  
o f Education  which overruled Plessy, supra.

This court in considering this record finds it impossible 
to declare “clearly erroneous” the District Judge’s conclusion 
that any Detroit only desegregation plan will lead directly 
to a single segregated Detroit school district overwhelmingly 
black in all of its schools, surrounded by a ring of suburbs and 
suburban school districts overwhelmingly white in composition 
in a State in which the racial composition is 87 per cent 
white and 13 per cent black. Big city school systems for 
blacks surrounded by suburban school systems for whites can­
not represent equal protection of the law.

VI. The District Judge’s Order to Prepare A 
Metropolitan Area Desegregation Plan

The third major issue in this case pertains to the validity 
of the District Judge’s ruling on desegregation area and order 
for development of a plan of desegregation dated June 14,

Nos. 72-1809, 72-1814 Bradley, et al. v. Milliken, et al. 65



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

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 the 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 Cranch) 137, 163 (1803).

We reject the contention that school district lines are 
sacrosanct and that the jurisdiction of the District Court to 
grant equitable relief in the present case is limited to the 
geographical boundaries of Detroit. We reiterate that school 
districts and school boards are instrumentalities of the State. 
See C ooper  v. Aaron, 358 U.S. 1, 16 (1958). As early as 
Brown I I  the Supreme Court pointed out that:

“[T]he courts may consider problems related to ad­
ministration, arising from the physical condition of the 
school plant, the school transportation system, person­
nel, revision of school districts and attendance areas into 
compact units to achieve a system of determining admis­
sion to the public schools on a nonracial basis, . . . .” 349 
U.S. at 300-01.

The Supreme Court has held that school boundary lines 
cannot be changed or new school systems created where the 
result is a larger imbalance in racial ratios in school systems 
where all vestiges of enforced racial segregation have not been 
eliminated. United States v. Scotland N eck Board o f Edu­



cation, 407 U.S-. 484 (1972); Wright v. Council o f the City 
of Emporia, 407 U.S. 451 (1972). This is true regardless of 
“dominant purpose.” Wright v. City o f Emporia, 407 U S at 
462.

If school boundary lines cannot be changed for an uncon­
stitutional purpose, it follows logically that existing boundary 
lines cannot be frozen for an unconstitutional purpose.

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

To the extent that this opinion is in conflict with Bradley 
v. School Board o f Richmond, 462 F.2d 1058 (4th Cir. 1972). 
petition for cert, filed, 41 U.S.L.W. 3211 (U.S. Oct. 5, 1972), 
we respectfully decline to follow that decision.

VII. Rights of Other School Districts To Be 
Made Parties and To Be Heard

In his “Ruling on Propriety of Considering a Metropolitan 
Remedy the District Court defined the metropolitan area 
“for the present purposes” to comprise the three counties of 
Wayne, Oakland and Macomb. In his “Findings of Fact and 
Conclusions of Law in Support of Ruling on Desegregation 
Area and Development Plans” the District Court noted that 
“the court has taken no proofs with respect to the establish­
ment of the boundaries in the counties of Wayne, Oakland 
and Macomb. In his “Ruling on Desegregation Area and 
Order for Development of Plan of Segregation” the District 
Court defined the desegregation area to include some 53 
school districts. Certain of these school districts have inter­
vened in this case, but have not yet been afforded an oppor­
tunity to offer proof. Some of the other school districts are 
not parties to the litigation.

Under the authorities heretofore discussed, these school 
districts are arms and instrumentalities of the State of Michi­
gan. Nevertheless, under Michigan law, they may sue and 
be sued. See 11 M.S.A. §§ 15.3154, 15.3192.

Nos. 72-1809, 72-1814 Bradley, et al. v. Milliken, et al. 67



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

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 the case. See Bradley  v. School Board o f City o f 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 case affecting any school district, the affected district 
first must be made a party to this litigation and afforded an 
opportunity to be heard.

While agreeing with the District Court in its conclusion that 
it can consider a metropolitan remedy, we express no views 
as to the desegregation area set forth in the orders of the 
District Court.

We vacate the order of March 28, 1972, entitled “Ruling 
on Propriety of a Metropolitan Remedy to Accomplish De­
segregation of the Public Schools of Detroit.” For the guid­
ance of the District Court on remand, however, we hold that, 
in fashioning an equitable remedy in this case, it will not be 
necessary for the District Court to find discriminatory' conduct 
on the part of each school district, either de jure or de facto, 
as a prerequisite to including such district in a desegregation 
area to be defined by the court’s decree.

