Milliken v. Bradley Brief for Respondents
Public Court Documents
February 2, 1974
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IN THE
SUPREME COURT OF THE UNITED STATES
October T erm 1973
No. 73-434
WILLIAM G. MILLIKEN, ET AL.
vs.
RONALD G. BRADLEY, ET AL.
Petitioners,
Respondents.
No. 73-435
ALLEN PARK PUBLIC SCHOOLS, ET AL.,
vs.
RONALD G. BRADLEY, ET AL.,
No. 73-436
Petitioners,
Respondents.
THE GROSSE POINTE PUBLIC SCHOOL SYSTEM,
Petitioner,
vs.
RONALD G. BRADLEY, ET AL.,
_______ ________ Respondents.
On Writs of Certiorari to the United States Court of
Appeals for the S ixth Circuit.
BRIEF FOR RESPONDENTS
BOARD OF EDUCATION FOR THE SCHOOL
DISTRICT OF THE CITY OF DETROIT, ET AL.,
GEORGE T. ROUMELL, IR.
RILEY AND ROUMELL
THOMAS M. J. HATHAWAY
JOHN F. BRADY
GREGORY P. THEOKAS
STANLEY C. MOORE, III
C. NICHOLAS REYELOS, Of Counsel
720 Ford Building
Detroit, Michigan 48226
Telephone: 313/962-8255
Counsel fo r Respondents,
BOARD OF EDUCATION FOR
THE SCHOOL DISTRICT OF
THE CITY OF DETROIT,
a school district of the first class;
Pa t r ic k McDo n a l d ,
JAMES HATHAWAY and
CORNELIUS GOLIGHTLY,
members of the Board of
Education For The School District
of the City of Detroit and
NORMAN DRACHLER, Superintendent
of the Detroit Public Schools.
1
INDEX
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED. . ....................................................................... 1
STATEMENT OF THE CASE ................................................. 3
1. The Pervasive State Control of Education In Michigan . 3
2. The Litigation .................................................................. 6
3. The State Violations ........................................................ 7
4. The Remedial Aspects ..................................................... 9
(a) Due Process Claims ................................................. 9
(b) The Complete Ineffectiveness of Detroit-Only
Plans ................................................. 10
5. The Compelling Necessity For A Metropolitan Remedy . 14
SUMMARY OF ARGUMENT .................................................... 16
ARGUMENT..................................................... 19
I THE STATUS OF SCHOOL DISTRICTS UNDER
MICHIGAN LAW, AS INSTRUMENTALITIES OF THE
STATE, WITH RESPONSIBILITY FOR EDUCATION
VESTED SOLELY IN THE STATE, MAKES THE
STATE RESPONSIBLE FOR PROVIDING AN EF
FECTIVE DESEGREGATION REMEDY ..................... 19
II PETITIONER SCHOOL DISTRICTS’ ALLEGATIONS
THAT THEY WERE DENIED DUE PROCESS ARE
WITHOUT MERIT .......................................................... 38
NEITHER THE STATE OF MICHIGAN NOR ITS
POLITICAL SUBDIVISIONS, PETITIONER
SCHOOL DISTRICTS, ARE “PERSONS” FOR THE
PURPOSE OF FIFTH AMENDMENT DUE PRO
CESS............................................................................... 38
JOINDER OF PETITIONER SCHOOL DISTRICTS
IS NOT REQUIRED EITHER TO PROTECT THEIR
INTERESTS OR TO PROVIDE ADEQUATE RE
LIEF................................................................................ 40
Page
ii
THE COURTS BELOW ACTED IN A MANNER
WHICH WOULD AVOID UNNECESSARY DELAY
AND STILL PROTECT ANY COGNIZABLE INTER
EST OF PETITIONER SCHOOL DISTRICTS............ 52
III THE STATE OF MICHIGAN THROUGH ITS AC
TIONS AND INACTIONS HAS COMMITTED DE
JURE ACTS OF SEGREGATION, THE NATURAL,
FORESEEABLE, AND PROBABLY CONSEQUENCES
OF WHICH HAVE FOSTERED A CURRENT CONDI
TION OF SEGREGATION THROUGHOUT THE DE
TROIT METROPOLITAN COMMUNITY........................ 65
THE VIOLATIONS........................................................ 65
IV DETROIT-ONLY DESEGREGATION PLANS ARE
NOT CONSTITUTIONAL REMEDIES BECAUSE
THEY DO NOT ELIMINATE, “ROOT AND
BRANCH”, THE VESTIGES OF THE UNCONSTITU
TIONAL DETROIT SCHOOL SEGREGATION.............. 83
ANY DETROIT-ONLY REMEDY WOULD LEAVE
THE DETROIT SCHOOL SYSTEM RACIALLY
IDENTIFIABLE AS BLACK THEREBY NOT RE
MOVING THE VESTIGES OF THE STATE IM
POSED SEGREGATION............................................... 83
A DETROIT-ONLY PLAN LEADS TO RESEGRE
GATION RATHER THAN CONVERSION TO A UN
ITARY SCHOOL SYSTEM........................................... 88
A DETROIT-ONLY PLAN LEAVES THE DETROIT
SCHOOL SYSTEM PERCEPTIBLY BLACK............... 91
V A METROPOLITAN REMEDY IS REQUIRED TO EF
FECTIVELY REMEDY DE JURE SEGREGATION IN
THE DETROIT SCHOOL SYSTEM.................................. 96
SCHOOL DISTRICT LINES MAY NOT PREVENT A
CONSTITUTIONAL REMEDY.................................... 96
BRADLEY v. RICHMOND DOES NOT APPLY........ 100
THE RELEVANT COMMUNITY IS THE METRO
POLITAN DETROIT COMMUNITY.............................. 101
A METROPOLITAN DESEGREGATION REMEDY
IS EDUCATIONALLY SOUND AND PRACTICAL. . 103
VI THE TRANSPORTATION SYSTEM PROPOSED IN
THE METROPOLITAN REMEDY CAN BE PRACTI
CAL AS TO REASONABLE DISTANCES AND TRA
VEL TIMES AND WILL EFFECTIVELY DESEGRE
GATE.................................................................................. 107
VII THIS HONORABLE COURT HAS ESTABLISHED
THAT THE ELEVENTH AMENDMENT DOES NOT
PREVENT A FEDERAL COURT FROM ORDERING
THE EXPENDITURE OF STATE FUNDS FOR THE
IMPLEMENTATION OF A PLAN OF DESEGREGA
TION................................................. 117
VIII A THREE JUDGE DISTRICT COURT IS NOT RE
QUIRED SINCE THE CONSTITUTIONALITY OF A
STATEWIDE STATUTE IS NOT BEING CHAL
LENGED............................................................................... 122
CONCLUSION ........................................................................... 125
EXHIBIT! ................................................................................. 126
TABLE OF AUTHORITIES
Cases:
Aguayo v. Richardson, 473 F.2d 1090 (2ndCir. 1973), cert,
denied sub. nom. 42 U.S.L.W. 3406 (1974) ............. .......... 39
Alabama v. United States, 314 F. Supp. 1319 (S.D. Ala.
1969) appeal dismissed, 400 U.S. 954 (1970) ................... 73
Angersinger v. Hamlin, 407 U.S. 25 (1972) ............................ 120
Arizona v. Department o f Health, Education and Welfare,
449 F.2d 456 (9th Cir. 1971) ............................................. 39
Attorney General v. Detroit Board o f Education, 154 Mich.
584, 108 N.W. 608 (1908) ................................................. 21
Attorney General, ex rel Kies v. Lowrey, 131 Mich. 639,
92N.W. 289(1902),aff’d, 199 U.S. 233 (1905) ___ 21,25,26
Barr Rubber Products Co. v. Sun Rubber Co., 277 F. Supp.
484 (S.D.N.Y. 1967), 279 F. Supp. 49 (S.D.N.Y. 1968),
425 F.2d 1114 (2nd Cir. 1970) cert, denied, 400 U.S. 878
(1970) ...................................................................... 61,62
Bell v. City School o f Gary, 213 F. Supp. 819 (N.D. Ind.
1962), aff’d, 324 F.2d 209 (7th Cir. 1963), cert, denied,
377 U.S. 924 (1964) ............................................................ 73
Benger Laboratories Ltd. v. R.K. Laws Co., 24 F.R.D. 450
(E.D. Penn. 1959) ................................................................ 62
Birmingham School District v. Roth, 410 U.S. 954 (1973) . . 53
Bloomfield Hills School District v. Roth, 410 U.S. 954
(1973) ................................................................................... 53
Bradley v. Milliken, 338 F. Supp. 582 (E.D. Mich. 1971) . . 3, 9,
52, 84, 85
Bradley v. Milliken, 433 F.2d 897 (6th Cir. 1971)........ 6, 79
Bradley v. Milliken, 438 F.2d 945 (6th Cir. 1971) ___ 7,56 ,80
Bradley v. Milliken, 484 F.2d 215 (6th Cir. 1973) 63, 83, 84, 97
Bradley v. School Board o f the City o f Richmond, 51 F.R.D.
139 (D.C. Va. 1970) ............................................................ 63
Bradley v. School Board o f the City o f Richmond, 462 F.2d
1058 (4th Cir. 1972), aff’d by an equally divided court,
412 U.S. 92 (1973)....................................................... 100, 101
Page
V
Brown v. Board o f Education o f Topeka, 347 U.S. 483
(1954) .............................. 3, 14, 63, 91,92, 95, 103, 114, 122
Brown v. Board o f Education o f Topeka, 349 U.S. 294
(1955) ............................................................ 3, 14, 86, 97, 103
Carrollv. Finch, 326 F. Supp. 891 (D. Alas. 1971) ............... 39
Child Welfare Society o f Flint v. Kennedy School District,
220 Mich. 290, 189 N.W. 1002 (1922) .............................. 22
Cisneros v. Corpus Christi Independent School District, 330
F. Supp. 1377 (1971) .......................................................... 120
Collins v. Detroit, 195 Mich. 330, 161 N.W. 905 (1917) ___ 22
Connecticut v. Department o f Health, Education and Wel
fare, 448 F.2d 209 (2nd Cir. 1971) .................................... 39
Cooper v . Aaron, 358 U.S. 1 (1958) ................. 19,97,117,1 18
Davis v. Board o f School Commissioners o f Mobile County,
402 U.S. 33 (1971) ........................................ .8 6 ,8 8 ,9 6 ,1 0 4
Evans v. Buchanan, 256 F.2d 688 (3rd Cir. 1 9 5 8 ).........47, 48, 49
Evans v. Ennis, 281 F.2d 385 (3rd Cir. 1960) ........................ 119
Ex parte Collins, 277 U.S. 565 (1928) .................................. 123
Ex parte Young, 209 U.S. 123 (1 9 0 8 )..............................1 17, 1 18
Fair Housing Development Fund Corp. v. Burke, 55 F.R.D.
414 (E.D.N.Y. 1972) .......................................................... 61
Ford Motor Co. v. Department o f Treasury o f Indiana, 323
U.S. 459 (1945) .................................................................... 117
Gideon v. Wainwright, 372 U.S. 335 (1963) .......................... 120
Go million v. Lightfoot, 364 U.S. 339 (1960).......................... 96
Goss v. Board o f Education, 373 U.S. 683 (1 9 6 3 )................. 90
Graham v. Folsom, 200 U.S. 248 (1 9 0 6 )................................ 117
Green v. County School Board o f New Kent County, 391
U.S. 430 (1968) ................................ 14 ,83 ,86 ,88 ,89 ,90 ,96
Griffin v. County School Board o f Prince Edward County,
377 U.S. 218 (1964) ................................................... 1 18, 119
Page
VI
Higgins v. Board o f Education o f the City o f Grand Rapids,
Michigan, (W.D. Mich. CA 6386), Slip Op., July 18, 1973 . 63
Hoots v. Commonwealth o f Pennsylvania, 359 F. Supp. 807
(W.D. Penn. 1973) ............................................. .......... 45, 46, 47
Husbands v. Commonwealth o f Pennsylvania, 359 F. Supp.
925 (E.D. Penn. 1973) ................... .......... ......................... 45, 47
Imlay Township District v. State Board o f Education, 359
Mich. 478, 102 N.W.2d 720(1960) .................................. 29
In re State o f New York, 256 U.S. 490 (1921) ..................... 117
Johnson v. Gibson, 240 Mich. 515, 215 N.W. 333 (1927) . . . 29
Jones v. Grand Ledge Public Schools, 349 Mich. 1, 84 N.W.
2d 327 (1957) ....................................................................... 105
Kelley v. Metropolitan County Board o f Education o f Nash
ville and Davidson County, 463 F.2d 732 (6th Cir. 1972),
cert, denied, 409 U.S. 1001 (1972) .................................... 120
Keyes v. School District No. 1, Denver, Colorado, 413 U.S.
189 (1973) ........................................... .. .9, 65,81, 107, 114
Lansing School District v. State Board o f Education, 367
Mich. 591, 116 N.W.2d 866 (1962) ............................22, 23, 29
Lee v. Macon County Board o f Education, 267 F. Supp. 458
(M.D. Ala. 1967),a ff’d, 389 U.S. 215 (1967) . . . 40, 41,42, 43,
45, 49, 50
Lee v. Macon County Board o f Education, 448 F.2d 746 (5 th
Cir. 1971) .......................................................................91,100
Lee v. Nyquist, 318 F. Supp. 710 (W.D. N.Y. 1970), a ff’d,
402 U.S. 935 (1971) ............................................................ 73
Louisiana v. United States, 380 U.S. 145 (1 9 6 5 )................... 90
MacQueen v. City Commission o f Port Huron, 194 Mich.
328, 160 N.W. 627 (1916) ...... ............................................ 22
Monroe v. Board o f Commissioners, 391 U.S. 450 (1968) . .14, 90
Newburg Area Council, et al. v. Board o f Education o f Jef
ferson County, Kentucky, et al. Civ. Nos. 73-1403,
73-1408, (6th Cir. filed Dec. 28, 1973) Slip Op.................. 106
North Carolina State Board o f Education v. Swann, 402 U.S.
43 (1 9 7 1 )................................................................ 84, 107, 1 14
Page
Page
Oliver v. Kalamazoo Board o f Education, Civ. No. K-88-71
CA (W.D. Mich., filed October 4, 1973) Slip. Op................. 52
Osborn v. Bank o f United States, 9 Wheat 738 (1824) ...........117
Phillips v. United States, 312 U.S. 246 (1 9 4 1 )......................... 124
Provident Tradesmens Bank & Trust Co. v. Patterson, 390
U.S. 102 (1968) ..................................................................... 60
Reynolds v. Sims, 377 U.S. 533 (1 9 6 4 )............................96, 1 20
San Antonio Independent School District v. Rodriguez, 411
U.S. 1 (1973) .....................................................................67, 74
South Carolina v. Katzenbach, 383 U.S. 301 (1 9 6 6 ).........38, 39
Spencer v. Kugler, 326 F. Supp. 1235 (D. N.J. 1971), aff’d,
404 U.S. 1027 (1972) .................................................... 86,124
Swann v. Charlotte-Mecklenburg Board o f Education, 318 F.
Supp. 786 (W.D. N.C. 1970) ............................................... 120
Swann v. Charlotte-Mecklenburg Board o f Education, 402
U.S. 1 (1971) .............................. 3, 14, 83, 84, 86, 90, 99,
100, 104, 107, 110, 114, 120
United States v. Scotland Neck City Board o f Education, 407
U.S. 484 (1972) .......................................................... 86, 87, 97
United States v. Texas, 330 F. Supp. 235 (E.D. Texas 1971),
Supp’g 321 F. Supp. 235 (E.D. Texas 1970), aff’d, 447
F.2d 441 (5th Cir. 1971), cert, denied sub. nom., Edgarv.
United States, 404 U.S. 1016 (1972) .................................. 100
United States v. State o f Texas, 447 F.2d 441 (5th Cir.
1971) ..................................................................................... 97
Welling v. Livonia Board o f Education, 382 Mich. 620, 171
N.W.2d 545 (1969) .............................................................. 24
West Bloomfield Hills School District v. Roth, 410 U.S. 954
(1973) ..................... 53
Wright v. Council o f the City o f Emporia, 407 U.S. 451
(1972) ............................................................ 83 ,86 ,87 ,88 ,97
vm
Constitutions
U.S. Const, amend V .......................................................... 38
U.S. Const, amend XI.......................................................... 1,117
Northwest Ordinance of 1787, art. Ill ................. 1, 3, 19, laa
Mich. Const, of 1835, art. X, § 1 .............................. 2, 19, laa
Mich. Const, of 1835, art. X, §3 ....................... 2, 13, 19, laa
Mich. Const, of 1850, art. XIII, § 1 .......................... 2, 20, 2aa
Mich. Const, of 1850, art. XIII, §4 ..................... 2, 3, 20, 2aa
Mich. Const, of 1908, art. XI, §2 ........................2, 3, 20, 3aa
Mich. Const, of 1908, art. XI, §6 ............................ 2, 20, 3aa
Mich. Const, of 1908, art. XI, §9 ................... 20, 21, 22, 4aa
Mich. Const, of 1963, art. IV, §2 ....................................... 3
Mich. Const, of 1963, art. VIII, § 2 ................... 2, 23, 79, 4aa
Mich. Const, of 1963, art. VIII, §3 ............. 2, 23, 24, 79, 5aa
Va. Const, of 1902, § § 132, 133 ......................................... 35
Federal Statutes and Rules
28 U.S.C. §2281 ................................................. 123, 124, 5aa
42 U.S.C. § 2000(d) ................... ..........................................105
Fed. R. App. P. 4 .................................................................. 60
Fed. R. App. P. 5 .................................................................. 60
Fed. R. Civ. P. 19 .............16, 40, 45, 46, 56, 60, 63, 119, 6aa
Fed. R. Civ. P. 21 ............................................................ 56, 119
Fed. R. Civ. P. 24 ............................................................ 53, 7aa
Public Acts
Act 70, Mich. Pub. Acts of 1842 ......................................... 34
Act 233, Mich. Pub. Acts of 1869 ..................... 34
Act 314, Mich. Pub. Acts of 1881 ..................... 34
Act 310, Mich. Pub. Acts of 1889 ..................... 34
Act 315, Mich. Pub. Acts of 1901 ............................ 2, 26, 9aa
Act 251, Mich. Pub. Acts of 1913 ...................................... 34
Act 239, Mich. Pub. Acts of 1967 ................... 2, 26, 27, 12aa
Act 32, Mich. Pub. Acts of 1968 ............................ 2, 27, 16aa
Act 244, Mich. Pub. Acts of 1969 ........ 2,5, 34, 77, 78, 18aa
Act 48, § 12, Mich. Pub. Acts of 1970 . 2, 5, 6, 34, 77, 78, 79,
80, 81, 82, 123, 124, 21aa
Act 134, Mich. Pub. Acts of 1971 ......................... 2, 30, 21 aa
Act 255, Mich. Pub. Acts of 1972 .......................... 2, 27, 39aa
Page
IX
Act 1, Mich. Pub. Acts of 1973 ................................ 2, 34, 43aa
Act 2, Mich. Pub. Acts of 1973 ................................ 2, 34, 46aa
Act 12, Mich. Pub. Acts of 1973 .............................. 2, 27, 50aa
Act 101, §51(4), Mich. Pub. Acts of 1973 ........................ 105
Act 101, §77, Mich. Pub. Act of 1973 .............................. 68
Code of Ala., Tit. 52, §§14, 15, 17 ,20 ,31 ,33 ,34 ,45 ,47 ,
209,451(4) .................................................................. 42,43
Michigan Statutes Michigan
M.C.L.A. §209.101 etseq ...................................................... 30
M.C.L.A. §211.34 ................................................................ 30
M.C.L.A. §211.148 .............................................................. 30
M.C.L.A. §325.511 .............................................................. 42
M.C.L.A. §340.251 ........................................................ 42, 54aa
M.C.L.A. §340.252 ...........................................29, 30, 42, 54aa
M.C.L.A. § 340.252a............................................................ 56aa
M.C.L.A. §340.253 ............................................... 29, 51, 57aa
M.C.L.A. §340.330-.330(a) .................................. 33,60-61aa
M.C.L.A. §340.361-.365 ............................................... 42, 61aa
M.C.L.A. §340.376 .............................................................. '42
M.C.L.A. §340.402 .............................................................. 43
M.C.L.A. § §340.461-.468 ...................................... 28, 62-66aa
M.C.L.A. §340.467 ........................................................ 28, 65aa
M.C.L.A. §340.575 ............................................... 30, 32, 67aa
M.C.L.A. §340.623 ................................ 42
M.C.L.A. §340.689 ............................................................... 34
M.C.L.A. §388.171 etseq .......................................... 5, 34, 18aa
M.C.L.A. §388.182 ....................................................... 5, 21aa
M.C.L.A. §388.201 etseq ............................................ . .27, 16aa
M.C.L.A. §388.221 etseq ..........................................................27, 39aa
M.C.L.A. §388.251 etseq ..........................................................27, 50aa
M.C.L.A. §388.371 ....................... 42
M.C.L.A. §388.61 1 etseq .............................................. 30, 22aa
M.C.L.A. §388.711 etseq ....................................... 26, 27, 12aa
M.C.L.A. §388.851 ................. 43, 79aa
M.C.L.A. §388.933 .......... 43
M.C.L.A. §388.1001 etseq ............................................4, 34, 43
M.C.L.A. §388.1009 ............................................................ 42
Page
X
M.C.L.A. §388.1010 ............................................. 28, 42, 80aa
M.C.L.A. §388.1014 .......................................... 42
M.C.L.A. §388.1031 ............................................... 105
M.C.L.A. § 388.1101 et seq..................................................... 43
M.C.L.A. §388.1121 ............................................................ 42
M.C.L.A. §388.1161 ............ 42
M.C.L.A. §388.1171 ...... ............................................ 51, 80aa
M.C.L.A. §388.1175 ............................................................ 43
M.C.L.A. §388.1179 ............................................................ 8
M.C.L.A. §390.51 ...................................... 4
M.C.L.A. §395.21 ................................................................ 42
M.C.L.A. §395.81 ................................................................ 42
Page
Miscellaneous
Annual Report, Mich. Dept, of Ed., 1970 ..................... 26, 72
Report of the Commission on Constitutional Revision, 266
(1968) ............................................................................... 35
“Elementary and Secondary Education and the Michigan
C o n stitu tio n ” Michigan Constitutional Convention
Studies p. 1 (1961) ............................................................ 25
Burger, “The State of the Federal Judiciary - 1972,” 58
A.B.A.J. 1049 (1972) 122
Cohn,“The New Federal Rules of Civil Procedure,” 54 Geo.
L .J. 1204,(1966) ............................................................ 60
Foster, “Desegregating Urban Schools; A Review of Tech
niques,” 43 Harv. Educ. Rev. 5 (1973) ............................ 88
Moore, “In Aid of Public Education: An Analysis of the
Education Article of the Virginia Constitution of 1971,”
5 U. Richmond L. Rev. 263, (1971) ................................ 35
Pindur, “Legislative and Judicial Rolls in the Detroit School
Decentralization Controversy,” 50 J. Urban Law 53
(1972) 79
Wright, Law of Federal Courts (2d ed. 1970)..................... 118
Comment, Why Three-Judge District Courts?”, 25 ALA. L.
Rev. 371 (1973) ................................................................ 122
Op. Atty. Gen. No. 4705 (July 7, 1970) ............................ 32
1
In T he
SUPREME COURT OF THE UNITED STATES
October T erm 1973
No. 73-434
WILLIAM G. MILLIKEN, ET AL.,
vs.
RONALD G. BRADLEY, ET AL.,
Petitioners,
Respondents.
No. 73-435
ALLEN PARK PUBLIC SCHOOLS, ET AL.,
vs.
RONALD G. BRADLEY, ET AL,,
Petitioners.
Respondents.
No. 73-436
THE GROSSE POINTE PUBLIC SCHOOL SYSTEM,
Petitioner,
vs.
RONALD G. BRADLEY, ET AL.,
Respondents.
On Writs of Certiorari to the United States Court of
Appeals for the Sixth Circuit.
BRIEF FOR RESPONDENTS
BOARD OF EDUCATION FOR THE SCHOOL
DISTRICT OF THE CITY OF DETROIT, ET AL.,
CONSTITUTIONAL PROVISIONS,
STATUTES AND RULES INVOLVED
The constitutional provisions, statutes and rules particularly
relevant to the issues in this case are: U.S. Const. Amend. XI;
Northwest Ordinance of 1787, art. Ill; Mich. Const, of 1835, art.
2
X; Mich. Const, of 1850, art. XIII; Mich. Const, of 1908, art.XI;
Mich. Const, of 1963, arts. IV, VIII; 28 U.S.C. §2281; Fed. R. Civ. P.
19; Fed. R. Civ. P. 24; Act 315, Mich. Pub. Acts of 1901; Act 239,
Mich. Pub. Acts of 1967; Act 32, Mich. Pub. Acts of 1968; Act
24, Mich. Pub. Acts of 1969; Act 48, §12 Mich. Pub. Acts of
1970; Act 134, Mich. Pub. Acts of 1971; Act 255, Mich. Pub. Acts
of 1972; Act 1, Mich. Pub. Acts of 1973; Act 2, Mich. Pub. Acts
of 1973; Act 12, Mich. Pub. Acts of 1973; and various Michigan
statutes listed in the Index to Appendix to Brief For Respondents
Board of Education for the School District of the City of Detroit,
et al.
Explanatory Note
References to appendices, records and exhibits will be indicated
by page numbers enclosed in parentheses and designated as
follows: Single volume Appendix to Petitions for Writs of Cer
tiorari: (la)
Five volume Joint Appendix: (la 1)
Appendix to this Brief of constitutional, statutory and proce
dural provisions: (laa)
Record of Trial: (Rl)
Exhibits: Plaintiffs’ (PX )
3
STATEMENT OF THE CASE
Eight federal judges below (one District Court judge and
seven Court of Appeals judges, including one dissenting judge)
have found that the State of Michigan has committed de jure acts
of segregation resulting in the unconstitutional racial isolation of
280,000 school children in the Detroit metropolitan community.
These violations, in the Courts’ opinion, were the direct result of
actions and inaction on the part of officers and agents at the state
and local levels, either acting alone or in combination with one
another. Bradley v. Milliken, 338 F. Supp. 582 (E.D. Mich. 1971)
(17a); 484 F.2d215 (6th Cir. 1973) (110a). Consistent with
Brown I, Brown II, and Swann, the District Court, exercising its
traditional equity power in school segregation cases, has attempted
to remedy constitutional violations by fashioning an effective
desegregation plan designed to eliminate the vestiges of segregation
“root and branch” and to establish “schools, not a White and a
Negro school, just schools,” so as to prevent resegregation.
1. THE PERVASIVE STATE CONTROL OF EDUCATION
IN MICHIGAN
Regardless of what may be true in other states and common
wealths, the single irrefutable fact of the Michigan education
system is the existence of legal and practical pervasive state con
trol. The Michigan Constitution of 1963 provides as follows:
“The Legislature shall maintain and support a system of free
public elementary and secondary schools as defined by
law. . . .” Mich. Const., art. IV, §2.
Stemming from the mandate of the Northwest Ordinance ot
1787, the above quoted constitutional language was substantially
the same in Michigan’s three previous constitutions. [Mich. Const.,
art. X, §3 (1835); art. XIII, §4 (1 850); art. XI, § 2 (1 908)]. Al
though the Michigan Legislature has created local school districts
for administrative convenience, the Michigan Supreme Court has
consistently held that these districts are mere instrumentalities and
agencies of the State controlled by the State. (166a-167a). This
4
axiom of Michigan school law has also been affirmed by the
United States Supreme Court, (see discussion infra p. 25).
This pervasive state control of elementary and secondary
schools in Michigan is illustrated by the following facts:
(1) Although Michigan had 7,333 school districts in 1910,
the number of school districts by June 30, 1972, as a result of
legislative fiat, had been reduced to 608. In many cases, these
school districts (including several school districts in Wayne
County, the county in which Detroit is situated) were merged or
annexed by state mandate and without local consent. (168a-169a).
However, despite such massive consolidation, school districts in
Michigan still bear little relationship to political boundary lines.
(see e.g., Ia255).
(2) The state frequently moves property and school children
from district to district; provides massive state financing; dictates
the number of, and length of, school days; requires certain courses
to be taught; controls the use of particular textbooks; approves
building plans; and imposes many other standards of regulatory
control. (M.C.L.A. §388.1001 et seq).
(3) The State provides certain educational opportunities for
Michigan children that are obtained by crossing, on a daily basis,
school district boundary lines. (79a).
(4) Under Michigan law (M.C.L.A. §390.51) school build
ing contruction plans must be approved by the State Board of
Education. At least during the period from 1949 to 1962, the
State Board of Education had specific authority to supervise
school site selection.
(5) The construction of schools in the State of Michigan is
funded, in whole or in part, through the sale of municipal con
struction bonds. These bonds must be approved by the Municipal
Finance Commission, a state agency that includes in its member
ship the State Superintendent of Public Instruction, the Governor
of the State of Michigan and the Attorney General of the State of
Michigan.
5
The pervasiveness of State control over local school districts
in Michigan is no more evident than in the Detroit school district.
