Attorney Notes on Grosse Pointe Petition for Rehearing En Banc

    GROSSE POINTE PETITION FOR REHEARING EN BANC

At pp. 1 and 2, Grosse Pointe Argument:
nven assuming that the State of Michigan has committed each 
of the constitutional violations described, the record does 
not show that these violations are causally related to dejure 
segregation in the Detroit School System or in the metropolitan 
area.

Plaintiff responses:
A. At p. 2, Grosse Pointe misstates the school construction 

violation by limiting it to pre-1 9 6 2; thereafter state . 
violation continued by supporting pattern with money and 
refusing to use powers at hand to control.

B. At p. 3, Grosse Pointe misstates that the trial was 
limited solely to the issues of segregated conditions 
within the Detroit Public schools insofar as there is 
any implication that Detroit segregation was viewed in 
total isolation; at p. 4, Grosse Pointe misstates that
no testimony was taken or evidence presented as to

UJ& 5whether any school district other than Detroit/segregated 
as a result of the actions of state defendants.
1. Proof of a pattern of containment (on expanding core 

of black schools surrounded by an expanding ring 
of white [pupils and faculty] schools) was introduced 
at the trial and found by the District Court (A. Ia 
200-2 0 1, 203-2 0 5); that proof was not limited to 
within the city: the pattern of the white ring 
started in the outlying areas of the city and 
expanded throughout the suburbs. (For suburban pattern 
p.x. l8l [HEW School Statistics 1968—69] ); p.x. 18 2  

(Michigan School Racial Census, 19 6 9-7 0); p.x. 1 8 5- 
A. IXA 556-557 [Examples of Suburban Schools Contiguous 

Detroit Schools but substantially Disproportionate*
. in Racial■Composition]). See also P.M. 15 which



shows all additional capacity built in the tri-county 
area; b/w 1950 and 1969 over 400,000 pupil spaces added 
in school districts, 98/S or more white* See "̂ the Court's 
findings with respect thereto. See Findings 65-69,
Metro Op. A. IA 515-517, which reiterated the Court's 
prior ruling: "The precise effect of this massive
school construction on the racial composition of 
Detroit area public schools cannot be measured. It 
is clear, however, that the effect has been sub­
stantial. Unfortunately, the state, despite its 
awareness of the important impact of school construction 
and announced policy to control it, acted 'in keeping 
generally with the discriminatory practices which 
advanced or perpetuated racial segregation in these 
schools.' Ruling on Issue of Segregation at 15; See 
also id., at 13." (Metro Op. A.Ia 516). And this 
proof ran only against the state defendants, both 
for their affirmative control prior to 1962 with 
respect to sites and thereafter by their refusal to 
exercise powers at their command to control the 
pattern and factual support thereof (money, assistance, 
inspections, etc.).

2. The transportation funds discrimination was along
school district lines; Detroit received no transportation 
reimbursement, while most suburban districts 
received transportation reimbursement. See M-4 
(metropolitan one way student movement plan) and 
Wagner Deposit ion, A.XA 112-120, and Exhibits thereto;
/killA 93-95 (Porter). This had a twin effect: 
incentive within Detroit to build smaller, racially 
homogenous schools (e.g., the two grade primary units) 
close to all black or all white populations (segregation 
within city) and in suburbs encourage white flight 
by providing convenient means to get white families 
who were moving into suburbs to the new white schools 
(expand white set of schools in the suburbs).

2



Public Act 48 validated and augmented segregation 
along school district lines an addition to (1 ) rescinding 
a partial plan of desegregation within the city,
(2 ) imposing a pupil assignment policy which had been 
proven to intensify segregation, (3 ) setting up 
segregated regions and board*; which were shown
at trial to operate in such fashion as to magnify 
segregation. For Act 48 reorganized the Detroit 
School District,and only the Detroit School District,
thereby revalidating and reimposing the school district 
l i n e s *&© Dr.-fn c:t

‘ J

The*Carver School district incident (through at least
1959 Boundary Guide Book) showed that school district
and county lines were permeable for purposes of
segregation (as they are for matters of education
like voc ed, special ed, and transportation reimburse­. . ! . , . I f

4 j'y ‘rrtc~  1 'merit), .State defendants would now make/barrier only 
to maintain segregation. (And with this/transportation
, ' i— .z, c  y .‘ "iby bus, as all others, state defendants had to approve') . 
Bonding Authority Discrimination - record stands

t<»uncontroverted that discrimination/as stated by panel:
'■ ■> y  , f , ' ' i-

state wide 5%f Detroit 2%; than*3^only in 1971 to/55.
A. IV Aa 132-34 . (State defendants now raise contentions 
to the contrary without support in the record). In 
any event, /operated to provide ready means,/ô f'‘expanding 
white ring in the suburbs, and continuing impaction 
of black children in the city.
These discriminatory financial limitations and 
segregative actions,in combination with the operation 
of state aid formula which has left the Detroit 
public schools virtually bankrupt, operated to identify 
the Detroit public schools as disfavored and a black 
school district. These actions causally contributed 
to the pattern of segregation within and without 
Detroit, did discriminate along school district lines?