As said in United States v. Texas Education A g en cy ,------
F .2 d ---- (5th Cir. 1972):

“Some schools may be the ‘result’ of state-imposed 
segregation even though no specific discriminatory school 
board action may be shown as to those schools. Had the 
school authorities not specifically segregated the minority 
students in certain schools, other schools may have 
developed as desegregated facilities. Thus, though they 
may not be pockets of discrimination,’ these schools are



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

the results’ of discrimination.” United States v. Texas 
Education Agency, su p ra ,------ F.2d a t -------- .

We 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. 
The 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 districts in­
volved will continue to supply administrative 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 14, 1972.

The order of the District Court directing the purchase of 
school buses, dated July 11, 1972, also is vacated, subject to the 
right of the District Court, in its discretion, to consider the 
entry of another order requiring the purchase of school buses 
at the appropriate time.

VIII. Equitable Relief

In this opinion we have emphasized the broad powers of 
a District Court to fashion equitable relief in school desegre­
gation cases. For the guidance of the District Court on remand, 
we now review the decisions on this subject in further depth.

1) The Fundamental Constitutional Holding:

We conclude that in the field of public education the 
doctrine of separate but equal’ has no place. Separate 
educational facilities are inherently unequal. Therefore, 
we hold that the plaintiffs and others similarly situated 
for whom the actions have been brought are, by reason 
of the segregation complained of, deprived of the equal 
protection of the laws guaranteed by the Fourteenth 
Amendment.” Brown v. Board o f Education, 347 U.S 
483, 495 (1954).



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

2) The Supreme Court’s Initial Description of the Equitable 
Remedy:

“In fashioning and effectuating the decrees, the courts 
will be guided by equitable principles. Traditionally, 
equity has been characterized by a practical flexibility in 
shaping its remedies4 and by a facility for adjusting and 
reconciling public and private needs.5 These cases call 
for the exercise of these traditional attributes of equity 
power. At stake is the personal interest of the plaintiffs 
in admission to public schools as soon as practicable on a 
nondiscriminatory basis. To effectuate this interest may 
call for elimination of a variety of obstacles in making 
the transition to school systems operated in accordance 
with the constitutional principles set forth in our May 17, 
1954, decision. Courts of equity may properly take into 
account the public interest in the elimination of such 
obstacles in a systematic and effective manner. But it 
should go without saying that the vitality of these con­
stitutional principles cannot be allowed to yield simply 
because of disagreement with them.

“While giving weight to these public and private con­
siderations, the courts will require that the defendants 
make a prompt and reasonable start toward full compli­
ance with our May 17, 1954, ruling. Once such a start 
has been made, the courts may find that additional time 
is necessary to carry out the ruling in an effective man­
ner. The burden rests upon the defendants to establish 
that such time is necessary in the public interest and is 
consistent with good faith compliance at the earliest 
practicable date. To that end, 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 of determining admission to the public schools on 
a nonracial basis, and revision of local laws and regula-

4 See A l e x a n d e r  v. H illm a n , 296 U.S. 222, 239.
5 See H e c h t  C o . v. B o w le s , 321 U.S. 321, 329-330.



Nos. 72-1809, 72-1814 Bradley, et al. v. Milliken, et al. 71

tions which may be necessary in solving the foregoing 
problems. They will also consider the adequacy of any 
plans the defendants may propose to meet these prob­
lems and to effectuate a transition to a racially nondis- 
criminatory school system. During this period of 
transition, the courts will retain jurisdiction of these cases.” 
Brown  v. Board o f Education o f Topeka [II] , 349 U.S 
294, 300-01 (1955)

3) Delay Is No Longer Tolerable:

“In determining whether respondent School Board met 
that command by adopting its ‘freedom-of-choice’ plan, 
it is relevant that this first step did not come until some 
11 years after Brown I  was decided and 10 years after 
Brown I I  directed the making of a ‘prompt and reason­
able start.’ This deliberate perpetuation of the uncon­
stitutional dual system can only have compounded the 
harm of such a system. Such delays are no longer toler­
able, for ‘the governing constitutional principles no longer 
bear the imprint of newly enunciated doctrine.’ Watson 
v. City o f Memphis, supra, at 529; see Bradley v. School 
Board, supra; Rogers v. Paid, 382 U.S. 198. Moreover, 
a plan that at this late date fails to provide meaningful 
assurance o f prom pt and effective disestablishment o f a 
dual system is also intolerable. ‘The time fqr mere 
‘deliberate speed’ has run out,’ Griffin v. County School 
Board, 377 U.S. 218, 234; ‘the context in which we must 
interpret and apply this language [of Brown II] to plans 
for desegregation has been significantly altered.’ Goss 
v. Board o f Education, 373 U.S. 683, 689. See Calhoun  
v. Latimer, 377 U.S. 263. The burden on a school board  
today is to com e forward with a plan that promises 
realistically to work, and promises realistically to work 
now.” Green  v. County School Board, 391 U.S. 430, 438- 
39 (1968) ( Emphasis added.) 4