On at least five occasions since the district was organized in 1842,
the State has reorganized the structure of the Detroit Board of
Education. The State Legislature in 1969 again proceeded to re
organize not only the structure of the Detroit Board of Education,
but the district itself by the enactment of Act 244, Mich. Pub.
Acts of 1969, (M.C.L.A. §388.171-177) which required that the
Detroit School Board decentralize its administration through the
creation of regional districts and regional school boards within the
Detroit school district.
In formulating the regional district boundaries within its dis
trict in accordance with the standards imposed by Act 244, the De
troit Board of Education, aware of the growing racial isolation
within the Detroit school district, proposed what is now known as
the April 7th Plan, a plan designed to promote integration by re
drawing certain high school district boundaries.
Upon the announcement of the proposed April 7th Plan, the
Legislature of the State of Michigan enacted Act 48, Mich. Pub.
Acts of 1970, (M.C.L.A. §388.171-183) which suspended imple
mentation of the April 7th Plan. In particular, Section 12 of Act
48, (M.C.L.A. § 388.182) provided as follows:
“Implementation of attendance provisions. Sec. 12. The
implementation of any attendance provisions for the 1970-71
school year determined by any first class school district
board shall be delayed pending the date of commencement of
functions by the first class school district boards established
under the provisions of this amendatory act but such provi
sion shall not impair the right of any such board to determine
and implement prior to such date such changes in attendance
provisions as are mandated by practical necessity. In review
ing, confirming, establishing or modifying attendance provi
sions the first class school district boards established under
the provisions of this amendatory act shall have a policy of
open enrollment and shall enable students to attend a school
of preference but providing priority acceptance, insofar as
practicable, in cases of insufficient school capacity, to those
students residing nearest the school and to those students de-
6
siring to attend the school for participation in vocationally
oriented courses or other specialized curriculum.”
The last sentence of that Section had the effect of stifling two
existing integration policies of the Detroit Board of Education.
The first policy was that whenever students were transported to
relieve overcrowding of schools, they were to be bused to the first
and nearest school where their entry would improve the racial
mix. (D rachler D eposition de bene esse, 46, 49-51), (R.
2873-2880). The second, under the Detroit Board’s open enroll
ment program, was that students desiring to transfer from one
school to another could only do so if the racial mix at the receiv
ing school would be improved. (Drachler Deposition de bene esse,
151), (Ila 8-9).
The enactment and implementation of Act 48 not only inten
tionally frustrated integration efforts within the Detroit school
system, in order to preserve and maintain a condition of segrega
tion, but also further evidenced the State of Michigan’s plenary
power over local school districts
2. THE LITIGATION
As a result of these actions of the State, Respondents Ronald
Bradley, et al., filed a complaint seeking a preliminary injunction
to restrain the enforcement of Act 48, challenging the constitu
tionality of that legislation and alleging constitutional violations on
the part of the Detroit Board of Education and the State of
Michigan, through various state officers at the state level. (2a). The
District Court refused to issue a preliminary injunction, did not
rule on the constitutionality of Act 48, and dismissed the Gover
nor and Attorney General of Michigan as parties defendants to this
cause. On the first appeal to the Court of Appeals for the Sixth
Circuit, that Court held Section 12 of Act 48 to be an unconstitu
tional interference with the Fourteenth Amendment rights of
Respondents Ronald Bradley, et al., and the dismissal of the
Governor and the Attorney General as parties at that stage of the
proceedings to be improper, 433 F. 2d 897 (6th Cir. 1970). On
the second appeal, the Sixth Circuit held that the implementation
of an interim desegregation plan was not an abuse of judicial dis
cretion by the District Court. The case was remanded to the Dis
7
trict Court with instructions to move as expeditiously as possible.
438 F. 2d 945 (6th Cir. 1971). The trial on the issue of segre
gation began on April 6, 1971 and continued through July 22,
1971, consuming 41 trial days.
3. THE STATE VIOLATIONS
On September 27, 1971 the District Court issued its Ruling
on Issue of Segregation (17a) and, as affirmed by the Court of
Appeals for the Sixth Circuit, found that under Michigan school
law, the State of Michigan did indeed exercise pervasive control
over site selection, bonding, and school construction, both within
and without the Detroit school system. The District Court also
found that the State of Michigan failed to implement its enun
ciated policy, as expressed in a Joint Policy Statement on Equality
of Education Opportunity (P.X. 174) and as reaffirmed in the
State Board of Education’s “School Plant Planning Handbook”,
(P.X. 70, at p. 15). This policy required local school boards to
consider the factor of racial balance in making preliminary deci
sions regarding site selection and school construction expansion
plans.
During the critical years covered by the record in this litiga
tion, the District Court found, and the Court of Appeals affirmed,
that the State of Michigan denied the Detroit school district state
funds for pupil transportation, although such funds were readily
made available for students in other districts who lived more than
a mile and one-half from their assigned schools. (Ilia 31-35). A pur
pose of this provision for pupil transportation aid in Michigan was
intended to benefit school children residing in rural areas. But, the
fact of the matter is that many of the suburban school districts
that are Petitioners before this Honorable Court were grand
fathered into the various state transportation aid acts. As a result,
many previously rural communities suburban to Detroit receive
transportation aid disbursements despite the fact that they are
now heavily urbanized. Although the distances to schools in
Detroit for many of the school children above the elementary
school level have for many years exceeded the mile and one-half
criterion (R. 2825-6), it was not until 1970 that the State Legis
lature provided that the Detroit school district was eligible to par
ticipate in the Transportation Aid Fund. (Ilia 32). The apparent
8
benefits of that legislation were totally illusory, for the State
Legislature failed to provide the additional funding necessary to
provide for disbursements to the Detroit school system and order
ed the State Board of Education to continue to disburse available
funds only to those rural and suburban school districts which had
previously been eligible. (Ilia 31). Subsequently, the Michigan
Legislature further mandated that allocations to the school trans
portation aid fund were not to be used for purposes of desegre
gation. (M.C.L.A. §388.1 179).
Recognizing that school districts in the State of Michigan are
indeed mere agencies or instrumentalities of the State pervasively
controlled by the State, the District Court, as affirmed by the
Court of Appeals, found that the actions and inaction of the
Detroit Board of Education were in fact the actions and inaction
of the State of Michigan.
Specifically, the Courts below found that the Detroit Board
of Education: (1) maintained optional attendance zones in neigh
borhoods undergoing racial transition and between high school at
tendance areas of opposite predominate racial composition which
had the effect of fostering segregation; (2) built, with the impri
matur of the State Board of Education and Municipal Finance
Authority, a number of schools which resulted in continued or
increased segregation; (3) maintained feeder patterns that resulted
in segregation; and (4) bussed black pupils past or away from
closer white schools with available space, to black schools. (25a),
(110a).
The Courts below concluded that the natural and probable
consequences of the actions and inaction on the part of state offi
cials at all levels combined to reinforce one another so as to foster
segregation, thus violating the Fourteenth Amendment rights of
the school children in the Detroit community.
Although the Detroit Board of Education maintains that, as a
local state agency, it had taken no actions which resulted in the
current condition of segregation forming the basis of the original
9
complaint, but instead had taken positive steps to promote inte
gration in its schools, it has not appealed the lower court findings
for the following reasons: (1) the consistent findings of violations
in the Courts below; (2) this Honorable Court’s recent decision in
Keyes; and (3) a recognition by the Detroit Board that it is a mere
instrumentality of the State under Michigan law and therefore,
regardless of whether violations were found to have been com
mitted either by state officers at the state level alone, or by state
officers at the local level, the result would be the same. It is in
cumbent upon the State of Michigan ultimately to remedy the vio
lations.
4. THE REMEDIAL ASPECTS
(a) Due Process Claims.
Following the September 27, 1971 ruling on the constitu
tional violation, Bradley v. Milliken, 338 F.Supp. 582 (E.D. Mich.
1971), the District Court on October 4, 1971 held a pre-trial con
ference during which it ordered the Detroit Board of Education to
submit its plans for desegregation of the Detroit school system,
limited to Detroit-only, within sixty days. The Court further
ordered the Petitioners William Milliken, et al. to submit plans of
desegregation, not limited to Detroit, within one hundred and
twenty days. (43a). A written order to this effect was entered by
the District Court on November 5, 1971. (46a).
As had all prior aspects of the litigation, the findings and
order of the District Court received wide spread news media cover
age throughout the Detroit metropolitan area and the State of
Michigan.
It was not until February 10, 1972, some three months sub
sequent to the findings of the District Court on the issue of segre
gation and the order for preparation of plans, that any of the Peti
tioner school districts filed motions for intervention. (Ia 185, 189,
192, 196). In filing such motions, the Petitioner school districts
indicated that they chose not to intervene earlier because their
interests were not affected by the prior proceedings in this liti
gation. (Ia 190, 196, 201-02). A hearing on the motions for inter
vention was held on February 22, 1972 (Ia 187) and the District
Court took the motions under advisement pending submission of a
10
desegregation plan. On March 7, 1972, the District Court notified
all parties and the Petitioner school districts seeking intervention,
that March 14, 1972 was the deadline for submission of recom
mendations for conditions of intervention and the date of the
commencement of hearings on Detroit-only desegregation plans.
(Ia 198, 199, 203). Recommendations for conditions of interven
tion were filed in a letter to the Court on March 14, 1972 by Peti
tioner Grosse Pointe Public School System. That letter stated that
Petitioner Grosse Pointe Public School System would have no
objections to a limitation on the litigation of matters previously
adjudicated by the District Court. (Ia 201-02). In response to all
of the recommendations on conditions of intervention, the Dis
trict Court, on March 15, 1972, granted intervention to the Peti
tioner school districts under conditions which were, for the most
part, in accordance with those suggested to the District Court by
the suburban school districts themselves. (Ia 205-07). Although
intervention was granted on the second day of hearings on Detroit-
only desegregation remedies, the Petitioner school districts volun
tarily elected not to participate in the proceedings below until
April 4, 1972, the first day of hearings on metropolitan desegre
gation remedies. (IVa 142-143).
(b) The Complete Ineffectiveness of Detroit-Only Plans.
Following the hearings on Detroit-only desegregation plans,
the District Court found that Plan A proposed by the Detroit
Board of Education was merely an extension of the so-called
Magnet Plan, a plan designed to attract children to a school
because of its superior curriculum. The District Court found that
although the plan proposed at the high school level offered a
“greater and wider degree of specialization” it would not be
“effective to desegregate the public schools of the City of Detroit”
because of the “failure of the current model to achieve any appre
ciable success.” (54a). The Court went on to 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.”
(54a). It then concluded that “ [i] n this sense it would increase
segregation.” (54a). In addition, Plan A “ [a]s conceded by its
author” was “neither a desegregation nor an integration plan.”
(54a). As to the Detroit Board’s Plan C, the District Court found
11
that it was “a token or part-time desegregation effort” and
covered “only a portion of the grades and would leave the base
schools no less racially identifiable.” (54a).
As to the Detroit-only plan proposed by Respondents
Ronald Bradley, et al., the District Court found:
“2. We find further that the racial composition of the
student body is such that the plan’s implementation 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 opening
of the 1972-73 school year. The plan contemplates the trans
portation of 82,000 pupils and would require the acquisition
of some 900 vehicles, the hiring and training of a great num
ber of drivers, the procurement of space for storage and
maintenance, the recruitment of maintenance and the not
negligible task of designing a transportation system to service
the schools.
* * *
“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 not Black
and White to one that would be perceived as Black, thereby in
creasing the flight of Whites from the city and the system,
thereby increasing the Black student population.” (54-55a).
In summary, the Court found “that none of the three plans
would result in the desegregation of the public schools of the
Detroit school district.” (55a). The six judge majority of the Court
of Appeals sustained the finding of the District Court that no
Detroit-only plan would result in the desegregation of the Detroit
school district. (159a-165a). This finding was made against the
backdrop of the following facts:
12
(1) The City o f Detroit: The geographical boundaries of
the Detroit School District are identical to the geographical boun
daries of the City of Detroit, covering an area of 139.6 square
miles. It contains within its boundaries two entirely separate cities
(and school districts), Hamtramck and Highland Park, and sur
rounds a third city (and school district), Dearborn, on three sides.
It is a fully urbanized area serviced by a network of five intercon
necting freeway systems and has five excellent surface thorough
fares emanating from the central business district to its northern
border along Eight Mile Road.
The great majority of its populace lives in privately owned
residences, Detroit having the highest percentage of private home-
ownership of any urban center in the United States. The racial
characteristics of the population of the City of Detroit in 1970-71
is reflected in a ratio of 56% white and 44% black. However, the
racial characteristics of the student population in the Detroit
school district are reflected in the following statistics:
1960-61: 46% black - 54% white
66% of Detroit’s black students attended
90% or more black schools
1970-71: 64% black - 36% white
75% of Detroit’s black students attended
90% or more black schools. (A.Ia 14f).
Projections indicate:
1975-76: 72% black - 28% white
1980-81: 81 % black - 19% white
1990-91: nearly 100% black (20a).
This reflects a present and expanding pattern of all black
schools in Detroit, resulting in part from State action.
(2) The Detroit Metropolitan Area. The tri-county area,
consisting of Wayne, the county in which Detroit is located,
Oakland, and Macomb Counties, covers a land area of 1,952 square
miles and contains within it, exclusive of the City of Detroit, some
60 rather highly urbanized municipalities. It is served by the same
connective freeway system that runs through the City ot Detroit.
13
Currently, a second east-west cross-connecting freeway is
under construction in the vicinity of Eleven Mile Road, beyond
the northern border of the City of Detroit. Thus, travel time from
the central business district of the City of Detroit to the outer
fringes of the urbanized tri-county area does not exceed thirty
minutes. The tri-county area is a Standard Metropolitan Statistical
Area, as defined by the Federal Government. (IVa 33-36). In
1970-71, 44.2% of the people living in Macomb County worked in
Wayne County, and 33.8% of the people living in Oakland County
worked in Wayne County. (IVa 37). Approximately 20,000 blacks
who live in the City of Detroit worked in the City of Warren, a
suburb in Macomb County (Ila 72). Thus, there exists extensive
interaction among the residents of the tri-county area.
The entire Detroit metropolitan community, consisting of
the tri-county area, has participated in various cooperative govern
mental services for a period of years. These include: a metro
politan transit system (SEMTA); a metropolitan park authority
(Huron Clinton Metropolitan Authority); a metropolitan water
and sewer system eminating from the City of Detroit (Detroit
Metro Water Department); and a metropolitan council of govern
ments (SEMCOG). (IVa 37-8).
In addition, public educational services are also being pro
vided on a metropolitan cross district basis daily throughout the
Detroit metropolitan community. (79a).
The racial characteristics of the tri-county metropolitan area
are 18% black and 82% white. Of the total number of blacks living
in the tri-county area, 87.2% are contained within the City of
Detroit. As a result, the municipalities surburban to the City of
Detroit are almost totally white. Although the reason for the con
centration of blacks in the urban centers is deemed unascertain-
able, there is evidence that it is based upon housing discrimination
and racism. (Ial 56-58) (R. 643).
In the tri-county area there are 86 school districts which bear
little relationship to political boundary lines. (Ia 121-7) (IVa
14
210). Seventeen of these school districts are immediately adjacent
to the boundaries of the Detroit school system. (164a). With but
few exceptions, all school districts suburban to the City of Detroit
have student school populations with racial characteristics which
reflect the virtually all white composition of their municipalities.
(Ia 121-27).
From 1961-1971 the State of Michigan permitted the con
struction of 400,000 additional classroom spaces in these subur
ban school districts, thus building upon the residential racial segre
gation which had developed between the suburbs and the City of
Detroit during that time. (PX P.M. 14, 15).
5. THE COMPELLING NECESSITY FOR A METROPOLI
TAN REMEDY.
Based upon the foregoing mosaic of facts, the District Court,
as affirmed first by a unanimous panel of three and then by six
judges of the Court of Appeals for the Sixth Circuit, concluded
that the limitation of a desegregation plan to the City of Detroit
would result in the further racial identifiability (as black) of some
of the schools in the relevant metropolitan community. In this
case, the racial identifiability would extend to all the schools with
in the borders of the City of Detroit. In order to properly remedy
the conditions of segregation found in the Detroit school district,
particularly in light of the State’s de jure acts of segregation
extending beyond the boundaries of the Detroit school district,
the Courts found that within the concepts of Brown I, Brown II,
Green, and Swann, it was proper to consider a remedy directed to
the relevant community — the Detroit metropolitan area.
In approaching the metropolitan hearings, the District Court
faithfully adhered to the guidelines enunciated by this Honorable
Court in: (1) determining the violation (Brown I); (2) using prac
tical flexibility (Brown II); (3) formulating an effective desegre
gation remedy (Green); (4) which would prevent resegregation
(Monroe); (5) by utilizing the remedial tools of a flexible ratio,
reflective of the relevant community as a starting point, and rea
sonable transportation times and distances (Swann).
15
Although plans extending to the outermost boundary lines of
the tri-county area were proposed (IVa 174-177, IVa 222-223),
the District Court, following the guidelines of this Honorable Court,
contracted the metropolitan desegregation area to within reason
able distances and travel times, but only so far as to insure that the
plan would effectively remedy the violations found and prevent
resegregation. (98a-102a). Furthermore, the remedy entailed a
minimum of interference with existing administrative state agen
cies. No restructuring of state government, nor mergers or consoli
dations of school districts were ordered. (104a-105a).
The District Court directed a panel of experts, including rep
resentatives of all local school districts and the State Board of Ed
ucation, to develop finalized details of the desegregation plan, sub
ject to further review by all parties and the Court. (99a-100a) (la
267-273). However, the District Court has not completed its work,
due to the appeals filed in this cause.
The Court of Appeals for the Sixth Circuit has affirmed the
findings of the District Court as to :(1) the constitutional violations
by the State of Michigan; (2) the ineffectiveness of a Detroit-only
plan in desegregating the Detroit school district; and (3) the appro
priateness of considering a metropolitan remedy. However, the
case has been remanded to the District Court to establish the
boundaries of an effective remedy and to provide all potentially
affected school districts an opportunity to participate in that
formulation. (172a-179a).
Much time has passed since this litigation was initiated in the
District Court below, yet much remains to be done.
16
SUMMARY OF ARGUMENT
The Michigan Constitution as interpreted by the Supreme
Court of Michigan and as implemented by legislative enactment
and the rules of the Michigan State Board of Education clearly
establishes that the State of Michigan pervasively controls elemen
tary and secondary education and in so doing has created the local
school districts as its instrumentalities and agents. The State’s per
vasive control of education is evidenced by such examples as its
elimination of local school districts without voter approval; its
transfer of property from one district to another without local
consent; its power to remove local Board members; and its omni
present participation in the day-to-day operation of local school
districts.
The Detroit Board of Education submits: (1) that the Sixth
Circuit order allowing Petitioner school districts to participate in
hearings on the propriety of a metropolitan plan is more than
Petitioner school districts are entitled to since they are not “per
sons” for the purpose of Fifth Amendment due process; (2) that
Petitioner school districts, due to their own inaction, are estopped
from claiming a denial of due process; (3) that Fed. R. Civ. P.
19 does not require Petitioner school districts’ joinder since they
have no substantial interest to protect and are not necessary for
complete relief; and, (4) that Petitioner school districts could
not contribute anything substantial to the District Court rulings
affirmed by the Sixth Circuit.
The Courts below found that the State of Michigan, by its
own actions and inaction, violated the Fourteenth Amendment
rights of Detroit school children, thereby causing unconstitutional
racial isolation in the Detroit school system. The State committed
the following acts: (1) it permitted selection of certain school
construction sites for the purpose of racial isolation; (2) it failed
to provide transportation funds for Detroit school children; (3)
it limited the bonding rights of the Detroit school district; (4) it
enacted legislation that blatantly prevented the Detroit Board of
Education from integrating the Detroit school district; and, (5)
it caused black school children from a black suburban school
district, without a high school, to be transported into pre
dominantly black Detroit high schools, thereby bypassing nearer
all white suburban high schools.
17
In addition, the Courts below found that the Detroit Board
of Education committed acts which caused segregation. As an in
strumentality of the State of Michigan, the Detroit Board of Edu
cation is bound by the actions of the State. Likewise the Detroit
Board’s actions are actions of the State. Thus, the Courts below
found that whether the constitutional violations were committed
by the State alone, or by the State acting through, or in conjunc
tion with, the Detroit Board of Education, the constitutional
violations were committed by the State of Michigan. For these
reasons it is the State’s responsibility to implement an effective
constitutional desegregation remedy.
A desegregation remedy limited to the boundaries of the City
of Detroit is not effective because it cannot eliminate “root and
branch” the vestiges of unconstitutional segregation. Any Detroit-
only desegregation plan would leave the Detroit schools racially
identifiable and perceived as black. Such a plan would not esta
blish “just schools” .
P o litica l boundary lines cannot supercede Fourteenth
Amendment rights. In the instant case the relevant community for
an effective desegregation plan is the metropolitan Detroit com
munity - a community that is socially, economically, and politi
cally interrelated. There need not be a finding of de jure acts on
the part of the Petitioner school districts to justify their participa
tion in a desegregation remedy. State action has caused the consti
tution violation and State created and State controlled school dis
tricts can participate in establising an effective remedy.
A metropolitan desegregation plan provides a flexible racial
ratio, is educationally sound and logistically practical. Present
state law, without the necessity for any school district consolida
tion, permits State implementation of a metropolitan desegrega
tion plan. Moreover, the geography of metropolitan Detroit facili
tates the transportation of school children across school district
lines in a way that provides reasonable travel times and distances.
In many cases cross district transportation would be shorter than
present intra-district transportation. Cross district transportation
now exists for purposes other than desegregation.
18
The District Court is not prohibited from ordering the State
Defendants to implement a desegregation remedy under the
Eleventh Amendment. Eleventh Amendment immunity is not an
impediment to judicial action whenever the protection of funda
mental constitutional rights is involved.
Respondents Ronald Bradley, etal. have not sought to enjoin
any Michigan statute of statewide application on the ground that
such statute is unconstitutional. For this reason a three judge
court is not required.
19
I.
THE STATUS OF SCHOOL DISTRICTS UNDER MICH
IGAN LAW, AS INSTRUMENTALITIES OF THE STATE,
WITH RESPONSIBILITY FOR EDUCATION VESTED
SOLELY IN THE STATE, MAKES THE STATE RESPON
SIBLE FOR PROVIDING AN EFFECTIVE DESEGREGA
TION REMEDY.
In school segregation cases, this Honorable Court has consis
tently held that actions of local school boards are actions of the
State. Cooper v. Aaron, 358 U.S. 1, 16-17 (1958). In Michigan,
this axiom is of particular importance because, under Michigan
law, both from a legal principle and a practical standpoint, local
school districts are mere instrumentalities and agents of the State,
operating under pervasive state control.
A. The Michigan Constitutional History of State Control
Over Education.
Article HI of the Northwest Ordinance of 1787, governing the
Territory of Michigan, provided in part:
“Religion, morality and knowledge being necessary to good
government and the happiness of mankind, schools and the
means of education shall forever be encouraged.”
With this genesis, Michigan’s four Constitutions have clearly
established that the public school system in Michigan is solely a
state function, pervasively controlled by the state.
The education article of the Constitution of 1835, Article X,
provided in part:
“The Legislature shall provide for a system of common
schools . . . .” (Section 3).
“The governor shall nominate, and by and with the advice
and consent of the legislature, a joint vote, shall appoint a
superintendent of public instruction, whose duties shall be
prescribed by law.” (Section 1).
20
The education article of the Constitution of 1850, Article
XIII, provided in part:
“The legislature shall . . . provide for and establish a system
of primary schools . . . (Section 4).
“The superintendent of public instruction shall have general
supervision of public instruction, and his duties shall be pre
scribed by law.” (Section 1).
Article XIII, Section 9 of the Constitution of 1850 also pro
vided for an elected State Board of Education whose duties were
confined to “ the general supervision of the state normal schools
and its duties shall be prescribed by law.”
The education article of the Constitution of 1908, Article XI,
provided in part:
“ The legislature shall continue a system of primary
schools . . . .” (Section 9).
“A superintendent of public instruction shall be elected . . .
who shall have general supervision of public instruction in the
state. He shall be a member and secretary of the state board
of education.” (Section 2).
Thus, for the first time, Michigan provided that the Superin
tendent of Public Instruction would be elected by the voters
rather than appointed by the Governor. As in the preceding Con
stitution, Article XI, Section 6 of the 1908 Constitution con
tinued the provision for an elected State Board of Education with
limited authority, to wit: to supervise . . . “the state normal college
and the state normal schools.”
B. The Consistent Michigan Supreme Court Interpretation
That Local Districts Are Mere Instrumentalities and
Agents of the State.
In interpreting the education provisions of the Constitution
21
of 1850, the Michigan Supreme Court clearly and unequivocally
stated that “The school district is a state agency. Moreover, it is of
legislative creation__ ” Attorney General, ex rel. Kiesv. Lowrey,
131 Mich. 639, 644, 92 N.W. 289, 290 (1902). Specifically, in
Lowrey, the Michigan Supreme Court held that the legislature of
the State of Michigan properly consolidated four school districts
without a vote of the electorate in the merged school districts and
could transfer the property, as well as the students and teachers, in
those districts to the newly created consolidated district. The clear
import of the Lowrey decision and the breadth of the Constitu
tion of 1850 was recognized by Michigan Supreme Court Justice
Grant in his dissent, 131 Mich, at 652, 92 N.W. at 293:
“If this act be sustained, it must follow that the legislature
can absolutely deprive the inhabitants of these school
districts of the right to locate their sites and to control their
property for school purposes in such manner as they may
deem for their best interests, it must follow that the legislature
can make contracts for every school district in the State with
teachers, can fix the amount each district shall raise by tax,
and can determine how much each district must spend in
erecting a schoolhouse . . . .”
Again, interpreting the Constitution of 1850, the Supreme
Court of Michigan in Attorney General v. Detroit Board o f Educa
tion, 154 Mich. 584, 590, 108 N.W. 606, 609 (1908), adopted the
following trial 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 munici
pality, except so far as the legislature may choose to make it
such. The Constitution has turned the whole subject over to
the legislature
In interpreting Article XI, Section 9 of the Michigan
Constitution of 1908, the Supreme Court of Michigan held:
“Fundamentally, provision for and control of our public
school system is a State matter, delegated to and lodged in
the State legislature by the Constitution in a separate article
entirely distinct from that relating to local government. The
22
general policy of the State has been to retain control of its
school system, to be administered throughout the State
under powers independent of the local government with
which, by location and geographical boundaries, they are
necessarily closely associated and to a greater or lesser extent
authorized to co-operate. Education belongs to the State. It
is no part of the local self-government inherent in the town
ship or municipality except so far as the legislature may
choose to make it such.”
MacQueen v. City Commission o f the City o f Port Huron,
194 Mich. 328, 336, 16 N.W. 628, 629 (1916).
“We have repeatedly held that education in this State is not a
matter of local concern , but belongs to the State at large.”
Collins v. Detroit, 195 Mich. 330, 335-336,161 N.W. 905,
907 (1917).
“The legislature has entire control over the schools of the
State subject only to the provisions above referred to (/. e.
state constitutional provisions). 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 control.”
Child Welfare Society o f Flint v. Kennedy School District,
220Mich. 290, 296, 189 N.W. 1002, 1004 (1922).
Finally, pursuant to Article XI, Section 9 of the 1908
Michigan Constitution, the Supreme Court of Michigan held that
the State Board of Education could approve, without local con
sent, a partial transfer of property from one local school district to
another and in so doing stated:
“Control of our public school system is a State matter delega
ted and lodged in the State legislature by the Constitution.
The policy of the State has been to retain control of its
school system, to be administered throughout the State
under State laws by local State agencies . . . . ” Lansing School
District v. State Board o f Education, 367 Mich. 591, 595,
116 N.W.2d 866,868 (1962).
23
So ingrained is the axiom of pervasive state control of educa
tion in Michigan, with local school districts mere agents of the
state, that the Michigan Supreme Court in Lansing also held:
“We do not believe plaintiff (the school district) is a proper
party to raise the question of whether or not its residents
have the right to vote on the transfer__ Plaintiff school dis
trict is an agency of the State government and is not in a
position to attempt to attack its parent. . . Lansing School
District v. State Board o f Education, 361 Mich. 591, 600,
116N.W. 2d 866, 870(1962)
The present Constitution of the State of Michigan was
adopted in 1963. Article VIII thereof is the education article and
provides in part:
“The legislature shall maintain and support a system of free
public elementary and secondary schools as defined by law.
. . . (Section 2).
“State board o f education; duties. Leadership and general
supervision over all public education, including adult
education and instructional programs in state institutions,
except as to institutions of higher education granting bacca
laureate degrees, is vested in a state board of education. It
shall serve as the general planning and coordinating body for
all public education, including higher education, and shall
advise the legislature as to the financial requirements in con
nection therewith.
“Superintendent o f public instruction; appointment, powers,
duties. The state board of education shall appoint a superin
tendent of public instruction whose term of office shall be
determined by the board. He shall be the chairman of the
board without the right to vote, and shall be responsible for
the execution of its policies. He shall be the principal execu
tive officer of a state department of education which shall
have powers and duties provided by law. . . .” (Section 3).