' did validate and augment school segregation 
within and without the Detroit school district , and did 

effect . the .racial composition of the entire 
Detroit school district,|as found by the District 
Court. (Ruling on Issue of Segregation; see also 
Findings in Support of Ruling on Desegregation Area.) 
(These are among the types of indicia noted in Swann 
to which Court looks to find violation.' ' 
proof is /only against state and Detroit defendants; 
no allegations of discrimination against suburban 
school districts.")

C. At page 4, Grosse Pointe properly notes that the District 
Court

"has taken no proofs with respect to the establishment 
of the boundaries of the 86 public school districts 
in the Counties of Wayne, Oakland and Macomb."

[The District Court did hold the record open to permit
the suburban intervenors to make an offer of precisely
such proof (A.VIII a 98-119); but intervenors failed
to do so. C Only Grosse Pointe offered any
proof on the subject, and then only with respect to the

A '.Xflr v '6 °.Grosse Pointe School District and no other)[] . ' Such 
proof, however, is irrelevant to the constitutional 
theories of relief adopted by the District Court and 
approved by the panel: this is not a school district 
boundary gerrymander case, except to the extent Vi't has 
been shown that state action has maintained^and by act 48 
validated and reimposed, the Detroit school district 
boundary as a barrier to otherwise constitutionally required 
desegregation.

2. At pp. 5-6, 9, Grosse Pointe Argument:
As there is no causal connection between the violation 
and the inadequacy of Detroit only relief and the necessity 
of metro, Deal and Mapp and Swann compel reversal of the 
panel's opinion because "the nature of the violation 
determines the nature of the remedy;" "rather
than postulate the effects of isolated acts of Constitutional 

■ violations by certain state agencies in an effort to
• conform the legal propositions upon which the decision is

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based with the progeny of Brown, the Court should declare 
the existence of mere racial imbalance as between schools

B.

in a single school district and as between several school 
districts to constitute the constitutional violation per se." 

Plaintiffs response:
A. Grosse Pointe misstates what both the District 

Court and the panel did and what is the lav;.
There are five constitutional bases, fully supported 
by the record, under which metro is compelled in 
this case.
1. The violation by Detroit defendants, unconstitution­

ally segregating all schools of the Detroit 
District, coupled with the practicalities of the 
situation (pp. 52-59 Plaintiffs-Appellee1s Brief) 
leave metro as the only possible remedy for the 
plaintiff school .children to attend "just" schools;

CA.. Waiter fff hod" . -rW picVr i >;>«•< \  31'/Aid -Wr l »V' ,, 1.
i j n V  x. rv  -v■?- * i - r.‘■ y 7r„, i

3.

4 .

the children, whose rights have been violated,do 
have a constitutionally vested right to a remedy. 
The violation imposed by the actions and refusal 
to act of state defendants, and the State as a 
whole, even if limited to the Detroit School 
District, especially in light of the state-system 
of public education, makes the correctness of 
point 1 even clearer. < vne i-;,
The violations imposed by state action in some 
instancef. were along school district lines, and in 
all instances significantly and pervasively 
effected the racial composition of the Detroit 
school district as compared with its suburban 
neighbors, and affected the racial identity of 
schools within and without the Detroit school 
district; therefore, a remedy extending beyond 
the geographic limits of the Detroit school 
district is entirely within the nature of the 
violation.
The circumstances mentioned in 1-3,coupled with 
the state's validation and reimposition of the

'/m

-  5 -



Detroit school district boundaries and attempt 
to maintain these boundaries as a barrier to 
desegregation, make for an Independent violation 
concerning the Detroit school district which 
authorizes metro; in 1 h i . the set of 
v/hite schools in suburbia are analogous to the 
set of white schools in Austin, the results of 
state discrimination.

5• The interaction of all variety of public action
(including school action) deliberately fixed

' f  a  i $ i ;.:i v ,  • / . a J S f d A a t V  * 0 4  i

residential patternsji in turn[validated
and augmented by school action / contributed, both 
to school segregation and W  racial identification 
ofscfocU -k- truer \ ■. (McCree likes this notion).

Thus, what Grosse Pointe in reality seeks is a 
declaration that school district lines and residential 
segregation are a per se defense to school segregation

ĉv-v̂ <p_-<t,T~ *■,*. Sum if fo sc'A/5ol Ac >v
1 except when it can be proven that each school district 
line to be permeated by a remedial desegregation 
plan was created and maintained with the purpose of 
accomplishing school segregation.

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