4) State Imposed Segregation Must be Completely Removed 
at Earliest Practicable Date:

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



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

been, is to assess the effectiveness of a proposed plan 
in achieving desegregation. There is no universal answer 
to complex problem s o f desegregation; there is obvious­
ly no one plan that will do the job in every case. The 
matter must b e  assessed in light o f the circumstances 
present and the options available in each instance. It 
is incumbent upon the school board to establish that its 
proposed plan promises meaningful and immediate 
progress toward disestablishing state-imposed segregation. 
It is incumbent upon the district court to weigh that 
claim in light of the facts at hand and in light of any 
alternatives which may be shown as feasible and more 
promising in their effectiveness. W here the court finds 
the board to be acting in good  faith and the proposed  
plan to have real prospects for dismantling the state- 
im posed dual system ‘at the earliest practicable date,’ 
then the plan may b e  said to provide effective relief. 
Of course, the availability to the board of other more 
promising courses of action may indicate a lack of good 
faith; and at the least it places a heavy burden upon the 
board to explain its preference for an apparently less 
effective method. Moreover, whatever plan is adopted 
will require evaluation in practice, and the court should 
retain jurisdiction until it is clear that state-imposed seg­
regation has been completely removed. See No. 805, 
Raney v. Board o f Education, post, at 449.” Green  v. 
County School Board, 391 U.S. 430, 439 (1968) (Empha­
sis added.)

5) The Court Has The Power and The Duty to Eliminate 
Effects of Past Discrimination:

“W e bear in mind that the court has not merely the 
pow er but the duty to render a decree w hich will so far 
as possible eliminate the discriminatory effects o f the 
past as well as bar like discrimination in the future.” 
Louisiana v. United States, 380 U. S. 145, 154. Com­
pare the remedies discussed in, e. g., NLRB  v. Newport 
News Shipbuilding & Dry D ock Co., 308 U. S. 241; United 
States v. Crescent Amusement Co., 323 U. S. 173; Stand­



Nos. 72-1809, 72-1814 Bradley, et al. v. Milliken, et al. 73

ard Oil Co: v. United States, 221 U. S. 1. See also 
Griffin v. County School Board, 377 U. S. 218, 232-234. 
Green  v. County School Board, 391 U.S. 430, n. 4 at 438 
(relating to the remedial command of Brown II) (Em ­
phasis added.)

6) Resegregation is Impermissible:

“Like the transfer provisions held invalid in Goss v. Board 
o f Education, 373 U.S. 683, 686, ‘[i]t is readily apparent 
that the transfer [provision] lends itself to perpetuation 
of segregation.’ While we there indicated that ‘free- 
.ransfer’ plans under some circumstances might be valid, 
we explicitly stated that ‘no official transfer plan or 
provision o f which racial segregation is the inevitable 
consequence may stand under the Fourteenth Amend­
ment.’ Id., at 689. So it is here; no attempt has been 
made to justify the transfer provision as a device de­
signed to meet legitimate local problems,’ ibid.; rather 
it patently operates as a device to allow resegregation  
of the races to the extent desegregation would be 
achieved by geographically drawn zones. Respondent’s 
argument in this Court reveals its purpose. We are 
frankly told in the Brief that without the transfer option 
it is apprehended that white students will flee the school 
system altogether. ‘But it should go without saying 
that the vitality of these constitutional principles cannot 
be allowed to yield simply because of disagreement with 
them.’ Brown II, at 300.

“We do not hold that ‘free transfer’ can have no place 
in a desegregation plan. But like ‘freedom of choice,’ 
if it cannot be shown that such a plan will further rather 
than delay conversion to a unitary, nonracial, nondis- 
criminatory school system, it must be held unacceptable. 
See Green  v. County School Board, supra, at 439-441.

“W e conclude, therefore, that the Board ‘must be re­
quired to formulate a new plan and, in light o f other 
courses which appear open to the Board. . . . fashion



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

steps which promise realistically to convert promptly to 
a system without a ‘white’ school and a ‘N egro’ school, 
but just schools.” Id., at 442. Monroe v. Board o f Com ­
missioners, 391 U.S. 450, 459-60 (1968) (Emphasis 
added.)