The Constitutions of Michigan (1835, 1850, 1908, 1963)
clearly made elementary and secondary education in Michigan the
24
sole function of the State, controlled by the State. The first three
Constitutions of Michigan, 1835, 1850 and 1908 provided for a
Superintendent of Public Instruction who was responsible for
supervising all education in the State of Michigan. In 1835 and
1850 this Superintendent was appointed. In 1908 he was elected
as a constitutional officer.
The only change in this constitutional scheme of sole state
function and pervasive state control of education in Michigan
made by the Constitution of 1963, was to vest the State Board of
Education with the power to supervise all elementary and
secondary education in Michigan and to appoint the Superinten
dent of Public Instruction as its chief administrative officer. 2
Constitutional Convention Official Record 3396 (1961).
Consistent with its past decisions in interpreting the educa
tional article of Michigan’s previous Constitution, the Michigan
Supreme Court, in interpreting Article VIII, Section 3, of the
1963 Constitution, stated in a “per curiam” opinion:
“It is the responsibility of the State board of education to
supervise the system of free public schools set up by the legis
lature . . . . ” Welling v. Livonia Board o f Education, 382 Mich.
620, 624, 171 N.W. 2d 545, 546 (1969).
The concurring opinion spelled out the change from the
Constitution of 1908 to the Constitution of 1963 as it described
the transfer of authority over the school system from the legis
lature to the State Board of Education:
“By the Constitution of 1963 . . . the framers proposed and
the people adopted a new policy for administration of the
system. Now the State Board of Education . . . is armed and
charged exclusively with the power and responsiblity of
administering the public school system which the legislature
has set up and now maintains pursuant to Section 2 of the
Eighth Article. By Section 3 of the same Article, the board
has been directed - not by the legislature but by the people
- to lead and superintend the system and become, exclu
sively, the administrative policy-maker thereof... .” 382
Mich, at 625, 171 N.W. 2d at 546-547.
25
Thus, the Michigan Supreme Court has consistently inter
preted all education articles in all of Michigan’s four Constitutions
as meaning that, in Michigan, education is solely a state function,
pervasively controlled by the State and that local school districts
are mere administrative conveniences or agents of the State.
This very Court recognized this cardinal axiom of Michigan
School law when it, too, affirmed the right of the State Legislature
to consolidate four Michigan school districts and transfer the pro
perty thereof, without vote of the citizens. Attorney General ex
rel. Kiesv. Lowrey, 199 U.S. 233 (1905) affirming 131 Mich. 639,
92 N.W. 298 (1902). i 1!
Nor is this axiom of Michigan law a judicial fantasy of the
Courts. A study prepared for the 1961 Michigan Constitutional
Convention, [2] entitled “Elementary and Secondary Education
and the Michigan Constitution,” noted that Michigan’s first consti
tutional article on education resulted in:
“ . . . the establishment of a state system of education in con
trast to a series of local school systems.” Michigan Constitu
tional Convention Studies, at 1 (1961).
And it is noted that having this background, the Constitu
tional Convention of 1961 did not change the Michigan Consti
tution on this point, but only reinforced the legal concept and
practice of pervasive state control of education in Michigan.
C. The Practical Examples of Pervasive State-Control In
cluding State Control of Day-to-Day Operations.
Though the Michigan Legislature has established local school
districts, these districts are mere agents and instrumentalities of
the state, as evidenced by the pervasive state control in many
areas, including their existence; their finances; their day-to-day
operations. 1 *
11 ‘ Discussed at page 21, supra.
(21 The work of the 1961 Convention resulted in the adoption of the Con
stitution of 1963.
26
1. Consolidations, Mergers and Annexations: The pervasive
control of the State of Michigan over its agents (the local school
districts) is illustrated by the long and currently accelerating his
tory of school district consolidations, mergers and annexations in
Michigan. In 1912 the state had 7,362 local school districts. As of
June, 1972, the number of local districts had been reduced by
deliberate state policy to 608. t 3l Ann. Reports, 1970-71, Michi
gan Department of Education, at 17; Michigan Department of
Education, Michigan Educational Statistics, at 15 (Dec. 1972).
In Michigan, the Superintendent of Public Instruction and
the State Board of Education can and have consolidated and
merged school districts without the consent of the merged school
districts and without the consent of the electors in the districts
involved, transferring both property and students to the receiving
district. 14 - Here are some examples where school district consoli
dations have been ordered by the State of Michigan without the
vote of the electorate:
(a) Four districts in Hillsdale county were merged pursuant
to Local Act 315, Mich. Pub. Acts of 1901 as approved
in Attorney General ex rel. Kies v. Lowrey, 131 Mich.
639, 92 N.W. 289 (1902), a ff’d, 199 U.S. 233 (1905).
(b) The Sumpter school district in Wayne County (the
county in which the Detroit school district is located)
was dissolved in 1968 by action of the State Board of
Education and its schools, property and students were
divided among four other school districts in three dif
ferent counties, to wit: Wayne County, Washtenaw
County and Monroe County. Minutes of State Board of
Education, January 9, 1968; Act 239, Mich. Pub. Acts
of 1967 (M.C.L.A. §388.71 1 et seq.).
(c) in 1969, the Nankin Mills School District in Wayne
County was eliminated by the State Board of Education
131 Just during the period 1964-68, 700 school districts had been abol
ished. Michigan Department of Education, Michigan Educational Statistics
(Dec. 1972)
[4] phis, of course, is in addition to mergers, consolidations and annexa
tions by local voter consent (MCLA §340.341 et seq).
27
and its property, schools, students and teachers were
divided between the Wayne and Livonia School District.
Both districts are in the current desegregation zone.
Minutes of State Board of Education, April 23, 1969. Act
239, Mich. Pub. Acts of 1967 (M.C.L.A. § 388.711, et
seq.
In the last four years the State Legislature has passed legisla
tion providing the emergency financial relief to nearly bankrupt
school districts on the condition that if the districts did not abide
by the terms of the special legislation they would be merged with
other school districts, without local vote, by the State Board of
Education. These districts were:
(a) Inkster school district in Wayne County, Act 32, Mich.
Pub. Acts of 1968 (M.C.L.A. §388.201 et seq. ).
(b) Baldwin school district in northern Michigan, Act 255,
Mich. Pub. Acts of 1972, (M.C.L.A. §388.211 et seq.).
(c) Harper Woods school district in Wayne County adjacent
to Detroit, Act 12, Mich. Pub. Acts of 1973 (M.C.L.A.
§388.251 et seq.).
Whether the mergers and consolidations are permissive (vote
of the electorate) or mandatory (without vote of the electorate),
the extensive mergers and consolidations in Michigan, including
the recent mandatory mergers in Wayne County, Michigan, estab
lish that the local districts are mere instrumentalities and agents of
the state whose existence can be altered or destroyed by its crea
tor, the state of Michigan. There is no greater control. This clearly
establishes that, at least in Michigan, school district boundary lines
are not sacrosanct. 2
2. Political Boundary Lines. With some exceptions, Detroit
being the most notable, school district lines in Michigan do not
follow either county or municipal boundary lines. For example a
number of Petitioner school districts cross municipal boundary
28
lines, and several cross county lines.I51
3. The Transfer o f Property. The Michigan view that local
school districts are state agents, pervasively controlled by the
State, is no better illustrated than by the State’s frequent transfer
of property and students without local consent.
The School Code of 1955 authorizes the transfer of property
between school districts. M.C.L.A. §§340.461-468. Petitions for
such transfers are made to the intermediate school boards, but the
statute explicitly provides that the State Board of Education shall
act as an appellate body having final authority to confirm, modify,
or set aside orders for the transfer of property from one district to
another. M.C.L.A. §§340.467, §388.1010(c). By its own count,
the State Board of Education has acted to approve or reject trans
fers involving “hundreds of parcels of land” affecting the geo
graphic composition of local school districts in Michigan. Minutes
of the State Board of Education, Oct. 15, 1969, 191. Available
statistics show that during 1969-70, for example, 45 property
transfer hearings were held and that during 1970-71, 32 property
transfer hearings were held. Michigan Department of Education,
Ann. Report, 1969-70, at 42; Michigan Department of Education,
Ann. Report, 1970-71, at 17. Each of these decisions by the State
Board of Education involves a determination whether boundary
lines of a local school district shall be altered, and each decision is
finalized at the state level by the state agency.
When hearing property transfer appeals, the State Board of
Education has frequently overruled the decisions made at the local
level. For example, on June 24, 1970, the State Board of Educa-
[51 At least the following Petitioner school districts are not coterminous
with political boundary lines of any municipality or county, to wit: Brandon
Schools, Cherry Hill School District, Chippewa Valley Public School District,
Crestwood School District, Dearborn Heights School District No. 7, Flat Rock
Community Schools, Lakeshore Public Schools, Lakeview Public Schools, the
Lamphere Schools, Melvindale-North Allen Park School District, Allen Park
Public Schools, School District of North Dearborn Heights, Oxford Area
Community Schools, Redford Union School District No. 1, Richmond Com
munity Schools, South Lake Schools, Warren Consolidated Schools, Warren-
Woods Public Schools, Wayne-Westland Community Schools, Grosse Pointe
Public Schools.
29
tion transferred certain property from the Benton Harbor City
School District to the Coloma Public School District. The record
shows that this decision of the State Board of Education was made
even though both the Benton Harbor Board of Education and the
Berrien Intermediate Board of Education had recommended that
the property not be transferred. Minutes of the State Board of
Education, Feb. 10, 1971.
This power to transfer property on the part of the State
Board of Education, even over the objection of the local school
board, has been affirmed by the Michigan Supreme Court. Lansing
School District v. State Board o f Education, 367 Mich. 591, 116
N.W. 2d 866 (1962). The power of the State Board is so absolute
that the Michigan Supreme Court has also recognized that there
are no appeals from the decision of the State Board of Education
to transfer property from one local school district to another.
Imlay Township District v. State Board o f Education, 359 Mich.
478, 102 N.W. 2d 720 (1960).
In short, under Michigan law local districts must do what the
State orders them to do.
4. The State’s Absolute Power o f Local Board Removal and
To Compel Action. The state control of education in Michigan is
further evidenced by the ultimate authority of the State Board of
Education and the State Superintendent of Public Instruction over
local school boards:
A. Power o f Removal—
The Superintendent of Public Instruction and the State
Board of Education have the power to remove from
office any member of the school board who refuses or
neglects to discharge any of the duties of his office.
M.C.L.A. §340.253.
B. Power to Compel—
The State Board of Education has a statutory duty and
the power to compel local school board officers to com
ply with all laws relating to schools and to refrain from
constitutional violations. M.C.L.A. §340.252. Thus, the
State Board of Education is authorized to seek man
damus relief in the courts to compel boards of educa
tion to perform their clear legal duties. Johnson v.
Gibson, 240 Mich. 515, 215 N.W. 333 (1927).
30
C. Power to Act—
The Superintendent of Public Instruction and the State
Board of Education are obligated to do all things neces
sary to promote the welfare of the public schools and to
provide proper educational facilities for the youth of
the state. M.C.L.A. §340.252.
5. State Financing. The State of Michigan pervasively con
trols education by contributing an average of 34% of the operating
budgets of the 54 school districts included in the original metro
politan desegregation plan. In eleven of the 54 districts such con
tributions exceed 50% and in eight more they exceed 40%. ^
State aid is appropriated from the General Fund revenues raised
through statewide taxation and is distributed annually through the
local school districts under a formula devised by the Legislature.
See e.g., Act 134, Mich. Pub. Acts of 1971 (M.C.L.A. § 388.61 1).
Though the local school districts also obtain funds from the
assessment of local property, the ultimate authority in insuring
equalized property valuations throughout the State is the State
Tax Commission. M.C.L.A. §§209.101 et seq., 211.34, 211.148.
The State’s duty to equalize is required by the Michigan Con
stitution, Article IX, Section 3. This “State equalized valuation”
serves as the basis for calculating local revenue yields. See, Michi
gan State Department of Education, Ranking o f Michigan Public
High School — School Districts by Selected Financial Data, 1970
(Bulletin 1012, 1971). W
6. Withhold State Funds. The state’s pervasive control over
school finances in Michigan could be illustrated no better than by
the fact that the State Board of Education and Superintendent of
Public Instruction may withhold state aid for failure to operate
the minimum school year. M.C.L.A. §340.575. As a result, in * 7
[61 State Aid Chart, Exhibit I, infra, at 126.
[7] The Bursley Bill, Act 1, Mich. Pub. Acts of 1973 (MCLA §340.681),
alters the distribution scheme significantly. Pursuant to this enactment, Mich
igan is now on a “power equalizing system.”
3 1
1970, funds were withheld from the City of Grand Rapids School
District, t81
7. The Pervasive State Control o f Day-to-Day Operation o f
Local School Districts. Though Petitioners, Allen Park and Grosse
Pointe would assert that the local boards of education in Michigan
are operationally autonomous, this is not only misleading but
plainly erroneous under Michigan law. Specific powers of local
school district authorities relating to day-to-day management, in
terms of control, are restricted by the State as follows:
A. Local districts may hire and contract with teachers, pro
vided the provisions of statutes concerning public employees rela
tions and the provisions of statutes and rules concerning teacher
certification and teacher tenure are satisfied,
B. Local districts may determine courses of study, provided
these courses include: civics, constitutionalism, health and phy
sical education, communicable diseases, physiology and hygiene,
the humane treatment of animals and birds, and drivers’ educa
tion. DO] If sex education is taught, Department of Education
guidelines must be observed.DU
C. A local district may determine the length of its school
term, provided it conducts 180 days of student instruction per
school year, as defined by the State Board of Education, unless
permission to deviate from the rule is granted by the State Board
of Education. D2]
[81 Michigan School Board Journal (March, 1970). For Attorney General
Opinions holding that State aid may be withheld by the State Board of Edu
cation from school districts for luring uncertified teachers, defaulting on
State loans and for other reasons, jee.Op. Atty. Gen. No. 880,1949-1950 Re
port of the Attorney General 104 (January 24, 1949, Roth); No. 2333, 1955
Report of the Attorney General 561 (October 20, 1955, Kavanaugh); No.
4097, 1961-62 Report of the Attorney General 553 (October 8, 1962,
Kelley).
[91 MCLA §340.569.
DO] MCLA § §388.371,.361,.781-.782, 257.81 1 (c).
[11] MCLA § 340.789.
D2J MCLA §340.575.
32
D. A local district may arrange for the transportation of
students, but to be eligible for reimbursement from the State the
local district must have its bus routes, equipment, and drivers
approved by the State Board of Education. 1131
E. A local district may adopt only textbooks listed with the
Superintendent of Public Instruction. f14l
F. A local district may suspend or expel from school a pupil
guilty of a gross misdemeanor or persistent disobedience, provided
the local school board conforms with procedural safeguards pro
mulgated by the State Board of Education. Op. A tty. Gen. No.
4705 (July 7, 1970).
The State Board of Education, operating under its rule-
making authority, has direct control over the day-to-day conduct
of school affairs in Michigan. State statutes require a school dis
trict to conduct a minimum of 180 days of student instruction per
school year. M.C.L.A. §340.575. The State Board of Education has
determined that the 180 days shall consist of 900 clock hours in
each school year and that no school district may operate on a
reduced schedule without prior approval of the State Board of
Education. R340.14, Michigan Administrative Code, 1970-71
A.A.C.S. As shown earlier in this Brief, failure to comply with the
state requirement means a loss in state school aid to the dis
trict. t 15l During the 1970-71 school year, the State Board of
Education granted exceptions to the statutory requirement by
permitting at least 13 districts to operate on reduced schedules
without suffering a loss in state aidJ16 ̂ During the school year,
the local school boards’ administrative flexibility is further re
[131 MCLA §388.1171.
D4] MCLA §340.887(1).
See discussion regarding Grand Rapids, supra, at30-31.
[161 Minutes of the State Board of Education, Aug. 11, Aug. 25, Aug. 26,
and Nov. 24, 1970.
33
stricted by the limitations imposed by the State Board of Educa
tion as the Board enforces its rules as to state aid payments, [17 18 * * * 221
child count, US] the transportation code (including audits of
reports of routes and mileage and the qualification of school
bonds), [191 financial reports, [20] teacher certification and en
dorsement of counsellors,[21] teacher tenure, [22] drivers’ educa
tion, f23] remedial reading programs,[24 25 * * 28 29 *1 vocational educa
tion, [25] neighborhood education centers, interscholastic
athletics, [27] personality tests, [28] education of pregnant stu
dents, [29] eye protective devices, [30] and school lunches, t311
The failure of a local school board to comply with the State
Board’s rules can result in loss of state aid, special funding, loss of
accreditation or removal from office of local board members.
8. Crossing o f School District Lines. The State’s control of
education is no more evident than the way the State of Michigan
handles special education. In metropolitan Detroit alone,
numerous children are transported across school district lines for
the purposes of special education. (M.C.L.A. § § 340.330-330(a));
(also see 79a-80a).
t 1 7 l R383. 1 5 1-R383.1 56, R383.201-R388.205, R388.221-R388.235,
R 388 .25 4 -R 3 8 8 .2 5 6 , R3 8 8 .40 1-R3 8 8 .4 0 4 , R 388.41 1 -R388.416,
R388.501-R388.506, R388.551-R388.557, Michigan Administrative Code.
[18] R340.1-R340.17, Michigan Administrative Code.
[[9[ R340.351-R340.355, Michigan Administrative Code.
[201 R340.351-R340.355, Michigan Administrative Code.
[211 R390.1101-R390.1 167, R390.1301-R390.1305, Michigan Administra
tive Code.
[22] R38.71-R38.123, Michigan Administrative Code.
[231 R340.351-R340.436, R388.30TR388.339. Michigan Administrative
Code.
I24! R388.251-R388.256, Michigan Administrative Code.
[25] R395.362-R395.363, Michigan Administrative Code.
[201 R388.60TR388.604, Michigan Administrative Code.
[221 R340.89-R340.154, Michigan Administrative Code.
[28] R340.1101-R340.1 107, Michigan Administrative Code.
[29] R340.11 2TR340.1 124, Michigan Administrative Code.
[301 R340.1 301-R340.1 302, Michigan Administrative Code.
[31 ] R340.60TR340.605, Michigan Administrative Code.
34
9. State Control vis-a-vis the Detroit Board. Perhaps the
court only has to look at the experience of the Detroit Board of
Education to realize how persuasive State control is over local
school districts:
A. The State of Michigan has told the Detroit Board how to
handle its finances and what millage to levy. Act 1, Mich. Pub.
Acts of 1973 (M.C.L.A. §340.689); Act 2, Mich. Pub. Acts of
1973 (M.C.L.A. §388.1101 et seq.)
B. Prior to 1969, on five occasions, the State Legislature
changed the internal structure of the Detroit Board of Education.
Act 70, Mich. Pub. Acts of 1962; Act 233, Mich. Pub. Acts of
1869; Act 314, Mich. Pub. Acts of 1881; Act 310, Mich. Pub. Acts
of 1889; Act 251, Mich. Pub. Acts of 1913.
C. By passing Act 244, Mich. Pub. Acts of 1969, the State
Legislature told the Detroit Board that it must decentralize.
D. When the Detroit Board of Education, in a day-to-day
operation, attempted to change student attendance zones for the
purpose of integration, the State Legislature suspended the day-to-
day decision of the Detroit Board on this point. In doing so, the
State legislature also suspended the Detroit Board’s efforts at in
tegration by only busing from over-crowded schools if said busing
would further integration, and only permitting transfers if the
transfers would further integration. §12 of Act 48, Mich. Pub.
Acts of 1970 (M.C.L.A. § 388.171 et seq. ).
E. Not only did § 12 of Act 48, interfere with the day-to-day
operations of the Detroit Board, but the Act also shortened the
existing terms of elected Board members M.C.L.A. §388.171 et
seq.
References to local control and the day-to-day operation of
the school board made by Petitioners Allen Park Public Schools, et
al. and Grosse Pointe Public School System, in their Briefs ignore
the basic educational facts of life as they exist in Michigan and are
an attempt to mislead this Honorable Court. Petitioner school
districts fail to challenge the fact of pervasive state control in
Michigan, even in day-to-day matters, in primary and secondary
education, and conveniently ignore the following:
35
1. The Superintendent of Public Instruction and the State
Board of Education can remove local board members without elec
tion.
2. School districts can be consolidated without consent o f
the local electorate.
3. Property can be transferred from district to district
without consent o f the local districts.
4. School districts in many cases are not coterminous with
other political boundary lines.
5. There is massive state financial aid.
6. Statutes and State Board of Education regulations govern
many of the day-to-day operations of local schools.
This Brief only discusses Michigan school law. Although some
other states and commonwealths have similar state powers, many
do not. For example, in Virginia, the Virginia State Board of
Education does not have the power to remove local school board
members. Prior to the 1971 Virginia Constitution, the Virginia
Board of Education could designate two or more counties or cities
as a school division, but could not consolidate the school boards
of these political units without their consent. The Constitution of
Virginia, Section 132, Section 133 (1902). During this period the
Virginia Board of Education effected nine consolidations of
county districts, but the consolidations were totally ineffective
since the school boards refused to be consolidated.See, Hulihen W.
Moore, In Aid o f Public Education: An Analysis o f the Education
Article o f the Virginia Constitution o f 1971, 5 U. Richmond L. Rev.
263, 287 (1971); Report of the Commission on Constitutional
Revision, 266 (1968). Even under the 1971 Constitution, the Vir
ginia Board of Education is not given the absolute power to con
solidate. In short, neither under the old or new Constitutions of
Virginia may the Virginia Board of Education, acting alone, con
solidate several school districts into a single system under the con
trol of a single board. In Virginia the school districts are coter
minous with political boundary lines. In Virginia, the Virginia
Board of Education cannot transfer property from one district to
another district.
36
As between Michigan and Virginia there are considerable dif
ferences in the amount of state control. However, there is no
question about the pervasive state control of education in Michi
gan. The Court of Appeals for the Sixth Circuit correctly applied
Michigan school law, recognizing the pervasive state control over
elementary and secondary education in the State of Michigan.
D. Pervasive State Control Means State Responsibility for
Violations and Remedies.
The pervasive state control in Michigan has four significant
results:
1. Because of pervasive state control, state actions and in
actions have resulted in violations of the constitutional rights of
the 280,000 children of the City of Detroit.
2. The de jure actions of the Detroit Board found by the
Courts below are state actions because the Detroit Board is not
only an instrumentality and agency of the state under Michigan
law, but is a pervasively controlled state agent. The actions of the
state agent are the actions of the State, and the State is responsible
for those actions. Likewise, the actions of the State bind the
Detroit school district as well as all other districts.
3. Because there has been a finding of a constitutional viola
tion, the State has the duty and responsibility to provide a remedy
that is effective, eliminates the vestiges of segregation “root and
branch”, establishes “schools, not a White and a Negro school, just
schools,” and prevents resegregation.
4. In formulating a remedy which will effectively eliminate
unconstitutional racial isolation, the State can and must provide
for the crossing of school district lines in an urban metropolitan
area where school district lines never have been treated as
sacrosanct by the State. In fact, the State has transported students
across school district lines and has consolidated school districts for
num erous educational and financial purposes. Many of the
“Balkanized” school districts, continguous to the Detroit school
district, are operated for the administrative convenience of the
37
State. This is contrasted to typical county-wide southern school
districts, where the issue of crossing school district lines is never
reached because those states have not chosen to operate then-
urban educational systems by way of small gerrymandered school
districts.
38
II
PETITIONER SCHOOL DISTRICTS’ ALLEGATIONS THAT
THEY WERE DENIED DUE PROCESS ARE WITHOUT
MERIT.
NEITHER THE STATE OF MICHIGAN NOR ITS PO
LITICAL SUBDIVISIONS, PETITIONER SCHOOL
DISTRICTS, ARE “PERSONS” FOR THE PURPOSE
OF FIFTH AMENDMENT DUE PROCESS.
Petitioner school districts contend that their lack of parti
cipation in the de jure and Detroit-only hearings was a denial of
due process under the Fifth Amendment to the United States
Federal Constitution. The Fifth Amendment states in pertinent
part that “ [n] o person shall be . . . deprived of life, liberty, or
property, without due process of law . . . . ” A series of decisions,
however, compel the holding that this section of the Constitution
is inapplicable to Petitioner school districts since they cannot be
considered as “persons” in the context of the due process clause.
The leading case dealing with the issue of whether or not a
state or a state agency is a person entitled to Fifth Amendment
due process is South Carolina v. Katzenbach, 383 U.S. 301 (1966).
There, the state of South Carolina sought to enjoin enforcement
of the Voting Rights Act of 1965, alleging violations of the United
States Constitution. This Honorable Court held, inter alia, that:
“The word ‘person’ in the context of the Due Process
Clause of the Fifth Amendment cannot, by any reasonable
mode of interpretation, be expanded to encompass the states
of the Union, and to our knowledge this has never been done
by any court . . . nor does a State have standing as the parent
o f its citizens to invoke these constitutional provisions
against the Federal Government, the ultimate parens patria of
every American citizen.” 383 U.S. 323-24.
To further illustrate its position the Katzenbach Court cited
the following language by the highest Louisiana Court:
“The rights protected by the Fifth Amendment are in favor
of persons, no t states . . . .” International Shoe Co. v.
39
Cocreham, 246 LA. 244, 266, 164 So.2d 314, 322, n.5
(1964). 383 U.S. 324.
Lower court decisions since Katzenbach have uniformly ap
plied the “person” concept as defined in that case. In Carroll v.
Finch, 326 F. Supp. 891 (D.L. Alas. 1971), a state official at
tempted to compel release to the state of AFDC-UP funds in spite
of the state’s failure to submit a plan to the federal government. In
granting a motion to dismiss, the court, citing Katzenbach, held
“ [t] he states, as states, are not persons in the context of the due
process clause of the Fifth Amendment.” Id. at 894.
In two other federal court cases, individual states openly
acknowledged that they could not be considered as “persons”
within the context of the due process clause of the Fifth Amend
ment. Arizona v. Department o f Health, Education and Welfare,
449 F.2d 456, 478 (9th Cir. 1971); Connecticut v. Department o f
Health, Education and Welfare, 448 F.2d 209, 212 (2nd Cir.
1971). In both cases, the states rested their procedural arguments
on the Tenth Amendment to the United State Federal Constitu
tion. In Connecticut, the court denied the state’s arguments
without deciding the Tenth Amendment issue, while in Arizona the
court turned down the state’s claim stressing that the Tenth
Amendment “assuredly does not incorporate a Bill of Procedural
Rights for the states.” 449 F.2d 479.
Judge Friendly recently discussed the question of whether a
political subdivision of a state was entitled to Fifth Amendment
due process if its creator, the State, was not. Aguayo v. Richard
son, 473 F.2d 1090 (2nd Cir. 1973), cert, den' sub. nom. 42
U.S.L.W. 3406 (1974). Without deciding the issue, Judge Friendly
indicated that he leaned toward “non-person” status for cities
when he stated that “it may be difficult to see how a city can be a
‘person’ if its progenitor is not.” Id. at 1101. He spoke more
firmly on whether a political subdivision of a state could raise due
process claims on behalf of its citizens: “ [A] city would clearly
lack standing to raise due process claims (e.g.. lack of fair hearing)
relating to its citizens.” Id. at 1101. Thus it is clear that Petitioner
school districts would not be the appropriate parties to bring suit
for their citizens’ due process claims.
The Katzenbach doctrine should be applied to all political
40
subdivisions and agencies of the states as well as to the states
themselves. If not, the states could indirectly gain “person” status
by delegating their powers to a state agency or political sub
division. It is well-established in Michigan that school districts are
creatures of the State possessing only those rights and powers that
are delegated to them by the State through legislative action. I 321
Thus the Michigan legislature does not have the power to delegate
to its school districts a right it does not possess itself, namely, the
right to be a “person” for purposes of the due process clause of
the Fifth Amendment.
JOINDER OF PETITIONER SCHOOL DISTRICTS IS
NOT REQUIRED EITHER TO PROTECT THEIR IN
TERESTS OR TO PROVIDE ADEQUATE RELIEF.
Joinder of Petitioner school districts under Fed. R. Civ. P. 19
is required only if complete relief cannot be accorded among those
already parties or if Petitioner school districts claim an interest re
lating to the subject of the action and are so situated that its dis
position in their absence may, as a practical matter, impair or im
pede their ability to protect that interest. The Detroit Board of
Education contends: (i) that adequate relief may be accorded the
existing parties without the joinder of the Petitioner school dis
tricts, and (ii) that Petitioner school districts have no substantial
interest which may be impaired or impeded by their absence from
the District Court proceedings.
Although Petitioner school districts make the conclusory ar
gument that they should have been joined in the proceedings be
low, the legal analysis contained in Petitioner school districts’
briefs is conspicuously devoid of relevant desegregation cases deal
ing with the issue of joinder.
The leading case in this area is Lee v. Macon County Board
o f Education, 261 F. Supp. 458 (M.D. Ala. 1967), a ff’d 389 U.S.
215 (1967). In Macon, the District Court ordered the Alabama
State Board of Education to effectuate a statewide plan of dese
gregation involving numerous local school boards throughout the
state. It was argued by the State Defendants f-33] that the District
Court was proceeding without jurisdiction over indispensable
[32] por a discussion of the agency status of local school districts in Michigan
see, pages 19-37, supra.
[331 Alabama State Board of Education and other state officers.