7) The Remedial Tools:

In Swann v. Board o f Education, 402 U.S. 1, 15, Chief Justice 
Burger, writing for a unanimous Court, said:

“If school authorities fail in their affirmative obligations 
under these holdings, judicial authority may be invoked. 
Once a right and a violation have been shown, the scope 
of a district court’s equitable powers to remedy past 
wrongs is broad, for breadth and flexibility are inherent 
in equitable remedies.

‘The essence of equity jurisdiction has been the 
power of the Chancellor to do equity and to mould 
each decree to the necessities of the particular case. 
Flexibility rather than rigidity has distinguished it. 
The qualities of mercy and practicality have made 
equity the instrument for nice adjustment and recon­
ciliation between the public interest and private 
needs as well as between competing private claims.’ 
H echt Co. v. Bowles, 321 U.S. 321, 329-330 (1944), 
cited in Brown II, supra, at 300.”

a) The Flexible Ratio:

“As the voluminous record in this case shows, the 
predicate for the District Court’s use of the 7158-29% 
ratio was twofold: first, its express finding, approved by 
the Court of Appeals and not challenged here, that a 
dual school system had been maintained by the school 
authorities at least until 1969; second, its finding, also 
approved by the Court of Appeals, that the school board 
had totally defaulted in its acknowledged duty to come 
forward with an acceptable plan of its own, notwithstand­
ing the patient efforts of the District Judge who, on



Nos. 72-1809, 72-1814 Bradley, et al. v. Milliken, et al. 75

at least three occasions, urged the board to submit plans. 
As the statement of facts shows, these findings are, 
abundantly supported by the record. It was because of 
this total failure of the school board that the District 
Court was obliged to turn to other qualified sources, and 
Dr. Finger was designated to assist the District Court to 
do what the board should have done.

“We see therefore that the use made of mathematical 
ratios was no more than a starting point in the process 
of shaping a remedy, rather than an inflexible require­
ment. From that starting point the District Court pro­
ceeded to frame a decree that was within its discre­
tionary powers, as an equitable remedy for the particu­
lar circumstances. As we said in Green, a school authori­
ty’s remedial plan or a district court’s remedial decree is 
to be judged by its effectiveness. Awareness of the racial 
composition of the whole school system is likely to be 
a useful starting point in shaping a remedy to correct 
past constitutional violations. In sum, the very limited 
use made of mathematical ratios was within the equitable 
remedial discretion of the District Court.” Swann v. 
Board o f Education. 402 U.S. 1, 24-25 (1970).

b) Noncontiguous School Zoning:

“The maps submitted in these cases graphically dem­
onstrate that one of the principal tools employed by 
school planners and by courts to break up the dual school 
system has been a frank — and sometimes drastic — 
gerrymandering of school districts and attendance zones. 
An additional step was pairing, ‘clustering,’ or ‘grouping’ 
of schools with attendance assignments made deliberate­
ly to accomplish the transfer of Negro students out of 
formerly segregated Negro schools and transfer of white 
students to formerly all-Negro schools. More often than 
not, these zones are neither compact nor contiguous; 
indeed they may be on opposite ends of the city. As an 
interim corrective measure, this cannot be said to be 
beyond the broad remedial powers of a court.



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

“Absent a constitutional violation there would be no 
basis for judicially ordering assignment of students on a 
racial basis. All things being 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 been 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 fixed or even substantially fixed guidelines can 
be established as to how far a court can go, but it must 
be recognized that there are limits. The objective is 
to dismantle 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 segrega­
tion resulting from discriminatory location of school sites 
or distortion of school size in order to achieve or main­
tain an artificial racial separation. When school authori­
ties present a district court with a ‘loaded game board,’ 
affirmative action in the form of remedial altering of 
attendance zones is proper to achieve tridy 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 judgment of the district courts in the first in­
stance and on courts of appeals.

“W e hold  that the pairing and grouping o f noncontigu­
ous school zones is a perm issible tool and such action is 
to be considered in light o f the objectives sought. Judicial 
steps in shaping such zones going beyond combinations 
of contiguous areas should be examined in light of what 
is said in subdivisions (1) ,  (2) ,  and (3)  of this opinion



Nos. 72-1809, 72-1814 Bradley, et al. v. Milliken, et al. 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 terms of the 
critical travel time, because of traffic 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:

“The scope of permissible transportation of students as 
an implement of a remedial decree has never been de­
fined by this Court and by the very nature of the problem 
it cannot be defined with precision. No rigid guidelines 
as to student transportation can be given for application 
to the infinite variety of problems presented in thousands 
of situations. Bus transportation lias been an integral 
part o f the public education system for years, and was 
perhaps the single most important factor in the transi­
tion from  the one-room schoolhouse to the consolidated  
school. E ighteen million o f the N ations public school 
children, approximately 39%, were transported to their 
schools by bus in 1969-1970 in all parts o f the country.

“The importance of bus transportation as a normal and 
accepted tool of educational policy is readily discernible 
in this and the companion case, Davis, supra. The Char­
lotte school authorities did not purport to assign students 
on the basis of geographically drawn zones until 1965 
and then they allowed almost unlimited transfer privi­
leges. The District Court’s conclusion that assignment 
o f children to the school nearest their hom e serving their 
grade would not produce an effective dismantling o f the 
dual system is supported by the record.

“Thus the rem edial techniques used in the District 
Court’s order were within that court’s pow er to pro­



vide equitable relief; im plem entation o f the decree is 
well within the capacity o f the school authority.

The decree provided that the buses used to implement 
the plan would operate on direct routes. Students would 
be picked up at schools near their homes and trans­
ported to the schools they were to attend. The trips 
for elementary school pupils average about seven miles 
and the District Court found that they would take “not 
over 35 minutes at the most.” This system compares 
favorably with the transportation plan previously operated 
in Charlotte under which each day 23,600 students on 
all grade levels were transported an average of 15 miles 
one way for an average trip requiring over an hour. In 
these circumstances, we find no basis for holding that the 
local school authorities may not be required to employ 
bus transportation as one tool of school desegregation. 
Desegregation plans cannot be limited to the walk-in 
school.

An objection  to transportation o f students may have 
validity w hen the tim e or distance o f travel is so great 
as to either risk the health o f the children or significantly 
impinge on the educational process. District courts must 
weigh the soundness of any transportation plan in light 
of what is said in subdivisions (1) ,  (2) ,  and (3)  above. 
It hardly needs stating that the limits on time of travel 
will vary with many factors, but probably with none 
more than the age of the students. The reconciliation of 
competing values in a desegregation case is, of course, a 
difficult task with many sensitive facets but fundamentally 
no more so than remedial measures courts of equity have 
traditionally employed.” Swann v. Board o f Education, 
supra, at 29-31. (Emphasis added.)

In North Carolina v. Swann, 402 U.S. 43, 46, the Chief 
Justice said: “As noted in Swann, supra, at 29, bus transporta­
tion has long been an integral part of all educational sys­
tems, and it is unlikely that a truly effective remedy could 
be devised without continued reliance on it.”

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



Nos. 72-1809, 72-1814 Bradley, et al. v. Milliken, et al. 79

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

In the exercise of its equity powers, a District Court may 
order 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 
o f Prince Edw ard County, 377 U.S. 218, 233 (1964); Eaton  v. 
New H anover County Board o f Education, 459 F.2d 684 (4th 
Cir. 1972); Brewer v. School Board o f City o f Norfolk, 456 
F.2d 943, 947, 948 (4th Cir.), cert, denied, 406 U.S. 933 
(1972); Plaquemines Parish School Board  v. United States, 
415 F.2d 817 (5th Cir. 1969).

These and other cases cited in this opinion outline the 
broad scope of equitable relief that may be fashioned by the 
District Court in this case on remand after all school districts 
to be affected are afforded an opportunity to be heard as 
hereinabove provided.

IX. Other Issues

Numerous other issues are presented which do not require 
discussion.

We do not consider it necessary to construe the “Broom­
field Amendment,” Pub. L. No. 92-318, 86 Stat. 235, § 803, 
known as the Education Amendments of 1972, since no final 
desegregation order has been entered.

D eal v. Cincinnati Board of Education, 419 F.2d 1387, 1392 
(6th Cir. 1969), cert, denied, 402 U.S. 962 (1971) is not con­
trolling. There the District Court made findings of fact that 
there had been no unconstitutional conduct on the part of 
the Cincinnati Board of Education. This court held that 
these findings of fact were not clearly erroneous. Rule 52(a) ,  
Fed. R. Civ. P.

All other contentions presented by the appellants have been 
considered and are found to be without merit.



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

X. Conclusion

1. The Ruling of the District Court on the Issue of Segre­
gation, dated September 27, 1971, and reported at 338 F.Supp. 
582, is affirmed.

2. The findings of fact and conclusions of law on “Detroit- 
only” plans of desegregation, dated March 28, 1972, are af­
firmed.

3. The 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 set forth above.

4. The Ruling on Desegregation Area and Development 
of Plan, dated June 14, 1972, is vacated except as hereinabove 
prescribed.

5. The order dated July 11, 1972, directing the purchase 
of school buses is vacated.

The case is remanded to the District Court for further 
proceedings not inconsistent with this opinion.

No costs are taxed. Each party will bear his own costs.