41
parties, namely, the local school boards throughout Alabama. The
District Court quickly dispensed with that argument by ruling that
the Alabama State Board of Education possessed such dominant
power over the local school boards as to make the local school
boards’ presence unnecessary.
“The argument that this Court is proceeding without
jurisdiction over indispensable parties to this litigation, to-wit,
local school boards throughout the state, is not persuasive.
We are dealing here with state officials, and all we require at
this time is that those officials affirmatively exercise their
control and authority to implement a plan on a statewide
basis designed to insure a reasonable attainment of the equal
educational opportunities for all children in the state
regardless of their race.” 267 F, Supp. 479.
The District Court based its conclusion upon a thorough
analysis of the statutory powers resulting in the pervasive control
of the Alabama State Board of Education over the local school
boards:
“ . .Every public school is a state school, created by the
state, supported by the state, supervised by the state, through
state wide and local agencies, taught by teachers licensed by
the state, employed by agencies of the state.’ ” 267 F.Supp.
466 [quoting Williams v. State, 230 Alabama 395, 397, 161
So. 507, 508 (1935)].
* * *
“ The control by the State Board of Education over the local
school systems is effected and rigidly maintained through
control of . . . finances . . . . This control on the part of these
defendants over the local, boards is all pervasive: it invests in
these defendants power over school construction and consoli
dation, teachers, school transportation and other vital areas
in the operation of the public schools throughout the state.”
267 F. Supp. 475.
* * *
42
“It cannot seriously be contended that the defendants do not
have the authority and control necessary to accomplish this
result. Certainly the possibility of losing state funds for
failure to abide by and implement the minimum constitution
requirements for school desegregation which this opinion and
the accompanying decree require will, without any doubt,
effect compliance. Indeed, it is quite clear from the evidence
in this case that the local school officials will, through eco
nomic necessity if for no other reason, abide by the orders
and regulations o f these state officials. . . . ” 267 F. Supp.
478. [emphasis added] .
The District Court in Macon based its conclusion of pervasive
state control on specifically enumerated statutory powers. The
following comparative analysis shows that the same statutory
powers residing in the Alabama State Board of Education, and
cited by the District Court in Macon, are also statutorily vested in
the Michigan State Board of Education and its officers and depart
ments, all of whom were original defendants in the instant case:
STATE POWER ALABAMA MICHIGAN
1. Training and Certification
of Teachers
Title 52, . ___ M.C.L.A. §388.1010
§20
2. State Superintendent Title 52,
Executes Educational Policy §45
3. State Board, Through Super Title 52,
intendent, Exercises General
Supervision and Control
§14, 31
4. Equalization of Public School Title 52,
Facilities Throughout the State §33
5. Minimum Content of Course Title 52,
Study §17
6. Student Health and Safety Title 52,
§15
7. Provision of Vocational Title 52,
Education §451(4)
M.C.L.A. §388.1014
M.C.L.A. §388.1009
M.C.L.A. §340.251
M.C.L.A. §388.1121
M.C.L.A. §340.361-365
M.C.L.A. §388.371
M.C.L.A. §340.376
M.C.L.A. §325.51 1
M.C.L.A. §340.252
M.C.L.A. §340.623
M.C.L.A. §395.21
M.C.L.A. §395.81
M.C.L.A. §388.1161
43
STATE POWER ALABAMA MICHIGAN
8. Partial State Aid for School Title 52,
Transportation Programs and §209
Transportation Route
Approval
9. Allocation of Local School Title 52,
District Funds § §34, 47
10. Regulation and Approval Title 52,
of School Building Con- § 15
struction
11. School Consolidation
12. Site Approval
(Surveys and
Recommends)
267 F.Supp. 471
267 F.Supp. 471
M.C.L.A. §388.1001
M.C.L.A. §388.1175
M.C.L.A. §388.1101,
et. seq.
M.C.L.A. §388.851
(Final Approval by
State Board)
M.C.L.A. §340.402
(For State Bond
Approval)
M.C.L.A. §388.933
Petitioner school districts have relied heavily on the powers
and duties of the local school districts in Michigan as proof of
their autonomy and as denial of the existence of pervasive state
control. [34] a comparison of the Michigan local school district
powers and duties, specifically outlined by Petitioner school dis
tricts, t351 with Alabama local school district powers and duties
reveals that those powers and duties are virtually identical. 136]
134] grief for Petitioner The Grosse Pointe School System at 48-49; Brief
for Petitioners Allen Park Public Schools, et al., at 47-48; Brief for Amici
Curiae, Bloomfield Hills Schools District, et al., at 6-7.
135] gee footnote 34, supra.
[36]
Local School
District Power
1. Acquire Real and Personal
Property
Alabama
Title 52,
§§71, 161
2. Hire and Contract with
Personnel
Title 52,
§§86, 196
Michigan
MCLA § §340.26,
340.77,
340.113,
340.165,
340.192,
340.352
MCLA § §340.569,
340.574
44
[36] Continued
Local School
District Power Alabama Michigan
3. Levy Taxes for Operations (Election)
Title 52,
§254
MCLA §340.563
4. Borrow Against Receipts Title 52,
§243
MCLA §340.567
5. Determine Length of School
Terms
(Opening Day)
Title 52,
§89
MCLA §340.575
6. Control Admission of Non-resi
dent Students
Title 52,
§61(5)
MCLA §340.582
7. Determine Courses of Study Title 52,
§§87, 120, 186
MCLA §340.583
8. Provide Kindergarten Program Title 52,
§162
MCLA §340.584
9. Establish and Operate Voca- Title 52, MCLA §340.585
tional Schools § §385, 388,
398(1)
-
10. Offer Adult Education
Programs
(Special Schools)
Title 52,
§173
MCLA §340.586
11. Establish Attendance Areas Title 52,
§§314, 95
MCLA §340.589
12. Arrange for Transportation of
Non-resident Students
Title 52,
§61(4)
MCLA §340.591
13. Acquire .Transportation.
Equipment
Title 52,
§161(1)
MCLA §340.594
14. Receive Gifts and Bequests Title 52,
§ §71, 160
MCLA §340.605
15. Employ an Attorney Title 52,
§99
Rep. Atty. Gen.
1936-38, page 95
MCLA §340.609
16. Make Rules and Regulations
for the Operation of Schools
Title 52,
§ §73, 158, 179
MCLA §340.614
17. Cause Authorized Millage to be
Levied
Title 52,
§§246,254
MCLA §340.643(a)
18. Acquire Property by
Eminent Domain
19. Approve and Select Textbooks
20. Care and Custody of Schools
and Property
Title 52,
§ §99,168
Title 52,
§433(9 )(e)
Title 52,
§§180, 181,
72, 73
Title 52,
§ §99, 161
MCLA §340.711
et seq.
MCLA § §340.882,
340.887
MCLA §§340.578,
340.614
21. Sue or Be Sued MCLA §340.352
45
Pervasive state control was found to exist in Alabama from a
comparison of powers possessed by the State Board of Education
with those of the local school boards. The District Court in Macon
held that this pervasive state control obviated the necessity to join
the local school boards. Inasmuch as the Detroit Board of Educa
tion has shown that the educational powers present at the state
and local levels in Michigan correspond with those of Alabama, the
Macon standard would demand a denial of Petitioner school dis
tricts’ claim for relitigation of previously decided issues.
Two recent Pennsylvania school desegregation cases, Hus
bands v. Commonwealth o f Pennsylvania, 359 F. Supp. 925 (E.D.
Penn. 1973), and Hoots v. Commonwealth o f Pennsylvania, 359
F. Supp. 807 (W.D. Penn. 1973), held that surrounding school
districts, other than those deemed segregated, were not eligible for
joinder under Fed. R. Civ. P. 19 even though their composition
and boundaries could have been altered as a result of the Pennsyl
vania State Board of Education’s implementation of a court order
ed desegregation plan.
In Husbands, supra, the Pennsylvania State Board of Educa
tion, through power granted to it by the Pennsylvania Legislature,
had reorganized certain school districts. The District Court ruled
that the reorganization had resulted in de jure segregation. The
Plaintiffs 1371 sought a remedy to the de jure segregation by suing
the Commonwealth of Pennsylvania and the Pennsylvania State
Board of Education. The Pennsylvania State Defendants contend
ed that the complaint should have been dismissed for failure to join
surrounding school districts who, although not segregated, would
have participated in the remedy. The Court stated:
“The crucial question is whether these other school districts
do, in fact, claim an interest relating to the subject of the
action. There is little doubt that these school districts may
be affected by the results of this action. However, this does
not mean that they necessarily have rights cognizable under
Federal Rule of Civil Procedure 19(a)(2). . . .The districts
played no direct role in their formation and they have no
proprietary o f possessory rights therein. Nor would the ab
t 37l Black students and their parents.
46
sence of these districts prevent this court from ordering com
plete relief under Federal Rule of Civil Procedure 19 (a) (1).”
359 F. Supp. 937. [emphasis added].
In Hoots, supra, Plain tiffs 138] a[so sought a remedy for racial
segregation caused by the creation of certain local school districts.
The District Court refused to join, under Fed. R. Civ. P. 19, sur
rounding school districts who although not segregated would have
been affected by the desegregation plan. The District Court found
that the surrounding school districts were not needed to provide
adequate relief to the parties nor to protect any substantial in
terest which they might allege.
In response to the allegation that surrounding school districts
were necessary to accord complete relief, the District Court
stated:
“The absence of the surrounding school districts does not
affect the complete relief available to existing parties. The
power to draw school district boundaries rests solely with the
Commonwealth of Pennsylvania and the Pennsylvania State
Board of Education. Local School Districts have no power or
control over their own boundaries. They can be altered at
any time by the Commonwealth.” 359 F. Supp. 821.
* Hi *
“While surrounding school districts may be concerned with the
results of this litigation and even be affected by it, this does
not require their joinder under Fed. R. Civ. P. 19.” 359 F.
Supp. 821-22.
The District Court concluded that the absent school districts
had no interest to protect in the litigation.
“The surrounding school districts have no legal right to have
their existing boundaries maintained, and consequently, they
have no legal interest under provisions of Fed. R. Civ. P. 19
which can be affected by the outcome of this litigation.” 359
F. Supp. 821. [emphasis added].
* * *
[38] Black students and their parents.
47
The statutory powers vested in the Pennsylvania State Defen
dants in Husbands and Hoots are similar to those statutory powers
vested in the Michigan State Defendants in the instant case. 139]
Moreover, the statutory powers vested in Pennsylvania local school
districts are virtually identical to those statutory powers vested in
Michigan local school districts. 14°1 Given the striking parallels
between Pennsylvania and Michigan statutory arrangements, the
Husbands and Hoots holdings are direct precedent for a like hold
ing here, viz., that Petitioner school districts do not have a sub
stantial interest in the proceedings below, neither are they neces
sary for relief.
In another school desegregation case, Evans v. Buchanan, 256
F. 2d 688 (3rd Cir. 1958), the Delaware State Superintendent of
Public Instruction and the Delaware State Board of Education
sought to avoid an injunction which ordered them to develop a
plan of desegregation for the Delaware School System. They ar
gued that the State Board of Education was without power to
force the local school boards to comply with a court ordered
remedy.
[39] The state of Michigan has the power to draw school district bound
aries as does the Commonwealth of Pennsylvania. In addition, M.C.L.A.
§388.71 1 gives the Michigan State Board of Education ultimate control over
alteration of local school district boundaries. For the District Courts’ discus
sion of Pennsylvania State powers see Husbands v. Commonwealth o f Penn
sylvania, 359 F. Supp. 925, 937 (E.D. Penn. 1973) and Hoots v. Common
wealth o f Pennsylvania, 359 F. Supp. 807, 811-12 (W.D. Penn. 1973). For a
general discussion of Michigan State powers, see pages 19-37, supra.
[40] Local School
District Power Pennsylvania
1. Acquire Real and Personal
Personal
Title 24,
§ §7-703,
8-801
2. Hire and Contract with
Personnel
3. Levy Taxes for Operations
4. Borrow Against Receipts
5. Determine Length of School
Terms
6. Control Admission of Non-resi
dent students
Title 24,
§ 11-1121
Title 24,
§5-507
Title 24,
§6-640
Title 24,
§15-1504(a)
Title 24,
§ §13-1313,
13-1316
Michigan
MCLA § §340.26,
340.77,
340.113,
340.165,
340.192,
340.352
MCLA § §340.569,
340.574
MCLA §340.563
MCLA §340.567
MCLA §340.575
MCLA §340.582
48
The Third Circuit found this argument inapposite to Dela
ware School law. The Court based its opinion on general powers
and duties t41 J residing in the State Board of Education and the
State Superintendent, instead of relying upon a step-by-step out
line of specific powers which would provide a formal remedy. The
Delaware State Defendant’s general controlling powers, in and of
themselves, convinced the Court that the Delaware State Defen
dants could provide the remedy requested.
[401 Continued
Local School
District Power Pennsylvania Michigan
7. Determine Courses of Study Title 24,
§15-3512
MCLA §340.583
8. Provide Kindergarten Program Title 24,
§5-503
MCLA §340.584
9. Establish and Operate Title 24, MCLA §340.585
Vocational Schools §18-1806
10. Offer Adult Education Title 24, MCLA §340.586
Programs §§19-1902,
19-1922
11. Establish Attendance Areas Title 24,
§13-1310
MCLA §340.589
12. Arrange for Transporation of Title 24, MCLA §340.591
Non-resident Students §13-1364
13. Acquire Transportation Title 24, MCLA §340.594
Equipment § §13-1361,
13-1363
14. Receive Gifts and Bequests Title 24,
§2-216
MCLA §340.605
1 5. Employ an Attorney Cf Title 24,
§2-213
MCLA §340.609
16. Make Rules and Regulations Title 24, MCLA §340.614
for the Operations of Schools §5-510
17. Cause Authorized Millage to be Title 24, MCLA § 340.643(a)
Levied § §6-652, 6-672
18. Acquire Property by Eminent Title 24, MCLA §340.711
Domain §§7-703, 7-721 et seq.
19. Approve and Select Textbooks Title 24, MCLA §§340.882,
§ §8-801,8-803 340.887
20. Care and Custody of Schools Title 24, MCLA §§340.578,
and Property §7-701 340.614
21. Sue or be Sued Title 24,
§2-213
MCLA §340.352
[411 E.g., the power to determine the educational policies of the state, the
authority to adopt rules and regulations for the administration of the public
school system, the duty to provide a uniform equal and effective system of
public schools throughout the state, general control and supervision over the
public schools of the state, and the power to decide all controversies and dis
putes involving the administration of the public school system. 256 F.2d
693-94.
49
As was seen in the earlier analysis of Macon and on pages
19-37, supra, the Michigan State Board of Education and its
officers and departments possess general powers of supervision and
control similar to those of the Delaware State Defendants in
Evans. Moreover, the Michigan State Board of Education and its
officers and departments possess certain specific powers which
would insure compliance with a court ordered state implemented
plan of desegregation.
One such specific power is the power of the Michigan State
Board of Education and the Department of Education, in conjunc
tion with the Michigan State Treasurer, to disburse or withhold
state aid to the local school districts.^2} The Michigan Legisla
ture has established a system of distributing state aid whereby the
State Board of Education promulgates rules and regulations as to
the proper amount of funding local school districts should re
ceive. 143] The Michigan Department of Education collects infor
mational returns from the local school districts in order to ascer
tain the amount to be disbursed to each individual school dis
trict. [44] if the submitted return is defective, the Department of
Education will make an apportionment on the basis of any evi
dence that is available to it. [45]
Upon the Department of Education’s determination of the
amount of state aid allocable to the local school boards, a state
ment of amount is prepared by the Department of Education for
each local school district and is delivered to the State Treas
urer. [461 The State Treasurer then prepares a warrant for the
amount stated in favor of the individual school district. This war
rant is then delivered to the individual school district treas
urer. [471 Except for special allotments, the categories on which
state aid may be expended by school districts are limited to the
following: the payment of teachers’ salaries, tuition, transpor
tation, lighting, heating and ventilation, water service, and the
purchase of textbooks or other supplies, t* 43 * * 46 * 48! In addition, no more
t42 ] MCLA §388.1 101 et seq.
[43] MCLA §388.1 107.
[441 MCLA §388.1 1 13.
[451 MCLA §388.1 114.
[46] MCLA §388.1 1 17.
[471 MCLA §388.1117.
[4§] MCLA §388.1 118.
50
than five percent of state aid may be expended on capital costs or
debt service, [49] In this regard, the Department of Education is
entrusted with the responsibility of determining the reason
ableness of the above expenditures. 150] In the event that the
Department of Education finds an unreasonable expenditure of
state aid, it may withhold from any local school district the appor
tionment otherwise due for the fiscal year following discovery of
the violation, t49 50 51! Thus, the steady flow of funds from the State
Treasury to the local school districts depends upon compliance by
the local school districts with rules promulgated by the State
Board of Education, and upon standards of reasonable spending as
determined by the Department of Education.
The power of the State Board of Education and Department
of Education to funnel state aid to the local school districts is
identical with the all important “power of the purse” discussed in
Macon:
“It cannot seriously be contended that the Defendants did
not have the authority and control necessary to accomplish
this result. Certainly the possibility of losing state funds for
failure to abide by and implement the minimum constitu
tional requirements for school desegregation which this opin
ion and the accompanying decree require will, without any
doubt, effect compliance.” 267 F.Supp. 478.
If the Michigan State Defendants in the instant case are or
dered to promulgate a metropolitan plan of desegregation, they
could effectively compel Petitioner school districts’ compliance by
suspending state aid to defiant local school districts. Without state
aid many defiant local school districts would approach insol
vency t52! since there is a limit on the amount of millage they can
levy.f 531 Compliance with the State Board of Education’s dese
gregation mandate would ensue, or defiant districts would find
themselves in the position of having to borrow funds. Before a
Michigan local school district can borrow funds, it must obtain the
[49] M
[50] Id
[511 Id.
[521 State Aid Chart, Exhibit I, infra, at 126.
[53] MCLA §21 1.203.
51
approval of the Department of Education, t54! The District Court
could order the Department of Education to disapprove all bor
rowing by any local school district which refuses to comply with
the court ordered plan of desegregation. This would block any
defiant school district from obtaining alternative external funds to
replace suspended state aid payments^55!
Should the District Court approve a metropolitan desegrega
tion remedy requiring school bussing, the Michigan Legislature has
provided yet another tool by which the Department of Education
could effectuate the remedy. Under M.C.L.A. § 388.1171, the
State will pay up to 75% of the actual cost of transporting pupils
who live farther than one and one-half miles from school. How
ever, this allotment is contingent upon the Department of Edu
cation’s approval of the bus route. If a local school board refuses to
alter its bus routes in accordance with a state imposed plan of
desegregation, the Department of Education could disapprove all
alternative bus routes, thus suspending the local school district’s
state transportation funds.
Perhaps the greatest power to effectuate a remedy resides
with the State Superintendent of Public Instruction. M.C.L.A. §
340.253 provides that the State Superintendent may remove any
local board member who...“shall persistently and without sufficient
cause refuse or neglect to discharge any of the duties of his
office.” Those duties could be interpreted to include compliance
with a court ordered state imposed plan of desegregation. t56l
Persistent refusal to comply with the court ordered remedy by any
local school board could result in that board’s dismissal.
In the words of the District Court for the Western District of
Michigan:
“The State Board of Education and the Superintendent
of Public Instruction have ample administrative and judicial
l 54! MCLA §388.1234.
[55] ■j-jjg s tat e Board of Education has the additional power to reorganize a
school district which is insolvent and indebted to the State. State Board of
Education action in such cases is final MCLA §388.71 1 et. seq.
[$61 Cf MCLA §340.355.
52
process to compel compliance with the mandates of the
Fourteenth Amendment and the Constitution of the State of
Michigan to secure equal protection of law and equal educa
tional opportunity for Black children, or for any children,
who may be denied such educational opportunities by reason
of their religion, race, creed, color or national origin.” Oliver
v. Kalamazoo Board o f Education, Civ. No. K-88-71 C.A.
(W.D. Mich., filed October 4, 1973) Slip Op. 86.
THE COURTS BELOW ACTED IN A MANNER
WHICH WOULD AVOID UNNECESSARY DELAY
AND STILL PROTECT ANY COGNIZABLE IN
TEREST OF PETITIONER SCHOOL DISTRICTS
Petitioner school districts contend that they have been de
nied due process by the District Court, and are being denied such
under the conditions of remand imposed by the Sixth Circuit.
Before addressing the legal issues involved, a review of the chronol
ogy of events before the District Court will clearly demonstrate
that the claim denial of due process in this litigation is the result,
for the most part, not of the conduct of the District Court, but of
Petitioner school districts’ own acts and omissions during the
course of the proceedings below.
A. Chronology of Trial Court Proceedings Surrounding Pe
titioner School Districts’ Intervention.
On September 27, 1971, the District Court rendered its find
ings of Fact and Conclusions of Law on the issue of acts of de jure
segregation committed by the State of Michigan and the Detroit
Board of Education. Bradley v. Milliken, 338 F. Supp. 582 (E.D.
Mich. 1971). On October 4, 1971, the District Court ordered the
Detroit Board of Education to submit, within sixty days, Detroit-
only plans for desegregation of the Detroit public schools and
further ordered all other parties to submit, within one hundred
and twenty days, metropolitan plans of desegregation. A written
order to that effect was entered by the District Court on Novem
ber 5, 1971. (Ia3).
As had all prior aspects of the litigation, the findings and the
order of the District Court received widespread news media cover
53
age throughout the Detroit metropolitan area and the State of
Michigan.(571 Yet it was not until February 10, 1972 (Ia4), three
months after the District Court’s November 5, 1971 order, that
any Petitioner school district filed a motion for intervention under
Fed. R. Civ. P. 24. 158] On the following Monday, February 14,
1972, the District Court promptly noticed the motions then
pending for a hearing on February 22, 1972. (Ia4). Within four
days of the issuance of that notice Petitioners Allen Park Public
Schools, et al., [59] Southfield Public Schools and Royal Oak
School District filed similar motions to intervene. (Ia4-5).
The speed with which these school districts responded to the
District Court’s notice is indicative of the close scrutiny given to
every phase of the proceedings below by suburban school districts
throughout the Detroit metropolitan area. Petitioner school dis
tricts forebore earlier attempts to intervene on the issue of segrega
tion because of a realization on their part that their alleged inter
est in the proceedings below did not materialize until metropolitan
plans of desegregation had been filed by Petitioners William G.
Milliken, et As was stated by Petitioners Allen Park Public
Schools, etal., in their “Brief In Support Of Motion To Intervene,”
dated February 16, 1972:
“ . . . Certain of these plans, if adopted and implemented by
order of this Court, would substantially and materially affect
Intervenors by virtue of the effect of said plans upon the
responsiblity of said Intervenors for the education of the
pupils within their respective school districts and the expen
diture of funds in connection therewith. Page 3.
* * * 57 * 59 60
[57] As evidence of the general public’s awareness of the proceedings in this
litigation, a motion to intervene was filed on December 2, 1972 by Kerry and
Coleen Green, et al. representing a class of school children residing in and
attending suburban school districts. (Ia4).
[581 The first motion was that of Petitioner Grosse Pointe Public School
System on, February 10, 1972. (Ia4).
[59] Representing some forty suburban school districts.
[60] Certain suburban school districts have refrained entirely from inter
vening in this action. Instead they have sought direct relief from the Sixth
Circuit and this Honorable Court so as to circumvent the powers exercised by
the District Court in implementing an effective desegregation plan. Bloom
field Hills School District v. Roth; West Bloomfield Hills School District v.
Roth; and, Birmingham School District v. Roth, 410 U.S. 954 (1973).
54
“Whether an application for intervention is timely is a matter
committed to the sound discretion of the Court, (citations
om itted). At the outset of the instant proceeding and
throughout the hearings on the issue of de jure segregation
within the City of Detroit School District there was no indi
cation that the proceeding would affect the rights and inter
ests of Intervenors and no grounds or occasion for their seek
ing leave to intervene.
“With the very recent submission of so-called Metropolitan
Plans of Desegregation for consideration by the Court, which
plans would affect Intervenors, it is essential that Intervenors’
interests be adequately represented by their presence in the
proceedings. No hearings have been held with respect to the
plans recently submitted to the Court and none of the exist
ing parties to the litigation will be harmed or prejudiced by
the admission of Intervenors to the proceedings.” [citation
omitted]. Pages 4-5.
Thus, the above statement concedes that Petitioner school
districts had no interest to protect prior to the District Court’s
request for submission of metropolitan plans of desegregation.
The hearing on all motions for intervention filed by Peti
tioner school districts was held, as scheduled, on February 22,
1972. At that time the District Court also informed all parties and
movants, through their counsel then assembled in open court, that
the hearings on Detroit-only desegregation remedies were
scheduled to commence on March 14, 1972. (Ia5). A decision on
the motions to intervene was deferred pending submission of
reasonably specific desegregation plans to the District Court. (Ia5).
On March 7, 1972, the District Court formally n o t i f i e d a l l
parties and movants that:
“ 1. Hearing on desegregation intra-city plans will proceed,
beginning at 10:00 a.m., Tuesday, March 14, 1972.
“2. Recommendations for ‘conditions’ of intervention to be
submitted not later than 10:00 a.m., March 14, 1972. 61
[61] The proof Of Mailing, dated March 6, 1972, indicates that such notice
was sent to counsel of record for all parties and movants for intervention,
(lal 99-200).
55
“3. Briefs on propriety of metropolitan remedy to be submit
ted not later than March 22, 1972.
“4. Tentatively and unless the Court rules otherwise, hear
ings on metropolitan remedy to commence 10:00 a.m.,
March 28, 1972.” (Ia203).
Although petitioner school districts were fully aware, as of
February 22, 1972, of the scheduled hearings on Detroit-only de
segregation remedies, commencing March 14, 1972, no recommen
dations for conditions of intervention were filed by them until
March 14, 1972. [92] (ia5). Evidently petitioner school districts
felt no compunction to respond affirmatively prior to that dead
line.
On March 15, 1972 the order granting Petitioner school dis
tricts the right to intervene was filed and entered on the docket.
(Ia6). The hearings on Detroit-only desegregation plans began on
March 14, 1972 and continued through March 21, 1972. (Ia5-6).
Petitioner school districts failed and/or refused to participate in
the hearings on Detroit-only desegregation plans, under the con
ditions of intervention. No action in response to the conditions of
intervention was taken by Petitioner school districts until March 21,
1972, the final day of the hearings on the appropriateness of
Detroit-only desegregation remedies. (Ia6). At that time Petitioner
school districts filed objections to the conditions of intervention
imposed upon them by the District Court. (Ia6-7) 163] Petitioner
school districts made their first appearance at the District Court
hearings as intervenors on April 4, 1972, the first day of hearings 62 63
[62] See, letter of counsel for Petitioner Grosse Pointe Public School
System, dated March 13, 1972, filed of record on March 14, 1972. (la
201-0 2 ).
[63] indeed, Southfield Public Schools did not file its objections to the
conditions of intervention unti\ April 4, 19 72. (Ia 7).
56
on metropolitan desegregation remedies. (Ia7). f
The Sixth Circuit has vacated the District Court’s “Ruling on
Propriety of Considering a Metropolitan Remedy to Accomplish
Desegregation of the Public Schools of Detroit” dated March 24,
1972 and the District Court’s “Ruling on Desegregation Area and
Development of Plan” dated June 14, 1972. In addition, Peti
tioner school districts have been joined under Fed. R. Civ. P. 19
and have been permitted to offer additional evidence, and to cross-
examine available witnesses who previously have testified on the
above issues. 165] As to the matters contained in its “Ruling on
Issue of Segregation” dated September 27, 1971, and its “Finding
of Fact and Conclusions of Law on Detroit-Only Plans of Deseg
regation,” dated March 28, 1972, the District Court is not re
quired to receive any additional evidence. The Sixth Circuit ruled
that the finding of de jure segregation in the Detroit School
System and the finding of the inadequacy of the Detroit-only
plans were “supported by substantial evidence.” (178a). 64 65
[64] Petitioner school districts also contend that the speed with which the
District Court proceeded during the remedial stages of the litigation pre
vented them from adequately preparing for meaningful participation during
the period involved. As the textual chronology indicates, from the date of the
filing of the Complaint in this action by Respondents Ronald Bradley, et al,
on August 19, 1970 (la 1) until the period during which the District Court
was involved in hearings to determine a meaningful desegregation remedy in
March and April 1972, one complete school year had elapsed and a second
was nearing its completion. The District Court had been instructed, quite
early in the litigation, by the Sixth Circuit, to proceed as expeditiously as
possible. Bradley v. Milliken, 438 F.2d 945 (6th Cir. 1971). Once a violation
was found, it was the duty of the District Court to move as expeditiously as
possible to remedy the constitutional enfringement of the rights of Res
pondents, Ronald Bradley, et al., and yet keep the disruption of the educa
tional process at a minimum by formulating and implementing a desegrega
tion plan prior to the start of a particular school year.
[65] u n(jer Fed. R. Civ. P .21, which modifies joinder powers under Fed. R.
Civ. P. 19, “ [pjarties may be dropped or added by order of the Court . . . at
any stage of the action on such terms as are just.” Thus the Sixth Circuit had
the procedural authority to join Petitioner school districts after the Detroit-
only hearings, if in fact, those Petitioner school districts were even entitled to
joinder.
57
B. By Their Own Admission Petitioner School Districts
Had No Substantial Interest in the D e Jure Hearings and
Could Have Made No Contribution to Them.
The Sixth Circuit has upheld the District Court ruling on the
finding of de jure segregation in the Detroit School System. At the
trial and on appeal, the Detroit Board of Education and the Michi
gan State Defendants vigorously defended against the allegations of
de jure segregation. The Detroit Board of Education and the Mich
igan State Defendants, both accused of de jure segregation, fully
utilized all information and witnesses necessary to adequately de
fend on that issue. Yet both the District Court and the Sixth Cir
cuit concluded that the finding of de jure segregation in the
Detroit School System was “supported by substantial evidence”.
(178a).
Petitioner school districts now allege that they should have
been joined as parties defendant for proper adjudication of the
issue of de jure segregation in the Detroit School System. They
raise this objection in spite of evidence which substantiates their
previous intent not to litigate this issue at the trial court level. For
example, Petitioner Grosse Pointe Public School System, in a letter
to the District Court dated March 13, 1972 (la 201-02), stated:
“2) It is not the intention of The Grosse Pointe Public School
System to reopen any matters previously adjudicated by the
Court except as the same may directly affect the interests of
The Grosse Pointe Public School System. Specifically, we do
not wish to litigate the question o f de jure segregation in the
Detroit Public School System. We intend to approach this
litigation in a positive and constructive manner and to
minimize any administrative problems which may be created
by the addition o f a number o f additional counsel to the
proceedings. ” [emphasis added].
This desire was proper since the Grosse Pointe Public School
System could have added nothing to those hearings. Petitioners
Allen Park Public Schools, et al., made a similar admission in their
“Brief In Support Of Motion To Intervene,” dated February 16,
1972:
“ . . . At the outset of the instant proceeding and throughout
the hearings on the issue of de jure segregation within the
58
City of Detroit School District there was no indication that
the proceeding would affect the rights and interests of Inter-
venors and no grounds or occasion for their seeking leave to
intervene.” Page 4.
Thus, at the time of their intervention Petitioner school dis
tricts conceded that the de jure hearings were properly conducted
without their presence.
Petitioner school districts now seek relitigation of the issue of
de jure segregation in the Detroit School System. Yet in their
Briefs before this Honorable Court, none of them indicate what
new information they would provide on that issue. Moreover,
none of them have delineated their objections to evidence already
introduced in the de jure hearings. This conspicuous omission,
coupled with Petitioner school districts’ previous admissions,
clearly indicates that their purpose for de novo hearing of the issue
of de jure segregation is to delay an effective remedy for segrega
tion and not to protect a substantial interest.
C. As Evidenced By Their Voluntary Refusal To Participate As
Intervenors, Petitioner School Districts Had No Substantial
Interest in the Detroit-only Hearings and Could Have Made
No Contribution To Them.
The Sixth Circuit has upheld the District Court ruling on the
inadequacy of a Detroit-only remedy. Petitioner school districts
now allege that the conditions of intervention imposed by the
District Court were too severe and that they should have been
joined as parties defendant, instead of intervenors, during the
Detroit-only hearings. The Detroit Board of Education contends,
however, that Petitioner school districts are estopped from alleging
any denial of due process as a result of their own voluntary inac
tion at the Detroit-only hearings.
Reference to the conditions of intervention ultimately im
posed by the District Court, dated and filed March 15, 1972,
(Ia205-07) t66l indicates that the District Court’s order was in
[66] xhe conditions limited petitioner school districts to questions which
directly affected their interests, (la 205-07), but also assured that such inter
vention would “minimize any administrative problems which may be created
by the addition of a number of additional counsel to the proceedings.” (Ia
202) See n. 62, supra.
59
substantial conformity with the conditions of intervention initially
acceded to by Petitioner school districts. [67] More pertinent,
however, is the fact that the Sixth Circuit ruling exactly parallels
the request made by Petitioner Grosse Pointe Public School
System in its letter of March 13, 1972:
“ 1) The Grosse Pointe Public School System has sought in
tervention for two principal reasons, which are:
a) To participate in the litigation of the question of the
legal propriety of the implementation of a metropolitan
plan for the desegregation of the School System of the
City of Detroit which would directly involve The Grosse
Pointe Public School System,
b) to offer objections, modifications or alternatives to
metropolitan plans of desegregation presented to the Court
by other parties; insofar as such plans affect the interests
of The Grosse Pointe Public School System.” (Ia 201-02).
As we have already shown, Petitioner school districts volun
tarily chose not to participate as intervenors in the Detroit-only
proceedings. Moreover, their objections to the conditions of inter
vention were not filed until March 21, 22 and April 4,1972,
(Ia6-7), several days after the District Court’s ruling and order
granting intervention (March 15, 1972) and several days after the
start of hearings on Detroit-only desegregation plans. Had Peti
tioner school districts truly been concerned with the claimed
denial of due process resulting from the conditions of intervention
imposed by the District Court, a prompt response to the ruling
and immediate participation in the Detroit-only proceedings
would have been appropriate. Instead, Petitioner school districts
did not participate at all until the hearings on metropolitan plans
and they did not take any further action on their objections to the 67 68
[67] It should be noted that until the District Court found that a Detroit-
only plan was inadequate, the defendants present at the Detroit-only hearings
were sufficient to provide a remedy. Had a Detroit-only remedy been deter
mined as sufficient, the Michigan State Defendants and the Detroit Board of
Education could have provided a complete remedy to the segregated condi
tions without any input from the surrounding school districts.
[68] See, n. 63, supra.
60
District Court’s conditions of the intervention.
From the record, it is clear that several prominent expert wit
nesses testified at the Detroit-only hearings. (IVa 1-140). Petitioner
school districts have not indicated what additional relevant evi
dence they could add to the Detroit-only hearings. Most likely
they would have supplied more witnesses to rediscuss the same
sociological theories and research already presented to the District
Court. This fact, coupled with Petitioner school districts’ volun
tary refusal to participate in the Detroit-only hearings as inter-
venors, supports the Sixth Circuit’s decision. Relitigation of the
Detroit-only hearings would only result in the indefinite delay of
an effective remedy for segregation in the Detroit school district.
D. The Federal Courts Are Loath To Reopen Complex Liti
gation Where Such Action Would Lead To Delay and the
Waste of Judicial Resources.
Petitioner school districts now ask this Honorable Court to
overburden the District Court and the previous parties hereto with
de novo litigation on issues for which the Petitioner school dis
tricts are unable to add any substantial information. In several
cases the federal courts have denied joinder under Fed. R. Civ. P.
19 where the effect of such joinder would nullify prior proceed
ings — an outcome which petitioner school districts presently
seek, t69 70^
[69] por example, no interim appeal, either as of right, under Rule 4 of the
Federal Rules of Appellate Procedure, or by permission, under Rule 5 of the
Federal Rules of Appellate Procedure, was taken or even attempted by Peti
tioner school districts. In fact, no further action was taken with regard to the
conditions of intervention until the appeal to the Sixth Circuit, granted on
July 20, 1972.
t 7°J Fed. R. Civ. P. 19 was rewritten in 1966 to enable the trial court to
shape a decree providing the maximum remedy which the facts permit and
the public interest demands without infringing upon substantial interests of
absent persons. Fed. R. Civ. P. 19 is not to be interpreted in a formalistic
manner but rather in a way which provides substantial justice after a prag
matic analysis of the facts of each case. Cohn, The New Federal Rules of
Civil Procedure, 54 Geo. L.J. 1204, 1206-07 (1966); Provident Tradesmens
Bank & Trust Co. v. Patterson, 390 U.S. 102, 116 n. 12 (1968).
6 1
In Fair Housing Development Fund Corp. v. Burke, 55
F.R.D. 414 (E.D. N.Y. 1972), a lawsuit alleging racially restrictive
zoning in the Town of Oyster Bay, Long Island, the District Court
refused to join certain villages (and their respective Mayors) which
were situated within the geographic boundaries of the Town of
Oyster Bay. The court emphasized that the zoning powers of the
Town had been properly delegated to the Town Board by the
State of New York (as the State of Michigan has delegated broad
educational powers to the Michigan State Board of Education) and
that the proposed village defendants were not necessary for full
relief. In addition, the court pointed out that,
“. . . an enormous amount of pretrial discovery has been un
dertaken, independent research and investigation have been
conducted, and several procedural issues have been litigated.
An enormous amount of legal energy has been expended on
issues between the present parties, and only after a year’s
work have the issues begun to be narrowed and defined. To
join the proposed defendants at this state of the case would
be unwise.
* * *
“The trial and date o f ultimate resolution o f the issues o f
fundamental importance involved in this case would be post
poned indefinitely. The addition of the proposed defendants
at this state of the case would, therefore, unnecessarily delay
the resolution of the case and unduly prejudice the present
defendants in their present posture of preparation.” 55
F.R.D. 420. [Citations and footnote omitted, emphasis
added].
In the instant case, relitigation of the issues of de jure segre
gation and the inadequacy of the Detroit-only remedy would
waste nearly four years of preparation and trial comprising fourty-
six days of trial hearings, six thousand pages of trial transcript and
extensive pre-trial discovery. In Barr Rubber Products Co. v. Sun
Rubber Co., 277 F. Supp. 484 (S.D. N.Y. 1967), 279 F. Supp. 49
(S.D. N.Y. 1968), 425 F. 2d 1114 (2nd Cir. 1970), cert denied
400 U.S. 878 (1970) the District Court denied plaintiffs request
to join two additional parties and the Second Circuit affirmed that
decision focusing on the problems inherent in the delay and reliti
gation of complex law suits:
62
. . [T] he denial of Barr’s motion to join two additional
parties after four and one half years and six thousand pages
of deposition testimony was not an abuse of discretion. To
rule otherwise would have opened up a ‘Pandora’s box' of
discovery, further protracting an already unduly distended
case.” 425 F.2d 1127.
In another case, Benger Laboratories Ltd. v.R. K. Laws Co.,
24 F.R.D. 450 (E.D. Penn. 1959) the District Court granted a
motion to join two additional parties on the proviso that they
would be bound by all previous discovery and would not seek to
discover evidence relating to issues which had been covered by
previous discovery. The court was cognizant of the inherent delay
caused by permitting a party to be joined with full privileges to
litigate and prepare the case from the beginning:
“Normally, the court benefits from joining all possible liti
gants in a single suit to prevent a multiplicity of actions.
There is a point in the proceedings, however, when the bene
fit derived from such a joinder is out weighed by the effect of
a postponement of a final decision in the matter at the elev
enth hour” . 24 F.R.D. 452, n.2.
Thus we see that the courts have been reluctant to permit the
de novo expenditure of judicial resources by reopening discovery
or litigation of previously decided issues. Nevertheless, Petitioner
school districts now propose a complete retroactive rehearing of
all issues in the instant case. This would involve a trial with nearly
100 defendants, each represented by counsel, the vast majority of
whom would be interested in delaying the proceedings as long as
possible so that an effective remedy could be postponed indef
initely. I711
Petitioner school districts purport to request Such hearings in
spite of the fact that two triers of fact — the District Court and
the Sixth Circuit — have concluded that de jure segregation existed
in the Detroit School System and that a Detroit-only remedy is
inadequate. Rule 1 of the Federal Rules of Civil Procedure states
t 71I Such a result could set a precedent for other urban school district
desegregation cases where all outlying suburban school districts are joined and
are permitted to overburden and delay the litigation for the purpose of pro
longing an ultimate remedy.
6 3
that the public interest requires a “just, speedy, and inexpensive
determination of every action”. This statement of policy in con
junction with the Brown I 1̂21 requirement of “all deliberate
speed” in the elimination of segregated school conditions man
dates the denial of Petitioner school districts’ demand for rehear
ing.
As has been pointed out, Petitioner school districts’ interest
in the instant litigation was aroused when the possibility of a
metropolitan remedy was first enunciated. The Sixth Circuit has
vacated the District Court decision on the propriety of a metro
politan remedy thus permitting Petitioner school districts to parti
cipate fully in hearings on the propriety of such a remedy, [72 731 a
remedy which it is their common goal to defeat or delay inde
[72] Brown v. Board o f Education o f Topeka, 347 U.S. 483 (1954).
[731 The Sixth Circuit ruling parallels the court’s decision in Bradley v.
School Board o f the City o f Richmond, 51 F.R.D. 139 (D.C, Va. 1970). In
Richmond, an HEW plan for Richmond-only desegregation was determined to
be inadequate by the District Court. After that determination, the suburban
county school districts were joined as parties defendant in subsequent remedy
hearings involving consolidation of the Richmond school district with the
surrounding suburban school districts. The suburban school districts were not
permitted to relitigate the issue of de jure segregation or the inadequacy of
the HEW Richmond-only plan. Thus, both the Richmond court and the
Bradley v. Milliken court have concluded that joinder of surrounding school
districts is not necessary, either to protect the interests of those school dis
tricts or to provide a remedy, until a city-only remedy has been determined
to be inadequate.
In another school desegregation case, Higgins v. Board o f Education o f
the City o f Grand Rapids, (W.D. Mich. (A 6386), Slip Op., July 18, 1973,
Judge Engel joined the suburban school districts under Fed. R. Civ. P. 19 at
the very beginning of the litigation. It must be pointed out that Judge Engel
made this decision after the concept of a metropolitan remedy for urban
school district segregation had been publicized through the instant case and
through the Richmond case. At the time the instant case began, Judge Roth
would have been extremely clairvoyant had he predicted that a metropolitan
remedy was necessary. See, supra , at 54.
Along these lines it is noteworthy that Petitioner school districts were
aware of the Detroit desegregation case from its inception. Yet they chose
not to intervene from the beginning of the case, nor did they choose to act as
amici curiae during the early Detroit de jure hearings. This was not so in
Higgins where the surburban school districts took an immediate interest in
the litigation, the apparent cause of that interest being the publicized use of a
metropolitan remedy in other urban school district desegregation cases.
64
finitely. Yet by allowing Petitioner school districts to participate
fully in hearings on the propriety of a metropolitan remedy the
Sixth Circuit has only partially satisfied them. They now ask this
Honorable Court to sacrifice the public interest in providing an
adequate and speedy solution to the reality of segregation in the
nation’s fifth largest school district so that Petitioner school dis
tricts may go through the delay and meaningless formality of
walking down the same path that the preceding defendants have
already traveled.
65
III.
THE STATE OF MICHIGAN THROUGH ITS ACTIONS
AND INACTIONS HAS COMMITTED DE JURE ACTS OF
SEGREGATION, THE NATURAL, FORESEEABLE, AND
PROBABLE CONSEQUENCES OF WHICH HAVE FOSTER
ED A CURRENT CONDITION OF SEGREGATION
THROUGHOUT THE DETROIT METROPOLITAN COM
MUNITY.
Petitioners William G. Milliken, et al., contend before this
Honorable Court that the findings of the District Court and of the
Court of Appeals for the Sixth Circuit with regard to Petitioners’
de jure acts of segregation are erroneous. Petitioners have been ac
corded three hearings on this issue, the first being before the Dis
trict Court, the second before a three-judge panel in the Court of
Appeals for the Sixth Circuit, and the third, an en banc rehearing in
that Court, thus clearly falling within the “two Court rule.” [74]
Yet, Petitioners maintain that these findings are not supported by
the evidence.
Petitioners are attempting to play the “old shell game” with
this Honorable Court and with the constitutional rights of Re
spondents Ronald Bradley, et al. in isolating the specific findings of
segregatory conduct on the part of individuals, from the entire
pattern of events created by the interaction of all State defendants
in this litigation. Each action by the State, when viewed out of the
context of that pattern of conduct, arguably might not support a
finding of a constitutional violation in this litigation. However, in
school desegregation cases segregatory intent may be shown by a
course of conduct, the natural and foreseeable consequences of
which, result in a current condition of segregation. 1751
THE VIOLATIONS.
A. The Transportation of Black Children From the Carver
School District.
Petitioners suggest that the transportation of black students
from the Carver school district under a contractual arrangement
Rehnquist J., (dissenting), Key es v. School District No. I, Denver, Colo
rado, 413 U.S. 189, 264 (1973).
Keyes, supra.
66
with the Detroit school district, could not have occurred with the
approval, tacit or express, of the State Board of Education. The
basis of this contention is that the State Board of Education could
not have had knowledge of this action, for the simple reason that
even the Superintendent of the Detroit school district was un
aware of it. There is no direct evidence in the record to substanti
ate the fact that the then Superintendent of the Detroit school
district was not informed of the busing of the Carver school dis
trict students past a closer all white high school to a black high
school. The only statement in support of this is the hearsay testi
mony of Dr. Norman Drachler. t76 ̂Thus, it is impossible to deter
mine whether Dr. Drachler’s statements regarding the knowledge
or lack of knowledge of his predecessor in office are in fact cor
rect.
Secondly, whether in fact the then Superintendent of the
Detroit school district had personal knowledge of the Carver trans
portation arrangement is totally irrelevant to the issue of the State
Board of Education’s awareness of it. The State Board of Educa
tion has comprehensive statutory powers over contractual arrange
ments between school districts in enrolling non-resident pupils on
a tuition basis. These include the certification of the number of
non-resident pupils enrolled, the districts in which such pupils
reside, the amount of tuition charged and any other pertinent
information; t77) the review of transportation routes and dis
tances; t78 ̂and disbursement of transportation funds to the local
school districts involved. I79l With supervisory control over the
contractual arrangements and the allocation and disbursement of
funds, it is inconceivable that the State Board of Education would
be unaware of the racial characteristics and the arrangements of
the local school districts involved.
The Carver school district was a black district, located in the
western portion of Royal Oak Township immediately adjacent to
the Oak Park school district. I80! Reference to a map of these
school districts t81l clearly illustrates that the distance between the
[?61 (Va 186).
I77] MCLA §388.629.
[781 MCLA §340.600.
[791 MCLA §§388.621; 388.643.
[80] Brief of Petitioner Grosse Pointe Public School System at 30, n. 57..
t8 * 1 See, Plate Number 2, infra at 1 16.
67
Oak Park school district and the Carver school district was less
than that between the Carver school district and the nearest white
high school, Mumford, in the Detroit school district. The distance
to the black Detroit high school, Northern, is even greater. Thus,
the conclusion that the State Board of Education knew and under
stood the significance of the Carver school district transportation
is inescapable. Its approval of this arrangement directly involved
the State Board of Education in discriminatory acts extending
across school district boundaries.
B. Allocation of Transportation Funds.
Petitioners suggest that the de jure acts of segregation found
to have been committed as a result of the allocation of transpor
tation funds by the State of Michigan are improper, in light of this
Honorable Court’s recent decision in R o d r i g u e The provision
of transportation funds solely to rural districts was held in that
case to have been a rational non-suspect classification. Many of the
Michigan suburban school districts, including Petitioner school dis
tricts have been eligible for disbursements from the State Trans
portation Aid Act fund since its enactment in 1955J 83 841 The
applicability of Rodriquez in this cause is highly questionable, for
the urban-rural classification bears little relationship to the true
nature of the school districts eligible for transportation aid under
that Act. Their eligiblity was established, despite the fact that
many of these suburban school districts either were at the time of
enactment, highly urbanized communities or have since become
so.
Thus, although these suburban school districts do not precise
ly fall within the categorization of “rural” , they continue to
receive transportation aid reimbursement from the State of Michi
gan.
Secondly, the State Transportation Aid Act provides for
reimbursement or urban intra-city transportation costs if a parti
cular bus route necessitates the crossing of a city or village line in
reaching the public school within the same school district to which
children are a s s i g n e d . I t is difficult to discern any rationale
[®21 San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973)
183] Now MCLA §388.1 171,formerly MCLA §388.621.
[84] MCLA §388.1171 (f).
68
whatsoever for the intra-city transportation allowed under that
provision of the Act when in-city transportation reimbursement is
denied if the bus route does not happen to cross a city or village
line regardless of distance to the public school.
Few of the school districts, other than the Detroit school dis
trict, in Wayne, Oakland, and Macomb county bear any relation
ship to municipal boundary lines. Thus, it is questionable whether
the exception to intra-city transportation aid reimbursement has
any basis other than to discriminate against those school districts
whose boundary lines happen to coincide with a municipal bound
ary line. The Michigan Legislature subsequently amended the Act
to permit reimbursement for intra-city transportation J 85l The
change in the law was totally illusory for the reason that the Legis
lature failed to fund it adequately to cover the additional school
districts made eligible by the amendment.
The State Board of Education was required to disburse the
existing funds only to the eligible school districts already receiving
funds for transportation. t86l The Legislature did subsequently
provide some funding for the intra-city transportation. However, it
was a negligble amount, in comparison to the total transportation
funding authorized under the State Transportation Aid Act. f871
In enacting amendments to the Transportation Aid Act, des
pite the fact that intra-city transportation was partially funded,
the Michigan Legislature evidenced further probably segregatory
intent by inserting a clause prohibiting allocations of funds for
“any cross busing to achieve a racial balance of students within a
school district or districts.” t88^
Petitioner Grosse Pointe Public School System suggests that
the State Transportation Aid Act had no discriminatory motive or
intent, because of the fact that the Grosse Pointe Public School
System, a virtually all white school district, also was denied any
allocation of funds for pupil transportation. !891 However, Peti
t85l MCLA §388.1171.
I86! (Ilia 31-32) (MCLA §388.1171)
[87] Act 101, §77, Mich. Pub. Acts of 1973, amending MCLA § 388.1 177
[88] MCLA §388.1 179. A similar provision was included in the Compensa
tory Education Provisions for student transportation. MCLA §388.1 139.
[891 Brief 0f petitioner Grosse Pointe Public School System, at 27.
69
tioner Grosse Pointe Public School System’s need for transporta
tion aid “during the ‘so-called’ critical years” was nowhere near
as great as that of the Detroit school district.
Transportation is provided by the Detroit school district at
the elementary school level if there exists physical dangers to stu
dents in reaching their schools. These physical hazards include:
railroads, rivers, major thoroughfares, and, in some cases, antag
onism from white residents living in an area through which black
children had to pass on the way to their assigned schools.!9°! At
the junior and senior high school level, transportation aid was also
provided to parents of school students living at the outermost edg
es of school attendance areas, who met certain indigency require
ments. !91! However, one of the major expenditures of the De
troit school district involved the transportation of some 2,000 to
3,000 students per year for purposes of relieving overcrowding of
schools. All of these expenditures for transportation were made
from the general operating fund of the Detroit school district.!92!
Petitioner Grosse Pointe Public School System, however, has
no such transportation requirements. Other than transportation of
special education students, no transportation costs are incurred by
the Grosse Pointe Public School System. In fact, of the 13,529
students enrolled in the Grosse Pointe school district in 1971, only
1,200 utilized public transportation facilities at their own expen
se.!93! it is quite evident that the Grosse Pointe school district
did not evidence a comparable need for transportation aid. Despite
the fact that the denial of transportation aid has application to a
few other white suburban school districts, it is apparent that the
primary intended effect of the Transportation Aid Act was to dis
criminate against the Detroit school district, and promote further
disparity in school district financing. The denial of transportation
aid to the Detroit school district necessitated the allocation of its
general operating funds to its non-state funded transportation
program. Thereby placing a greater tax burden on its residents,
with little or marginal improvement in the delivery of educational
services by the Detroit school district for each dollar expended.
!9°! (R. 2825).
t91! (R. 2817).
!92! (R. 2825-2827).
!93! (fa 255-57).
70
On the other hand, those suburban school districts eligible
for transportation aid could allocate a greater percentage of their
general operating funds to the delivery of educational services for
each dollar of tax revenue raised. Thus, the claimed rational classi
fication scheme of the Transportation Aid Act, when applied to
the Detroit metropolitan area, had the effect of promoting finan
cial inequalities between the Detroit school district and the subur
ban school districts. The fact that extreme disparities exist in the
racial characteristics of the Detroit school district and the subur
ban school districts, as well, clearly illustrates the suspect nature
of the claimed “rational” classification of the Transportation Aid
Act in its application to the Detroit metropolitan area. These con
sequences were obviously foreseeable by the State of Michigan.
C. School Construction And Site Selection
1. Site Selection.
Petitioners contend that the supervisory powers over site se
lection in the State of Michigan (found by the Court of Appeals to
have “fostered segregation throughout the Detroit Metropolitan
A re a ” ) [94] are limited to ensuring that such school construction
conforms to health and safety regulations. However, Petitioners
William G. Milliken, et al., admit in their brief that specific powers
over site selection and school construction were vested in the Su
perintendent of Public Instruction at least from 1949 to
1962.1* 95' Thus, the State of Michigan did have direct control
over school construction and site selection by local school districts
in Michigan.
It is further contended that there is no relationship between
the sites approved and reviewed by the Superintendent of Public
Instruction during the aforementioned period and the school con
struction relied upon by the lower Courts in finding de jure segre
gation, for the reason that such construction occurred on and after
1962. However, it must be borne in mind that, as was stated by
194] (i57a).
[95] Brief of Petitioner William G. Milliken, et al. at 34.
71
Deputy Superintendent Arthur Johnson, before the District Court,
during the hearings on the issue of segregation, . . .we still live
with the results of discriminatory practices.” t96 * *l Despite the fact
that the actual construction of schools may have commenced and
been completed subsequent to the relevant period of direct con
trol over site selection by the Superintendent of Public Instruc
tion, there is evidence that site selection in the Detroit school dis
trict occurred, in many instances, several years before construction
was actually commenced on those sites. ["1
As a result, it is conceivable and probably that many of the
site selection decisions made by the Detroit school district,
relating to school construction after 1962, had in fact been
directly reviewed by the Superintendent of Public Instruction,
under relevant statutory authorization.
Nevertheless, subsequent directives, policy statements, and
reports issued and promulgated by the State Board of Education
subsequent to 1962 (the date as of which the explicit statutory
grant of control to the Superintendent of Public Instruction was
amended), indicate that the State Board of Education deemed itself
to be a repository of that same power by implication.
In 1966, the State Board of Education, in conjunction with
the Michigan Civil Rights Commission, issued a Joint Policy State
ment which required that:
“Local school boards must consider the factor of racial bal
ance 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 integration.”
This policy was reaffirmed in the State Board of Education’s
School Plant Planning Handbook which was promulgated under
[96] (Ilia 229).
(R. 2844; .2961).
[98 ] (145a).
72
the penumbra of powers delegated to the State Board of Educa
tion in the aforementioned “health and safety” statute:
“Care in site location must be taken if a serious transporta
tion problem exists or if housing patterns in an area would
result in a school largely segregated on racial, ethnic, or socio
economic lines.” ["1
Although Petitioners William G. Milliken, et al. contend that
these policy statements were merely “admonitions” to local
school districts, and not legally enforceable rules, the argument
loses much vitality when one considers that the language utilized
therein, by insertion of the word “must” , suggests a directive
rather than a mere admonition.
The State Board of Education has further stated in its Annual
Report of 197011 °°j that its powers in reviewing school construc
tion plans and site selection includes educational and financial
evaluations of the proposals.
If in fact the State Board of Education does not have direct
supervision and control over site selection and school construc
tion, other than to assure health and safety standards as the rele
vant legislation imports on its face, what possible explanation can
be given for the issuance of the foregoing statements and direc
tives? The promulgation of fatuous platitudes by a state agency
exercising, at the very minimum, supervisory powers, if not actual
authority to control education in the State of Michigan becomes
all the more invidious, when it involves the fundamental consti-
tutional rights of the school children of the State of Michigan. * 100
t " l (145a)
[100] ^ nn Report, Michigan Department of Education, (1970) at p. 17:
“The Department of Education is required by law to approve plans for
all public and non-public school construction and to approve private oc
cupational schools and private boarding schools.
“ Short-range goals for this program would include the educational eval
uation of all public and non-public school buildings of this state, a deter
mination of present and feasible school building needs for all public
school districts, and a determination of financial ability of all public
school districts to meet their present and feasible school building needs.”
73
Petitioners also contend that, because the “health and
safety” statute mandated no directives to “maximize integration”,
there was no duty on the part of the State Superintendent of Pub
lic Instruction to take that factor into consideration in exercising
the power of approval and review of site selection. There is no
constitutional duty to “maximize integration”, t1011 However,
Petitioners totally misconstrue their obligations in the exercise of
powers under state statutes. Regardless of the characterization of a
particular statute, the State is not exculpated from acting under
that statute in an unconstitutional manner, t1021 The statutory
power to approve site selection, may not be exercised by state and
local authorities in a manner which will foster segregation through
out the Detroit Metropolitan area. A contrary result would in suite
state action, under state law, from the commands of the Constitu
tion.
Petitioners further contend that, as to site selection after the
amendatory removal of direct supervision from the Superinten
dent of Public Instruction, the “admonitions” promulgated by the
State Board of Education imposed no requirements to “maximize
integration.” Again, however, Petitioners misconstrue their obliga
tions under the Constitution. Their duty is to act in a manner not
violative of basic constitutional rights, whether such action is
based upon statute, rule, or “admonition.” Although such “ad
monitions” may impose a greater obligation upon state action
than the Constitution, they do not abrogate the duty of state offi
cers to meet minimal constitutional requirements. The fostering of
state segregation in site selection throughout the Detroit metropoli
tan area not only fails to meet the self-imposed standards of “max
imizing integration”, but also does not satisfy their obligations
under the Constitution.
[101J Cf. Bell v. City School o f Gary, 213 F. Supp. 819 (N.D. Ind.), a ff’d,
324 F.2d 209 (7th Cir. 1963), cert, denied, 377 U.S. 924 (1964).
[1021 Cf Lee v. Nyquist, 318 F. Supp. 710 (W.D.N.Y. 1970), af fd, 402
U.S. 935 (1971); Alabama v. United States, 314 F. Supp. 1319 (S.D. Ala.),
appeal dismissed, 400 U.S. 954 (1970), wherein the locally called “Freedom-
of-Choice Acts” were invalid.
74
2. School Construction
School construction in the State of Michigan is financed at
least in part through sale of municipal construction bonds, t103 ̂
The issuance and sale of these bonds must be approved by the
Municipal Finance Commission,[l°4 *l a state agency, the member
ship of which includes the Governor of the State of Michigan, the
Superintendent of Public Instruction and the Attorney General of
Michigan. G05]
Thus, Petitioners William G. Milliken, etal., exercise direct
supervisory control over the approval of all school construction in
the State of Michigan, t106 ̂ In participating as members of that
body, Petitioners cannot contend that they do so without knowl
edge of the policies enunciated by other state agencies, with re
gard to school construction and site selection. This is especially so
in the case of the Superintendent of Public Instruction who must
be assumed to have first hand knowledge of the policies, directives
and mandates of the State Board of Education with regard to
school construction and site selection. It is apparent that the very
reason for his membership on the Municipal Finance Commission
is to ensure that this knowledge will be a part of the deliberations
leading to the approval of school bonding construction proposals
by local school districts. Thus, there exists direct involvement of
this state agency and Petitioners, William G. Milliken, et al, in the
approval of school construction and site selection which “fostered
segregation through the Detroit metropolitan area.”
Secondly, the District Court held that the limitation on
bonding imposed by the State of Michigan created an inequality of
educational opportunity between the Detroit school district and
all other school districts throughout the state. f107l Petitioners sug
gest that such a finding by the District Court was improper, in
light of this Honorable Court’s recent ruling in Rodriguez, (1081 In
t 103] MCLA § §340.683-.684
f104] (Ilia 156-7).
t 105! MCLA §132.1
t 106] (Ilia 157)
[10?] (152a).
̂ ̂ San Antonio Independent School District v. Rodriguez, 411 U.S. 1
(1973).
75
equality of school district financing is not constitutionally imper
missible, if there is a rational basis for such statutory classification.
However, the imposition of a lower bonding limit by the State on
one school district in the entire State of Michigan raises a serious
question as to the rational basis of that statutory classification. As
school construction in Michigan is financed, in part, through bond
ing, with the balance made up through local tax millage efforts,
the lower limit on bonding power of the Detroit school district
had the necessary, probably and foreseeable consequence of plac
ing greater millage demands on the real property tax base of the
Detroit school district.
There is ample evidence of the fact that school construction
and site selection are considerably more costly in the Detroit
school district, than in most school districts throughout the state.
One of the major factors in that increased cost is the acquisition
and clearance of school sites. Costs of site acquisition and clear
ance were approximately $100,000 per acre in the Detroit school
district, due to the dense residential character of the neighbor
hoods in which schools were expanded and constructed. H°91
Coupled with the minimum site standards of 5-1/2 acres for ele
mentary school sites, 20 acres for junior high school sites, and 30
to 35 acres for high school sites, E110 * 112 113Hhe lower bonding limits
placed greater financial burdens on property tax millages for
school construction.
There is also ample record evidence, however, that the gen
eral operating expenses of the Detroit school district are more
costly than those of other school districts in the State of Mich
igan. I1 111 The Detroit school district is, as a result, required to and
does make higher general fund expenditure per pupil than most
of the other school districts. D12] The major factors in such in
creased expenditures for teacher salaries were the highly competi
tive recruitment of black faculty;^ 131 and the disadvantageous
[1°9 ] (R 2968).
I110! (Ilia 87-8).
I1 n l (R. 54-65 ;R. 4543-4559).
[112] Brief of Petitioner William G. Milliken, etal., at 28.
[113] Brief of Petitioner William G. Milliken, et al., p. 28-9.
76
teaching conditions in Detroit during the 1960’s, t114^
The general operating expenses of the Detroit school district
are provided by property tax millages and direct state aid. By
lowering the bonding limit in the Detroit school district, greater
burdens in meeting the higher costs of school construction and site
selection are placed upon property tax millage capabilities. On the
other hand, increased costs in general operating expenses within
the Detroit school district also place a greater burden upon prop
erty tax millage capabilities. Thus, general operating expenses
compete with school construction funding in property tax mil
lages, which when combined with a lower bonding capability in
the Detroit school district, results in forcing the local elector to
choose, at the maximum taxing effort possible, between school
construction or operating expense millages. Either choice, how
ever, will result in less value received per tax dollar expended, in
comparison to other school districts having higher bonding limits.
In those school districts, the higher bonding limit eases the burden
on school construction millages, thereby increasing the taxing level
for general operating expenses. In either event, the suburban
school districts receive greater financial benefits from this classifi
cation scheme. However, when this classification is also based
upon differing racial characteristics between the Detroit school
district and other school districts, the basis for that classification
becomes suspect. Thus, the differential in bonding limitations falls
subject to criticism similar to that raised with regard to the Trans
portation Aid Act. 11151
In summary, it is apparent that the State Board of Education
and other state officers, Petitioners herein, have built upon seg
regated housing patterns both within and without the Detroit
school district, through the exercise of supervisory powers over
site selection, school construction and bonding and the discrimina
tory application of state laws between the Detroit school district
and other local school districts.
[114] F in ings 0f Facts, 23 & 24, (3 la).
See discussion, supra p. 67-70.
77
D. The Enactment of Act 48
Further indication of the de jure acts of segregation by the
State of Michigan is embodied in Act 48, Mich. Pub. Acts of 1970,
an unambiguous demonstration of the State’s segregatory intent as
to Detroit’s schools.
Petitioners contend that there were no segregatory motiva
tions in the enactment of Act 48, but rather that it was merely an
amendatory decentralization measure. Petitioner Grosse Pointe
Public School System has attempted to characterize the enactment
of Act 48 as an act “to facilitate the mechanics of decentraliza
tion”,!1 16] because it was passed as an amendment to Act 244, Mich.
Pub. Acts of 1969, the original decentralization legislation of the
Michigan Legislature. But the factual context and the actual langu
age of Act 48 underscore its true intent.
Under the directives of Act 244, the Detroit Board of Educa
tion, in decentralizing the administration of schools into seven re
gional school districts within its borders, attempted to chart a
course of action independent of the existing policies of the State
in perpetuating a condition of segregation within the Detroit
school district. It did so by factoring in the criterion of racial in
tegration in drafting the boundary lines of the proposed regions
within its borders.! 116 1171
In addition, the Detroit Board of Education proposed and ap
proved what is now known as the April 7th Plan, a partial integra
tion plan for over half of the high schools in the district, which
was to be accomplished by redrawing attendance patterns on an
east-west, rather than on a north-south basis as had previously
existed. The April 7th Plan was poorly received by certain seg
ments of the Detroit community, resulting in the initiation of re
call petitions against several members of the Detroit Board of Edu
cation who had supported the proposal.
Before the results of the recall petitions were in, and before
the April 7th Plan could be implemented for the ensuing school
[116] g rief 0f Petitioner Grosse Pointe Public School System at 20.
!1171 See generally, Guidelines For School Decentralization, Detroit Public
Schools, Office for School Decentralization.
78
year, the Michigan Legislature enacted, and the Governor signed,
Act 48 into law. It not only re-established the basic decentraliza
tion plan of Act 244, but it also suspended implementation of the
April 7th Plan and eliminated two existing integration programs of
the Detroit school district.
Petitioners attempt to innocently characterize the Act as a
good faith administrative measure (Brief of Petitioner Grosse
Pointe Public School System at p. 21), but fail to quote that por
tion of the Act which enacted into law a mandatory neighborhood
school attendance policy with a “freedom of choice” escape provi
sion superimposed on the old north-south attendance zones:
“The implementation of any attendance provisions for
the 1970-71 school year determined by any first class school
district board shall be delayed pending the date of com
mencement of functions by the first class school district
boards established under the provisions of this amendatory
act but such provision shall not impair the right of any such
board to determine and implement prior to such date such
changes in attendance provisions as are mandated by practical
necessity. In reviewing, confirming, establishing or modifying
attendance provisions the first class school district boards es
tablished under the provisions o f this amendatory act shall
have a policy o f open enrollment and shall enable students to
attend a school o f preference but providing priority accep
tance, insofar as practicable, in cases o f insufficient school
capacity, to those students residing nearest the school and to
those students desiring to attend the school for participation
in vocationally oriented courses or other specialized curricu
lum.” Act 48, §12, Mich. Pub. Acts of 1970. [emphasis
added].
Section 12 of Act 48 had the immediate intent and avoidable
effect of preventing the desegregation of twelve of Detroit’s
twenty-one high schools. It abrogated the Detroit Board’s policy
which required that the program of transportation to relieve over
crowding in the school system be predicated upon transporting
students to the nearest school in which integration would be
79
improved.t518 ̂ The second nugatory effect of the Act was the
elimination of the Detroit Board requirement that, under the open
enrollment program, students transferring from one school to
another could only do so if the transfer would promote the inte
gration of the school to which the student was transferring to.
Faced with this mandate from the Michigan Legislature,!5191
at whose sufferance local school districts exist, the Detroit Board
of Education had no choice but to comply. The Act’s resulting
effects were clear and decisive. It eliminated existing and halted
further integration efforts within the Detroit school district. Peti
tioner Grosse Pointe Public School System, however, attempts to
blunt the obvious segregatory aspects of this enactment by sug
gesting that it was met with the virtually unanimous approval of
all members of the Michigan Legislature, both black and white.
However, as the events of the day clearly indicate, D20] that
vote was reached as a result of a compromise of a long and bitter
deadlock over the appropriate response by the Legislature to the
concern in the City of Detroit, created by the proposed April 7th
Plan.
Indeed, there is evidence that many Legislators agreed to this
compromise only because of a belief, subsequently substantiated
by the Court of Appeals for the Sixth Circuit, t118 * 120 121 * ̂ that the por
tions of the Act, namely Section 12, directed to the April 7th Plan
were clearly unconstitutional. H 221
[118] See generally W. Pindur, “ Legislative and Judicial Rules in the Detroit
School Decentralization Controversy” , 50 J. Urban Law 53 (1972).
[H 9] Mich. Const, art. VIII §2, wherein the legislature is charged with the
sole power and authority to maintain and support a system of public educa
tion.
[120] pindur, op. cit.
[121] Bradiey v Milliken, 433 F.2d 897, 904 (6th Cir. 1970), wherein it was
held that there was a sufficient causal nexus for striking down §12 as viola
tive of the Fourteenth Amendment.
[ 122] pindur, op. cit. at 66-67.
80
Despite the fact that the lower Courts found segregatory in
tent in the enactment of Act 48 and the causal nexus of the fore
seeable consequences of such action in the overt frustration of in
tegration policies, Petitioners Grosse Pointe Public Schools and
Milliken, et al., suggest that the effects were nontheless de
minimus. ■
Indeed, it is claimed that following the suspension of Section
12 of Act 48, there no longer existed a legislative mandate for the
Detroit Board of Education not to implement its proposed April
7th plan. Petitioner Grosse Pointe Public School System further
characterized the injunction of the April 7th Plan as being of ex
tremely limited duration, thereby permitting the Detroit Board of
Education ample time to reinstate the plan if it so desired.
However, this loses sight of the fact that the Detroit school
district was in the midst of a new academic year. Midyear changes
in the assignment of students to particular schools would have re
sulted in massive disruptions in the educational programs of the
students concerned.
The suspension of the proposed April 7th Plan had the rea
sonable, probable and foreseeable effect of deferring any possible
implementation of an integration plan to the 1972-73 academic
year. The Detroit Board of Education, however, proposed an alter
native plan to the District Court which it believed would accom
plished greater integration than the April 7th Plan, without arous
ing the antagonism in the community. The District Court, as
affirmed by the Court of Appeals, approved this plan as a viable
alternative. E1231 Under these circumstances, the actions of the
Detroit Board of Education were both reasonable and proper.
Petitioners further suggest that, because the enactment of
Act 48 had no discernible effect in increasing segregation within
the Detroit school district beyond that created by changing demo
graphic patterns, no constitutional violation was committed. We
submit that there is no basis in fact or in law for such a conclusory
opinion.
First, Act 48 frustrated the implementation of a desegrega
tion policy, with the resulting effect of the perpetuation of segre
[123] See Bradley v. Milliken, 438 F.2d 945 (6th Cir. 1971).
81
gated schooling for an additional academic year. Secondly, Act 48
is a clear example of the discriminatory treatment which Detroit,
as the only first class school district in the State of Michigan, is
vulnerably susceptible to under the dictates of the Legislature, i.e.,
perceptible, stigmatic, uneven treatment.
It is readily apparent that the enactment of Act 48 by the
State had the probable and necessary effect of maintaining and
perpetuating a condition of segregation in violation of the Four
teenth Amendment.
E. State Action Through Local School Districts.
Under Michigan law local school districts are mere instru
mentalities and agents of the state. U24]
Thus, actions of the state are binding on the Detroit Board
because the Detroit Board is the agent of the state. Likewise,
actions of the Detroit Board are binding on the State.
Specifically, the Courts below found that the Detroit Board
of Education: (1) maintained optional attendance zones in neigh
borhoods undergoing racial transition and between high school at
tendance areas of opposite predominate racial composition, which
had the effect of fostering segregation; (2) built, with the impri
matur of the State Board of Education and Municipal Finance
Authority, a number of schools which resulted in continued or in
creased segregation; (3) maintained feeder patterns that resulted in
segregation; and (4) bussed black pupils past or away from closer
white schools with available space, to black schools. (25a), (110a).
It is true that the Detroit Board of Education did argue in
both the District Court and in the Court of Appeals that it com
mitted no de jure acts of segregation. However, it has chosen not
to appeal the issue of violation simply because of this Court’s pro
nouncement in Keyes, coupled with the findings of the courts
below. Even if the Detroit Board committed no de jure acts it still
would be bound by the actions of the State of Michigan acting
alone.
State action is the Alpha and Omega. Whether it was the
U24] See discussion, pp. herein.
82
State of Michigan acting alone or in conjunction with its agent, the
Detroit Board, or The Detroit Board acting alone, the sum total, as
found by the Courts below is that the State, and only the State,
violated the constitutional rights of Detroit children which re
sulted in racial isolation.
In summary, from the initial participation in the Carver
school district transportation, through discrimination in transpor
tation funding, school construction and site selection approval, to
enactment of Act 48, Petitioner William G. Milliken, et al. have
participated in segregatory busing practices across school district
boundary lines, built upon segregatory housing patterns, and frus
trated integration efforts of local school officials. The discrimina
tory intent has thus been shown. A current condition of segrega
tion exists. The actions of Petitioners William G. Milliken, et al.,
had the natural foreseeable consequences of causing the current
condition of segregation. As the Courts below noted, a clearer vio
lation of constitutional rights by the State of Michigan could not
be shown.
83
IV
DETROIT-ONLY DESEGREGATION PLANS ARE NOT
CONSTITUTIONAL REMEDIES BECAUSE THEY DO NOT
ELIMINATE, “ROOT AND BRANCH,” THE VESTIGES
OF THE UNCONSTITUTIONAL DETROIT SCHOOL SEG -
REGATION.
A desegregation plan limited to the boundaries of the Detroit
school district will not desegregate a single school. It will not do
so now. It will not do so hereafter. Both the District Court and the
Court of Appeals accepted that fact after examining the best
Detroit-only plans that the plaintiffs or the Detroit Board of
Education were able to offer. H 25]
There was an excellent reason for those Courts to reach that
conclusion: A Detroit-only plan cannot eradicate the objective
vestiges of a segregated system nor can it eliminate the human
perception that the schools in Detroit are black schools.
ANY DETROIT-ONLY REMEDY WOULD LEAVE
THE DETROIT SCHOOL SYSTEM RACIALLY
IDENTIFIABLE AS BLACK THEREBY NOT RE
MOVING THE VESTIGES OF THE STATE IMPOSED
SEGREGATION.
The racial identifiability of a school system, imposed by state
action, presents a prima facie case of unconstitutional segregation
in which the vestiges of racial identifiability must be eliminated,
“root and branch.” Green v. County School Board o f New Kent
County, 391U.S.430, 435 (1968); Swann v. Chariot te-Mecklen-
berg Board o f Education, 401 U.S.l, 18 (1971); Wright v. Council
o f City o f Emporia, 407 U.S. 451,465 (1972). 125
[125] Findings of Fact and Conclusions of Law on Detroit-only Plans of
Desegregation. (53a); a ff’d, Bradley v. Milliken, 484 F.2d 21 5 (6th Cir. 1973)
(173a).
84
A Detroit-only plan will remedy nothing. The segregated con
dition is too massive and deeply rooted. After extensive reassign
ment of students, the Detroit school system will remain racially
identifiable as black, hemmed in by nearby neighboring white sub
urban school systems in a highly inter-related metropolitan com
munity bound together by common social, economic and political
spheres.
In shaping an effective remedy, this Honorable Court has
held that it is permissible for a trial judge to consider the racial
composition of the school system as a whole. Swann v. Board o f
Education, supra, at 25; North Carolina Board o f Education v.
Swann, 402 U.S. 43 (1971). The lower courts scrupulously ad
hered to this principle when they rejected a Detroit-only Plan.
The percentage of the black pupil population in Detroit rose
from 45.8% in 1961 to 64.9% in 1 9 7 1 t 126] In 1 9 7 2 , the black
pupil population rose to 67.3%.^27 ̂ And in 1973, the black pupil
population had reached 69.8%.D281 Even more illustrative of the
racial identifiability of the Detroit public school system is the fact
that as of the last federal census, the total racial population of
the City of Detroit was 55.2% white to 43.9% black (I29l and the
metropolitan student racial composition was 81% white to 19%
black.!* 130]
The District Court correctly concluded that no amount of
shuffling of Detroit pupils within the boundaries of the City of
Detroit would effectively remedy the racial identifiability caused
by de jure acts of segregation. Coupled with the fact that Detroit
is racially identifiable, is the finding of the District Court that the
implementation of any Detroit-only plan, even a 6577 - 35% black
I126] Exhibit P.C. 6 (Va 16).
Racial-Ethnic Distribution Of Students and Employees in the Detroit
Public Schools, October 1972, 3.
r i 9 0 i
1 ^ Racial-Ethnic Distribution of Students and Employees in the Detroit
Public Schools, October, 1973.
f 129] Ruling On Issue of Segregation, 338 F.Supp 582, 586 (E.D. Mich.,
1971) (2 l-22a.).
f 13°] Bradley v. Milliken, 484 F.2d 215, 250 (6th Cir. 1 973) (173a.).
85
— white assignment, would accelerate resegregation. I131 1321 it should
be noted, however, that under the existing racial composition of
the Detroit schools, a 65% — 35% plan would no longer be even
mathematically possible, much less realistically workable.
The lower courts found that the faculty racial ratios in
Detroit met the constitutional test of a balanced staff and is an
exemplary example of staff integration.1132! However, it further
emphasized the racial identifiability of the Detroit school system
in contrast to the faculties of the relevant surrounding suburban
school systems. Of the fifty-two school districts in the proposed
metropolitan remedy plan, 40 districts had less than 1% black
faculty members.!133 *! Of the same 52 districts, 47 had less than
1% black administrators.!1341
As between Detroit and the other 52 school districts, Detroit
has 86% of all black teachers and 82% of all black administrators
in the relevant metropolitan area.!135! This is true, even though
the entire Detroit system has only 34% of all teachers and 38% of
all administrators in the relevant metropolitan community.!136!
Petitioner Grosse Pointe Public School System complains that
Respondents are asserting a new constitutional right, i.e. freedom
[131] F in ings Of Fact And Conclusions Of Law On Detroit-Only Plans Of
Desegregation, Finding No. 8. (55a). The experts who testified as to a
Detroit-only plan, agreed that resegregation would ensue under a plan in
which the pupil ratio was 65% Black to 35% White. Testimony Of Dr. James
W. Guthrie; (IVa 112, 113); Dr. Betty Ritzenhein (IVa 57, 58); Dr. Gordon
Foster (IVa 88-89). The reason for the exodus of whites results from a school
passing a “tipping point” which is somewhat between 35% — 55% black.
Testimony of Dr. Betty Ritzenhein (IVa 57, 58); Testimony of Dr. James
Guthrie (IVa 109). A plan which left the Detroit schools 65% black would
obviously accelerate resegregation since the tipping point has been surpassed
by at least 10%.
[132] Ru];ng on issue 0f Segregation, 338 F. Supp 582, 590-591 (E.D. Mich,
1971) (31 -32a).
[133] P.M. 13, (Va 105-109)
[1343 id
[135] ^
!»■36! id.
86
from attending a racially identifiable school. 11371 Such an inter
pretation is patently false and misapprehends the nature of this
case. Over and above the fact that Petitioner Grosse Pointe Public
School System has chosen to blindly ignore the numerous findings
of fact and conclusions of law of the two lower courts which
found pervasive de jure segregation, its reliance on the holdings of
Spencer v. Kugler, 326 F. Supp. 1235 (D.N.J. 1971) aff’d 404
U.S. 1027 (1972); Wright v. Council o f the City o f Emporia, 407
U.S. 451 (1972); and United States v. Scotland Neck Board o f
Education, 407 U.S. 484 (1972), is inapposite.
Petitioner Grosse Pointe Public School System confuses racial
identifiability as a vestige with racial identifiability as a violation
of the Constitution. This is not a racial balance case. Rather, con
stitutional violations have been found. An effective remedy must
issue. To characterize the racial identifiability of the Detroit
school system as something other than a vestige of de jure segrega
tion runs contrary to Petitioner Grosse Pointe Public School
System’s own admonitions against confusing the remedy with the
violations - something which it has obviously done with its afore
mentioned proposition.
This misunderstanding of constitutional law is evidenced by
Petitioner Grosse Pointe Public School System’s reliance on
Spencer, supra. Spencer was a violation case that held that racial
imbalance, existing through no discriminatory action of state
authorities, did not violate the Constitution. There were neither
segregatory intent nor segregatory acts in Spencer.
In the instance case, two Federal Courts have agreed that
there was pervasive de jure segregation which has led to the racial
identifiability of the entire Detroit school system. Unlike the de
facto segregated conditions existing in Spencer, this appeal in
volves the vestige of racial identifiability caused by de jure acts of
segregation for which this Honorable Court has consistently held
an effective remedy must issue. Brown v. Board o f Education, 349
U.S. 294 (1955); Green, supra; Swann, supra; Davis v. Board o f
Commissioners o f Mobile County, 402 U.S.33 (1971); Wright,
supra.
[1371 Brief por petitioner Grosse Pointe Public School System,at page 39.
87
Additionally, Petitioners’ startling assertion that this court in
Wright, supra, and in Scotland Neck, supra, impliedly held that a
plan of desegregation limited to a predominately black school sys
tem is not insufficient to remedy constitutional violations of its
students’ rights to equal protection not only misconstrues the
factual setting of the aforementioned cases, but also misinterprets
the legal rationale employed by this Honorable Court in reaching
its decisions.
In both Wright and Scotland Neck this Court was presented
with the remedy stage of a school desegregation suit. In both cases
the desegregation area encompassed the entire student population
of a county school system, the relevant community. The racial
ratios approved in Wright and Scotland Neck reflected the entire
student population in those communities.
The lower courts in the instant case found the relevant com
munity to be the Detroit metropolitan area. A plan limited to the
hemmed-in city limits of Detroit would result in Detroit being ra
cially identifiable as a black school system within this relevant
community.
Further, the District Court in Wright received data which
showed that the county desegregation area had a racial composi
tion of 34% white and 66% black students. If the City of Emporia
had established its own splinter system the City of Emporia
schools would have 48% white and 52% black while the county
schools would have been 28% white and 72% black. This Court
determined that given the splinter district, the percentage of
whites in the county schools might be anticipated to drop due to
enrollment in private academies and the movement of whites to
the city’s school.
Thus, with the establishment of a separate Emporia City
School System, the desegregation area would not reflect the rele
vant county-wide racial ratio and would frustrate the dismantling
of the dual school system and perpetuate racial segregation. I1381
l*38i See also, United States v. Scotland Neck City Board o f Education,
supra, wherein it was held that the options to dismantle a dual school system
“must be judged according to whether it hinders or furthers the process of
school desegregation.” 407 U.S. 489.
88
The courts below employed an inverse application of the
above-quoted legal rationale in rejecting a Detroit-only remedy.
The Detroit school system was found to be a de jure segregated
system; the vestige of such segregated condition being the racial
identifiability of the system. A Detroit-only remedy would be
ineffective in converting Detroit to a unitary system for the rea
sons that the student bodies anticipated by such a plan would
leave Detroit identifiably black in contrast to the majority white
population ratio of the City of Detroit, and in greater contrast to
the overwhelmingly white population of the relevant metropolitan
area.
A DETROIT-ONLY PLAN LEADS TO RESEGREGA
TION RATHER THAN CONVERSION TO A UNI
TARY SCHOOL SYSTEM.
Petitioners, Allen Park Public Schools, et. al. and William G.
Milliken, et.al. rely solely on selected excerpts of Dr. Gordon
Foster’s testimony in support of their ill-conceived argument that
a Detroit-only plan is an effective remedy. Yet, said Petitioners fail
to inform this court that Dr. Foster’s endorsement of a Detroit-
only plan, prepared by him, was qualified by the fact that a metro
politan plan, under the circumstances o f this case, was in his
opinion a more effective plan of desegregation.
“In my opinion a metropolitan solution would certainly be a
preferable one and would offer greater stability in the long
run and more meaningful education and desegregation.” 11391
Dr. Foster’s testimony reveals that even under his own plan,
Detroit-only would not provide the greatest possible degree of
desegregation in view of the alternatives available. Green, supra, at
439; Davis, supra, at 37; Wright, supra, at 468-469.
The expert opinion of Dr. James Guthrie and Dr. Betty
Ritzenhein totally rejects any alleged effectiveness of a Detroit-
only plan to desegregate the City’s schools and assure a unitary
system now and hereafter.
[139] Xestimony of Dr. Gordon Foster (IVa 70),see also (IVa 91). In fact,
Dr. Foster now embraces a metropolitan plan of desegregation as evidenced
by his recent article, “Desegregating Urban Schools: A Review of Techni
ques,” 43 Harv. Educ. Rev. 5 (1973).
89
“Q. Dr. Guthrie, would you recommend to this Honorable
Court that it should accept this plan for the City of Detroit?
A. I would not.
Q. Would you tell the Court why?
$ ̂ ^
A. If the effort is to eliminate a segregated school system
for whatever reason, if that is the intent that it is my belief
that this will not eliminate a segregated school system, but
rather will lead only to greater segregation in the City o f
Detroit.........should such a desegregation plan be announced,
and every year thereafter when it is implemented, my predic
tion would be that the number of white persons residing in
the city of Detroit and the number of white children avail
able to attend its schools would decrease. I base that predic
tion on the behavior of whites in other desegregated situa
tions, primarily in the south, but also in the north of this
nation.
When faced with the possibility that their children will be
attending schools which have a large proportion of blacks and
whites, frequently, very frequently, they will leave.” U40]
Under these circumstances, the admonition of this court in Green,
supra, is dispositive.
“If there are reasonably available other ways. . .promising
speedier and more effective conversion to a unitary, non-
racial school system ‘freedom of choice’ must be held unac
ceptable.” Id. at 441.
In addition to failing to convert to a unitary, non-racial
school system, a Detroit-only plan will lead to an invidious,
judicially sanctioned resegregation of the Detroit school system 140
[140] Testimony of Dr. James Guthrie (IVa 111-112). Dr. Ritzenhein also
rejected Dr. Foster’s Detroit-only plan for similar reasons:
“Q. Do you believe that a plan that puts 65 percent black children and
35 percent white children in each school would desegregate Detroit?
A. It would not.
Q. Why:
A. It would result in a re-segregated situation.” (IVa 57).
90
rather than dismantling the dual nature of the schools and must be
rejected, t141 ]
Tangible proof of the futility of employing a Detroit-only
plan to remedy the massive segregated condition in Detroit schools
was the expert testimony of Dr. Guthrie relative to the well estab
lished “tipping point” concept, viz., the black-white pupil popula
tion ratio at which white students begin to leave the school sys
tem. Under the Plaintiffs’ proposed Detroit-only plan for the
1972-73 school year, the approximate theoretical racial ratio goal
would have been 65% black and 35% white studetn enrollment.
Today, however, the white student population has declined to
28% and promises to continue its downward trend. Dr. Guthrie
fixed the “tipping point” in a band where the black student popu
lation attains a percentage of between 35% and 55%. After this
tipping point is reached, the following occurs:
“. . . [s] omewhere between 35 and 55 percent black. When a
school is more than that, then somewhere in that band whites
become fearful for some rational and irrational reasons and
when can they leave.” (IVa 109).
Dr. Ritzenhein confirmed Dr. Guthrie’s “tipping point” con
cept and that there would be a decrease in white enrollment under
a Detroit-only plan, thus causing resegregation in the Detroit
school system. (IVa 57-58).
Resegregation and racial identifiability were prime reasons
for the District Court’s rejection of Detroit-only plans:
[141] jn Green, supra this Court reaffirmed that a plan must bar future
segregation:
“We bear in mind that the Court has not merely the power but the duty
to render a decree which will so far as possible eliminate the discrimina
tory effects of the past as well as bar like discrimination in the
future.” [emphasis added] 391 U.S. 433 n.4 (citing Louisiana v.
United States, 380 U.S. 145, 154 (1965)).
See also Goss v. Board o f Education, 373 U.S. 683 (1963), free transfer
provision held unacceptable; Davis, supra, free transfer plan held ineffective;
Swann, supra, pairing and geographic zoning rejected due to ineffectiveness;
Monroe v. Board o f Commissioners, 391 U.S. 450(1968), free transfer plan
rejected because of ineffectiveness.
9 1
“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.” 11421
Bluntly stated, a Detroit-only plan will assure but one result:
a judicially sanctioned segregated school system. This Honorable
Court has refused to sanction segregated school systems in the
South, why should it now do so in the North?
A DETROIT-ONLY PLAN LEAVES THE DETROIT
SCHOOL SYSTEM PERCEPTIBLY BLACK.
State-fostered racial perceptions and isolation have been a
part of school desegregation law for twenty years. These concepts
were first enunciated in Brown /, supra, when this Honorable
Court stated:
“To separate them [blacks] from others of similar age and
qualification solely because of their race generates a feeling
of inferiority as to their status in the community that may
affect their hearts and minds in a way unlikely ever to be
undone.
* * *
Segregation of white and colored children in public schools
has a detrimental effect upon the colored children. The im
pact is greater when it has the sanction of law; for the policy
of separating the races is usually interpreted as denoting the
inferiority of a negro group. A sense of inferiority affects the
motivation of a child to learn.” 347 US at 494. [emphasis
added].
In Brown I, and the sourthern school desegregation cases
which have followed, this Honorable Court has held that the
operation of black schools within (or along side of) white school
[142] Findings of Fact and Conclusions of Law on Detroit-only Plans of
Desegregation (55a).
92
systems in the relevant, community, denies equal protection of the
law.
When the perceptions of state-fostered racial separation, such
as was condemned in Brown I, appear, they must be eliminated
“root and branch.” A Detroit-only plan would be no remedy at
all. Such a plan would leave the Detroit school system with the
vestige of racial identifiability and all the invidious stigmatic con
notations attendant thereto.
It is a simple fact that Detroit is only a part of the larger
relevant metropolitan Detroit community. I143! Whether one’s index
is subjective perception or objective indicia, the community that is
centered in Detroit includes at least parts of Wayne, Oakland and
Macomb counties, which comprise the proposed metropolitan de
segregation area.
The tri-county metropolitan area has been labeled, by the
Bureau of the Census, as a Standard Metropolitan Statistical Area
largely on the basis of the high degree of interaction among the
populus of the three counties. The State of Michigan has recog
nized the interdependence of the citizens of the whole area by
establishing the Southeastern Michigan Transportation Authority
(SEMTA), and the Huron-Clinton Metropolitan Valley Authority.
There is also the Metropolitan Detroit Water System which serves
the tri-county area.
The local governments have recognized their interdependence
in creating the Southeastern Michigan Council of Governments
(SEMCOG). The various highway planners have recognized it in
developing the network of interstate highways that lead into
Detroit from all directions. And indeed the school authorities of
the State have recognized it, at least in part, by creating the Inter
mediate School Districts in each county.
Subjective perceptions coincide with these objective data.
Local residents cross political lines casually in shopping,
commuting to work, seeking recreation and seeking private or
collegiate educations. Dr. Robert Green, an expert witness,
[143] Testimony of Roger Marz (IVa 32-40).
93
testified as to these perceptions when he referred to the stream of
whites driving down the freeway from Southfield, Michigan to
Detroit in the morning rush hour and when he described how
Detroit-educated whites have fled to Oak Park, Livonia and
Bloomfield Hills, suburbs of the City of Detroit. (Ha 102-03).
This perception works both ways. For while approximately
20,000 blacks work in Warren, Michigan, a suburb of Detroit,
there are only a handful of black residents of that city. The
children of those black working families have been and are effec
tively excluded from the virtually all-white schools located with
in the city of Warren. D44] rj]iese children have been and are
effectively contained in the racially identifiable Detroit school
system.
Just as black children in a 90% black school still perceive
their school as identifiably black, even though all children in
that attendance zone go to the same school, (R. 1023-25), so
also will children in a 60%r80% black Detroit school even
though it is no different than any other school in Detroit - pre
cisely because they know there are nearby suburbs full of white
youngsters receiving educations in all-white schools.!144 145 J
Indeed, it would be a most unusual third grader of any race
who could stand on Tireman Street, a boundary line between
Dearborn, Michigan (a white suburb immediately adjacent to
Detroit which is bounded on three sides by the Detroit school
system) and Detroit and explain that a political boundary line
rather than race was the reason that the white children south of
Tireman attended a white school in Dearborn and the black chil
dren north of Tireman attended a black school in Detroit.
A child’s perception of a metropolitan community is con
ditioned by the communications media to which he is exposed
and his perception of the metropolitan community of which he
is a part.
[144] Warren High School has a black pupil population of 0.2% and
Warren Woods High School has a black pupil population of 0%. P.M. 13
(Va, 106).
[145] Testimony of Dr. James Gunthrie, (IVa 110, 111, 113, 117).
94
“In order for him to get that conception he has to have two
opposing pieces of information constantly or sometimes
crossing his mind. One set of information is that he goes to
school with children who are primarily black or lives in a
neighborhood which is primarily black, yet his picture of the
world which is presented to him by the newspapers, by tele
vision, by advertising, is that it is primarily a white world.
Yet he sees himself living in all most totally or pro
portionately black world.” (IVa 110) (Dr. Guthrie).
There is no record evidence on which to base an assumption
that the perception of the community felt by a black child in
Detroit is limited to the irregular boundaries of the Detroit School
District t146l and further limited only to the racial composition
of the students in the Detroit school system. On the contrary, it is
obvious in a community that is so inter-related between city and
suburbs that the child would be wondering why his school does
not reflect the total racial composition of the metropolitan com
munity. 1147 ̂ In response to a question placed to Dr. Guthrie
concerning the affect on a black child of moving him from a
school which had 45% black enrollment to a 75% black en
rollment, and the comfort that a child might receive in knowing
that everyone else was being treated the same, Dr. Guthrie stated:
“He would find himself in a racially-identifiable school. It’s a
black school. He must be torn between the tension of know
ing that that is a school which is a majority black and society
or the surrounding area isn’t. What is he to say to himself,
‘It’s all right that they grouped me this way. It’s all right be
cause they grouped other people that way.’ I personally don’t
find that persuasive, nor logical.
[146] -fhg sch00i districts that abut these irregular boundaries, including
Grosse Pointe and Dearborn, are gerrmandered into Detroit to such an
extent that these districts are literally on top of the black core of the
Detroit school district.
D 47] Xestimony of Dr. James Guthrie (IVa 116,107) stating that atypical
perception of Detroit is that it is a black school system, and that under a
Detroit-only plan which would have led to a 65%-35% black-white ratio in
1972-73, the schools in the system would be perceived by the child as being
black.
95
Q. How about moving a child from a 90% black school to a
75% black school? Would he find comfort in the fact —
would your answer be the same?
A. My answer would substantially be the same. If he should
find comfort in that, he would have to have an extra
ordinarily sensitively calibrated comfort meter inside o f
him, ”1148] (Emphasis added).
The percep tion o f a black child is not a perception
obtained in a vacuum. Racial identifiability, and the perceptions
condemned in Brown I, are no less invidious in Northern schools
than in Sourthern schools with a history of racially separate faci
lities. In the North, racial identifiability emerges in the context
of an urban single school system which is a part of an interre
lated metropolitan area surrounded by many Balkanized, gerry
mandered suburban school systems.
The District Court, after forty-one days of trial, found
pervasive state violations of the constitutional rights of 280,000
Detroit school children. After hearing the evidence on a Detroit-
only remedy, he reached the stark reality that any Detroit-only
plan would result in the continued racial identifiability of the
Detroit school sytem as black and would guarantee resegrega
tion. The trial judge realized that with a Detroit-only remedy he
would start with 0 and would end with 0 — no desegregation.
The District Court had no choice but to order a metro
politan remedy. 148
[148] Testimony of Dr. James Guthrie (IVa 121).
96
V
A M E T R O P O L IT A N R E M E D Y IS R E Q U IR E D T O E F
F E C T IV E L Y R E M E D Y DE JURE S E G R E G A T IO N IN T H E
D E T R O IT S C H O O L S Y S T E M
S C H O O L D IS T R IC T L IN E S M A Y N O T P R E V E N T A
C O N S T IT U T IO N A L R E M E D Y
Upon finding that no Detroit-only desegregation plan “prom
ises realistically to work and work now”, Green v. County School
Board o f New Kent County, 391 U.S. 430 (1968), the District
Court turned to the consideration of a metropolitan desegregation
plan.
The District Court had before it the phenomenon of the
Detroit school district surrounded by eighty-three relatively small
school districts whose boundaries in many cases were not cotermi
nous with any municipal boundary lines and in some cases strad
dled county lines. The Court found that many of these districts
and their white schools are time and distance-wise very dose to
the Detroit school district and Detroit schools. Seventeen school
districts are adjacent to the Detroit school district. A majority of
Petitioner school districts are within eight miles of the now exist
ing boundaries of the Detroit school district.
When the District Court ruled in favor of a metropolitan
desegregation remedy, it was simply responding to this Honorable
Court’s directive to “make every effort to achieve the greatest
possible degree of actual desegregation.” Davis v. Board of School
Commissioners o f Mobile County, 402 U.S. 33, 37 (1971).
The legal path for the cross district desegregation of school
districts (when needed) was first cleared by this Honorable Court
in the voting rights cases. Those decisions established that consti
tutional requirements supercede the importance of maintaining
state created legislative districts. Reynolds v. Sims, 377 U.S. 533
(1964); Gomillion v. Lightfoot, 364 U.S. 339 (1960).
The concept of ignoring the division lines of political units
for purposes of guaranteeing constitutional rights has been ex
tended to school districts on the rationale that school district lines
97
within a state are established for political convenience. Lee v.
Macon County Board o f Education, 448 F.2d 746, 752 (5th Cir.
1971); United States v. State o f Texas, 447 F. 2d 441 (5th Cir.
1971).
The Sixth Circuit, following the direction of this Honorable
Court, affirmed these principles in the instant case:
“We reject the contention that school district lines are sacro
sanct and that the jurisdiction of the District Court to grant
equitable relief in the present case is limited to the geographi
cal boundaries of Detroit. We reiterate that school districts
and school boards are instrumentalities of the State. See
Cooper v. Aaron, 358 U.S. 1, 16 (1958). As early as Brown //
the Supreme Court pointed out that:
‘[T]he courts may consider problems related to adminis
tration, arising from the physical condition of the school
plant, the school transportation 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, . . .’ 349 U.S. 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 Neck Board o f Educa
tion, 407 U.S. 484 (1972); Wright v. Council o f the City o f
Emporia, 407 U.S. 451 (1972). This is true regardless of
‘dominant purpose.’” Wright v. City o f Emporia, 407 U.S.
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.”
Bradley v. Milliken, 484 F.2d 215, 250 (6th Cir. 1973)
(174a).
In Michigan, because local school districts are mere instru
mentalities and the agents of the State, subject to pervasive state
control, there are no legal impediments to crossing school district
98
lines. In fact, the record reveals that Michigan now transports
students daily across district lines for purposes other than deseg
regation. 11491
The suggestion that a de jure finding must be made against
the Petitioners school districts is totally untrue. 11501 As the Courts
below clearly indicated, education in Michigan is solely a function
of the State. Local school districts are mere creatures of the State
acting as agents or instrumentalities of the State under pervasive
State control. Thus, if the Detroit Board of Education committed
de jure acts of segregation, as an agent or instrumentality of the
State, its actions constituted State action, and the State of Michi
gan is responsible for a desegregation remedy. If the State of
Michigan alone committed de jure acts of segregation, again, the
State is responsible for a desegregation remedy and may include its
political subdivisions, Petitioner School Districts, in that remedy.
In fact, the Courts below found that both the State of Michigan
and the Detroit Board of Education had committed de jure acts of
segregation.
It makes no difference what basis was used for drawing Peti
tioner school districts’ boundary lines. Those districts are an
integral part of Michigan’s system of education and when there is a
constitutional violation in that system they must become part of
the remedy. If the State of Michigan is responsible for a remedy
because of the State’s own actions, the actions of its agent Detroit
Board, or the actions of both, the State of Michigan can properly
be ordered to implement a remedy that involves the school dis
tricts within the metropolitan Detroit community. Those school
districts are State controlled agents created by the State for its
convenience. They are nothing more than the State of Michigan
itself.
There was no need for de jure acts on the part of Petitioner
school districts since the State itself had been successful, by its
t I49 l See, tesimony of Eugene Kuthy. (IVa 22), discussing cross district
transportation in Genesee County, Michigan; testimony of Harold Wagner,
Supervisor of the Pupil Transportation Section, Michigan Department of Edu
cation, (Va 202), “there are none of these boundary rules that do apply to
transportation of Special Education pupils” . See also, State Report to Judge
Roth.
1150] See, discussion pages 40-52, supra.
99
actions and inaction, in containing the majority of the black stu
dents in the metropolitan Detroit community within the Detroit
school system.
Petitioners William G. Milliken, Grosse Pointe Public School
System, Allen Park Public Schools, et al., repeatedly cite Swann v.
Chariotte-Mecklenburg Board o f Education, 402 U.S. 1 (1971), as
authority for the proposition that a remedy may not extend be
yond the limits of the Detroit school district unless constitutional
wrongs have been committed in each neighboring district. The
phrase most commonly used by Petitioners is “ [a] s with any equi
ty case, the nature of the violation determines the scope of the
remedy.” This quotation, however, is meaningless when quoted
out of context. In its proper context, it supports a position just
the opposite of that proffered by Petitioners. As this Court said in
Swann:
“School authorities are traditionally charged with broad
power to formulate and implement educational policy and
might well conclude, for example, that in order to prepare
students to live in a pluralistic society each school should
have a prescribed ratio of Negro to white students reflecting
the proportion for the district as a whole. To do this as an
educational policy is within the broad discretionary powers
of school authorities; absent a finding o f a constitutional
' violation, however, that would not be within the authority of
a federal court. As with any equity case, the nature of the
violation determines the scope of the remedy. In default by
the school authorities of their obligation to proffer accept
able remedies, a district court has broad power to fashion a
remedy that will assure a unitary school system.” [emphasis
added] 402 U.S. 16.
Once a constitutional violation has been found, then the in
gredients necessary to correct that violation are determined. Here,
serious constitutional violations by the State acting in conjunction
with, or through, its agent, Detroit Board of Education, have re
sulted in the racial isolation of 180,000 black school children
whose isolation will continue unless the State mandates the parti
cipation of its suburban school districts in a remedy. If such a
remedy is not effectuated then the State can masquerade behind
100
its State created school district lines to perpetuate segregation.
Inclusion of school districts, who have not committed de jure seg
regation, in the remedy has been consistently approved by the
Federal Courts^151 ^To suggest otherwise in the instant case would
result in the finding of a constitutional violation without a
remedy.
In context, the statement that “ [o]ne vehicle can carry only a
limited amount of baggage,” Swann, supra at 22, means that
school desegregation is to be used to eliminate a dual system and
not to deal with “myriad factors of human existence which cause
discrimination in a multitude of ways on racial, religious, or ethnic
grounds.” I152 lWe note that “the target of the cases from Brown I
to the present was the dual school system”. That is the target in
this case. A metropolitan plan is the only possible remedy that can
rectify what the Courts already have found to be a dual, state
authorized school system in Detroit.
BRADLEY v. RICHMOND DOES NOT APPLY
The Fourth Circuit’s opinion in Bradley v. School Board o f
the City o f Richmond, 462 F.2d 105 (4th Cir. 1972), a ff’d 412
U.S. 92 (1972) is neither controlling nor persuasive here. The issue
in Richmond, as stated by the Fourth Circuit, was:
“May a United States District Judge compel one of the states
of the union to reconstruct its internal government for the
purpose of achieving racial balance in the assignment of
pupils to public schools.” 462 F.2d 106.
The Fourth Circuit answered that issue in the negative based on
Virginia law and the fact that all the systems involved were uni
tary.
[151] Lee v. Macon County Board o f Education, 448 F.2d 746 (5th Cir.
1971); United States v. Texas, 330 F. Supp. 235 (E.D. Texas 1971), supp g,
321 F. Supp. 235 (E.D. Texas), a ff’d, 447 F.2d 441 (5th Cir. 1971), cert,
denied sub nom., Edgar v. United States, 404 U.S. 1016 (1972), In U.S. v.
Texas the court ordered the annexation of two districts, one all black and the
other predominantly white, to a third district, also white. Neither of the
white districts had been found guilty of maintaining de jure school systems,
but the court nevertheless required the Texas Education Agency to include
them in the remedy.
[152] Swann, supra at 22.
101
There was no constitutional violation found in Richmond. By
contrast, in the instant case the Courts below have found consti
tutional violations. Furthermore, the District Court in the instant
case did not reconstruct internal government. All the District
Court in the instant case required was reassignment of some stu
dents across existing school district lines. The District Court, as
affirmed by the Court of Appeals, only required the State of
Michigan to do what it had done for other educational purposes
not related to desegregation, viz., transporting students across
school district lines. As previously noted, a comparison of Virginia
school law with Michigan school law will clearly establish that in
Michigan school district lines are not sacrosanct and are controlled
by the State.
THE RELEVANT COMMUNITY IS THE METRO
POLITAN DETROIT COMMUNITY
The relevant community for an appropriate remedy in the
instant case is not confined to the City of Detroit, rather it com
prises the politically, socially and economically interrelated metro
politan Detroit community:
A. Many pupils in the metropolitan Detroit community al
ready cross school district lines to attend school or
receive educational services on an inter-district basis.
(79-80a).
B. The metropolitan Detroit area has been labeled by the
Bureau of the Census as a Standard Metropolitan Stati
stical Area because of the high degree of interaction
among the populace of the tri-county (Wayne, Oakland
and Macomb) area. (80a).
C. Recognizing the interdependence of its citizens, the
Detroit metropolitan community has joined together in
establishing the Metropolitan Detroit Water System.
(80a).
D. The metropolitan Detroit community has joined to
gether to establish a joint transportation system known
as the Southeastern Michigan Transportation Authority
(SEMTA). (80a).
1 0 2
E. The metropolitan Detroit community has joined to
gether in establishing a Metropolitan Sewage System.
(80a).
F. The metropolitan Detroit community has joined to
gether in establishing a metropolitan park authority
known as the Huron-Clinton Metropolitan Authority.
(80a).
G. The local governments have recognized their inter
dependence by creating the Southeastern Michigan
Council of Governments (SEMCOG). (80a).
H. The school authorities have recognized the metropolitan
nature of education by creating intermediate school dis
tricts which provide educational services on an inter
district basis in each of the three counties. (80a).
I. A number of school districts encompass more than one
city. For example, Petitioner, Grosse Pointe Public
School System, encompasses five separately incor
porated cities (Grosse Pointe Park, Grosse Pointe City,
Grosse Pointe Farms, Grosse Pointe Woods, and Grosse
Pointe Shores) and part of a sixth (Harper Woods), most
of which have at least one common indistinguishable
pavement border with the City of Detroit. (80a).
J. The adjacent Harper Woods School District does not
cover the entire City of Harper Woods. The adjacent
Warren Fitzgerald School District does not cover the
entire City of Warren. All are separated from Detroit by
invisible boundary lines. (80a).
K. Thirty-three point eight percent (33.8%) of workers liv
ing in Oakland County were employed in Wayne County
and fourty-four point two percent (44.2%) of workers
from Macomb County worked in Wayne County, Wayne
County being the county in which Detroit is the domi
nant city. (IVa 37).
L. The record reveals that many suburbanites, though not
living within the corporate city limits of Detroit, con
ceive themselves as “Detroiters” . (IVa 40).
1 0 3
The white students of the metropolitan Detroit community,
who like Detroit school children are educated by the State, sur
round the State-contained black school children of Detroit. Such
racial isolation was condemned by this Honorable Court nineteen
years ago in Brown v. Board o f Education o f Topeka, (Brown I),
347 U.S. 483 (1954) when the Court said:
“To separate them (blacks) from others of similar age and
qualification solely because of their race generates a feeling
of inferiority as to their status in the community that may
affect their hearts and minds in a way unlikely ever to be
undone.” 347 U.S. 494.
A Detroit-only plan leaves Detroit school racially identifiable
as black and perceived as black, whereas a metropolitan remedy
would effectively desegregate Detroit schools and convert them to
“just schools” without racial identifiability. Brown v. Board o f
Education o f Topeka, (Brown II), 349 U.S. 294 (1955) offers lower
courts guidelines as to the methods of desegregation:
“To that end, the Courts may consider problems related to
administration, arising from the physical condition of the
school plant, the school transportation 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 non-racial basis, and revision of local laws
and regulations which may be necessary in solving the fore
going problems. They will also consider the adequacy of any
plans the Defendants may propose to meet these problems
and to effectuate a transition to a racially nondiscriminatory
school system.” 349 U.S. 300-301.
The District Court and the Sixth Circuit, both in panel and
en banc, came to realize that the only way unconstitutional racial
school isolation, in the extensively interrelated metropolitan
Detroit community, can be eliminated is through a metropolitan
desegregation remedy.
A METROPOLITAN DESEGREGATION REMEDY IS
EDUCATIONALLY SOUND AND PRACTICAL
There are several elements that must be present for a deseg
regation plan to work. Every school, or almost every school,
104
should contain a mixture of the races that roughly approximates
the make-up of the student community as a whole. Swann v.
Charlotte-Mecklenburg Board o f Education, 402 U.S. 1 (1971);
Davis v. Board o f School Commissioners o f Mobile County, 402
U.S. 33 (1971). The plan should be educationally sound. Swann,
supra. The plan must be practical. Swann, supra ; Davis, supra.
Swann pointed out that “mathematical ratios” , i. e., racial
mix, may be “a starting point in the process of shaping a remedy”
but is not an “inflexible requirement.” In the instant case, the
District Court found that in the metropolitan Detroit community
the ratio of whites to blacks was approximately 75% to 25% and
the Court employed this as a flexible ratio similar to the ratio used
in Swann.
No desegregation plan can function unless it is educationally
sound. The educational soundness of an integration plan is to a
large extent dependent upon how effectively it gives children an
opportunity to have stable multi-racial experiences in groups com
posed substantially like the surrounding community. All the edu
cators that testified on this record agreed that a metropolitan plan
is educationally sound. (82-85a) (IVa 117-19).
As explained in the discussion on transportation, infra, the
proposed metropolitan plan is most practical because it takes into
consideration the peculiarities of metropolitan Detroit geography
to minimize transportation distances and times. The plan also
makes optimum utilization of existing faculties.
Under existing Michigan law, pupils can be educated in dis
tricts other than those in which they resideJ153! Michigan statutes
authorize a variety of arrangements whereby school districts may
educate their pupils in other districts. 11541 state as well as local
[153] in the current Michigan Constitution was expressly drafted to
permit non-resident attendance. The Honorable George Romney, Vice-
President of the Constitutional Convention and Chairman of an education
subcommittee (and subsequently Governor of Michigan) presented the formal
report of the Education Committee to the Convention and immediately
added: “ In other words, the language, as explained in the first two para
graphs, permits school districts to arrange for the education of their children
in other school districts, but it does require them to make provision for
education of their children from the kindergarten through grade 12.”
l1541MCLA §§340.24; .69; .121(c) and (d); ,330(m) (1973-74 Supp.);
340.359; .582; .582(a); .590; .590(a); .590(b); .591; .592; .761; .763 (1973-
74 Supp.); and .771(a).
105
funds may be expended for non-resident education.!155 J The
normal method of arranging for non-resident attendance is by con
tractual agreement between the districts.!156! In addition, con
tracts may be arranged between suburban school districts and any
of the three intermediate school districts over-lapping the metro
politan Detroit area who are already authorized to supervise and
coordinate the education of handicapped children l1571 and voca
tional education on a gross district basis. !158!
Teacher reassignments are similarly manageable under present
Michigan law. Legislative interest in this area has already been
shown by the recent enactment of a statute protecting the interest
of a group of teachers transferred from one district to another:
Act 101, § 51(4), Mich. Pub. Acts of 1973: “Special educa
tion personnel transferred from 1 school district to another
to implement the school code of 1955, as amended, shall be
entitled to all rights, benefits, and tenure to which the person
would otherwise be entitled had he been employed by the
receiving district originally.”
As a recipient of federal aid to education, the State Board of
Education has a duty under Title VI of The Civil Rights Act of
1964, 42 U.S.C. 12000(d) to maintain unitary schools, a require
ment which the Courts below have mandated in the instant case.
Michigan has revised its school code to provide the State Board
with whatever powers it may need to insure compliance with Title
VI. M.C.L.A. § 388.1031 provides:
“Sec. 1. The state board of education may take any necessary
action consistent with state law to comply with the provi
sions of Public Law 531 of the 83rd Congress, known as the
‘cooperative research act’ to encourage research and related
[155!MCLA § §340.24; 340.69; 340.121(d), 340.582(a), 340.761, 340.763
(1973-74 Supp.), 340.771(a), (1973-74 Supp.), 340.33(m) and (q) (1973-74
Supp.); Act 101, § 111 of Mich. Pub. Acts of 1973.
!156!see, Jones v. Grand Ledge Public Schools, 349 Mich. 1,84 N.W. 2d 327
(1957).
[157! m CLA §340.771 (a) (1973-74 Supp.).
H58] MCLA § 340.330 (m); and see (1973-74 Supp.)
106
activities which are of significance to education and with the
provisions of Public Law 10 of the 89th Congress, known as
the ‘elementary and secondary education act of 1965’ . . .
In summary, the Detroit Board of Education believes that a
metropolitan remedy is constitutionally mandated and statutorily
available under Michigan public school law. Perhaps the most
eloquent statement of its position was made by the District Court
on July 19, 1972:
“I think it should be clearly understood, however, that in my
disposition of the motions before me today this Court does
not retreat from nor abandon . . . our conclusion that any
plan for the desegregation of the public schools of the City of
Detroit would not accomplish desegregation and that only a
Metropolitan Plan of desegregation would accomplish the de
segregation of those schools.
“The Equal Protection clause of the Fourteenth Amendment
to the Constitution of the United States, as I read it, is not
geographically limited. It is difficult for this Court to believe
that any higher judicial authority of the United States would
or, for that matter Constitutionally could, engraft on that
amendment any such geographical limitation. The vindication
of the Plaintiffs’ Constitutional right to equal education can
not be denied on the claim of alleged sovereign powers of
local school districts.” (R. 1947-48).I159]
[159] $ee aiSO} Newburg Area Council, et al. v. Board o f Education o f Jef
ferson County, Kentucky, et al., Civil Nos. 73-1403, 73-1408 (6th Cir. filed
Dec. 28, 1973) Slip Op. at 11.
107
VI
THE TRANSPORTATION SYSTEM PROPOSED IN THE
METROPOLITAN REMEDY CAN BE PRACTICAL AS TO
REASONABLE DISTANCES AND TRAVEL TIMES AND
WILL EFFECTIVELY DESEGREGATE.
In Swann v. Charlotte-Mecklenburg Board o f Education, 402
U.S. 1 (1971), this Honorable Court held student transportation
to be one tool of desegregation and declared that “desegregation
plans cannot be limited to the walk-in school,” 402 U.S. 30. The
concurring opinion in Keyes v. School District No. 1, 413 U.S.
189 (1973) noted: “. . . Yet the court in Swann was unquestion
ably right in describing bus transportation as ‘one tool of school
desegregation’ . . . [citation omitted] 413 U.S. 244.
On the same day the Swann decision was handed down, this
Honorable Court upheld a District Court decision that the North
Carolina antibusing statute was unconstitutional in North Carolina
State Board o f Education v. Swann. U60] jn invalidating the legis
lation the unanimous opinion stated:
“As noted in Swann. . .bus transportation has long been an
integral part of all public educational systems, and it is un
likely that a truly effective remedy could be devised without
continued reliance upon it.” North Carolina State Board o f
Education, supra at 46.
Anywhere from 39% to two-thirds of all American children
today ride buses to their schools, t* 1615 The scope of student
transportation in Michigan is no different.
“The transporting of elementary and secondary school youth
for educational purposes within the State of Michigan is by no
means a new phenomenon. In many communities; rural, urban and
suburban; riding a school bus is almost a way of life.
“Michigan school districts have for many years either operat
ed their own bus fleets or contracted with commercial transpor
116°] 402 U.S. 43 (1971)
t1611 S w a n n , 402 U.S. 30; K e y e s , 413 U.S. 189,24, n. 22.
108
tation companies and individual carriers for purposes of transport
ing pupils. Students have been traditionally transported in order to
successfully bring about school district consolidation; to effective
ly and efficiently utilize available classroom facilities (within and/
or across district lines); to avail pupils of special educational
programs and services offered only at certain school sites; to assure
pupil safety; and, of course, to eliminate the necessity of having
students walk excessive distances.
“During 1969-70 (the most recent year for which sufficient
and adequate data has been collected and audited), 508 of
Michigan’s then 638 school districts provided transportation
services for approximately 790,000 pupils. This service required
the use of more than 10,000 motor vehicles traveling in excess of
83,000,000 miles. The cost to those school districts providing
transportation services was $43,139,356. The cost to the districts
is, however, offset under the provisions of Act No. 312 of the
Public Acts of 1957, State Aid for Transportation of School Child
ren. In 1969-70, the 508 school districts operating district-owned
vehicles and/or leasing commercial carriers were reimbursed
$28,267,927 for providing transportation services for their “eli
gible” students. Of the 10,028 school buses operating in 1969-70,
8,771 were district-owned vehicles which transported over
745,000 pupils. Table 10, Transportation Comparison, shows the
number of pupils transported during the past twenty years and
clearly indicates that the trend is and continues to be in the direc
tion o f reducing the numbers o f school districts and increasing the
numbers of pupils transported by district-owned vehicles. . .”
t162 ̂ [emphasis added]
The foregoing language was written by the Michigan State
Board of Education and submitted to the District Court as part of
the State’s metropolitan plan for desegregation.t163! The State
reported to the Court that in the year 1969-70, over 790,000
Michigan students were transported to their schools, “within and/
or across district lines.”
[162] Metropolitan One-Way Student Movement and Reassignment Plan, as
submitted to Federal Court Judge Stephen J. Roth by the Michigan State
Board of Education, February 1, 1972, pages 26-27.
[163] N0te that the State acknowledges in its report to Judge Roth that it
does provide cross district transportation for educational purposes other than
school desegregation, see also n. 113, infra.
109
The District Court found that in Wayne, Macomb and Oak
land Counties (parts of each of these three counties are covered by
the proposed metropolitan desegregation plan), more than
300,000 pupils rode to school on some kind of bus transportation.
Of these, 60,000 rode the regularly scheduled public transit ve
hicles. D 641
In the State of Michigan, 35% to 40% of all school children
are transported to school. In comparison, the metropolitan
Detroit area school districts eligible for state reimbursement for
transportation costs in 1969-70 transported from 42% to 52% of
their school children. (Petition for Ceriorari, App. 72a). These
suburban transportation figures indicate that student transpor
tation is as popular, and at least as extensive, in an urban-suburban
area as in the rural areas.
The State of Michigan has no problem in providing transpor
tation for almost three quarters of a million students for non
desegregation purposes. When educational necessity dictates, the
State of Michigan has no problem implementing cross district bus
transporta tion.n 65]
However, when student transportation for purposes of pro
tecting constitutional rights is involved, the Michigan Attorney
General attempts to “testify” as to the alleged unreasonably mas
sive scope of an as yet undeveloped plan of metropolitan student * 165
[ 164-] gee Appendix to Petition for Certiorari, pp. 72a-73a. In Detroit, ap
proximately 41,000 students are transported via public transportation and
chartered bus at the expense of the Detroit school system, and Detroit
students.
[165] $ee testimony of Eugene Kuthy (IVa22), wherein cross district trans
portation occurs in Genessee County, Michigan; testimony of Harold Wagner,
Supervisor of the Pupil Transportation Section, Michigan Department of Edu
cation, (Va202), “there are none of these boundary rules that do apply to
transportation of Special Education pupils.” See also, State Report to Judge
Roth, n. 111 supra.
The most obvious example of cross district transportation, however, is
the instance of the Carver District (North of the Detroit district) transpor
tation of black children into Detroit’s Northern High School. This cross dis
trict transportation existed for several years, see pages 65-67, supra.
110
transportation t 1 6 6 *We respectfully remind this Honorable Court
that there is no plan of desegregation to review. Hence, any specu
lation as to the breadth or depth of a cross district transportation
plan is unfounded.
The sheer size of any desegregation area is in and of itself,
not the sole criterion by which to judge the propriety of a trans
portation remedy. For example, in Swann this Court approved a
transportation plan that involved a desegregation area of 550
square miles; in Jacksonville, Florida, the school district encom
passes 846 square miles and under a desegregation plan, transports
approximately 50% of its 111,000 students.
These figures are to be compared with the tentatively pro
posed metropolitan Detroit area desegregation plan, which if
adopted totally, according to the Brief of Petitioners William G.
Milliken, et al. (p. 16), would cover an area approximately 700
square miles with no suggestion that anywhere near fifty percent
of the students encompassed would be transported.
Let there be no mistake. The District Court moved with great
moderation and ruled that student transportation was a permis
sible remedial tool only after entertaining extensive proofs. The
Court rejected the Detroit Board’s proposal of a desegregation area
encompassing the 83 school districts in the tri-county area, for a
more workable tentative desegregation area which includes the
present 52 school districts surrounding Detroit’s irregular boun
daries. Seventeen of these school districts are adjacent to the City
of Detroit and the balance are within eight miles of the Detroit
city limits.! 167]
[166] $ee grjef 0f Petitioners William G. Milliken, et al. pages 53 and 63,
wherein the numbers of school districts, square miles and pupil population of
the tri-county area are emotionally characterized. But Petitioner fails to point
out that student transportation is presently being provided by the State of
Michigan in districts which already include more area than the tentatively
proposed desegregation area. For example, Tahquamenon District in the
Upper Peninsula of Michigan has 1,286 square miles where students are
transported 114 miles round trip 81 minutes one way daily. Testimony of
Harold Wagner (Va206).
[ 167] See Maps on Pages 115, 116, infra.
The compelling logic of cross district student transportation
in this case is illustrated by the scale maps of the desegregation
area provided on the following pages. Plate Number 1 depicts the
tentative scope of the proposed metropolitan Detroit desegregation
area. Plate Number 2 highlights examples of the manageability and
facility by which students can be readily transported for desegre
gation purposes consistent with this Honorable Court’s guidelines.
The District Court correctly concluded that the Detroit
school district could be desegregated, and avoid resegregation, by a
cross district student transportation plan which would not exceed
the time and distance limitations of SwannJ1681 The trial court
placed a tentative ceiling of forty minutes’ travel time on any plan
to be developed. In many parts of the proposed desegregation
area, far less travel time would be required.11691 The District
Court noted:
“This court weighs more heavily the judicially recognized
concern for limiting the time and distance of pupil transpor
tation as much as possible, consistent with the constitutional
requirement to eliminate racially identifiable schools...” D70]
As the following maps illustrate, certain suburbs panhandle
into the Detroit boundary lines. As a result, suburbs such as Dear
born on the west side of Detroit and Grosse Pointe on the east side
of Detroit are within fifteen to twenty minutes from the heart of
downtown Detroit by surface street travel, and their white subur
ban schools are substantially closer to black Detroit schools. The
average distance for school bus trips in Michigan is eight and one-
half miles, one-wayJ1711 However, a few examples of what can 168 169
[168] 402 U.S. at 30.
[169] None of the travel time under the proposed plan would even come
close to comparing with the extensive travel time presently existing in the
metropolitan area. See e.g., testimony of Eugene Kuthy (IVa 15) wherein
one hour bus trips are not unconventional; Harold Wagner (Va206-207),
showing that the tri-county area bus transportation reaches upwards of one
hour and fifteen minutes travel time, one-way; Kuthy (lV all-12, 18, 23,
25-27) wherein a metropolitan transportation program offers certain econo
mies of scale as opposed to the excess costs of operating a Detroit-only trans
portation system; Wagner (Va217) in suburban areas surrounding urban area,
more economical and greater use is obtained from each bus. See also, f.n. 121,
infra.
11701 (68a). See also (68a-70).
11711 See Testimony of Harold Wagner (Va225).
112
be accomplished with a cross district transportation plan (as illu
strated on Plate 2, page 116, infra, covering four miles or less, one
way, dramatize the effectiveness and rationality of transportation
as a remedy:
(1) On the east side of Detroit a black Detroit child living in
the attendance area of such black Detroit schools as South
eastern High School, Remus Robinson Junior High School or
Carstens Elementary School is equally capable of attending
Grosse Pointe South High School, Pierce Junior High School
or Defur Elementary School, in the all white Grosse Pointe
school district. Indeed, a black Detroit child living near the
boundary of Detroit would be able to attend a Grosse Pointe
School by traveling an equal distance in the same time that
he presently travels to go to his black Detroit school.
(2) On the west side of Detroit, a black Detroit child could
live midway between the black Detroit MacKenzie High
School or the McFarlane, Parkman, Barton or Sherrill Elem
entary Schools and by traveling an equal distance, attend the
white Ford son High School or the McDonald or Maples Elem
entary Schools all in suburban Dearborn.
(3) On the northwest side of Detroit, it is possible for a
black Detroit child to travel an equal distance in the same
time period and attend either the black Detroit Mumford
High School, Beaubian Junior High School or Higginbotham
Elementary School, or attend the white Oak Park High
School in suburban Oak Park, the white Ferndale High
School in suburban Ferndale, or the white Best Elementary
School in suburban Ferndale.
(4) On the northeast side of Detroit the same situation pre
vails. A black Detroit child could travel an equivalent
distance in the same time and attend either the black Detroit
Pershing High School, or the white Fitzgerald High School in
suburban Warren or the white Hazel Park High School in
su burban Hazel Park.
Although the foregoing represent but a few examples of the
minimal travel time necessary to effectively desegregate the De
troit school district and prevent resegregation under a cross district
transportation plan, there are other similar situations which can
likewise be established.
In many instances a rerouting of existing suburban transpor
tation routes, for the purpose of a metropolitan desegregation
remedy, would result in cross district transportation routes which
are shorter than existing intra-district routes. There are also pos
sible economies not realized now by eliminating duplication of
present service.!172)
The logic of a cross district transportation plan is manifest. In
many instances it would result in less travel time than: (a) would
occur in the assignment of a Detroit black child to a racially iden
tifiable black Detroit school under any Detroit-only remedy, or
(b) presently occurs in the transportation assignment of a subur
ban white child to a white suburban school.!173) Detroit-only
transportation offers all of the worst features of an illusory
remedy, Le. transportation of black children to the few white
areas left in Detroit, as opposed to the effective remedy of cross
district transportation; Le. desegregation of a dual system and its
vestiges.
Even the “neighborhood school” concept defense does not
reach constitutional proportions because in the proposed desegre
gation area it is nothing more than a myth. The fact that the
State of Michigan provides extensive bus transportation to ap
proximately 300,000 children in the metropolitan area clearly re
buts any contention that transportation of students would some
how disrupt the “neighborhood school” program.
f172) See testimony of Eugene Kuthy (IV all-I2 , 18, 23, 25-27), wherein a
metropolitan transportation program offers certain economies of scale as
opposed to the excess costs of operating a Detroit-only transportation
system. See also Wagner testimony (Va217).
[173] See Petition for Certiorari, (67a), wherein the District Court found
that, in Michigan and the tri-county area, pupils often spend upwards of one
hour and up to one and a half hours one-way on a bus ride to school each
day.
114
Furthermore, the trend of transportation in Michigan is in
creasing. The State has suggested that there will be more student
transportation in the future and less walk-in neighborhood schools
regardless of this case, due to the State’s continuing policy of con
solidation of school districts and the resulting transportation im
plementation .[174]
This Honorable Court’s opinions in Swann, North Carolina
State Board o f Education, and the concurring opinion in Keyes
recognize transportation as a valid remedial tool of school desegre
gation which shall be used with moderation and discretion in light
of the mandate that “ [t] he district judge or school authorities
should make every effort to achieve the greatest possible degree of
actual desegregation.I* 175J
The District Court made no rush to judgment. Rather, it cor
rectly determined, as the maps clearly illustrate, that the constitu
tional right to equal protection of law cannot be made dependant
upon the “fortuitous” circumstance of geography.
Since Brown I, the task of ensuring Fourteenth Amendment
rights has resided with the judiciary. The lower courts have fol
lowed the dictates of the Constitution and sound discretion.
Metropolitan transportation is the only effective remedy for the
de jure segregated condition of the Detroit school district.
D74] See f.n. 110, supra, at p. 82.
[175] Swann, supra at 26. [emphasis added].
115
PLA
TE 2
116
117
VII
THIS HONORABLE COURT HAS ESTABLISHED THAT
THE ELEVENTH AMENDMENT DOES NOT PREVENT A
FEDERAL COURT FROM ORDERING THE EXPENDI
TURE OF STATE FUNDS FOR THE IMPLEMENTATION
OF A PLAN OF DESEGREGATION.
State Defendants have suggested that the financing and im
plementation of a desegregation remedy involving an expenditure
of state funds is beyond the power of the parties to this
cause.!176! They allege that only the State of Michigan, not a
party to this lawsuit, has the power to implement a remedy. The
argument presented by the State Defendants is not novel, it is
often made by state officers in an attempt to frustrate remedial
orders of federal courts in the area of school desegregation.
Cooper v. Aaron, 358 U.S. 1 (1958). This argument consistently
has been laid to rest as quickly as it has been raised. The source of
this argument is traceable to the restrictions on judicial power
vis-a-vis the States, as enunciated in the Eleventh Amendment and
as related to the Supremacy Clause. It is countered by the con
sistent holdings of the courts that it is the duty of state officers to
support both the Constitution and the rights guaranteed against
infringement by the States under the Fourteenth Amendment.
Although this Honorable Court has recognized the immunity
of a State from suits involving direct actions against government
funds or property for complainants’ personal benefit,!177! this
Honorable Court has not deemed the Eleventh Amendment a
serious impediment to judicial action whenever the protection of
compelling Constitutional rights has been at issue. See, e.g.,
Osborn v. Bank o f United States, 9 Wheat 738 (1824); Graham
v. Folsom, 200 U.S. 248 (1906); Ex parte Young, 209 U.S. 123
(1908).
[176] Brief for Petitioners William G. Milliken, et al. at 41-46.
!1771 See, e.g., In re State o f New York, 256 U.S. 490 (1920) (suit against
State Superintendent of Public Works for damages resulting from tugboat
operation) and Ford Motor Co. v. Department o f Treasury o f Indiana, 323
U.S. 459 (1945) (suit against state officials for tax refund) - Both of these
cases are relied upon heavily by Petitioners William G. Milliken, et al.
In school desegregation cases, this Honorable Court has fol
lowed that rule. l178lln Cooper v. Aaron, 358 U.S. 1 (1958), a
case which involved obstructionist tactics by the Governor and
Legislature of the State of Arkansas against implementation of
federal court ordered desegregation, this Honorable Court stated:
“In short, the Constitutional rights of children not to be
discriminated against in school admission on grounds of race
or color declared by this Court in the Brown case can neither
be nullified openly and directly by State legislators or State
executives or judicial officers, nor nullified indirectly by
them through evasive schemes for segregation whether at
tempted ‘ingeniously or ingenuously. ’ ” 358 U.S. at 17.
In Griffin v. School Board o f Prince Edward County, 377
U.S. 218 (1964), a case which involved the closing of public
schools and the operation of a system of private schools by Prince
Edward County, Mr. Justice Black, speaking for a unamious Court,
summarily dismissed the Eleventh Amendment argument:
“It is contended that the case is an action against the State, is
forbidden by the Eleventh Amendment, and therefore should
be dismissed. The complaint, however, charged that State and
county officials were depriving Petitioners of rights guaran
teed by the Fourteenth Amendment. It has been settled law
since Ex parte Young, [citation omitted], that suits against
State and county officials to enjoin them from invading con
stitutional rights are not forbidden by the Eleventh Amend
ment.” 377 U.S. at 228.
H 78! See Wright, LAW OF FEDERAL COURTS 186 (2d ed. 1970):
“. . . [11 n some situations, as where a state has failed to desegregate its
schools, affirmative action is required of the state to fulfill its constitu
tional obligations, and there would not be even the possibility of raising
the constitutional issue [Eleventh Amendment] defensively . . . .
* * * *
“. . . [I] n earlier years Ex parte Young was the foundation from which state
utility regulation and welfare legislation were attacked. Today it pro
vides the basis for forcing states to desegregate their schools[251 and
reapportion their legislatures.”
119
This Honorable Court went on to state that the District Court
could force the various Defendants, the Board of Supervisors,
School Board, Treasurer, Division Superintendent of Schools of
Prince Edward County, the State Board of Education and the
State Superintendent of Education - all of whom held duties
which related “directly or indirectly to the financing, supervision,
or operation of the schools” - to undertake positive action to
reopen the public schools in Prince Edward County:
“For the same reasons, the District Court may, if necessary
to prevent further racial discrimination, require the Super
visors to exercise the power that is theirs to levy taxes to
raise funds adequate to reopen, operate and maintain without
racial discrimination a public school system in Prince Edward
County . . . [emphasis added] 377 U.S. at 233.
Thus, it becomes readily apparent that the Michigan State
Defendants, through the exercise of inherent powers which they
possess as officers and instrumentalities of the State, can ef
fectuate and implement the remedy ordered by the District Court
in this cause.I579]
In Evans v. Ennis, 281 F.2d 385 (3rd Cir. 1960), a class
action suit against the Delaware State Board of Education, the
State Superintendent of Public Instruction, and three county
boards of education to desegregate the public schools throughout
the State of Delaware, the District Court, dispensing with conten
tions similar to those being advanced by the Michigan State De
fendants in this cause, stated:
“Doubtless integration will cost the citizens of Delaware
money which otherwise might not have to be spent. The
education of the young always requires, indeed, demands,
̂ J Should it subsequently be determined that the present Michigan State
Defendants do not, in fact, have the inherent or specific powers to implement
the remedy ordered by the District Court in this cause, the District Court
may add such parties as are necessary to effectuate a complete and adequate
remedy and to achieve “an orderly and fair administration of justice.” Griffin
v. School Board o f Prince Edward County, 377 U.S. 218 (1964); Fed. R. Civ.
P. 19, 21.
120
sacrifice by the older and more mature and resolute members
of the community. Education is a prime necessity of our
modern world and of the State of Delaware. We cannot
believe that the citizens of Delaware will prove unworthy of
this sacred trust.” 281 F.2d at 389.
* * *
“This second element of the plan, if it is to be consummated,
will necessitate the making of immediate estimates as to
future school facilities. The making of such estimates is not a
simple matter. Their creation will require the exercise of
energy, skill, patience, and creative adaptability by the public
school authorities, and, as we have indicated, funds to be
appropriated by the General Assembly o f Delaware. The duty
imposed on the State Board of Education in this respect is as
clear as is the responsibility confided to this court and to the
court below to make certain that the mandate of the
Supreme Court is carried out.” 281 F.2d at 392J18°1
As the District Court correctly recognized in Swann v. Char-
lotte-Mecklenburg Board o f Education, 318 F. Supp. 786 (W.D.
N.C. 1970), the implementation of procedures necessary to assure
any Constitutional rights of the individual f* 1811 may place, directly
or indirectly, additional financial burdens upon the State, even
though it is not a formal party to the proceedings:
“However, if a Constitutional right has been denied, this court
believes that it is the Constitutional right that should prevail
against the cry of ‘unreasonableness’. . . The unreason
ableness of putting the State to some expense cannot be
weighed against or prevail over the privilege against self
D80] Accord, Kelley v. Metropolitan County Board o f Education o f Nash
ville and Davidson County, Term. 463 F.2d 732 (6th Cir. 1972),cert. denied
409 U.S. 1001 (1972); Swann v. Charlotte-Mecklenburg Board o f Education,
402 U.S. 1 (1971); Cisneros v. Corpus Christi Independent School District,
330 F. Supp. 1377 (1971).
[181] por examples of the reaffirmation of other Constitutional rights,
which may involve demands upon the State Treasury, see, e.g., Argersinger v.
Hamlin, 407 U.S. 25 (1972) (furnishing counsel for all indigents charged
with misdemeanors); Gideon v. Wainwright, 372 U.S. 335 (1963) (furnishing
counsel for all indigents charged with felonies); Reynolds v. Sims, 377 U.S.
533 (1964) (legislative reapportionment).
121
incrimination, or the right of people to be secure in their
homes. If, as this court and the Circuit Court have held, the
rights of children are being denied, the cost and inconven
ience of restoring those rights is no reason under the Consti
tution for continuing to deny them.” 3 18 F. Supp. at 801.
Given the extensive participation by the State Defendants in
all facets of Michigan Public School Education, the State Defen
dants can be ordered to implement an effective plan for desegrega
tion by the District Court.
122
VOI
A THREE JUDGE DISTRICT COURT IS NOT REQUIRED
SINCE THE CONSTITUTIONALITY OF A STATEWIDE
STATUTE IS NOT BEING CHALLENGED.
Amici Curiae Bloomfield Hills School District, et al., con
tend that the District Court and the Sixth Circuit Court of Ap
peals erred by failing to order the convening of a three-judge dis
trict court under 28 U.S.C. § 2281.U82l This contention is based
upon the theory that any order implementing a metropolitan plan
for desegregation would . .necessarily involve restraining the en
forcement, operation or execution of statutes of state-wide appli
cation.” 1182 1831 What Amici Curiae fail to discern is that any court
ordered desegregation plan in this cause would not enjoin a statute
which has been attacked as unconstitutional. The injunction, re
ferred to by Amici Curiae, would require state and local officials
to refrain from exercising certain powers under state statutes.
Such state statutes have not been challenged as unconstitutional
[182] jn his “State of the Federal Judiciary — 1972” report to the American
Bar Association, Mr. Chief Justice Burger suggested that:
“ [w]e should totally eliminate the three-judge district courts that now
disrupt district and circuit judges’ work. . .
* * *
. . . [t] he original reasons for establishing these special courts, whatever
their validity at the time, no longer exist.”
Burger, The State o f the Federal Judiciary - 1972, 5 8 A.B.A.J. 1049,
1053 (1972).
Other commentators have suggested that the three-judge courts’ useful
ness may now be very limited:
“Recently, however, both reapportionment and desegregation suits have
virtually disappeared from three-judge court dockets because of the interpre
tation of the three-judge court statute given by the Supreme Court in Bailey
v. Patterson, holding that three judges are not required to hear cases when the
challenged statute is clearly unconstitutional, as determined by previous
decisions in similar cases. Now, more than a decade after Brown v. Board o f
Education and Baker v. Carr, desegregation and reapportionment cases can
usually be handled by a single judge. Whether some new class of cases involv
ing the same degree of public interest and reaction will develop is uncertain.
It might be noted, however, that the center of current controversy over fed
eral courts and state government involves busing — a form of relief that can
be ordered by a single judge” , [footnotes omitted]. Comment, Why Three-
Judge District Courts?, 25 Ala. L. Rev. 371, 379-80 (1973).
[183] grief for Amici Curiae, Bloomfield Hills School District, et al. page 20.
123
by either the Courts or the Plaintiffs below. 11841
Judicial Code,28 U.S.C. §2281 states in pertinent part:
“An interlocutory or permanent injunction restraining
the. . .execution of any State statute by restraining the action
of any officer of such State in the. . .execution of such stat
ute. . .shall not be granted by any district court or judge
thereof upon the ground o f the unconstitutionality o f such
statute unless the application therefor is heard and determin
ed by a district court of three judges under Section 2284 of
this title.” [emphasis added].
Inasmuch as any action of state officials that may be enjoined in
the instant case is not pursuant to a state statute that has been
challenged as unconstitutional, this case does not fall within the
purview of 28 U.S.C. §2281. This is particularly true in light of
this Honorable Court’s strict construction of 28 U.S.C. §2281.
See Phillips v. United States, 312 U.S. 246, 250-51 (1941).
In Phillips v. United States, supra, a three judge court granted
an interlocutory injunction restraining the Governor of Oklahoma
from interferring with the completion of a federal dam which
would cause flooding of state highways. The Governor had de
clared martial law and had ordered the State Adjutant General to
take control of the dam site. The authorizations under which he
presumed to act were the state constitution 1185 1 and a statute
authorizing and requiring him to call out the militia in case of war
or other contingencies including “any forcible obstructing of the
execution of the laws or reasonable apprehension thereof, and at
1184] Act 48, Mich. Pub. Acts of 1970 was deemed unconstitutional. How
ever, a three-judge court was not required. Act 48 was enacted by the Michi
gan Legislature for the sole purpose of thwarting the implementation of a
desegregation plan in Michigan’s only first class school district, the Detroit
school system. Since the application of the statute was local in nature
(Detroit school system only) a three judge court was not required. Ex parte
Collins, 277 U.S. 565 (1928).
[185] wherein the Governor was given “supreme executive power,” acted as
“Commander in Chief” of the State Militia and caused “ the laws of the state
to be faithfully executed.” 312 U.S. at 251.
124
all other times he may deem necessary. . . Phillips, supra at 252.
The United States in its Complaint did not attack the validity
of these provisions. However, it did contend that the suit was to
restrain the enforcement or execution of a statute on the ground
of its unconstitutionality aad therefore properly was before three
judges. Rejecting this claim, Mr. Justice Frankfurter said:
“The claim proves too much. Probably most of the actions of
governors trace back to the common provision charging them
with taking care that the laws be faithfully executed. Some
constitutional or statutory provision is the ultimate source
and all actions by state officials. But attack on lawless exer
cise of authority in a particular case is not an attack upon the
constitutionality of a statute conferring the authority even
though a misreading of the statute is invoked as justification.
At least not within the Congressional scheme of §266. . . .”
[Judicial Code of 1911, former 28 U.S.C. §380 (1940),
present 28 U.S.C. § 2281 ]. 312 U.S. at 252.
The remedy sought by the Plaintiffs below is an order by the
District Court requiring the State Defendants to exercise their
power to bring about the desegregation of the Detroit school
system. The State Defendants have this power through statutes
enacted by the Michigan Legislature. Hence, an order of the Dis
trict Court would condition the state officials’ enforcement of
these statutes in a manner that would effectuate the desired
remedy. It cannot seriously be argued that Plaintiffs in this case
are seeking to invalidate the statutes through which appropriate
state officials will grant relief.!186 ̂ for this reason, 28 U.S.C.
§ 2281 does not apply.
[186] Amici Curiae, Bloomfield Hills School District, etal. have cited Spencer
v. Kugler, 326 F. Supp. 1235 (D.N.J. 1971 ),a ffd , 404 U.S. 1027 (1972) for
the proposition that a three judge court is required in the instant case. In
Spencer, Plaintiffs sought to challenge the constitutionality of New Jersey’s
statutory scheme establishing the boundaries of school districts to coincide
with the boundaries of the state’s political subdivisions. In the instant case.
Plaintiffs do not seek to challenge the constitutionality of any Michigan
statutes other than Public Act 48. (See f.n. 105 supra).
125
CONCLUSION
For the reasons above stated it is respectfully submitted that
this Honorable Court affirm the decision of the Court of Appeals
for the Sixth Circuit.
Respectfully submitted,
GEORGE T. ROUMELL, JR.
RILEY AND ROUMELL
THOMAS M. J. HATHAWAY
JOHN F. BRADY
GREGORY P. THEOKAS
STANLEY C. MOORE, III
C. NICHOLAS REVELOS, Of Counsel
720 Ford Building
Detroit, Michigan 48226
Telephone: 313/962-8255
Counsel for Respondents,
BOARD OF EDUCATION FOR
THE SCHOOL DISTRICT OF
THE CITY OF DETROIT,
a school district of the first class;
Pa t r ic k McDo n a l d ,
JAMES HATHAWAY and
CORNELIUS GOLIGHTLY
members of the Board of
Education For The School District
of the City of Detroit and
NORMAN DRACHLER, Superintendent
of the Detroit Public Schools.
Dated: February 2, 1974
126
EXHIBIT I
PERCENTAGE OF TOTAL
REVENUE OF 54 METRO
AREA DISTRICTS (BY SOURCE)
District Local Revenue State A
Allen Park 66 33
Berkley 59 39
Birmingham 82 18
Bloomfield Hills 83 17
Centerline 78 20
Cherry Hill 37 60
Clarenceville 64 35
Clawson 43 56
Crestwood 58 41
Dearborn 94 5
Dearborn Hts. 37 62
Detroit 47 40
East Detroit 47 50
Ecorse 86 9
Fairlane (information not available)
Farmington 65 33
Ferndale 57 39
Fitzgerald 85 14
Fraser 49 50
Garden City 36 63
Grosse Pointe 88 1 1
Ham tram ck 85 6
Harper Woods 89 10
Hazel Park 46 50
Highland Park 64 23
Inkster 26 61
Lakeshore 35 63
Lakeview 45 52
Lamphere 75 24
Lincoln Park 55 43
Livonia 66 33
Madison Hts. 44 53
127
District Local Revenue State Aid
Melvindale
N. Dearborn Hts.
Oak Park
Redford Union
River Rouge
Riverview
Romulus
Roseville
Royal Oak
South Lake
South Redford
Southfield
Southgate
Taylor
Troy
Van Dyke
Warren
Warren Woods
Wayne
West Bloomfield
Westwood
Wyandotte
76
65
90
57
92
97
70
45
64
66
86
85
54
54
80
75
65
40
55
63
62
70
23
34
8
42
3
2
27
53
34
32
13
15
45
44
18
24
33
58
43
35
35
26
Source: Ranking o f Michigan Public High School-School District
by Selected Financial Data, 1971-72, Bulletin 1012,
Michigan State Department of Education (1973).